Prince either lived near or had friends near the
killing scenes. He was caught when a woman who was getting ready to
shower heard someone picking her door lock. She escaped from a rear
window and found a friend who came and confronted Prince. He excused
himself, but the description led to his arrest.
The woman said he may have followed her from a local
gym. All the previous victims had just left the gym, including a mother
and daughter. Prince struck when he knew they would be showering and
thus be less attentive to their surroundings. He later bragged about the
double killing to a friend and took to wearing the dead woman’s wedding
ring on a chain around his neck.
Prince, who is African-American, is unusual for
serial killers of his race in that he killed victims of a different race.
Cleophus Prince, Jr., was arrested by an officer with
the Birmingham Police Department after he was 'talked into' the East
Precinct. He was transferred to San Diego, California, by Detectives
from the San Diego Police Department.
PEOPLE v. CLEOPHUS PRINCE, JR
Filed 4/30/07
IN THE SUPREME COURT OF CALIFORNIA
S036105
THE PEOPLE, Plaintiff and Respondent,
v.
CLEOPHUS PRINCE, JR., Defendant and Appellant.
San Diego County Super. Ct. No. CR130018
Defendant Cleophus Prince, Jr., appeals from a
judgment of the San Diego County Superior Court imposing a sentence of
death following his conviction of six counts of first degree murder (Pen.
Code, 187, subd. (a)),[1]five
counts of burglary ( 459), and one count of rape. ( 261.) The jury found
true one rape-murder special-circumstance allegation and one multiple-murder
special-circumstance allegation. ( 190.2, subd. (a)(3) & (17)(C).) The
jury also found true the allegations that defendant used a knife in
committing each of the murders. ( 12022, subd. (b).) Defendant also was
convicted of six attempted burglaries ( 459, 664) and nine completed
burglaries of homes belonging to persons other than the murder victims
( 459), and perjury. ( 119.) The jury fixed the punishment at death. The
court imposed a judgment of death and also sentenced defendant for the
noncapital convictions. Defendants appeal is automatic. ( 1239, subd.
(b).)
We affirm the judgment in its entirety.
I. FACTS
A. Guilt Phase Evidence
1. The prosecutions case
We first provide an overview of the evidence.
Defendant and his girlfriend Charla Lewis moved into an apartment in the
Buena Vista Gardens apartment complex in the Clairemont area of San
Diego in December 1989. Defendant was employed by Expo Builder Supplies
beginning on January 10, 1990, usually working from 3:00 p.m. until
midnight. Later in the year he was employed at Nacomm Communications.
Tiffany Schultz was murdered on January 12, 1990;
Janene Weinhold was murdered on February 16, 1990, and Holly Tarr was
murdered on April 3, 1990. All three victims were young, attractive
White women who resided in or near the Buena Vista Gardens apartment
complex. A resident of that apartment complex testified that in the
interval between the Weinhold and Tarr murders, a man she identified as
defendant followed her home and stared at her.
The murders were similar to each other in many
respects; circumstantial evidence tied defendant to the crimes; DNA and
other evidence connected defendant to the Weinhold murder, and Tarrs
opal ring was found in Charla Lewiss possession.
In late April 1990, defendant twice attempted to
enter apartments at the Torrey Pines Village apartment complex belonging
to two young women. In early May 1990 he followed a woman from the beach
to the La Jolla Shores beach house she was visiting and tried to force
his way into the house, but was foiled when the woman pushed him over
and fled.
On May 20, 1990, Elissa Keller was murdered in her
apartment on Trojan Avenue in San Diego. The apartment was close to
defendants new residence at the Top of the Hill apartment complex. The
murder was similar to the earlier murders; certain circumstantial
evidence implicated defendant; he was seen wearing Kellers ring, and
various incriminating statements also tied him to the crime.
There was evidence that on August 2, 1990, defendant
committed another burglary of an apartment located in the Top of the
Hill apartment complex. The apartment was occupied by three young women.
There was evidence establishing that defendant, at a local Thomas Cook
Foreign Exchange office, exchanged the lire that were stolen in this
burglary.
On September 13, 1990, Pamela Clark and her daughter
Amber Clark were murdered in their home in the University City area of
San Diego. The murder was similar to the other murders; defendant made
incriminating statements, and he was seen wearing Pamelas wedding ring.
A series of burglaries and attempted burglaries in
various areas of San Diego was committed between October 1990 and
February 1991. Incriminating statements, possession of proceeds of the
burglaries, positive identifications of defendant and his automobile,
and other evidence tied defendant to the crimes, many of which involved
his following young women from a Family Fitness Center on Miramar Drive
in San Diego to the womens homes and attempting to enter the womens
residences while the occupant showered or prepared to shower.
The defense was mistaken identification and alibi.
A more detailed account of the evidence adduced at
trial follows.
Count 1 the murder of Tiffany Schultz
On January 12, 1990, Tiffany Schultz, a White woman
who was 21 years of age, was seen sunbathing in the doorway of her
second floor Canyon Ridge apartment about 10:00 a.m. The Canyon Ridge
complex was located across the street from the Buena Vista Gardens
apartment complex and shared a recreation center, which Schultzs
apartment overlooked. Schultz spoke to a friend on the telephone from
10:00 to 10:30 a.m., but telephone calls placed to her near noon or
12:30 p.m. went unanswered.
Dorothy Curtiss, the manager of the Canyon Ridge
apartment complex, was relatively certain that a stranger who approached
her in front of her office at approximately 10:30 a.m. on January 12,
1990, was defendant. The stranger requested a hanger so he could unlock
his automobile, indicating that the vehicle was parked on the street.
When the manager supplied the hanger, the stranger to her surprise and
concern walked toward the apartments rather than the street. Curtiss
testified her office abutted the stairs that led to Schultzs apartment,
and she had seen Schultz sunbathing, clad only in her bikini, within
approximately half an hour of encountering defendant.
Persons occupying the apartment located below
Schultzs reported to the police that when they arrived at the apartment
between 11:00 a.m. and 1:00 p.m. on January 12, 1990, they heard loud
sounds coming from Schultzs apartment. The noise sounded as if someone
was being beaten. They also heard running water.
Schultzs roommate discovered her body in one of the
bedrooms in the apartment. It appeared there had been a struggle.
Schultz was clad only in bikini briefs. She lay on her back, her left
leg extended under the bed, while her right leg lay at a 60- to 70-degree
angle. One leg was smeared with blood, and there was blood on her crotch.
There were at least 47 stab wounds, with a cluster of 20 stab wounds in
the right breast and chest area. The wounds were deep, some extending
through to the back. There was another cluster of stab wounds in the
left area of the chest, also deep, some passing all the way through the
body. There were wounds on the neck and upper-right thigh as well as
defensive wounds. Her mouth was bruised, and her face had suffered blunt
trauma. She would have been motionless when the fatal knife wounds were
inflicted. The bathtub was wet, and there was a damp towel nearby. There
was no evidence of a sexual assault.
There also was no sign of forced entry. The interior
and exterior doorknobs of the door leading to the room where Schultzs
body was discovered bore bloody marks in a honeycomb or cross-hatch
pattern. It appeared that the assailant had departed by way of the
patio, dropping from the second floor balcony to the ground.
Schultzs live-in boyfriend was arrested for the
murder but was released after a few days.
Counts 2, 3, and 4 the murder and rape of Janene
Weinhold and the burglary of her residence
Janene Weinhold, a White woman who was 21 years of
age, shared a second-story apartment in the Buena Vista Gardens
apartment complex with a roommate. Both were students at the University
of California, San Diego. Weinhold drove her roommate to work at 9:00
a.m. on February 16, 1990, telling her she planned to return home to do
laundry and homework. Weinhold was to return to pick up her roommate at
2:00 p.m., but failed to do so, an uncharacteristic omission.
Marsha Nelson occupied an apartment below Weinholds.
Nelson testified that between 11:30 a.m. and noon on February 16, 1990,
she observed defendant sitting on the stairs leading to Weinholds second-story
apartment. He appeared sad. She observed him over a period of 15
minutes. Subsequently she heard her dog barking, then heard loud sounds
coming from Weinholds apartment. When Nelson was summoned to a live
lineup in June 1991, she identified defendant on a card but then crossed
out this identification, explaining to the police that the incident had
occurred too long ago for her to make an identification. At trial, she
testified that she crossed out her identification because she did not
want to become involved.
On February 16, 1990, telephone calls made to
Weinholds apartment from 2:30 p.m. on went unanswered. Weinholds body
was discovered when her roommate returned home that evening at
approximately 8:00 p.m. The front door was locked, and there was no sign
of a forced entry.
A knife belonging to the occupants of the apartment
was found in the sink, displaying a bent tip and blood. Weinholds body
was discovered in her bedroom, one leg up against the bedroom door and
the other leg spread. A blouse, trousers, and underpants were nearby,
the trousers and underwear inside out as if just taken off. The body was
clad only in a bra. There were at least 22 stab wounds, all in the upper
chest area, with eight clustered in a pattern in the upper-right breast.
Most were deep, and some had penetrated the breastbone and ribs, a
circumstance that might cause a knife to bend. The wounds had been
administered with great force. Some of the wounds were defensive in
nature. There was a bloodstain in a honeycomb or cross-hatch pattern on
a doorjamb.
Seminal fluid in Weinholds vagina was tested, and a
genotype match with defendants blood sample was established to the
degree that an expert testified that the match would occur in
approximately 7 to 8 percent of the general population (and a lower
percentage of the White population). Seminal fluid also was discovered
on a jogging suit, a bedspread, and the carpet next to the body. Enzyme
testing of the seminal fluid found on the carpet established that
defendant, who was African-American, was within the 19 to 21 percent of
that population that could have deposited the fluid. Further
deoxyribonucleic acid (DNA) testing of the jogging suit and bedspread
disclosed a match with defendants blood sample, a match that would occur
in approximately one in 120,000 persons.
A number of statements also linked defendant to the
murder of Weinhold.
In April 1990, defendant told his friends Robin and
Tony Romo that he had gone on a date with a woman, and that when they
arrived home he forced himself on her. Defendant related that when he
was finished, the victim was weeping, and that he went back and did her
again.
David Holden was a coworker of defendants at Nacomm
Communications, a cable company, beginning in the autumn of 1990. Early
in 1991, defendant mentioned a girl named Janene. Defendant said he
worked out with her at an athletic club and went to her home for sexual
encounters on one or two occasions. Holden also testified defendant
commented that the police never would capture the Clairemont murderer. (This
was the description commonly used for the perpetrator of the charged
murders.)
Raymond Huntley, a jailhouse informant with many
prior convictions for serious crimes (and an escape charge pending),
reported several conversations with defendant. On one occasion defendant
allegedly said he didnt have nothing for no White bitches. In another,
defendant noted that in his job with the cable company, if he found a
woman he wanted to hit, he could check the name on the mailbox to
determine whether she lived alone. The witness assumed that hit meant
burglarize. The two men discussed assaulting women (Huntley had been
convicted of such crimes). Defendant reported that he enjoyed stalking
women and once he selected one, he enjoyed playing with his victims,
letting them believe they would escape, and then he would do them.
Defendant also reported that he enjoyed watching blood drip from a knife
onto the victims pubic area.
The Cotalessa-Ritchie incident
Anna Cotalessa-Ritchie, a young White woman,
testified that on March 25, 1990, during the noon hour, she walked from
her second-story apartment in the Buena Vista Gardens apartment complex
to a local store. She observed defendant at a bus stop on her way to the
store, but he was not there when she returned. As she neared her
apartment building, she saw defendant coming toward her. He stared at
her as they crossed paths. She was at the door of her apartment, trying
to insert the key into the lock, when she observed defendant at the
bottom of the stairs. Again, he was staring at her. He bent as if to tie
his shoes, although they were tied already. She entered her apartment
and locked the door. After defendants arrest, Cotalessa-Ritchie
positively identified defendant at a video lineup as the person who had
followed her. She also identified him at trial. Prior to her
participation in the lineup, she once had seen defendants image briefly
on television.
Counts 5 and 6 the murder of Holly Tarr and the
burglary of her residence
Holly Tarr, who was 18 years of age and White, was a
resident of Michigan. In April 1990, she visited her brother Richard at
the Buena Vista Gardens apartment complex during her high school spring
break. Her friend, Tammy Ho, accompanied her. On April 3 1990, the two
girls played tennis and then entered the pool area of the complex at
11 a.m. Ho observed a well-built African-American man working out in the
adjacent athletic area. Approximately five or 10 minutes before noon,
Tarr returned to the apartment alone, intending to shower. Ten minutes
later, Ho approached the apartment and thought she heard a scream. To
Hos surprise, the door of the apartment was locked. Ho heard the
telephone ring, but no one answered it. She knocked repeatedly and
called out Tarrs name. A neighbor had called the apartment complex
maintenance crew, and approximately 10 minutes later a maintenance
worker, Richard Williams, arrived. The door was chained shut, and he had
to break the chain to enter. Ho ran into the apartment and saw a man
emerge from a bedroom and run toward her, his face covered with a white
cloth. He held a long knife up to his ear. The man wore a red T-shirt
and had dark skin. Ho fell onto a couch as he ran past her through the
front door. Ho then discovered Tarr gasping for breath. Tarrs opal ring
was gone.
The log for the day at the apartment complex weight
room showed, in order of arrival, Richard Tarr, Holly Tarr, Tammy Ho,
and C. Prince.
Between noon and 1:00 p.m. on April 3, 1990, a
bystander heard screaming coming from the direction of the Tarr
apartment. When the witness looked in the direction of the scream, he
saw an African-American man wearing a red shirt and black pants and
running full speed across the alley, not far from the Tarr apartment.
The witness observed the man disappear among the buildings. While in
pursuit, the witness encountered another maintenance worker, Juan Rivera
Rojas, who described the direction of the mans flight. Rojas testified
at trial that he saw an African-American man run by who was
approximately 28 to 30 years of age, about five feet six inches tall,
and wearing a red shirt and black pants. Rojas picked out defendant in a
video lineup conducted in July 1991, but testified at trial that he had
not seen the mans face and could not identify him.
Tarrs body lay on the floor of one of the bedrooms in
the apartment, her legs spread approximately 45 degrees. She wore a bra
and underpants, and a towel was on her chest. There was no sign of
forced entry (other than the chain broken by the maintenance worker).
Blood was on the stairwell leading to the apartment and in numerous
places in the apartment. A shoe print at the threshold matched the size
and design of defendants Nike Air Jordan athletic shoes. An impression
of a knife, in blood, was observed on the apartment doorjamb. A bloody
knife and a T‑shirt were found near the sidewalk and the parking area;
the blood was identified as Tarrs, and the knife was from the Tarr
apartment. Tarr died of a single stab wound, seven inches deep, that
penetrated her heart. There was blood on her bra and on her underwear in
the pubic area.
On the day of the Tarr murder, defendants
acquaintances, Robert Romo and Timothy Buckingham, observed defendant,
wearing a red T‑shirt, driving his automobile in an alley within the
Buena Vista Gardens apartment complex between noon and 1:00 p.m.
Defendant wore something white on his head. When Romo entered his own
apartment in the Buena Vista Gardens complex, he learned from his wife,
Robin Romo, that another murder had occurred. Robert shortly thereafter
observed defendant drive by again. Robert had seen defendant wear a red
T-shirt prior to, but never subsequent to, the Tarr murder.
When interviewed the day after the murder, defendant
informed the police that he had been at the pool the prior day until
noon, when he returned to his apartment and remained there until his
departure for work at 1:50 p.m. He declined the polices request to go to
the station for fingerprinting.
A few days after the Tarr murder, Robin Romo
mentioned to defendant that there had been another murder. Defendant
responded: Yes I remember. I was at the pool. I saw her leaving.
When the police searched the home of defendants
girlfriend, Charla Lewis, they discovered Tarrs opal ring. The ring was
one of 63 that had been manufactured, none of them having been
distributed for sale further west than Michigan or Wisconsin. Lewis
testified that defendant gave her the ring in December 1990.
Counts 7 and 8 the attempted burglary of the
residence shared by Stephanie Squires and Sarah Canfield
On April 25, 1990, Stephanie Squires observed
defendant follow her to the pool in her apartment complex, the Torrey
Pines Village apartments. She recognized him, perhaps from her recent
prior residence at the Buena Vista Gardens apartment complex. Squires
left the pool area around noon and returned to her apartment to shower.
A neighbor witnessed an African-American man walk up the stairs toward
Squiress apartment. The neighbor telephoned the apartment manager, Jean
Smith. Smith testified that the neighbor told her that she saw the man
climb the stairs and try the door handle. At trial, the neighbor
testified that she merely had seen the man ascend the stairs and then
sit down. She testified she did not wish to be involved.
On April 28, 1990, Squiress roommate, Sarah Canfield,
attired in her bathing suit, was in the apartment they shared. Between 3
and 3:30 in the afternoon, she heard a knock at the door and could see
the door handle moving. She looked out, saw defendant standing at the
door, and telephoned the apartment manager and the police. At the time
of the video lineup in July 1991, she was almost positive the man was
defendant, and at trial she was certain of her identification.
At approximately 3:30 p.m. on the same day, April 28,
1990, Jean Smith saw an unfamiliar African-American man walk past her
office. She asked her husband Glen to follow the man. Glen Smith
testified he observed an African-American man driving an old, dirty or
gray, two-door Chevrolet or Oldsmobile exit from the apartment complex
parking lot. The vehicle was noisy, as if it had a defective muffler. A
few days later, Glen saw the same vehicle driven by the same man in the
same parking lot. Glen relayed the license number to the police, who
found that the vehicle was registered to defendant. Glen identified a
photograph of defendants automobile as the vehicle he had seen on both
occasions.
Count 9 the burglary of Leslie Hughes-Webbs temporary residence
On May 2, 1990, between 1:30 p.m. and approximately
2:50 p.m., Leslie Hughes-Webb, a young White woman, was sunbathing on
the beach near the La Jolla Shores beach house she was visiting. After
she walked back to the house, she climbed the stairs to the back door
and found defendant standing in front of the door. She asked his
business, and replying that he had rented the home in the past, he
walked away. Hughes-Webb entered the house and saw through the glass
door that defendant was returning. She attempted to secure the door, but
defendant forced it open. He attacked Hughes-Webb, covering her mouth
and subsequently grabbing her face and shoulders, and they struggled
until she was able to push him over into a nightstand. She fled
screaming, and he followed her outside and down two steps, then turned,
and ran out the gate. He was due at work at 3:00 p.m., but arrived 15
minutes late that day. At a lineup and at trial, Hughes-Webb identified
defendant as her attacker.
Counts 10 and 11 the murder of Elissa Keller and the burglary of
her residence
Elissa Keller, 38 years of age and White, lived with
her 18-year old daughter. Her home was close to defendants new residence
at the Top of the Hill apartment complex, where he had moved in early
May 1990. Late in the evening of May 20, 1990, Keller spoke on the
telephone to her daughter, who was away for the weekend. On May 21,
1990, Keller failed to appear at her place of employment at 9:00 a.m.,
which was unusual. She did not appear at work later that day or answer
the telephone. Kellers daughter arrived at their home at approximately
11:30 p.m. on May 21, 1990. The deadbolt on the front door was not
locked, which was unusual, and the chain was off the hook. She went to
her bedroom, where she discovered her mothers body lying on the floor
with a blanket covering her torso.
Keller lay on the carpet with her legs out and
slightly separated. She wore only a tank top, and her bloody underwear
lay inside out and close to the body. There were nine tightly clustered,
deep stab wounds in her chest, along with some defensive wounds. There
was blood smeared on her arms and legs. It appeared that she may have
been punched in the face and choked. According to the physician who
examined her body at approximately 3:00 a.m. on May 22, 1990, Keller had
been dead between six and 12 hours, and possibly longer.
The perpetrators point of entry apparently was a
partially open window. Shoe prints on the sill and on a nearby stereo
could have been made by defendants Nike Air Jordan athletic shoes, and
were similar to those found at the scene of Tarrs murder. A criminalist
testified that gloves such as the ones used by defendant at his place of
employment between January and August 1990, and found in the trunk of
his vehicle, left the bloody marks found on the bathroom counter. The
gloves bore a distinctive honeycomb or cross-hatch pattern. A pair of
such gloves also was discovered in the closet of defendants girlfriend,
Charla Lewis.
Kellers gold nugget ring was missing, and defendant
subsequently was seen wearing it. The ring later was stolen from
defendant but ultimately was traced to him during the murder
investigation.
Michael Bari was acquainted with defendant when both
men resided at the Top of the Hill apartments. Defendant possessed a
large quantity of jewelry and told Bari he had obtained it off the girls
he had slept with. They would not be needing them anymore. Defendant
demonstrated for Bari how to break into an apartment by using a
Blockbuster video store card, remarking that as long as it doesnt have a
deadbolt, I can get into the apartment. Another occupant of the Top of
the Hill apartments during the period defendant resided there, John
Rollins, also was acquainted with defendant. Rollins brought up the
subject of Kellers murder and heard defendant claim responsibility for
that murder, but the remark was made in the course of preparing for a
party, and everyone present interpreted it as a joke.
Count 12 the burglary of the residence occupied
by Anna McComber, Maria Saatin, and Nadia Gatti
Anna McComber resided in the Top of the Hill
apartment complex, as did defendant. Two friends from Italy, Maria
Saatin and Nadia Gatti, were visiting her. On August 2, 1990, the three
young women sunbathed by the apartment complex pool, went shopping, and
sunbathed again. When they returned to the apartment, they discovered
that a large amount of cash in $50 and $100 bills had been stolen, along
with some Italian lire belonging to the Italian visitors.
On August 3, 1990, a person who identified himself as
Cleophus Prince exchanged 94,000 Italian lire for $74.73 at the San
Diego Thomas Cook Foreign Exchange office. Defendant also deposited
$1,100 in two $50 and ten $100 bills into his bank account. The cash
deposit was far greater than any he previously had made in the five
months he had had the account.
Counts 13, 14, and 15 the murders of Amber and
Pamela Clark and the burglary of their residence
On July 17, 1990, defendants girlfriend Charla Lewis
joined the Family Fitness Center on Miramar Road. She listed defendant
as a member. The membership was cancelled 10 days later.
At approximately 8:00 a.m. on September 13, 1990,
Pamela Clark left her home in the University City area of San Diego en
route to the Family Fitness Center on Miramar Road. She was wearing a
full body glove and a bathing suit. She was White, 42 years of age, and
very fit. Her husband left their home at approximately 8:30 a.m. Their
18-year-old daughter Amber, who was still asleep, was a member of the
same fitness center. At approximately 10:00 a.m., neighbors heard Amber
speaking or arguing with someone inside the house. One neighbor heard
Amber call out as if afraid and also heard a male voice, but the
neighbor believed nothing serious was occurring. This witness believed
Pamela Clarks automobile had left the residence earlier in the morning
but had returned by 11:00 a.m. Pamela, who was a massage therapist, did
not appear at work for her 11:00 a.m. appointment, an unusual occurrence.
No one answered the telephone at the Clarks home.
A colleague of Pamela Clarks discovered her body in
the entryway of the home. Pamela was nude, lying on her back with her
arms spread at 90 degrees to her body with her legs together. She had
suffered 11 deep, clustered stab wounds to the upper left chest in an
area measuring four and one-half by three and one-half inches. There was
evidence indicating she had been dragged to that location. A knife that
could have inflicted the wounds lay near her head.
Amber Clarks body lay on the floor, partly in a
hallway and partly in a bedroom. She was clothed, but her garments had
been pulled down to expose her breasts. Her legs were spread somewhat
apart. Like her mother, she had suffered 11 deep, closely clustered stab
wounds to her upper chest in an area measuring three by three and one-quarter
inches. Blood was smeared on her body. A knife blade lay on the floor in
the bathroom.
Pamela Clarks purse was found on her bed but,
uncharacteristically, contained no money. Her wedding ring was missing.
Possible points of entry included a partially opened
dining room window from which a screen had been removed, and a living
room sliding glass door. The door handle bore marks of silica and other
material consistent with the gypsum that defendant used in his
employment. Shoe prints outside led back and forth under the dining room
window. Defendants Eastland-brand shoes matched shoe prints found under
the window and in the dining room. Defendant had called in sick to his
employer on the day of the Clark murders.
Two persons who resided with defendant subsequent to
these murders testified that he had been in possession of Pamela Clarks
wedding ring.
Ernest Tuua, a coworker of defendants, testified that
defendant told him during the summer of 1990 that he was dating a
massage therapist and that he was doing the massage therapist and her
daughter, a comment that Tuua took to refer to sexual relations.
Defendant commented that the massage therapist was an older White woman
with a good body. In September 1990, having changed jobs, defendant was
working at the Nacomm Cable Television Company. He installed underground
cable. He commented to his foreman that he was going to do a mother and
a daughter, a comment the foreman took to refer to sexual relations.
Defendant offered to sell jewelry to the foreman. Another coworker
reported that in September 1990, defendant said he was dating a woman
and her daughter, adding that the mother, aged 40, had a youthful
appearance and the daughter, aged 17 or 18, was attractive. Defendant
offered to sell the witness jewelry.
September 1990 defendant and his cohorts
In the autumn of 1990, defendant resided at the Top
of the Hill apartment complex with Shirley Beasley (a male) and Shirleys
younger brother Moheshea (Charla Lewis having moved out). According to
Moheshea, Shirley told him that defendant and Shirley, in the course of
burglarizing the apartment of an older couple who resided at the Top of
the Hill complex, had stolen some beer. Defendant told Moheshea he could
break into apartments at the nearby Trojan apartment building, because
the doors lacked deadbolts. Defendant committed three burglaries with
Moheshea, who was 16 years of age at the time. In committing these
burglaries, defendant put socks on his hands as he approached the front
door of the targeted home and then opened the door using a plastic card.
Defendant told Moheshea that he knew of a residence containing jewelry
and a safe, and proposed to burglarize it. Defendant stated that he had
been inside the home while the female occupant slept, and that if she
had awakened, he would have cut her throat. Defendant proposed to return
to burglarize this residence. Moheshea testified that he and defendant
thereafter broke into a Top of the Hill apartment and stole foreign
currency. Defendant also told Moheshea that he surveilled the homes of
women he had met at gyms.
Count 16 the burglary of Michelle Taits residence
Michelle Tait resided at the Collwood Pines
apartments. On October 6, 1990, she sunbathed at the apartment pool
beginning in the late morning. She returned to her apartment briefly
around 2:00 p.m., finding nothing amiss. When she returned at 3:00 p.m.,
however, she found that her television and videocassette recorder (VCR)
had been stolen.
Tait had had an encounter with defendant during the
month preceding the burglary. She was walking up the stairs to her
apartment when defendant asked repeatedly whether he could help her
carry her groceries. He was pushy and aggressive. They made eye contact
for almost a minute. He stared her down on that occasion, and also at
the preliminary examination.
Shirley Beasley testified that while he resided with
defendant at the Top of the Hill apartment complex, they burglarized an
apartment at the Collwood Pines apartment complex. Defendant asked
Beasley whether he wanted a television and a VCR. Pointing to a woman
lying by the Collwood Pines apartment complexs pool, defendant stated it
was her apartment they would burglarize. Defendant put socks on his
hands and entered the apartment door using a credit card. Defendant went
to the kitchen and took a knife, stating that if the occupant returned,
Beasley should move out of the way and defendant would handle it. They
took the television and the VCR. Both were sold or given away but were
traced to defendant. Defendant told Beasley he had been watching a home
he knew contained a safe, intending to burglarize it. Defendant also
told Beasley he had stolen foreign currency during a burglary and knew
where to exchange it. Beasley testified that defendant kept a large
quantity of womens jewelry in the apartment they shared.
Count 17 the burglary of Michael Grommes
residence
Michael Gromme resided in the Top of the Hill
apartment complex and was acquainted with defendant. Gromme complained
about the noisy muffler on defendants automobile. On October 15, 1990,
when Gromme returned from work at approximately 5:00 p.m., he found that
all of his liquor and $100 in cash had been stolen from his apartment.
He discussed the burglary with defendant and defendants roommate shortly
after discovering the loss. Defendants roommate commiserated, claiming
that he and defendant had suffered a recent burglary. Grommes apartment
was located one floor above defendants.
Shirley Beasley testified that he and defendant
burglarized the home of an older couple who lived in the Top of the Hill
apartment complex and stole all of their liquor to have it for a party.
Defendant suggested committing the burglary, noting that the apartment
was right upstairs from his apartment. During the burglary, defendant
took a knife from the kitchen and walked around the apartment. Beasley
testified that shortly after the burglary he and defendant commiserated
with the occupants of the burglarized apartment, falsely claiming to
have suffered a recent burglary themselves.
Count 18 the burglary of Bruno Gherardis
residence
On November 18, 1990, Bruno Gherardis home in
Encinitas was burglarized. The screen of his open bedroom window had
been cut, and the sliding door to his bedroom was open. His camcorder
and its accessory bag were missing, along with a knife from a butcher
block in the kitchen. The camcorder was traced to defendant.
Count 19 the attempted burglary of Patricia Vans
residence
On December 19, 1990, Patricia Van returned to her
home from the Miramar Road Family Fitness Center at about 9:30 a.m.
Approximately 20 minutes later, she heard a soft knocking at the door
and saw a man she identified at trial as defendant standing there. She
opened the door, and defendant asked for a person named Terry, but no
one by that name resided there. Her neighbor, Earline Schooner, stood
behind defendant, and when she challenged him brusquely, he walked away.
Schooner earlier had seen defendant examining nearby
backyards. After ten minutes, she saw him enter a side yard and approach
Vans front door. Schooner, having seen defendant exit from a vehicle,
provided the police with the vehicle license number. The automobile was
registered to defendant, and he was stopped by the police at 2:30 p.m.
on the same day while driving away from the Family Fitness Center on
Miramar Road. The vehicle was a gray Chevrolet Cavalier. The police
cited defendant for his loud muffler.
Count 20 the burglary of Melinda Pinkertons
residence
At approximately 11 a.m. on January 8, 1991, Lynn
Shudarek returned home from her workout at the Family Fitness Center on
Miramar Road. She heard someone knocking at the front door and then
heard dogs barking. She saw the doorknob moving. She held the doorknob
and looked out, observing an African-American man who continued for a
moment to try to open the door. He departed and went toward Melinda
Pinkertons residence, two doors away.
When Pinkerton returned home at approximately 2:30
p.m. the same day, the kitchen cabinets had been pulled open and a
butcher knife had been placed on the kitchen counter. The sliding door
leading to her backyard was open. Her camera was missing, and her
lingerie had been moved. Six rings and a gold chain were missing.
Defendant pawned two of Pinkertons rings that same
afternoon, using the name Rodney Higgs. After defendants arrest, when
his automobile was searched, the police found Pinkertons camera and a
wallet containing identification belonging to Rodney Higgs.
Count 21 perjury
Defendant used false identification and signed a
false name when he pawned Melinda Pinkertons property.
Count 22 the attempted burglary of Karyl
Oldenburgs residence
Karyl Oldenburg returned home from her workout at the
Miramar Road Family Fitness Center at approximately 11:30 a.m. on
January 22, 1991. Once inside her home, she heard the doorknob on the
front door jiggling. Through the peephole she witnessed defendant
standing with something in his hands, not knocking or ringing the
doorbell. As she went to telephone her husband, she observed defendant
approaching the back door. She proceeded to the garage and drove away.
When a few months later she saw defendants photograph in the newspaper,
she telephoned the police to report the incident. She identified
defendant at a video lineup and at trial.
Count 23 the burglary of Patricia Vans residence
Approximately one month after the attempted burglary
of the Van residence (count 19), Patricia Vans home was burglarized. On
January 21, 1991, Vans husband discovered that the sliding door to the
patio had been damaged with a tool of some kind. On January 23, 1991, at
approximately 9:20 a.m., Van returned from her usual class at the
Miramar Road Family Fitness Center. Once inside her home, she discovered
that the patio door was open; a window screen was propped up in the
kitchen, and the kitchen window was broken. The residence had been
ransacked. A butcher knife had been placed on the kitchen counter.
Jewelry had been stolen, and that same afternoon defendant drove his
acquaintance Mary Ann Knight to a pawnshop where she pawned an earring
similar to one stolen from Van.
Count 24 the attempted burglary of Angela and
Renata Yatess residence
On January 24, 1991, an African-American man driving
a gray vehicle with a loud muffler followed Angela Yates, then 19 years
of age, as she drove home from the Miramar Road Family Fitness Center.
She became aware that she was being followed, and attempted to evade her
pursuer. She arrived home, and while she showered, her mother, Renata,
observed a shadow moving in the backyard. Upon inspecting, Renata
discovered defendant, whom she later positively identified. When he
moved toward a sliding door, Renata screamed to her daughter to call the
police and to grab the gun. Their dog ran outside, and defendant ran
away. Neighbors witnessed an African-American man jump over the Yatess
fence and run to his vehicle. He appeared agitated as he attempted to
enter the vehicle, and drove off rapidly. The muffler of the vehicle was
noisy.
Count 25 the burglary of Louis Depamphilliss
residence
Louis Depamphillis returned to his home on Nobel
Drive close to midnight on February 1, 1991. He had left his screened
front window ajar. When he returned, the screen had been removed. His
camera bag and jewelry boxes had been moved. When he went to a friends
apartment to telephone the police, he noticed an African-American man
driving away in an older model bluish-gray vehicle with a loud muffler,
possibly matching the photograph of defendants automobile. When the
police responded to Depamphilliss call, they noticed an adjacent
apartment had an open front window from which the screen had been
removed. Police left a note for the occupant stating the apartment had
been burglarized. When he eventually was arrested, defendant was wearing
a ring that had been stolen from Depamphilliss residence during the
burglary.
Count 26 the burglary of Judy Kinneys residence
On February 3, 1991, after a two-day absence, Judy
Kinney returned to her apartment on Nobel Drive not far from the Miramar
Road Family Fitness Center, where she was a member. The screen to a
front window had been removed, and the apartment had been ransacked. Her
jewelry and lingerie drawers were open, and lingerie was draped on the
drawers. Her emerald ring and a gold chain had been stolen. Defendant
gave Kinneys emerald ring to Brittan Lewis and the gold chain to Charla
Lewis. Kinney believed she had been followed home from the Family
Fitness Center on Miramar Road approximately one month prior to the
burglary.
Count 27 the attempted burglary of Geralyn Peters
Venvertlohs residence[1]
On the morning of February 3, 1991, Geralyn Peters
Venvertloh returned home to her Scripps Ranch apartment from her usual
morning workout at the Family Fitness Center on Miramar Road. She
undressed for a shower, then heard the knob on the front door rattling.
She looked out and saw an African-American man leaning against the door
with his hands in the area of the doorknob. She dressed and exited from
her apartment through a sliding glass door and proceeded to the back of
the apartment complex. She screamed for help. Her neighbor, Jeffrey Pich,
responded. When Venvertloh and Pich walked to the front of her apartment,
they observed the man still standing at the door, bent over and working
at the door with some object. He wore gloves. When challenged, the man
claimed he was looking for his fianc or a female friend whom he claimed
to have seen entering Venvertlohs home. He walked away calling out a
womans name. Pich walked down the street looking for the would-be
intruder and soon observed the man in question driving away in a noisy
vehicle at a high rate of speed. Geralyn Peters Venvertlohs then-fianc,
Mark Venvertloh, arrived home and also witnessed an African-American man
enter an older silver-colored vehicle and drive away noisily at a high
rate of speed. Having examined the intruder closely on that occasion,
Pich identified defendant as the man he had seen on the front step of
his neighbors residence.
The next day, Geralyn Venvertloh, who was employed at
the same location as Charla Lewis, witnessed a man drop off Lewis at
work. The man resembled defendant and drove an older model vehicle that
had a loud muffler. Pich identified defendant in a photo lineup that
same day. One month later Pich identified a photograph of defendants
automobile, and later confirmed that the vehicle sounded like the one he
had witnessed when defendant fled from Venvertlohs apartment.
A police officer took statements from Geralyn Peters
Venvertloh, Pich, and Mark Venvertloh, and proceeded to the Family
Fitness Center on Miramar Road with a description of the vehicle and the
suspect. The officer asked fitness center employees to inform the police
in the event they witnessed either the man or the vehicle in the
vicinity of the establishment. The next morning, February 4, 1991, the
fitness centers front desk manager informed the police that she had
observed a silver-colored automobile with a loud muffler driven by an
African-American man proceed through the fitness centers parking lot,
returning 15 minutes later. The employee observed the vehicle parked 30
feet from her office window and watched as the driver moved to the
passenger side of the vehicle and slumped down. She was able to observe
part of the vehicle license number, which she relayed to the police. Law
enforcement officers arrived 15 minutes later and confronted defendant,
the occupant of the vehicle.
Defendant informed the officers that he was waiting
for his girlfriend, Cindy. A person named Cindy was present at the
fitness center at the time, and although she was acquainted with
defendant, she was not his girlfriend and had no plan to meet him that
day. The officers placed defendant under arrest.
A search of defendants vehicle uncovered a pair of
black leather gloves in the center console and a pair of wool gloves on
the drivers seat. Under the drivers seat was a knife with an eight-inch
blade and a five-inch handle. On the right front floorboard was a
folding knife with a two-and-one-half-inch blade and a four-inch handle.
Under the front seat were a steak knife and a small folding pocket knife.
Other employees of the fitness center had observed
defendants vehicle in the centers parking lot on multiple occasions.
They had seen a person who may have been defendant seated in the vehicle,
slumped in the passenger seat.
Defendant was questioned and released after providing
the police with a blood sample. Subsequently, on February 23, 1991, an
undercover police officer witnessed defendant drive into the Miramar
Road Family Fitness Center parking lot and, slowing as he observed a
marked police vehicle parked in the lot, exit the centers parking lot
and drive away at a high rate of speed. The muffler of his vehicle made
a loud sound.
Defendant was arrested on March 1, 1991, in
Birmingham, Alabama.
As discussed at greater length post, FBI
Special Agent Larry Ankrom testified that the six murders bore common
marks that led him to believe they all were committed by the same person.
2.The defense case
Two police officers testified that defendants
automobile would not start without manual manipulation under the hood,
and would function only if a metal object such as a screwdriver were
placed under the hood to make an electrical connection. Officers
observed defendant start the vehicle in this manner while they had him
under surveillance. Defendant produced evidence indicating that jewelry
traced to the burglaries of the DePamphilis and Kinney residences and
the murder of Keller was not custom-made but was available commercially.
Charla Lewis testified that during the time she resided with defendant,
he never arrived home in an agitated state or stained by blood.
Defendant introduced evidence establishing that many companies other
than his employer distributed to their employees gloves with the
distinctive honeycomb or cross-hatch pattern that may have been used
during the murders.
Statements of various prosecution witnesses were
impeached.
Marsha Nelson, who was a neighbor of murder victim
Janene Weinhold and observed defendant seated on the steps leading to
Weinholds apartment on the day of the murder, had told a police
interviewer immediately after the crime was discovered that the man she
saw on the steps had his head in his hands the entire time she looked at
him and that she was unable to see his face. Nelson had circled
defendants number at the live lineup, then crossed it out, explaining
that too much time had elapsed since the crime. Karyl Oldenburg (count
22) told the police at the time of the attempted burglary of her home
that she might not be able to identify the perpetrator in a lineup.
Oldenburgs identification of defendant was made after she had seen his
picture in the newspaper, and although she identified defendant in a
video lineup and at trial, she testified that unlike defendant, the man
she saw at her front door did not have facial hair. Dorothy Curtiss, the
apartment manager of the complex where Schultz was murdered, failed to
make an identification at the live lineup even though she identified
defendant at trial. Rodney Dunn, a maintenance worker at the apartment
complex, cast doubt on Curtisss testimony that it was defendant who
approached her seeking assistance on the day of Schultzs murder. On the
day Schultz was murdered, Dunn, who was familiar with defendants
appearance, was approached before noon by an African-American man who
was not defendant. The man asked for a screwdriver because he
had locked himself out of his car. The witness assisted the man in
unlocking a vehicle that was not defendants. Richard Williams,
the maintenance worker who entered murder victim Tarrs apartment with
witness Ho to render assistance, had observed the perpetrator running
toward him, but described that individual as probably Hispanic and
selected someone other than defendant at the lineup.
A witness, Carol Dhillon, testified she had observed
an encounter at the Buena Vista Gardens apartment complex similar to the
incidents attributed to defendant, but the perpetrator was not defendant.
On a morning in mid-March 1990, her 22-year-old daughter was taking a
shower when Dhillon observed an African-American man looking up at her
apartment. Ten or 15 minutes later, when she retrieved the newspaper
from her front step, the man pushed open the front door and said he was
looking for his cousin. Dhillon closed the door. The visitor was not
defendant. She saw the visitor again approximately two hours later,
sitting on or standing by a parked older model automobile.
Shirley Beasley, who on direct examination had
testified that he had burglarized homes with defendant and had
attributed incriminating statements to defendant, was flown to San
Diego, where the police department paid for his lodging while he
underwent interrogation. Beasley thereafter was arrested for robbery. He
was in custody but had not yet been sentenced when he testified for the
prosecution at defendants preliminary examination. The prosecutions
investigator testified on Beasleys behalf at his sentencing, explaining
that Beasley had been of assistance in the present case. Beasley was
sentenced to four years in prison, a relatively light sentence. He was
given immunity from prosecution for the burglaries he committed with
defendant and for any other crimes he admitted in the course of his
interrogation in the present case. One of Beasleys comments indicated he
was interested in receiving the reward offered for capture of the so-called
Clairemont killer.
Christine Fagan testified defendant had lunch with
her on May 2, 1990, until approximately 2:30 p.m. on the day Leslie
Hughes-Webb was attacked. They met at a location that would have made it
extremely difficult for defendant to arrive at the beach by the time of
the attack. Fagan observed defendant wearing a gold nugget ring similar
to the one the prosecution claimed had been stolen during the Keller
murder, but Fagans meeting with defendant occurred prior to that murder.
(Under cross-examination by the People, Fagan added that defendant had
stared intently at her during their lunch and aggressively demanded that
she go somewhere with him, frightening her.)
Raymond Huntley, the jailhouse informant, was
impeached. He had been convicted of multiple burglaries, robberies, and
rapes, had escaped from a Florida prison, was facing a sentence of at
least 20 years, and was a prison escapee at large in San Diego when he
was arrested. He shared a cell only briefly with defendant, later being
returned to Florida to complete his prison term. Approximately four
months after his conversation with defendant, Huntley contacted the
prosecution from Florida to offer information. In exchange for his
testimony against defendant, he received various benefits, including a
transfer from a Florida prison to one in California and a potential
early release date.
Defendant also presented the testimony of an expert
in the phenomenon of eyewitness identification. She explained the many
flaws in such identification and the factors undermining accuracy,
including fear, the lapse of time, the reinforcement of opinion that
occurs during multiple proceedings, and the effect of a threat with a
weapon on the accuracy of observation. She explained that a persons
confidence in his or her identification is not indicative of the
reliability of the identification.
In rebuttal, the prosecution presented evidence
establishing that the murders occurring at the Buena Vista Gardens
apartment complex ceased after defendant moved out in the first week of
May 1990.
The jury found defendant guilty of the charged
offenses and found true the knife-use and special circumstance
allegations.
B. Penalty Phase Evidence
1. The prosecutions case
The prosecution presented evidence indicating that on
December 7, 1991, prior to the trial, a search of defendants jail cell
produced a toothbrush with a razor attached a makeshift weapon
typically known as a shank. The object was hidden between the mattresses
on defendants bed.
The prosecution presented evidence of an additional
jailhouse incident involving defendant. Deputy Samuel Sheppard testified
that on November 22, 1991, when he arrived to conduct inmates from a
recreation area to their cells, defendant told the deputy that he would
kick [his] sweet ass, directing threatening gestures at the deputy while
uttering these words. Defendant continued to taunt or threaten the
deputy, who grabbed defendant and pushed his face against the wall.
Defendant struck Sheppard in the ribs with his elbow and tried to trip
him. Sheppard forced defendant to the ground. Other deputy sheriffs
assisted in subduing defendant.
The prosecution also presented the testimony of
several family members of the murder victims. The parents of murder
victims Schultz, Weinhold, and Tarr testified, as did Kellers daughter.
They described the victims and the impact of the murders upon the
families.
The prosecution played an approximately 25-minute
videotape of a television interview with Tarr that had been prepared by
a local television station in her hometown a few months prior to her
murder. The program marked the accomplishments of certain successful
local high school students. In the interview, Tarr described her
interests and activities, as well as her plans for college and for a
potential career as an actress.
2. The defense case
The defense presented the testimony of various
members of defendants family and of one of his friends. These witnesses
described defendants childhood, the circumstance that when he was two
years of age his father was convicted of murder and subsequently served
11 years in prison, and defendants formative years spent in a rundown,
crime-ridden housing project in Alabama. Defendant was extremely short
in stature as a child. These witnesses offered evidence of defendants
good character, including his close relationship with his paternal
grandmother and faithful visits to her, his visits to his father in
prison, his industriousness, his protective attitude toward relatives,
his compassion, and his generosity. Various relatives and a former
girlfriend expressed their love for defendant and asked the jury to
spare his life.
A sociologist described the negative attributes of
the housing project where defendant resided as a child, and offered the
opinion that circumstances such as family violence, inadequate housing
conditions, poor education, drug and alcohol abuse, and gang activity
were harmful to a childs development. A high school counselor described
defendants development into a responsible person, and a pastor testified
concerning defendants church activities. A former employee of the
Department of Corrections described the prison conditions experienced by
persons sentenced to life imprisonment without the possibility of parole.
The testimony of a fellow inmate suggested that defendant had not been
the instigator of the conflict with Deputy Sheppard.
II. DISCUSSION
A. Claims Affecting the
Guilt Phase of the Trial
1. Motion for change of
venue
Defendant contends extensive pretrial publicity
required a change of venue. He claims the trial courts failure to grant
his motions for change of venue ( 1033, subd. (a)) constituted
prejudicial error under state law and a violation of his right to due
process of law and to a fair trial by an impartial jury as guaranteed by
the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution. We disagree.
a. Factual background
The charged offenses occurred between January 1990
and February 1991. Defendant was apprehended in March 1991. The
preliminary examination commenced on February 24, 1992. Defendant filed
a motion for change of venue on September 14, 1992. In support of his
motion for change of venue, the defense proffered evidence of the more
than 270 newspaper articles that had appeared concerning the crimes, the
criminal investigation, defendants eventual arrest in Alabama and
extradition, and the preliminary examination. There was evidence
suggesting that television coverage was similar in extent, as the
parties stipulated. It also was stipulated that one television station
used defendants image in quick cuts along with the images of Robert
Alton Harris and Craig Peyer, persons who had been convicted of murder
in San Diego County. Defendants image was on the screen for under a
second and a half.
As might be expected when a series of six similar
murders occurs in a community over a period of approximately one year
without a culprit being quickly identified, the publicity in the present
case was pervasive and occasionally potentially prejudicial
particularly during the period the crimes remained unsolved and the
perpetrator remained at large. Newspaper articles recounted the growing
fear among residents of the neighborhoods where the crimes occurred;
articles noted the apparent connection among the crimes, and the
eventual designation of the murders as serial killings; articles
recounted the increasing police resources devoted to the investigation,
which eventually was the most extensive in San Diego County history;
articles recounted the disproportionate impact of the investigation upon
African-American men in the affected neighborhoods, and assertedly
prejudicial articles predicted another attack and compared the crimes to
those committed by the notorious Jack the Ripper.
Defendant also proffered articles recounting his
arrest in Alabama and the relief that ensued among residents of San
Diego, especially in neighborhoods in which the murders had occurred;
his efforts to resist extradition from Alabama; and providing negative
information concerning his family, including his fathers conviction of
murder. In addition, he presented articles in which persons surmised
they had experienced close brushes with defendant and might have been
his next victim. News articles noted that defendant was suspected of
having committed two additional unsolved murders and mentioned his Navy
court-martial for theft. An article described defendants eviction from
the Top of the Hill apartment complex for participating in a fight. The
crimes were featured on the television program Americas Most Wanted.
Defendant also presented evidence indicating that the
news media had reported on damaging evidence that was uncovered during
the investigation and also at the preliminary examination, including
testimony by identification witnesses, statements to the press, and
preliminary examination testimony attributing incriminating statements
to defendant, lab results claiming a DNA match between samples taken
from defendant and evidence found at the scene of the Weinhold murder,
and the circumstance that defendants girlfriend possessed jewelry stolen
from the victims.
The defense also presented the testimony of Paul
Strand, an expert who conducted a public opinion survey in February
1992, prior to the preliminary examination. According to Strand,
approximately 74 percent of the 300 persons surveyed were aware of the
case despite the circumstance that only two related news items had
appeared during the previous six months. Of those aware of the case,
Strand reported that 25 percent were predisposed to find defendant
guilty. Strand conducted another survey in September 1992. Seventy-seven
percent of the respondents were aware of the case and, of that group, 24
percent were predisposed to find defendant guilty. There had been a
burst of publicity around the time of the preliminary examination in
February and March of 1992, but very few news items appeared between
April and mid-September of 1992.
The trial court acknowledged that the crimes had been
serious and the publicity intense. The court noted that neither the
victims nor the defendant had been prominent or notorious other than in
connection with the charged crimes. To the extent defendant was an
outsider, the court observed that San Diego is a Navy town, where many
individuals might be considered outsiders. The court observed that Tarr,
one of the murder victims, also was an out-of-town visitor, and
commented that other victims lacked long-standing ties to the community.
The court also commented that sensational news
coverage concerning crime permeates our culture in general, and surmised
that citizens become inured to such coverage or accord it the same
weight as entertainment. The court distinguished the present case from
another San Diego County prosecution, that of Robert Alton Harris (see
People v. Harris (1981) 28 Cal.3d 935), concluding that the news
coverage in the present case lacked the animosity and prejudgment that
had been conveyed in press reports concerning Harris and, rather, left
open the question of defendants guilt. Moreover, the investigation
continued for a protracted period, during which two persons other than
defendant were arrested, and residents appeared uncertain whether
defendant actually was the culprit. Turning to the public opinion
surveys, the court commented upon the size and diversity of the countys
population and upon the circumstance that the surveys demonstrated that
a low percentage of potential jurors had formed an opinion concerning
defendants guilt. Under these circumstances, the court could not
conclude it was reasonably likely that counsel and the court would be
unable to empanel a fair jury.
The court anticipated that were going to see a lot of
people on the panel who are familiar with the case, but also anticipated
that even persons who casually stated a belief in a defendants guilt to
a poll taker would find that, as jurors, the seriousness of the trial
would cause them to set aside their assumptions and judge the case based
upon the evidence presented in court.
Further, the court reminded counsel that its going to
be one of our tasks in jury selection to talk to people whove seen the
evidence and ask whether theyve come to a conclusion. And whatever they
say, whether its yes or no, thats obviously not going to be conclusive
. . . .
Defendant moved for reconsideration, supplying
previously unavailable videotapes of television news coverage of the
crimes. According to defendants pleadings, San Diegos channel 39
repeatedly combined defendants image with the images of three
convicted murderers from San Diego and various other newsworthy images
as part of the brief spots promoting one of its news programs. According
to defendant, this advertisement appeared 950 times over a 13-month
period ending approximately six months prior to the present trial.
Speaking in connection with his motion for
reconsideration, defense counsel stated that he expected to renew the
motion for change of venue once we commence jury selection and once the
court really sees the nature of publicity, how it has affected people.
Counsel did not renew the motion, however.
The case was reassigned to another judge for trial.
That judge denied the motion for reconsideration, adopting the analysis
and conclusion of the court that had heard the original motion.
b. Analysis
State law provides that a change of venue must be
granted when the defendant demonstrates a reasonable likelihood that a
fair trial cannot be held in the county. ( 1033; People v. Vieira
(2005) 35 Cal.4th 264, 278-279.) The factors to be considered are the
nature and gravity of the offense, the nature and extent of the news
coverage, the size of the community, the status of the defendant in the
community, and the popularity and prominence of the victim. (Id.
at p. 279.)
On appeal, we conduct de novo review of the evidence
presented to the superior court to determine whether the court should
have granted a change of venue. (People v. Jenkins (2000) 22
Cal.4th 900, 943.) In addition, on appeal the defendant must show both
that the court erred in denying the change of venue motion, i.e., that
at the time of the motion it was reasonably likely that a fair trial
could not be had, and that the error was prejudicial, i.e. that it [is]
reasonably likely that a fair trial was not in fact had. (Ibid.)
We agree with the superior court that the nature of
the crimes and the intensity of publicity in the present case might
weigh in favor of a change of venue, but the same could be said of most
multiple or capital murders. This factor is not dispositive. [Citation.]
(People v. Dennis (1998) 17 Cal.4th 468, 523.) San Diego
Countys population at the time of the trial was estimated at two million
persons, and [t]he larger the local population, the more likely it is
that preconceptions about the case have not become imbedded in the
public consciousness. . . . The key is whether . . . the population is
of such a size that it neutralizes or dilutes the impact of adverse
publicity. [Citation.] (People v. Jennings (1991) 53 Cal.3d 334,
363; see also People v. Harris, supra, 28 Cal.3d at
p. 949.) We have concluded that even a lower population of 1.4 million
(Santa Clara County) suggests that any prejudicial publicitys effect
would be diluted or neutralized over time. (People v. Dennis,
supra, 17 Cal.4th at p. 523.)
Neither defendant nor the victims were prominent or
notorious apart from their connection with the present proceedings. As
in other cases, [a]ny uniquely heightened features of the case that gave
the victims and defendant any prominence in the wake of the crimes,
which a change of venue normally attempts to alleviate, would inevitably
have become apparent no matter where defendant was tried. (People v.
Dennis, supra, 17 Cal.4th at p. 523.) We acknowledge the
prejudice that may have attended the circumstances that defendant is
African-American and the victims all were White women, and that the
crimes included one rape and other crimes having sexual undertones. (See
People v. Williams (1989) 48 Cal.3d 1112, 1129.) This element of
possible prejudice presumably would follow the case to any other venue,
however. (See People v. Dennis, supra, 17 Cal.4th at p.
523; see also People v. Cooper (1991) 53 Cal.3d 771, 806.) The
publicity did not emphasize defendants race or employ inflammatory terms
to kindle racial hatred.
We also observe that the bulk of the publicity upon
which defendant relies was disseminated between the time of the second
murder in February 1990 and the time the preliminary examination took
place in February 1992, and that approximately one additional year
elapsed between that hearing and the commencement of jury selection in
March 1993. The television promotional material of which defendant
complained was withdrawn in July 1992. The passage of time ordinarily
blunts the prejudicial impact of widespread publicity. (See People v.
Jenkins, supra, 22 Cal.4th at p. 944; People v. Dennis,
supra, 17 Cal.4th at p. 524; see also People v. Robinson
(2005) 37 Cal.4th 592, 623.) We also may presume that potential and
seated jurors did not read or watch news reports concerning the case
against defendant that may have been disseminated during jury selection
and the ensuing trial, because the jury questionnaire directed potential
jurors not to expose themselves to news coverage for the duration of
their service.
Defendant also fails to establish a reasonable
likelihood that pretrial publicity in fact deprived him of a fair trial.
Pervasive publicity alone does not establish prejudice. (People v.
Panah (2005) 35 Cal.4th 395, 448.) Jurors who have been exposed to
publicity still may serve. It is sufficient if the juror can lay aside
his impression or opinion and render a verdict based on the evidence
presented in court. (Ibid.; see also People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 45.)
The superior courts confidence that, despite the
publicity, the venire would consist primarily of persons who had not
formed an opinion as to defendants guilt was borne out by subsequent
proceedings. Although a high percentage of the prospective jurors and 12
of the 13 jurors who actually served at trial (one juror was excused
after the guilt phase and an alternate was substituted) had been exposed
to the publicity, the jurors responses to the juror questionnaire and
voir dire did not disclose any prejudgment or emotional bias. Rather,
for the most part they displayed only a vague recollection of past news
coverage, a circumstance suggesting the absence of prejudice. (People
v. Jenkins, supra, 22 Cal.4th at p. 945.) Significantly,
the jurors asserted that the publicity would not prevent them from
serving as unbiased jurors. (See People v. Panah, supra,
35 Cal.4th at p. 448 [relying upon similar assertions]; People v.
Coffman and Marlow, supra, 34 Cal.4th at p. 46 [same].)
Defendant refers to voir dire answers of three of the seated jurors:
Juror H.E., Juror J.G., and Juror A.W. None of these jurors made
statements suggesting they had prejudged the case or were biased because
of the pretrial publicity. (Juror H.E. the juror remembered when
defendant was arrested, but said it was not of great moment to him;
Juror J.G. he knew nothing specific, just that there were some killings
in a certain neighborhood, and he had read nothing about the case since
the time defendant was extradited to California; Juror A.W. she read
about the case and was frightened. When defendant was arrested, she
asked herself is it him or not?)
Defendant insists we cannot believe jurors who are
aware of publicity but profess not to have formed an opinion concerning
guilt or otherwise to have been prejudiced by publicity. Although such
assurances are not conclusive (People v. Jennings, supra,
53 Cal.3d at p. 361), neither do we presume that exposure to publicity,
by itself, causes jurors to prejudge a defendants guilt or otherwise
become biased. (People v. Jenkins, supra, 22 Cal.4th at
p. 945.) [T]he Supreme Court has made clear that we cannot, as a general
matter, simply disregard a jurors own assurances of his impartiality
based on a cynical view of the human propensity for self-justification.
(DeLisle v. Rivers (6th Cir. 1998) 161 F.3d 370, 384.) It was the
function of the voir dire examination to expose actual bias or prejudice,
but the voir dire in this case did not demonstrate a biased or
prejudiced jury. Courts must distinguish between mere familiarity with
the defendant or the crime and an actual predisposition against the
defendant. (Murphy v. Florida (1975) 421 U.S. 794, 800, fn. 4.) A
court may discount a jurors claim to be untouched by publicity when most
veniremen will admit to a disqualifying prejudice (id. at p.
803), but the venire in the present case was not pervaded by bias in
this manner.
Moreover defense counsel did not renew the motion for
change of venue at the conclusion of voir dire and, moreover, did not
exhaust his peremptory challenges. Putting aside any question whether
counsels inaction constituted a forfeiture of the issue on appeal,
counsels conduct supports a reasonable inference that the defense did
not believe that pretrial publicity had prejudiced the seated jurors or
rendered them unable to afford defendant a fair trial. Indeed, [t]he
failure to exhaust peremptories is a strong indication that the jurors
were fair and that the defense itself so concluded. (People v.
Dennis, supra, 17 Cal.4th at p. 524; see also People v.
Robinson, supra, 37 Cal.4th at p. 623; People v. Coffman
and Marlow, supra, 34 Cal.4th at p. 46.)
Defendant urges that no rational inference that
counsel was satisfied with the jury can be drawn from counsels failure
to exhaust peremptory challenges. He contends that the denial of the
motion for change of venue had left defense counsel with a venire that
was saturated with persons who had been exposed to the pretrial
publicity and that included a substantial proportion of jurors who must
have prejudged defendant. He adds that defense counsel were aware of
which juror would be called should they exercise a peremptory challenge
and may have found the next prospective juror even worse than the juror
they might have excused.[2]
In essence, defendant claims that the publicity was
so pervasive and inflammatory that, under federal constitutional
guarantees, prejudice must be presumed.
In exceptional cases, adverse pretrial publicity can
create such a presumption of prejudice in a community that the
jurors claims that they can be impartial should not be believed, [citation]
. . . . (Mumin v. Virginia (1991) 500 U.S. 415, 429, italics
added.) The category of cases where prejudice has been presumed in the
face of juror attestation to the contrary is extremely narrow. Indeed,
the few cases in which the [high] Court has presumed prejudice can only
be termed extraordinary, [citation], and it is well-settled that
pretrial publicity itself even pervasive, adverse publicity does not
inevitably lead to an unfair trial. [Citation.] (Delisle v. Rivers,
supra, 161 F.3d at p. 382.) This prejudice is presumed only in
extraordinary cases not in every case in which pervasive publicity
has reached most members of the venire. We do not believe the present
case falls within the limited class of cases in which prejudice would be
presumed under the United States Constitution.[3]
We acknowledge that the high court has held that
prejudice may be presumed in some limited instances. The court declared
that although jurors who are familiar with some facts of the crime may
be qualified to serve because they can put aside their views and reach a
verdict based upon the facts in evidence, [a]t the same time,
the jurors assurance that he is equal to this task cannot be dispositive
of the accuseds rights, and it remains open to the defendant to
demonstrate the actual existence of such an opinion in the mind of the
juror as will raise the presumption of partiality. [Citation.] (Murphy
v. Florida, supra, 421 U.S. at p. 800, italics added.)
*****
[1]
This witness had married and changed her surname from Peters to
Venvertloh by the time of trial.
[2]
Defendant also claims that comments made by defense counsel, in seeking
additional challenges after exhausting all they had for alternate jurors,
demonstrated a dissatisfaction with the entire selected jury, not just
the alternates. Defense counsel stated: We are in very bad we didnt use
hardly any, used any challenges on the major part. We are stuck with
some very bad jurors. We are very upset with the jurors that we have.
The quoted comments, however, related to the alternates and suggest
dissatisfaction with the venires attitude toward the death penalty, and
do not connect counsels dissatisfaction with the pretrial publicity.
[3]
As in previous cases in which a defendant claimed error in denying a
change-of-venue motion, [d]efendant argues he was denied a reliable
determination of his penalty guaranteed by the Eighth Amendment, citing
Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329, which held
that it is constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to believe that the
responsibility for determining the appropriateness of the defendants
death lies elsewhere. He also cites Woodson v. North Carolina
(1976) 428 U.S. 280, which invalidated a law that provided a mandatory
penalty of death for all first degree murders. Defendant fails to
explain how either of these [principles] has any relevance to the
present case. (People v. Ramirez (2006) 39 Cal.4th 398, 436.)
*****
The United States Supreme Court decisions that have
presumed that pretrial publicity was prejudicial involved extreme
circumstances, however. In one case in which the high court reversed a
judgment, the critical feature was that a local television station in a
relatively small community on several occasions broadcast the entire
spectacle of the defendants jailhouse confession. (Rideau v.
Louisiana (1963) 373 U.S. 723, 727.) Explaining two other cases in
which the high court presumed prejudice, the court stated that [t]he
trial in [Estes v. Texas (1965) 381 U.S. 532] had been conducted
in a circus atmosphere, due in large part to the intrusions of the press,
which was allowed to sit within the bar of the court and to overrun it
with television equipment. Similarly, [Sheppard v. Maxwell
(1966) 384 U.S. 333] arose from a trial infected not only by a
background of extremely inflammatory publicity but also by a courthouse
given over to accommodate the public appetite for carnival. The
proceedings in these cases were entirely lacking in the solemnity and
sobriety to which a defendant is entitled in a system that subscribes to
any notion of fairness and rejects the verdict of a mob. They cannot be
made to stand for the proposition that juror exposure to information
about a state defendants prior convictions or to news accounts of the
crime with which he is charged alone presumptively deprives the
defendant of due process. (Murphy v. Florida, supra, 421
U.S. at p. 799.) The reviewing court instead must look for indications
in the totality of the circumstances that [the defendants] trial was not
fundamentally fair. (Ibid.)
Defendant has not demonstrated similarly extreme
circumstances. We acknowledge that in the present case there was
extensive print and television coverage of the crimes, the search for
the perpetrator, the fears engendered by the nearly year-long series of
murders, and defendants subsequent arrest and extradition. A further
spike in publicity occurring at the time of the preliminary examination
served to summarize the earlier events and added potentially prejudicial
information, such as an overstatement of the incriminating value that
the cautious trial court eventually permitted to be attributed to the
DNA evidence, defendants incriminating statements to a friend, the
murder conviction of defendants father, and the circumstance that some
of the victims jewelry could be traced to defendant. Some elements of
the news coverage could be labeled inflammatory or sensational, for
example when the perpetrator then unidentified was compared with Jack
the Ripper or a television announcer referred to a reign of terror, when
newspaper and television articles emphasized the community fear provoked
by the murders, and when the television promotional spot repeatedly
exhibited defendants image along with those of locally well-known
convicted murderers. As noted, the crimes were of a nature that might
arouse racial animus, although the news coverage itself did not exploit
this circumstance.
On the other hand, the bulk of the newspaper articles
and television reports merely recounted the facts of the crimes, the
course of the investigation, and the circumstances of defendants arrest.
There were articles and reports concerning the arrest and potential
prosecution of other persons and, as the trial court observed, it
appeared from the news reports that the community remained uncertain
whether it was defendant who actually was the perpetrator. The great
bulk of the articles and reports was framed in neutral terms and did not
amount[] to an out-of-court campaign to convict, reflecting inflamed
public sentiment [citation] such as when a defendant is persistently
labeled in incendiary terms; a werewolf, a fiend,a sex-mad killer, and
the like [citations]. As the . . . Court observed, coverage that
consists of straight news stories rather than invidious articles which
would tend to arouse ill will and vindictiveness, [citation], is not so
troubling. (DeLisle v.Rivers, supra, 161 F.3d at p.
385.)
In the present case, defendant does not allege that
there was a barrage of publicity immediately preceding the trial. [C]essation
of publicity for some period prior to trial will go a long way toward
undoing the damage of a previous media blitz. (DeLisle v. Rivers,
supra, 161 F.3d at p. 385.) Defendants own expert noted the small
number of articles and reports that were published between the
preliminary examination and the hearing on the motion to change venue.
The promotional television spot upon which defendant places great weight
was withdrawn approximately six months prior to trial. The juror
questionnaire instructed prospective jurors not to expose themselves to
any further media coverage. Defendant does not contend on appeal that
the media intruded and created a circus atmosphere at trial. The entire
venire contained only a small proportion of persons who had formed an
opinion as to defendants guilt, and nothing in the record suggests the
panel of seated jurors harbored any opinion concerning defendants guilt.
Contrary to defendants claim, we cannot, as a general matter, simply
disregard a jurors own assurances of his impartiality based on a cynical
view of the human propensity for self-justification. [Citation.] (Id.
at p. 384.)[1]
On balance, defendant fails to persuade us that his was one of the
extraordinary cases in which prejudice must be presumed. We conclude
that defendant has failed to demonstrate a violation of his federal
constitutional right to a trial by an impartial jury or to due process
of law.
2. Expert opinion evidence
Defendant contends the trial court abused its
discretion and deprived him of a fair trial when, on motion of the
prosecution, it permitted FBI Special Agent Larry Ankrom to testify as
an expert that, based on his experience comparing the records of
hundreds of crime scenes, various common marks among the six charged
homicides led him to conclude the crimes were committed by the same
person. Defendant asserts a violation of his constitutionally guaranteed
right to the presumption of innocence absent proof of guilt beyond a
reasonable doubt. (U.S. Const., 5th & 14th Amends.) He also claims a
denial of his right to reliable factfinding in a capital case (U.S.
Const., 8th Amend.; Caldwell v. Mississippi, supra, 472
U.S. 320), and what he terms an arbitrary deprivation of the state-created
protection of Evidence Code section 800 in violation of his right to due
process of law. (U. S. Const., 5th & 14th Amends.)
The prosecution announced prior to trial that it
intended to call FBI Special Agent John Douglas to testify as an expert
on crime scene analysis and signature crimes, anticipating Douglas would
express his opinion that all six charged murders had been committed by
the same person. Evidently the prosecution also anticipated that Douglas
would testify concerning psychological elements involved in serial
murders.
Defendant objected to the proposed testimony on
multiple grounds, including Douglass lack of qualifications as an expert
on psychological matters (Evid. Code, 720), improper subject matter for
expert testimony (Evid. Code, 801), relevance (Evid. Code, 210), and
the testimonys prejudicial impact outweighing its probative value. (Evid.
Code, 352.) Defendant also relied upon the Fifth and Fourteenth
Amendments to the United States Constitution and analogous provisions of
the California Constitution.
The court conducted a lengthy pretrial hearing,
receiving extensive testimony from Douglas and his colleague, FBI
Special Agent Ankrom. The court did not believe the witnesses training
or experience qualified them to express an opinion regarding the
probable state of mind of the perpetrator, and that aspect of the
proposed testimony was excluded. The court concluded the witnesses had
sufficient training and experience in crime scene investigation, however,
and that the subject matter of crime scene analysis and the signature
crimes was beyond common experience. The court ruled the proposed
testimony on that limited topic was admissible. The prosecution elected
not to call Douglas; only Ankrom testified.
Ankroms qualifications as a crime scene expert were
significant. As he testified, he was a 13-year veteran special agent for
the FBI. For the five years preceding the trial, he had been assigned to
the FBIs National Center for the Analysis of Violent Crime (Center), a
clearinghouse and pool of experts from whom law enforcement agencies
throughout the nation sought advice and assistance. In conjunction with
his position with the Center, Ankrom received two years of intensive
training in criminology and other academic topics and, more specifically,
was trained to review comprehensive information concerning crimes and to
perform a criminal investigative analysis of the case material for
various purposes, including to develop a profile of the perpetrator, to
make recommendations on interview strategy, and to give advice regarding
linkage between potential serial crimes.
Ankroms experience was based not only on his training
but also on his five years as an active agent who had been called upon
to review comprehensive information regarding hundreds of crimes and to
offer expert advice to law enforcement agencies whose investigations in
these cases faced obstacles or had failed to produce results. Ankroms
experience included reviewing records related to various serial homicide
cases and conducting lengthy interviews with eight convicted serial
killers for the purpose of identifying evidence that would link the
crimes committed by each perpetrator. He had reviewed autopsy reports,
police reports, photographs, and other records for well over a hundred
female homicide victims who had been stabbed to death, and he testified
that in his experience the multiple deep, clustered stab wounds such as
occurred in the present case were unusual.
According to Ankrom, he and other agents at the
Center analyze crime evidence for linkage by looking for common methods
of operation among groups of crimes that is, the methods used by the
criminals to complete their crimes and to achieve the intended murder,
rape, or other crime. In addition to identifying common methods among a
series of crimes, the agents look for signature elements actions that
were not necessarily involved in or necessary for completing the crimes,
but that served as distinctive common denominators among the crimes.
Ankrom further testified that the San Diego Police
Department contacted the Center in early 1990 concerning the Schultz and
Weinhold murders. Ankrom reviewed autopsy reports, crime scene
photographs, autopsy protocols, criminal investigative reports, maps,
and social histories of the victims. In April 1990, the San Diego Police
Department contacted him to report the Tarr murder. In September 1990,
that agency reported the Clark murders to him. At the request of the San
Diego Police Department, which relied upon his superior expertise in
crime scene analysis, Ankrom thereafter met personally with members of
the San Diego Police Department investigative team, reviewed the
evidence with them, and offered his advice. The department informed him
in February 1991 of the Keller murder.
Ankrom testified that it was his opinion that all six
murders were committed by the same person. During his analysis of the
crimes, he noted certain common features, as follows: The murders
occurred in a small geographical area of San Diego, the first three
having occurred in adjacent apartment complexes. Most occurred between
10 a.m. and 2 p.m., and they occurred in the victims residences. There
was no mark of forced entry. The weapon used was a knife, and the
victims were White females. Beyond these features exhibiting a common
modus operandi, the crimes bore certain distinctive marks. In each
murder except that of Tarr, where the murder was interrupted, there were
numerous stab wounds that were tightly clustered in each victims chest
and were extremely deep, sometimes penetrating to the victims back.
According to Ankrom, another distinctive common denominator was the
position of the victims when found. They were lying on their backs, nude
or in a state of partial undress, and seemed to Ankrom to be positioned
for display. The experts opinion that all the murders were committed by
the same person was very firm.
Defendant contends Ankroms testimony was inadmissible
under state law because it concerned matters that were not beyond the
common experience of jurors. He points out, for example, that jurors are
charged with evaluating whether similarities among charged and uncharged
crimes suggest the same person committed the crimes or that the
perpetrators intent or motive was the same in committing each crime. (Evid.
Code, 1101.)[2]
On the other hand, he urges, expert opinion is restricted to subjects
that are sufficiently beyond common experience that the opinion
of an expert would assist the trier of fact. (Evid. Code, 801, subd.
(a), italics added.)
We apply an abuse of discretion standard in reviewing
a trial courts decision to admit the testimony of an expert. (People
v. Robinson, supra, 37 Cal.4th at p. 630.) The trial court
obviously exercised its discretion in the present case; it gave
very careful attention to the issue, holding an extensive hearing,
engaging in discussion with counsel, and ultimately excluding any
testimony concerning the perpetrators probable state of mind, motive, or
intent. We conclude for a number of reasons that the trial court did not
abuse its discretion in the present case.
First, although ordinarily courts should not admit
expert opinion testimony on topics so common that persons of ordinary
education could reach a conclusion as intelligently as the witness (People
v. McDonald (1984) 37 Cal.3d 351, 367, disapproved on another ground
in People v. Mendoza (2000) 23 Cal.4th 896, 914), experts may
testify even when jurors are not wholly ignorant about the subject of
the testimony. (People v. McDonald, supra, 37 Cal.3d at
p. 367.) If that [total ignorance] were the test, little expert opinion
testimony would ever be heard. (Ibid.)
Rather, the pertinent question is whether, even if
jurors have some knowledge of the subject matter, expert opinion
testimony would assist the jury. (Evid. Code, 801, subd. (a), People
v. McDonald, supra, 37 Cal.3d at p. 367.)
We acknowledge that ordinarily jurors are equipped to
examine crime scene photographs and autopsy evidence and to form an
opinion, in the context of their own perception of the evidence in the
particular case, whether the wounds depicted are so similar they suggest
the wounds were inflicted by the same person.[3]
Notwithstanding the ability of jurors to review the
evidence before them and draw commonsense inferences, it may aid them to
learn from a person with extensive training in crime scene analysis, who
has examined not only the evidence in the particular case but has in
mind his or her experience in analyzing hundreds of other cases, whether
certain features that appear in all the charged crimes are comparatively
rare, and therefore suggest in the experts opinion that the crimes were
committed by the same person. A juror could assume that most stabbing
victims are found on their backs, or that tightly clustered six-and-a-half-inch
stab wounds to the chest are characteristic of murders by stabbing. In
the present case, however, Ankrom was asked whether in his extensive
experience the tight clustered wound pattern, the depth of the wounds,
in combination with the women being found on their backs, is that
distinct? And he testified in response: It is. In my opinion its
something that we would find in our review of other cases to be a rare
occurrence, especially in conjunction with the additional and consistent
similarities in modus operandi he identified among the murders in the
present case. He added: To see that the wound pattern takes place in
that exact spot repeatedly is something that is a distinct common
denominator. Under these circumstances, we cannot conclude the testimony
was of no assistance to jurors who previously never had examined crime
scene evidence other than the evidence before them, nor can we conclude
Ankroms evidence would add nothing at all to the jurys common fund of
information. (People v. Farnam (2002) 28 Cal.4th 107, 163.)
Another basis for our conclusion that the trial court
did not abuse its discretion in admitting Ankroms testimony is that
other courts have permitted expert opinion testimony in comparable
circumstances. Experts on the subject of crime scene reconstruction, for
example, ordinarily may be permitted to give opinion testimony
concerning such matters as the probable location where the crime
occurred, notwithstanding the jurys ability to examine photographs,
coroners reports, and other evidence to form their own common sense
conclusions regarding the crime scene. (People v. Farnam,
supra, 28 Cal.4th at pp. 162-163.)
Perhaps even more to the point, courts have held an
expert may testify concerning criminal modus operandi and may offer the
opinion that evidence seized by the authorities is of a sort typically
used in committing the type of crime charged. An experienced police
officer may testify as an expert, for example, that tools discovered in
a defendants automobile are of the type commonly used in burglaries. (People
v. Jenkins (1975) 13 Cal.3d 749, 755.) A police inspector may
explain that conduct such as that engaged in by the defendant
constituted the usual procedure followed in committing the crime of till
tapping. (People v. Clay (1964) 227 Cal.App.2d 87, 93; see also
People v. Ochoa (2001) 26 Cal.4th 398, 438 [a detective with
relevant training may furnish expert opinion concerning the gang-related
significance of the defendants tattoo]; People v. Gardeley (1996)
14 Cal.4th 605, 617 [the expert properly testified concerning the
culture and habits of criminal street gangs, opining on whether certain
behavior constituted gang-related activity]; People v. Martinez
(2003) 113 Cal.App.4th 400, 413-414 [an expert properly testified that a
gang ordinarily will exact revenge upon a gang member who reveals gang
confidences]; People v. Gamez (1991) 235 Cal.App.3d 957 965 [based
upon his expertise concerning the modus operandi of armed robbers, an
officer properly testified concerning the probable intent to commit
robbery exhibited by persons who acted as the defendants did].)
Federal cases have upheld the admissibility of
testimony by a trained police officer explaining that a defendants
activities were consistent with a common criminal modus operandi. (U.S.
v. Webb (9th Cir. 1997) 115 F.3d 711, 713, and cases cited; see also
U.S. v. Cross (D.C. Cir. 1991) 928 F.2d 1030, 1050, and cases cited;
U.S. v. Espinosa (9th Cir 1987) 827 F.2d 604, 612.) Such modus
operandi evidence helps the jury to understand complex criminal
activities and alerts it to the possibility that combinations of
seemingly innocuous events may indicate criminal behavior. (U.S. v.
Webb, supra, 115 F.3d at p. 714.) Testimony concerning
criminal modus operandi may be helpful to the jury even if the modus
operandi is not particularly complex. (Ibid.; see also U.S. v.
Hankey (9th Cir. 2000) 203 F.3d 1160, 1168-1169 [explaining the
trial courts duty to evaluate the reliability of the evidence].)
In United States v. Rogers (9th Cir. 1985)
769 F.2d 1418, the court determined that it was appropriate for an FBI
agent to testify as an expert that of the 1,800 robberies that had
occurred in Los Angeles, only two were perpetrated in a bank vault by a
person wearing a bandana. The evidence was relevant to prove that the
two charged robberies were committed by the same person. The court
commented that it is settled law enforcement officers may testify
concerning the techniques and methods used by criminals. (Id. at
p. 1425.) The court continued: The testimony as to the frequency of
bandana wearing in Los Angeles area bank robberies was relevant to the
identity of the perpetrator of the robberies. The fact that very few
robberies involve this garb make it more likely that the same person
committed both robberies. (Id. at p. 1426.)
One sister-state decision specifically extends the
rule permitting experienced officers to testify concerning criminal
modus operandi to the topic of expert opinion testimony on modus
operandi admitted for the purpose of establishing linkage among
crimes. The Delaware Supreme Court concluded that an FBI agent
properly was permitted to testify as an expert regarding serial
murders, and that he properly could opine that the three charged murders
were committed by the same person. (Pennell v. State (Del. 1991)
602 A.2d 48, 55.) The court determined that the expert had extensive and
specialized experience with signature crimes and crime analysis. (Ibid.)
It added that the experts testimony could assist the jury in
understanding behavior unknown to the general public. (Ibid.)
Respondent has acknowledged and brought to our
attention one state court decision reaching a different conclusion on
so-called linkage evidence. In that case, the defendant was prosecuted
for murder and the state introduced evidence of an uncharged rape
and attempted murder. The prosecution called upon an expert from the FBI
to testify that the charged murder, which occurred in New Jersey, and
the uncharged attempted murder, which occurred in Maine (and during
which the defendant was apprehended), bore common marks in terms of
their modus operandi and their ritualistic elements, and that the same
person committed both crimes. The New Jersey Supreme Court determined
that the linkage evidence was inadmissible, reasoning that the experts
opinion was based upon behavioral science of doubtful and unproven
reliability. (New Jersey v. Fortin (N.J. 2000) 745 A.2d 509, 513-514.)
The New Jersey court believed that the linkage concept had not attained
such a state of the art as to have the scientific reliability of DNA
testing (id. at p. 514), and there was no evidence it was
accepted in the scientific community or even that it could be tested
outside the FBI center where the theory had been developed. (Ibid.)
To the extent the New Jersey expert was offering
testimony similar to Ankroms, we believe the New Jersey court erred in
comparing such testimony to DNA evidence. In our view, that court
applied an incorrect standard in searching the scientific community for
peers to test [the experts] theories and duplicat[e] his results. (New
Jersey v. Fortin, supra, 745 A.2d at p. 514.) Ankroms
testimony was based upon his extensive experience, not theories
that normally would be subject to peer review or that would be otherwise
comparable to DNA testing. (See U. S. v. Hankey, supra,
203 F.3d at p. 1169 [expert opinion on gang culture is not examined for
acceptance in the scientific community, nor should it be subject to peer
review]; see also Pennell v. State, supra, 602 A.2d at p.
55 [distinguishing FBI agents linkage testimony on the same basis].)[4]
Defendant contends Ankroms testimony falls under a
different line of judicial decisions. He likens this testimony to
profile evidence, which defendant asserts must be excluded. A profile
ordinarily constitutes a set of circumstances some innocuous
characteristic of certain crimes or criminals, said to comprise a
typical pattern of behavior. In profile testimony, the expert compares
the behavior of the defendant to the pattern or profile and concludes
the defendant fits the profile. (See People v. Robbie (2001) 92
Cal.App.4th 1075, 1084; see also People v. Smith (2005) 35
Cal.4th 334, 357, 358.)
The comparison is unavailing because, unlike profile
evidence, Ankroms testimony did not refer to defendant at all. We agree
with the Delaware Supreme Court, which in rejecting a claim that similar
linkage testimony constituted profile evidence, explained Profile
evidence is that which attempts to link the general characteristics of
serial murderers to specific characteristics of the defendant. (Pennell
v. State, supra, 602 A.2d at p. 55, italics added.) The
testimony in that case indicating that three murder scenes bore such
common marks that, in the opinion of the expert, they suggested the
crimes had been committed by the same person did not seek to tie
characteristics of serial murderers to characteristics of the
defendant. (Ibid.)
Significantly, Ankroms testimony did not evaluate
defendants behavior against a pattern or profile. Ankrom did not
offer an opinion that he believed defendant was the culprit, nor did he
relate his findings to defendant at all. Instead, he compared
documentary evidence of the crime scenes in the present case and, based
upon his observation of common marks and his experience, concluded the
crimes had been committed by a single person. In any event, profile
evidence does not describe a category of always-excluded evidence;
rather, the evidence ordinarily is inadmissible only if it is either
irrelevant, lacks a foundation, or is more prejudicial than probative. (People
v. Smith, supra, 35 Cal.4th at p. 357.) In sum, [p]rofile
evidence is objectionable when it is insufficiently probative because
the conduct or matter that fits the profile is as consistent with
innocence as guilt. (Id. at p. 358.)
Defendant next claims that Ankroms testimony that he
was confident the same person committed all the crimes invaded the
province of the jury and constituted testimony concerning the ultimate
issue of guilt or innocence. Having argued the jury was perfectly
capable of using common sense to determine whether similarities at
the crime scenes suggested all the crimes were committed by the same
person, defendant claims Ankroms testimony rendered the jurors
incapable of making such a determination. According to defendant,
it was solely the jurys obligation to determine whether the asserted
similarities among the crimes warranted the inference that a single
person had committed them. In essence, defendant argues, the expert
improperly rendered an opinion on guilt or innocence in violation of
Evidence Code section 800 and defendants right under the Eighth and
Fourteenth Amendments of the federal Constitution to reliable
factfinding in a capital case, and the admission of this testimony also
constituted an arbitrary deprivation of state procedural rights and to
due process of law in violation of the Fifth, Sixth, and Fourteenth
Amendments of the federal Constitution.
Despite the circumstance that it is the jurys duty to
determine whether the prosecution has carried its burden of proof beyond
a reasonable doubt, opinion testimony may encompass ultimate issues
within a case. Evidence Code section 805 provides that [t]estimony in
the form of an opinion that is otherwise admissible is not objectionable
because it embraces the ultimate issue to be decided by the trier of
fact. (See People v. Valdez (1997) 58 Cal.App.4th 494, 597 [a
gang expert testified that the defendant was a member of a particular
gang and that his activities were undertaken on behalf of the gang].)
Of course an experts opinion that a defendant is
guilty is both unhelpful to the jury which is equally equipped to reach
that conclusion and too helpful, in that the testimony may give the
jury the impression that the issue has been decided and need not be the
subject of deliberation. But Ankrom did not testify that defendant was
guilty, nor did Ankrom tell the jury whom to believe or direct the jury
toward a specific conclusion on any element of the charged crimes. His
testimony did not mention defendant at all. Ankroms conclusion, based
upon special training and experience in evaluating the records of
hundreds of crime scenes, that he believed all the crimes were committed
by the same person, did not bind the jury, nor would Ankroms testimony
be understood as essentially directing a verdict. The court instructed
the jury that they were the exclusive judges of credibility (CALJIC No.
2.20), and that they were not bound by an experts opinion, being free to
accord the opinion the weight it deserves after considering the basis
for the opinion (CALJIC No. 2.80).
Defendant next contends Ankroms testimony constituted
or closely resembled improper mathematical probability evidence such as
that disapproved by this court in People v. Collins (1968) 68
Cal.2d 319. In that case, an expert witness (a mathematics instructor)
testified that there was a one in 12 million chance that the defendants
were not guilty. (Id. at p. 325.) An eyewitness had observed
some characteristics of the perpetrators, such as that they seemed to be
a White woman with a blonde ponytail accompanied by an African-American
man with a beard in a yellow automobile, and the expert used these
assertedly distinctive features to calculate the probability that a
couple other than the defendants could have met this description. This
court reversed the judgment, because the experts opinion testimony had
no basis in the facts. For example, one of the factors relied upon by
the expert was the presence of a yellow automobile at the scene, but
there was no evidentiary basis for the experts bold assertion that one
out of every ten cars which might have been at the scene of the robbery
was partly yellow. (Id. at p. 327.) Further, there was no proof
that the characteristics selected for analysis were mutually independent
a necessary precondition to the statistical operation known as the
product rule. (Id. at p. 328, see also id. at p. 325 [the
product rule states that the probability of the joint occurrence of a
number of mutually independent events is equal to the product of the
individual probabilities that each of the events will occur (italics &
fn. omitted)]; see also People v. Soto (1999) 21 Cal.4th 512,
525.) We found the error prejudicial, because it distracted the jury
from its task and encouraged jurors to rely upon an engaging but
logically irrelevant expert demonstration. (People v. Collins,
supra, 68 Cal.2d at p. 327.)
The present case is distinguishable, because Ankroms
testimony was not cloaked in scientific garb but was expressed as a
matter of professional experience gained over a lengthy period of
observation. Moreover, as defendant does not deny, the facts relating to
the charged crimes analyzed by Ankrom were well established, and Ankrom
did not employ a mathematical formula to add a specious weight to his
conclusion.
People v. Hernandez (1997) 55 Cal.App.4th 225
is of no assistance to defendant. There a computer was used to search a
police database respectively for sex crimes committed in a restricted
area prior to the defendants arrival in the neighborhood, and for such
crimes committed subsequent to his arrest and incarceration. The search
was directed at crimes that bore similarity to those with which the
defendant was charged. The prosecutions argument was that the
absence of similar crimes in the database when defendant no longer
was in the neighborhood demonstrated that defendant likely was guilty.
The reviewing court reversed for lack of a proper foundation
establishing that the data entered into the computer was accurate and
complete. (Id. at p. 240.)
By contrast, Ankrom analyzed multiple sources,
including primarily his own professional experience, in drawing the
conclusion that the same person had committed all of the charged murders.
He did not rely upon the absence of evidence shown by a system of data
collection that might omit pertinent evidence.
Next defendant contends the trial court abused its
discretion under Evidence Code section 352 in permitting Ankrom to
testify, asserting that the probative value of the evidence was slight
and the potential for undue prejudice was great. He argues that the
trial court arbitrarily violated the principles underlying Evidence Code
section 352, thereby denying him various constitutional rights,
including his right to due process of law under the Fifth and Fourteenth
Amendments to the federal Constitution, his right to a reliable penalty
determination pursuant to Beck v. Alabama (1980) 447 U.S. 625,
and his rights under the Fifth and Fourteenth Amendments to the
presumption of innocence and to the requirement that the prosecution
meet its burden of proving defendants guilt of the charged crimes beyond
a reasonable doubt.
Defendant claims the evidence had slight probative
value, because Ankrom failed to recognize salient distinctive features
in the various crimes and overstated the evidentiary value of the
asserted similarities. These claims go to the weight, not the
admissibility of the evidence. It was for defendant to expose the
weaknesses in the experts opinion on cross-examination and defendant
did so. Nor do we see the overwhelming prejudicial impact posited by
defendant. We do not believe that Ankroms stature as an FBI agent
employed at the special center he described would cause the jury to
abandon its function as factfinder, especially in light of the guidance
offered to the jury by the courts jury instructions.
We also reject defendants various constitutional
claims. At trial, defendant objected to Ankroms testimony based on the
Fifth and Fourteenth Amendments to the United States Constitution and
analogous provisions of the California Constitution. Assuming, without
deciding, that the points asserted by defendant properly were preserved
(see People v. Partida (2005) 37 Cal.4th 428, 433-434), they are
without merit for the same reasons that defendants state-law claims have
been rejected. (See People v. Ward (2005) 36 Cal.4th 186, 211.)
As we have concluded in past cases, [a]pplication of the ordinary rules
of evidence generally does not impermissibly infringe upon a capital
defendants constitutional rights. (People v. Kraft (2000) 23 Cal.4th
978, 1035.) Defendant has not persuaded us that his case presents an
exception to this rule.
Finally, defendant contends Ankroms testimony that
the Centers work had exonerated an innocent person in the past
violated defendants constitutional rights. Defendant claims: The jurors
would have undoubtedly understood this aspect of Agent Ankroms testimony
as meaning that Ankroms unit reviewed many thousands of homicide cases,
and if they had found any others that were similar to the crimes charged
against [defendant], they would have surely brought that to the
attention of the appropriate authorities. Furthermore, the implication
was clear that such review would continue in the future, and if they
discovered after the present trial that somebody else was committing
similar crimes, that would be brought to the attention of the
authorities. Thus, even if [defendant] were wrongly convicted and
sentenced to death, he would nonetheless be freed before any execution
occurred. [] . . . Thus, the jury was not merely encouraged to rely on
the Agents expertise to overcome their own doubts; in addition, they
were encouraged to rely on Agent Ankroms unit to discover and correct
any error they might make. According to defendant, these circumstances
deprived him of the reliable factfinding that is required in capital
cases under Caldwell v. Mississippi, supra, 472 U.S.
320.
Defendant did not object on this basis during Ankroms
testimony or proffer the constitutional argument he has made in this
court, and this aspect of his claim therefore is forfeited. (People
v. Partida, supra, 37 Cal.4th at pp. 433-434.) In any event,
we find no error. Defendant has not cited any rule of evidence that
would require the exclusion of such testimony, and his concerns about
the effect upon the jury of the testimony in question rest solely upon
speculation.
3. Discovery
During discovery, the defense received a report
prepared by Ankrom regarding the investigation he conducted in the
present case. The report expressed the opinion the crimes were linked,
citing considerable evidence and Ankroms experience. The report also
mentioned that FBI agents at the center maintained a database of the
various violent crimes that had been reported to them and that the
database (called the VICAP database) was designed to track serial
killers. Of the 5,000 homicides in the database at the time of the
present crimes, some involved multiple stabbing deaths of female victims
in their homes, but none were similar to the signature aspects of the
crimes charged in this proceeding.
The defense moved for discovery of the VICAP database,
claiming it formed one of the bases for Ankroms opinion and was critical
to adequate cross-examination. The prosecution responded that it lacked
authority to disclose the confidential VICAP database, that the request
should be addressed to the FBI, and that the prosecution had disclosed
to the defense all material relating to the present crimes that Ankrom
had referred to in his report. After a hearing, the trial court agreed
that in the event Ankrom proposed to testify concerning the VICAP
database and the extent to which it provided a basis for his opinion,
the defense was entitled to examine the database record of the cases in
which female murder victims had been stabbed multiple times in their
homes.
Ankrom responded that he would not testify concerning
the VICAP database and instead would base his trial testimony on his
personal experience, which the court had established was substantial.
Agent Douglas agreed the database results were not essential to support
an opinion that the murders in the present case were linked.
*****
[1]
Indeed, it is beyond question that mere prior knowledge of the existence
of the case, or familiarity with the issues involved, or even some
preexisting opinion as to the merits, does not in and of itself raise a
presumption of jury taint; such a standard would be certainly unsalutary,
and likewise impossible to achieve: [] It is not required . . . that the
jurors be totally ignorant of the facts and issues involved. In these
days of swift, widespread and diverse methods of communication, an
important case can be expected to arouse the interest of the public in
the vicinity, and scarcely any of those best qualified to serve as
jurors will not have formed some impression or opinion as to the merits
of the case. (DeLisle v. Rivers, supra, 161 F.3d at p.
382.)
[2]
We summarily reject defendants claim that the various charged crimes
were not sufficiently similar to have been admissible pursuant to
Evidence Code section 1101. That statute has no application to charged
crimes.
[3]
Contrary to the suggestion of defense counsel at oral argument that
Ankrom simply reviewed the same crime scene photographs reviewed by the
jury, Ankrom testified he also reviewed, both in the present case and
the hundreds of other cases he had analyzed, autopsy photographs,
protocols from the autopsies, police investigative reports (concentrating
on the report of the officers who were first on the scene), maps,
background information concerning the victims, and the history of crimes
in the pertinent geographic locations.
[4]
We do not mean to imply that expert testimony based upon experience
rather than technical expertise is not subject to scrutiny for
reliability. (See U. S. v. Hankey, supra, 203 F.3d at
p. 1169 [exhaustively discussing trial courts gatekeeping responsibility];
U. S. v. Vesey (8th Cir. 2003) 338 F.3d 913, 916-917 [trial
court erred in excluding the testimony of a defense expert, a convicted
drug trafficker, who would have testified concerning the usual practice
in drug transactions, and explaining scope of courts discretion in
assessing reliability]; Kaye, et al., New Wigmore Treatise on Evidence
(2004) , Expert Evidence 9.3.3, pp. 323-325 [analyzing reliability
requirement in light of Kumho Tire Co., Ltd. v. Carmichael (1999)
526 U.S 137].)
*****
The court ruled that Ankrom would not be permitted to
testify regarding the VICAP database but stated it credited Ankroms
testimony that his opinion would not be based upon the FBI database.
The defense renewed the discovery request at the
conclusion of Ankroms testimony on direct examination, claiming Ankroms
conclusion that the clustered stabbing pattern in the present case was
in our experience a rare occurrence must have been based on a comparison
of the present case with the cases in the FBI database, and that
discovery of that database was essential to permit adequate cross-examination.
The court denied the motion, stating: I dont think
its necessary for this witness, or any other witness for that matter, to
bring in each and every prior case that one has examined in order to
provide a fair opportunity to cross-examine that witness.
Defense counsel then cross-examined Ankrom, eliciting
testimony that he never had worked as a homicide investigator and never
had been to a homicide crime scene, and that he never had examined a map
of the entire San Diego County area and was not certain of the location
of the sites of the murders within the area. Defense counsel vigorously
challenged the witnesss view that certain elements of the crimes were
similar and distinctive, asking him to compare the present crimes with
others in which the perpetrator left bizarre signature marks. Under
cross-examination, Ankrom conceded that another unsolved stabbing case
that occurred in San Diego County while defendant was in custody bore
certain similarities to the charged murders. Defense counsel himself
then elicited the information that the witness had consulted a large FBI
database, and attempted unsuccessfully to bring before the jury the
circumstance that the defense had not been provided access to that
database. On inquiry by defense counsel, the expert again expressed his
opinion that the crimes were committed by a single person, but that this
opinion was not based on the database.
On appeal, defendant contends the trial court erred
in denying his discovery motion directed at the FBI database allegedly
used by Ankrom (and Douglas) in forming the opinion that all the murders
charged in the present case were committed by the same person.
Defendant claims the denial of discovery deprived him
of fundamental fairness because, he claims, it impaired his ability to
cross-examine the expert as to the basis for his opinion. Defendant also
relies upon Evidence Code section 721, subdivision (a), which provides
that a witness testifying as an expert may be cross-examined to the same
extent as any other witness and, in addition, may be fully cross-examined
as to . . . (3) the matter upon which his or her opinion is based and
the reasons for his or her opinion. Defendants argument is premised upon
the circumstance that an experts stated opinion is only as reliable as
the matter that forms the basis for his or her opinion. In the view of
the defense, it was forced to accept the mere conclusions of the witness,
without the materials needed to test their strength.
The defendant generally is entitled to discovery of
information that will assist in his defense or be useful for impeachment
or cross-examination of adverse witnesses. [Citation.] A motion for
discovery must describe the information sought with some specificity and
provide a plausible justification for disclosure. [Citation.] The courts
ruling on a discovery motion is subject to review for abuse of
discretion. [Citation.] (People v. Jenkins, supra, 22
Cal.4th at p. 953.)
The defense was not entitled to examine all the
written records generated during Ankroms career in order to be able to
cross-examine him concerning his own professional experience. (See
People v. Roberts, supra, 2 Cal.4th 271, 299 [a defendants
right to confrontation was not violated by the courts denial of a
request for discovery of the many sources of the experts gang expertise,
including conversations with inmates and other investigations].) Nor was
the defense entitled to challenge the basis for the experts opinion by
examining him concerning a database not relied upon by the expert.
Defendant disputes that Ankrom could have formed his
opinion without relying upon the database. He claims the distinctive
marks identified by Ankrom as the basis for his opinion were not truly
distinctive, so that the only true basis for Ankroms opinion must have
been his mental comparison of the charged crimes with all the other
crimes in the VICAP database. We are not persuaded. At the pretrial
hearing on the admissibility of the experts testimony, the court
credited the experts claim that his opinion was not based upon the
database, and Ankrom had ample personal experience upon which to base
his opinion.
With respect to defendants right of confrontation and
cross-examination at trial, defendants lack of access to the VICAP
database did not impair his ability to cross-examine the expert
concerning the basis for his opinion, nor was it unfair to permit the
expert to testify without providing such access. The expert informed the
court that the database was not the basis for his opinion, and the court
credited this claim. Ankrom personally had reviewed records in more than
100 murder cases in which a female victim was stabbed to death. The
trial court acted well within its discretion in concluding that Ankrom
based his opinion upon his personal experience in the field of crime
analysis, and at trial Ankroms testimony conformed to this expectation
on the part of the trial court. Defendant cross-examined the expert
regarding his training and the scope of his experience, and challenged
the experts opinion by questioning him on the differences that existed
among the charged crimes. In addition, as the trial court noted, the
defense could have impeached the witness by presenting coroners
testimony that the stabbing wounds in each murder were distinctive.
Defendant contends that an arbitrary deprivation of
state-created discovery rights deprived him of due process of law,
citing Hicks v. Oklahoma (1980) 447 U.S. 343, but he fails to
identify any violation of such rights.[1]
Defendant also relies upon People v. Price
(1991) 1 Cal.4th 324 for the proposition that a defendant should be
given wide latitude in the cross-examination of experts to test their
credibility. [Citation] If a witness frustrates cross-examination by
declining to answer some or all of the questions, the court may strike
all or part of the witnesss testimony [and] . . . may decline to admit
the testimony in the first instance. (Id. at p. 421.) In that
case, we concluded the court did not abuse its discretion in excluding
the testimony of a defense witness concerning prison gangs, because the
expert was unwilling to identify the persons he had interviewed for the
study that formed the basis for his opinion. The court was within its
discretion in concluding that the experts unwillingness to disclose
would unduly impair cross-examination. (Ibid.) But in the present
case, the database that defendant wished to examine was not the
basis for the witnesss opinion.
Defendant contends that withholding access to the FBI
database violated his constitutional right to effective counsel, thus
denying him the right to present a meaningful defense, a fair
opportunity to be heard, and the constitutional right to reliable
factfinding in a capital case. Defendant has not identified a state law
or constitutional right affording access to the FBI database, so his
right to effective counsel was not impacted. There was no denial of a
state-created right; as we have seen, defendant had the opportunity to
present a meaningful defense and had a fair opportunity to be heard with
respect to the admissibility of the expert testimony, and his inability
to examine the expert concerning something the expert denied
considering as a basis for his opinion did not undermine the reliability
of the factfinding process.
Defendant invokes his right to compulsory process,
claiming his lack of access to the FBI database depriv[ed] [him] of
evidence clearly bearing on the credibility of key prosecution witnesses.
In support, he cites Brady v. Maryland (1963) 373 U.S. 83,
Kyles v. Whitley (1995) 514 U.S. 419, and Pennsylvania v.
Ritchie (1987) 480 U.S. 39, 57-58. As these cases recognize, the
prosecution must disclose material exculpatory evidence to the defense.
(See also In re Brown (1998) 17 Cal.4th 873, 879 [discussing
application of this principle to information under the control of
separate agencies that form part of the prosecution team]; In re
Sassounian (1995) 9 Cal.4th 535, 543-544 [discussing the right to
disclosure of evidence that would impeach a prosecution witness].) But
the database is not part of the record, and the record on appeal does
not indicate there exists any material or exculpatory evidence in the
database. As we have done in the past, [b]ecause defendants claim is
dependent upon evidence and matters not reflected in the record on
appeal, we decline to consider it at this juncture. (People v.
Jenkins, supra, 22 Cal.4th at p. 952.)[2]
Finally, defendant claims that Ankroms testimony
encouraged the jury to ignore any reasonable doubts and to rely upon his
expertise, while the denial of defendants discovery request left the
defense unable to test the strength of the bases of the witnesss
conclusions. The consequence, defendant claims, was that the court
improperly lightened the prosecutions burden of proof beyond a
reasonable doubt. We reject this claim, having determined that Ankrom
properly was permitted to testify as an expert and that defendant had an
adequate opportunity to challenge the basis for Ankroms opinion.
4. Admissibility of
evidence of defendants statements
Defendant contends the trial court abused its
discretion in permitting the testimony of Robin and Robert Romo and
Ernest Tuua recounting defendants incriminating statements.
a. The Romos testimony
Robin Romo testified she resided in an apartment in
the Buena Vista Gardens complex with her husband Robert and a roommate,
Tony. Defendant visited her home weekly, partly to see her roommate,
with whom he worked out in the gym on an almost daily basis. Within one
or two days after the murder of Holly Tarr, defendant visited her. Robin
Romo informed him of Tarrs murder, and he said Yes, I remember. I was at
the pool. I saw her leaving. Defendant did not explain how he had
recognized Tarr prior to the publicity surrounding her murder. One or
two days later, defendant visited again while Robins husband and two
other persons were present. Robin testified that defendant told them
that he had gone out on a date with this woman and was taking her home.
He knew that she wanted him. When they got there she had changed her
mind and said that he was crazy. And so he forced himself on her. Then
when he was done, got up, turned around, she was crying, so he said he
went back and did her again, got dressed and left.
Robert Romo testified that defendant had discussed
his relations with women and had said something about a girl crying.
Defendant may have mentioned slapp[ing] her around. In sum, he was
leaving some girl, she was crying and she had said something to him. He
had said that he went back to her, did her again. According to Robert,
defendant was graphic and vulgar in describing his relations with women.
David Holden, who was an acquaintance of defendants
early in 1991, testified that defendant told him he had met a girl named
Janene and had worked out with her at a club. Defendant told Holden that
he had gone to the womans home and had sex with her on one or two
occasions, but that he could not continue the relationship because the
woman was married.[3]
Prior to trial, defendant objected to the admission
of the incriminating statements he made to Robin Romo, citing the corpus
delicti rule and Evidence Code sections 352 and 1101, as well as the
Fifth and Fourteenth Amendments to the United States Constitution and
parallel provisions of the California Constitution. Defendants theory
was that the statement admitted the commission of another rape (not the
rape of Janene Weinhold), that a corpus delicti had not been established
for the other rape, that the uncharged rape constituted improper bad
character evidence under Evidence Code section 1101, and that this
evidence should have been excluded under Evidence Code section 352 as
more prejudicial than probative. The superior court (Wellington, J.)
determined that circumstantial evidence tied defendant to the rape of
Weinhold, and that defendants admission was relevant to prove that
defendant had raped Weinhold. The court declared: By itself, unsupported
by the rest of the evidence, it would be pretty unpersuasive and perhaps
inadmissible; but in context with the rest of it, frankly, it is my
impression that it is a substantial and significant point. In the courts
view, defendants claim that the connection to the Weinhold murder was
too tenuous to make this evidence admissible went to the weight of the
evidence, not its admissibility. When the case was transferred to the
trial court, Judge Hayes adopted Judge Wellingtons comments and rulings,
adding that the evidence did not constitute bad character evidence under
Evidence Code section 1101, because it related to a charged crime.
At trial (after Robin Romo and David Holden already
had testified), defendant objected to the admission of Robert Romos
testimony on the same grounds raised with regard to Robin Romos
testimony, emphasizing that Roberts testimony should be excluded as
character evidence barred by Evidence Code section 1101, that it was
cumulative to Robins testimony, and that it was unduly prejudicial. The
court thereafter ordered the witness to be examined outside the presence
of the jury, warning him not to refer to defendants statement that he
had tied up a woman and not to volunteer any information. Defendant
renewed his objection under Evidence Code section 352. The court
responded that the evidence was relevant and that its probative value
outweighed its prejudicial impact, overruling the objection on the same
basis upon which it earlier had ruled on the admissibility of Robin
Romos testimony.
Defendant contends the statements made by Robin Romo
were of slight probative value, because they were made some seven weeks
after Weinholds murder, they did not identify the woman to whom
defendant referred in his admission, there was no evidence defendant had
a consensual dating relationship with Weinhold, the statements reference
to a date seems inconsistent with a midday murder, and the statement was
ambiguous. On the other hand, defendant argues, the prejudicial impact
of the evidence was great because it suggested defendant had a
disposition to sexually assault women and, he claims, the evidence was
used in the prosecutors closing argument to just that effect.
We examine the courts action for abuse of discretion
(People v. Rowland (1992) 4 Cal.4th238, 264) and conclude that
the court did not abuse its discretion in denying defendants Evidence
Code section 352 motions to exclude the Romos testimony. Contrary to
defendants claim, this testimony had a tendency in reason to prove or
disprove any disputed fact (Evid. Code, 210), namely that he had raped
Weinhold in the weeks prior to his conversation with the Romos.
Defendant was linked to the crime by the DNA evidence, his statement to
Holden that he had been dating a woman named Janene, and the testimony
of Weinholds neighbor that she had observed defendant sitting on the
stairs leading to Weinholds apartment. Indeed, as the trial court
observed, the statements defendant made to the Romos had considerable
probative value. Further, these statements were admissible even if they
were not clear and unambiguous admissions, and even though they did not
include any admission of the murder. (People v. Kraft, supra,
23 Cal.4th at p. 1035). Contrary to defendants claim, the statements did
not constitute evidence of other crimes reflecting negatively on
defendants general character their reference was to a charged crime.
Defendant contends the court did not expressly weigh
the prejudicial impact of the evidence against its assertedly slight
probative value. Although the record must affirmatively show that the
trial court weighed prejudice against probative value (People v
Padilla (1995) 11 Cal.4th 891, 924, disapproved on another point in
People v. Hill (1998) 17 Cal.4th 800, 822-823, fn. 1), the
necessary showing can be inferred from the record despite the absence of
an express statement by the trial court. (Ibid.) The record
indicates the court gave careful consideration to defendants claims at
hearings held outside the presence of the jury. The court considered an
offer of proof as to the anticipated testimony of Robert Romo and
excluded certain damaging elements of the witnesss statements from
evidence. The court referred to the high probative value of the evidence,
and we properly may infer that the court determined that the probative
value outweighed any undue prejudice.
Defendant contends the trial court also erred in its
ruling admitting Robert Romos testimony for the reason that this
testimony was cumulative and added highly prejudicial matter through
Romos volunteered statement that he didnt know if he slapped her around
and that defendants conversation was so vulgar and graphic that Romo
left the room. The circumstance that defendant may have slapped around a
woman who may have been one of the murder victims was relevant to the
rape charge, and the defense could cross-examine the witness on this
point. The reference to vulgar and graphic conversation simply described
the tone of the conversation and was of negligible prejudicial impact.
b. Tuuas testimony
In June and July of 1990, Ernest Tuua was defendants
supervisor at Expo Stucco Products. Tuua testified that defendant told
him he was having sex with a mother and her daughter, using the term
doing to indicate sexual relations. Defendant told him the mother was a
massage therapist. Defendant said he was able to manipulate the daughter
and play mind games, disrupting the close relationship between the
mother and the daughter.
Defendant objected on the basis of relevance and
Evidence Code section 352, and renews those claims in this court. We
conclude the trial court was within its discretion in finding the
evidence relevant and determining that its probative value was not
outweighed by its prejudicial impact. The evidence tied defendant to the
subsequent murders of Pamela and Amber Clark. The two victims were
mother and daughter, and Pamela was a massage therapist. In light of the
other evidence demonstrating defendants modus operandi and planning
activity, the circumstance that the murders occurred some weeks
subsequent to the conversation does not eliminate the probative value of
the conversation. The circumstance that defendant presented evidence
that he had patronized another massage therapist, Gayle Sovinee, during
this period, did not render Tuuas testimony irrelevant it was for the
jury to determine whether to believe that the massage therapist to whom
defendant referred in his conversation with Tuua was Pamela Clark or
Sovinee. (Sovinee did not have a daughter and testified she treated
defendant on only one occasion and did not date him.)
Having contended the Romo and Tuua testimony was
without probative value and was irrelevant, and that its prejudicial
impact far outweighed its probative value under state law, defendant
also claims the admission of the testimony constituted an arbitrary
deprivation of state-guaranteed rights in violation of the Fifth and
Fourteenth Amendments to the United States Constitution, citing Hicks
v. Oklahoma, supra, 447 U.S. 343. He adds that the admission of this
testimony denied him the right to a reliable verdict under the Eighth
Amendment and Beck v. Alabama, supra, 447 U.S. 625, 638,
footnote 13, and Woodson v. North Carolina, supra, 428
U.S. 280.
Application of the ordinary rules of evidence
generally does not impermissibly infringe upon a capital defendants
constitutional rights. (People v. Kraft, supra, 23
Cal.4th at pp. 1035-1036.) The trial court did not err under state law,
and defendant does not provide any persuasive reason for us to conclude
that the application of Californias rules of evidence violated his
constitutional rights, nor does he establish any basis for concluding
that the admission of this evidence rendered the jurys death penalty
verdict unreliable.
5. Exclusion of Tiffany
Schultzs statements concerning conflict with her boyfriend
Christopher Burns testified as a prosecution witness.
He was Tiffany Schultzs boyfriend. The couple shared a two-bedroom
apartment with another man, Daniel Ganss. Burns testified that when he
left for work on the day of Schultzs murder, she was still in bed. Burns
returned from work at approximately 5:30 p.m. He testified that he
believed the front door was locked. Schultzs towel, some suntan oil, and
the top of her swimsuit were on a lawn chair located by the front door,
and the rear screen door and sliding glass door were open. Ordinarily,
the sliding door was left open if someone was home, but the screen was
kept closed. The door to Gansss room was closed. Burns departed for a
6:15 p.m. appointment at a tanning salon. He returned home after 7:00
p.m., straightened up the apartment, and prepared some food. Ganss
returned home and Burns, having become worried, asked him if he knew
where Schulz was. When Ganss opened his bedroom door, the two men
discovered her body. Law enforcement officers arrested Burns for the
murder but released him three days later.
Prior to trial, anticipating that the defense would
seek to use certain evidence either in cross-examination of Burns or in
its case-in-chief, the prosecution filed an in limine motion seeking
exclusion of police reports of the statements of six witnesses who were
acquainted with Schultz. The declarants had informed law enforcement
officers that Schultz had made statements to them asserting that Burns
had struck her and threatened her with a knife, that the couple had
furious arguments over Schultzs employment as an exotic dancer, and that
Burns enjoyed pornography. The prosecutor asserted that during the trial,
he would not examine Burns concerning his relationship with Schwartz,
leaving the topic unavailable for cross-examination. The prosecutor
contended that the six statements constituted inadmissible hearsay,
adding that defendant lacked evidence to demonstrate third party
culpability that would be admissible pursuant to People v. Hall
(1986) 41 Cal.3d 826, 833 (Hall), in which we declared that
otherwise admissible evidence of third party culpability should be
admitted if it is capable of raising a reasonable doubt of [the]
defendants guilt.
Defendant, for his part, filed a motion in support of
admissibility of out-of-court statements made by Tiffany Schultz.
Specifically, the motion sought an order permitting counsel to
cross-examine Burns regarding certain out-of-court statements made by
Tiffany Schultz shortly before her death. The motion relied in part upon
the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution and parallel provisions of the state Constitution.
Defendant claimed primarily that he should be permitted to use the
statements for the purpose of attacking Burnss credibility, but added
that if the court determined the statements were being offered for their
truth, they then would be admissible as evidence of third party
culpability. (Although at times defendants position has been unclear,
the record requires that we reject respondents claim that the defense
did not seek admission of the statements as evidence of third party
culpability.) Defense counsel also sought permission to examine Burns
concerning his relationship with Schultz. In support of his motion,
defendant proffered investigative reports by the San Diego Police
Department memorializing police interviews with the six persons in
question.[4]
After a hearing at which counsel and the court
analyzed the statements both with regard to their admissibility in
cross-examination and as evidence of third party culpability, the court
commented: I dont see them [the statements] as so inherently trustworthy
that I ought to make my own exception to the hearsay rule. The things
people say in the middle of difficult emotional entanglements are, I
think, historically not the kinds of things that are necessarily
reliable.
The court also commented that the defense planned to
use the statements as evidence of third party culpability but that the
statements showed only motive. The court predicted that defense
examination of Burns regarding the statements would create a side show
without producing evidence of any reasonable probative value. Defense
counsel stated that he also wished to use the statements for the purpose
of impeaching Burnss credibility, but the court questioned why it was
even significant for the defense to discredit Burns. The court asked:
What evidence is he giving that you disagree with and need to impeach by
showing that hes got a motive to lie?
The court (Wellington, J.) issued a written ruling
denying the defense request on hearsay grounds and also declaring: This
motion is actually broader than its title suggests, and includes
requests to cross-examine Schultzs boyfriend, Chris Burns, in an effort
to show that he, not defendant killed Schultz. At argument counsel
indicated that he is not ready to make an offer of proof regarding third
party culpability. When he is (before trial) he will bring this matter
back before us for examination. [] Finally, should Mr. Burns be called
as a witness, defendant should at least be entitled to show, on cross-examination,
that Burns had been a suspect in the Schultz killing. This, at least
arguably, shows a motive to see defendant convicted.
Immediately prior to the prosecutors opening
statement to the jury, the trial court (Hayes, J.) confirmed Judge
Wellingtons order and invited the defense to make an offer of proof of
nonhearsay evidence that would be admissible to establish third party
culpability, and the defense answered that it was not ready to do so.
When the guilt phase was nearing its conclusion, the
trial court questioned defense counsel concerning potential third party
culpability evidence, noted that the court would adhere to its earlier
ruling concerning the admissibility of the statements, and declared that
we werent going to be hearing testimony on that in the absence of
some offer of proof consistent with Hall, supra, 41
Cal.3d 826. Defense counsel responded: Right now, our witness list, we
wont need to address that issue.
Defendant did not make any further offer of proof in
support of the admission of evidence demonstrating third party
culpability.
On appeal, defendant contends fairness demanded that
the statements recounted by the six acquaintances of Schultz in their
interviews with the police be admitted as evidence of third party
culpability under Hall, supra, 41 Cal.3d 826, despite
their character as hearsay. He relies upon Chambers v. Mississippi
(1973) 410 U.S. 284 and Green v. Georgia (1979) 442 U. S. 95.
He claims a violation of his right to present a defense, to confront and
cross-examine the witnesses against him, and to a fundamentally fair
trial. He also claims that without this evidence the verdict was
unreliable within the meaning of the Eighth Amendment to the United
States Constitution.[5]
We review the trial courts ruling for abuse of
discretion. (People v. Robinson, supra, 37 Cal.4th at p.
625.) We are not persuaded that exclusion of the out-of-court statements
constituted a violation of the right to present a defense or to confront
and cross-examine witnesses. Even if the evidence had not been
excludable as hearsay, the trial court did not abuse its discretion in
excluding it, because defendant failed, despite several invitations
from the court, to make an offer of proof that was adequate under
Hall, supra, 41 Cal. 3d 826, in support of his theory
that the defense possessed evidence demonstrating that Burns was the
person who murdered Schultz.
[T]hird party culpability evidence is admissible if
it is capable of raising a reasonable doubt of [the] defendants guilt,
but . . . [w]e do not require that any evidence, however
remote, must be admitted to show a third partys possible culpability. . . .
[E]vidence of mere motive or opportunity to commit the crime in another
person, without more, will not suffice to raise a reasonable doubt about
a defendants guilt: there must be direct or circumstantial evidence
linking the third person to the actual perpetration of the crime. (People
v. Robinson, supra, 37 Cal.4th at p. 625, quoting Hall,
supra, 41 Cal.3d at p. 833).) [I]n making these assessments,
courts should simply treat third-party culpability evidence like any
other evidence: if relevant it is admissible ([Evid. Code,] 350)
unless its probative value is substantially outweighed by the risk of
undue delay, prejudice or confusion [citation]. (People v. Robinson,
supra, 37 Cal.4th at p. 625, italics added, fn. omitted.)
As the trial court found, contrary to the guidelines
we provided in Hall, supra, 41 Cal.3d 826, the
statements proffered by defense counsel did not directly or
circumstantially connect Burns to the actual commission of the crimes.
The statements demonstrated no more than motive. (See People v.
Gutierrez (2002) 28 Cal.4th 1083, 1137 [noting cases holding mere
evidence of third partys anger toward victim was insufficient, and third
partys possible motive alone insufficient to raise reasonable doubt of
defendants guilt].) Indeed, defense counsel himself seemed to recognize
he had not made a sufficient offer of proof. The trial court also
appropriately determined that the probative value of the evidence was
slight, whereas its potential for delay and confusion of issues was
great. Under the circumstances, the court did not err in excluding this
evidence.[6]
As we have done in similar cases, [w]e . . . reject
defendants various claims that the trial courts exclusion of the
proffered evidence violated his federal constitutional rights to present
a defense, to confront and cross-examine witnesses, and to receive a
reliable determination on the charged capital offense. There was no
error under state law, and we have long observed that, [a]s a general
matter, the ordinary rules of evidence do not impermissibly infringe on
the accuseds [state or federal constitutional] right to present a
defense. (People v. Robinson, supra, 37 Cal.4th at pp.
626-627, quoting People v. Hall, supra, 41 Cal.3d at
pp. 833-834 [referring to third party culpability evidence]; see also
People v. Yeoman (2003) 31 Cal.4th 93, 141 [rejecting a claim based
upon Chambers v. Mississippi, supra, 410 U.S. at p. 302
in a similar context].)
Defendant next contends the prosecutor committed
misconduct by suggesting in his closing argument to the jury that there
was no evidence of any discord between Schultz and Burns. The prosecutor
observed: Lets go chronologically, if we may, starting off with the
murder of Tiffany Schultz. Youve heard evidence about Buena Vista
Gardens. You heard the evidence when the defendant moved in. It was
approximately three weeks after he moves in that Tiffany Schultz is dead,
she has been murdered. [] Shes living there with her boyfriend,
Christopher Burns. She was a young student. There is absolutely no
evidence prior to her murder that anything was amiss. In Buena Vista
Garden[s] apartments, you heard some evidence about a burglary, but as
soon as Mr. Prince moves in, we have a series of murders starting off
with Tiffany Schultz.
Defendant forfeited his present claim of
prosecutorial misconduct by failing at trial to object and seek an
admonition (People v. Welch (1999) 20 Cal.4th 701, 753), but in
any event, the prosecutors argument did not contain the suggestion
attributed to it. This is apparent from the context in which the
prosecutors statement was made; his point related to the comparative
state of affairs at the Buena Vista Gardens apartments before and after
defendant moved there. Accordingly, we reject defendants claim on the
merits.
6. Hughes-Webb testimony
Leslie Hughes-Webb testified that defendant accosted
her at the door of the home where she was staying and forced his way in.
After a struggle, she knocked him over and fled. She identified
defendant at a live lineup and at trial. At the preliminary hearing she
testified a woman who had participated in the lineup told her she had
identified another person and that the other womans certainty had caused
Hughes-Webb to question her own identification somewhat. During her
trial testimony, defense counsel cross-examined her concerning this
source of uncertainty in her identification. Specifically, after the
lineup, Hughes-Webb and another woman who had participated in the lineup
were given a ride home in a patrol car. The other woman said repeatedly
how certain she was of her identification, specifying whom she had
identified. Defense counsel asked Hughes-Webb whether she was aware that
the other woman had identified a person other than defendant.
The prosecutor objected on the ground that the other
womans statement as to which man she had identified was irrelevant and
constituted hearsay. The trial court sustained the objection on hearsay
grounds, adding that defense counsel could question Hughes-Webb
concerning her own state of mind after the live lineup, including
whether the other woman had said something to give her pause.
The court directed the jury to disregard the question
concerning the other womans possible identification of another
individual. Under further cross-examination, Hughes-Webb testified she
had been in a police car with the other woman, who had talked a great
deal and quite emphatically about her conclusion and feelings. The other
womans comments caused Hughes-Webb to hesitate about the accuracy of her
own identification. Hughes-Webb wanted to believe that [she] didnt pick
him and informed the police detective who was driving her and the other
woman that she felt some uncertainty and hesitation.
*****
[1]
Defendant claims the court at least should have conducted in camera
review of the FBI database in order to determine whether due process and
fundamental fairness required making some of the materials available to
the defense. In support he cites White v. Superior Court (2002)
102 Cal.App.4th Supp. 1, where the appellate department of the superior
court concluded the trial court did not abuse its discretion in ordering
an in camera hearing to determine whether the defendants right to
impeach the credibility of a peace officer, who investigated allegations
that the defendant assaulted a ward in a juvenile facility, should
overcome the Inspector Generals claim that disclosure would be against
the public interest. The appellate department simply determined that the
trial court had not abused its discretion, and certainly did not hold
that an in camera hearing should be held whenever a defendant seeks
access to materials that he or she believes provided a basis for an
experts opinion.
[2]
To the extent defendants claim concerns pretrial discovery and is based
upon the confrontation or compulsory process clauses of the Sixth
Amendment, it is on a weak footing. As we have previously observed, in
light of the divided views of the justices of the Supreme Court . . . it
is not at all clear whether or to what extent the confrontation or
compulsory process clauses of the Sixth Amendment grant pretrial
discovery rights to the accused. [Citations]. (People v. Hammon
(1997) 15 Cal.4th 1117, 1126; see also People v. Gurule (2002)
28 Cal.4th 557, 592 [discussing the limits on a defendants
constitutional right to disclosure prior to trial]; People v.
Anderson (2001) 25 Cal.4th 543, 577, fn. 11 [the high court has
never held that the confrontation clause requires more than the
opportunity to ask the witness questions pertinent to his or her
credibility (italics omitted)]; Alvarado v. Superior Court (2000)
23 Cal.4th 1121, 1134-1135.)
[3]
Defendant mentions this evidence, but it is difficult to determine
whether on appeal he is challenging the admission of Holdens testimony.
Any claim of error is forfeited, because defendant did not object to
this testimony at trial. (Evid. Code, 353; People v. Marks
(2003) 31 Cal.4th 197, 228.)
[4]
The police treated Burns as a suspect for a brief period and interviewed
witnesses in January of 1990. Defendant proffered written reports of six
of these interviews. (1) Ann Cappiello told an officer that she knew
Schultz well and also knew Burns. Cappiello informed the officer that
Schultz told her she was unable to join in a social event because she
was having problems with Chris. Tiffany couldnt speak with me until
Chris went into the shower. Tiffany said that Chris didnt agree with her
working [as an exotic dancer] at Les Girls . . . . Cappiello informed
the officer: I found Tiffany to be depressed and in tears due to their
living arrangements. They had some argument about some Playboy type
books that Chris had in the apartment. The books made Tiffany question
herself. Tiffany never mentioned any physical violence. (2) Kelly Finn
testified that Schultz informed her on January 10, 1990, that the couple
argued over Schultzs employment at Les Girls. She told me they had a
fight, he was threatening her with something, I dont know with what.
After he threw his temper [tantrum], he left the house abruptly and
slammed the door. It was after he left she called me. She was scared and
wanted to get out of the apartment. Schultz told Finn she believed Burns
would kill her if she didnt quit her job. This was not the first time
Finn had heard of such arguments. The witness informed the police of
Schultzs statement that she and Burns had a rough sex life that included
bondage. Burns was a very jealous person, and Schultz told Finn that
Burns had struck her about three and one-half weeks previously. Finn
herself had seen bruises on Schultzs body that Schultz attributed to
Burnss violence. Schultz told Finn that Burns had told her (Schultz) he
would kill her if she did not quit her job, and that he had threatened
her with a knife. (3) Susan Franco told the investigating officer that
Schultz had confided in her on several occasions regarding problems with
Burns. Burns did not want her to dance at Les Girls and was withholding
sex from Schultz, who felt ugly and insecure as a consequence. There was
no mention of violence. The conversation occurred on January 11 or 12,
1990. (4) Daniel Ganss, the couples roommate, did not report any
violence or complaint of violence in the home. Schultz was upset that
Burns did not desire her. Burns mentioned some bondage incident, which
embarrassed Schultz. (5) Beth Ann Maupin testified that Schultz confided
in her during the week preceding her murder, stating that she and Burns
were having problems, that Burns did not want her to work at Les Girls,
and that the couple had engaged in some bondage that got too rough for
Schultz. The witness did not mention any statements concerning other
violence. (6) Peggy Maupin said that Schultz had told her that she and
Burns were having sexual problems, that Burns did not want her to dance
at Les Girls, and that he was jealous.
[5]
Respondent is mistaken in asserting that defendant failed to make such a
constitutional claim below.
[6]
As noted above, Burnss testimony at trial merely related Schultzs
whereabouts on the morning of her death and described the discovery of
her body. The testimony was of slight importance, because Ganss and the
physical evidence confirmed what he had to say. To the extent defendants
claim is based upon the limitations the court placed on his ability to
challenge Burnss credibility, any error would be harmless under
any standard.
*****
Statements made by the out-of-court declarant to whom
Hughes-Webb referred properly were excluded as hearsay, to the extent
they were offered for the truth of the declaration. To the extent they
were admissible as describing Hughes-Webbs state of mind, the court
excluded the statements because it feared the jury would be unable to
avoid considering them for their truth, despite the absence of any
evidence establishing the reliability of the identification made by the
other woman. Reviewing these evidentiary rulings for abuse of discretion
(see People v. Robinson, supra, 37 Cal.4th at p. 625), we
uphold them. Defendant had an adequate opportunity to establish that the
declarant said something that caused Hughes-Webb to doubt her own
identification. If defendant sought to establish that one of the
surviving victims or other witnesses positively had identified someone
other than himself, defendant could have subpoenaed and examined the
woman as a defense witness. Even if the court erred in excluding the
proffered evidence, such error would have been harmless under any
standard of review, because the court permitted the defense to question
the witness to establish that she had doubted the accuracy of the
identification she had made.[1]
Defendant unpersuasively claims the courts ruling
denied him his constitutional right to put on a defense, to confront and
cross-examine the witnesses against him, and to a fundamentally fair
trial and reliable determination of guilt. He also asserts that the
ruling constituted a denial of due process of law by arbitrarily
depriving him of crucial evidence. There was no error under state law,
and as noted above, [a]s a general matter, the ordinary rules of
evidence do not impermissibly infringe on the accuseds [state or federal
constitutional] right to present a defense. [Citations.] (People
v. Robinson, supra, 37 Cal.4th at pp. 626-627, fn. omitted.)
Furthermore, as we have noted, even if the evidence should have been
admitted, its exclusion would have been harmless under any standard.
7. Evidence of defense
counsels participation in the lineup
Defendant contends he was deprived of his federal and
state constitutional rights to the effective assistance of counsel, to a
fair trial, and to reliable factfinding when the trial court failed to
protect him during the course of testimony given by Jaime Bordine, the
homicide detective who conducted the live lineup. Bordine testified that
defense counsel were present at the lineup and implied that they had
approved the composition of the lineup and selected defendants placement
in it.
Defendant contends that by introducing testimony that
defense counsel were present at the lineup and had selected defendants
placement, the prosecution effectively us[ed] his attorneys as witnesses
against him, thereby violating his right to counsel. He claims that the
effect of [the] testimony was an unmistakable implication that counsel
were given every opportunity to assure that the lineup was fair, and
that they approved the conduct of the lineup and the resulting
identifications. The resulting prejudice to him was no different than it
would have been if counsel had been called as witnesses and had
testified that they had been present, that they had been consulted
regarding the adequacy of the other lineup participants, and that they
had made the decision where their client should be placed. Defendant
blames the prosecutor for asking these questions and the court for
failing to protect him.
As respondent points out, defendant did not object to
Bordines testimony on any of the bases mentioned in the present claim;
indeed, he did not object at all during the prosecutions direct
examination. Accordingly, his claim is forfeited. (See People v.
Cooper, supra, 53 Cal.3d at p. 824.) Moreover, it is not
improper for counsel for either side to inquire into the circumstances
surrounding a lineup, including the presence or absence of counsel. (People
v. Citrino (1970) 11 Cal.App.3d 778, 783; see also Cal. Criminal Law:
Procedures and Practice (Cont.Ed.Bar 2006) Lineups and Identification,
22.29, pp. 599-600.)
Defendant asserts the court had a duty to protect him
from what he views as an incursion upon his right to counsel, even
though counsel failed to object. He cites People v. Rodriguez
(1981) 115 Cal.App.3d 1018, but that case is of no assistance to him.
Rodriguez was charged with robbery, and his defense at trial was based
on mistaken identity and the asserted suggestiveness of the police
identification procedures. Among other subjects, defense counsel cross-examined
the identifying witnesses and the arresting officer concerning the
manner in which the lineup was conducted and the appearance of the
participants. On redirect examination, the prosecutor asked the officer
whether defense counsel, who was present at the lineup, had said: That
was not a bad lineup or Its not bad. (Id. at p. 1020.) The court
sustained a hearsay objection, but the prosecutor called defense counsel
as a witness, and the court ordered him to testify. Defense counsel
ultimately withdrew any objection and testified, confirming that he had
made the statement attributed to him by the arresting officer.
Under these circumstances, the Court of Appeal
determined that the trial court had failed to protect defendants right
to effective assistance of counsel when it ordered defense counsel to
testify against his client on a question that was material to the
defense. Indeed, the court found that the question completely undercut
the misidentification defense, because it bolstered the eyewitnesses
identifications. (People v. Rodriguez, supra, 115
Cal.App.3d at p. 1021.) The proceedings undermined the attorneys
effectiveness and, the reviewing court stated, would cause the jury to
be suspicious of his other efforts on defendants behalf. The jury can
hardly avoid inferring the defendants own attorney does not believe in
the defense he himself is presenting. It is fundamentally unfair to a
criminal defendant to use his own attorneys testimony to convict him,
and such a substantial infringement on the right to counsel requires
reversal. [Citations]. (Ibid.)
In the present case, the trial court did not make any
incursion on defendants right to counsel. It did not order defense
counsel to testify. Moreover, the defense did not ask the jury to find
that the composition of the lineup had been suggestive, so the
evidence of counsels presence at the lineup did not undercut defense
counsels credibility or ability to pursue a defense of mistaken
identification. Rather, the defense stressed that numerous witnesses
were unable to identify defendant at the live lineup, and that the
witnesses subsequent identifications were the result of suggestion,
primarily from the media coverage that displayed defendants picture for
the first time subsequent to the live lineup.
Defendant contends we must address his claim despite
trial counsels failure to object, because the court and the prosecutor
rendered the trial fundamentally unfair in violation of defendants
federal constitutional right to due process of law. He cites Darden
v. Wainwright (1986) 477 U.S. 168. There the high court determined
that a prosecutors improper remarks infected the entire trial with such
unfairness that the resulting conviction constituted a denial of due
process. (Id. at p. 181.) We have responded to similar claims by
observing that to preserve such an issue on appeal, ordinarily the
defendant must object and request an admonition. (People v. Frye
(1998) 18 Cal.4th 894, 969.) In any event, the present case is not
comparable to Darden v. Wainwright, supra, 477 U.S. 168.
The prosecutors questions did not infect the entire trial with
unfairness, just as they did not violate defendants right to counsel.
Nor has defendant established that the courts failure to protect him
rendered the verdict unreliable in violation of the Eighth Amendment.
8. Admissibility of knives
Defendant contends the trial court abused its
discretion under state law and violated various of his constitutional
rights by admitting into evidence four knives that police seized from
defendants automobile upon his arrest in the Miramar Road Family Fitness
Center parking lot. In defendants vehicle, police discovered a kitchen
knife with an eight-inch blade and a five-inch handle, along with a
steak knife and two small folding knives. Defendant asserts the knives
simply constituted bad character evidence and were used to support the
prosecutors argument that defendant was the kind of person who likes to
arm himself with knives.
Defense counsel failed to object when the police
officer who performed the search described the knives in his trial
testimony. When the parties were discussing the introduction of exhibits
into evidence, defense counsel objected on the ground that the admission
of the knives would be more prejudicial than probative. (Evid. Code,
352.)[2]
The prosecutor countered that the knives might have been present in the
vehicle for potential use in the various stalking episodes and
burglaries that followed the commission of the murders.
The court overruled the objection, observing that a
knife had been stolen from at least one of the premises defendant had
entered and that there was evidence indicating defendant used his
automobile to stalk young women. The court noted evidence establishing
that defendant sometimes removed kitchen knives from drawers while
committing his crimes and that he used kitchen knives similar to the one
taken from the defendants vehicle in these homicides. The court
concluded that the probative value of the evidence outweighed its
potential for prejudice.
As noted above, defense counsel failed to object to
the police officers testimony recounting the discovery of the
knives during the search of the vehicle. Accordingly, any error with
respect to the admission of the physical evidence must be viewed
as harmless in light of the officers testimony describing the knives.
Even if we were to reach the merits of defendants
claim, we do not agree that the court abused its discretion. Although
none of the knives evidently was used as a murder weapon, it is
reasonable to conclude that defendant used one or more of them during
the various charged burglaries and attempted burglaries that were
committed subsequent to the murders. There was evidence that at least in
the Schultz and Keller murders, defendant came armed with his own knife,
and the subsequently committed burglaries and attempted burglaries bore
enough similarities to those murders (and the burglaries related to
those murders) to enable the jury to reasonably conclude he was armed
with his own knife (perhaps one of the knives discovered in his
automobile) when he committed some of the charged burglaries and
attempted burglaries.
Defendants reliance upon People v. Riser
(1956) 47 Cal.2d 566 (overruled on another ground in People v. Morse
(1964) 60 Cal.2d 631, 648-649) is misplaced. In that case the evidence
established that a murder had been committed with a Smith and Wesson
.38-caliber Special revolver, which never was recovered. We concluded it
was error to admit evidence that defendant possessed a Colt .38-caliber
revolver that could not have been the murder weapon. The only purpose of
admitting the evidence would be to demonstrate that the defendant is the
sort of person who carries deadly weapons. (People v. Riser,
supra, 47 Cal.2d at p. 577; see also People v. Archer (2000)
82 Cal.App.4th 1380, 1392-1393.)
The knives seized from defendants vehicle apparently
were not used to inflict the fatal wounds upon the murder victims, but
the charge of murder was not the only one faced by defendant. As noted,
the knives bore some relevance to the weapons shown by the evidence to
have been involved in other charged crimes. They did not simply
constitute bad character evidence. (See People v. Cox (2003) 30
Cal.4th 916, 956-957 [[w]e have also held that when weapons are
otherwise relevant to the crimes commission, but are not the actual
murder weapon, they may still be admissible. [Citations.] Thus, in
Neely we admitted evidence of a rifle located in the defendants
truck parked near the crime scene even though the rifle was not the
murder weapon, as it was not irrelevant to the charged offenses. [Citation.]
In Lane, we upheld the admission of guns found in an abandoned
truck miles from the scene of the homicide, not as relevant to the
homicide per se, but as weapons of a character which could be used in
armed robbery . . . in furtherance of the criminal plan. [Citation.]].)
Defendant unpersuasively contends the courts ruling
denied him his constitutional right to put on a defense, to confront and
cross-examine the witnesses who testified against him, and to a
fundamentally fair trial. He also claims the ruling denied him due
process of law by arbitrarily depriving him of crucial evidence. We
conclude there was no error under state law, and [a]s a general matter,
the ordinary rules of evidence do not impermissibly infringe on the
accuseds [state or federal constitutional] right to present a defense. [Citations.]
(People v. Robinson, supra, 37 Cal.4th at pp. 626-627,
fn. omitted.)
Defendant next contends that the prosecutor committed
misconduct when in closing argument he relied upon the knives as
evidence of defendants bad character. Defendant complains the prosecutor
stated that whoever committed the crimes obviously liked to use knives,
pointing to the exhibits of knives seized from defendants vehicle and
asking why defendant would carry such knives. Defendant also
characterizes as misconduct the prosecutors discussion of statements
made by defendant concerning knives and the prosecutors subsequent
argument: [Defendant] brags about these knives. He has them in his car.
He is that type of person that gets his thrills off of imagining knives
and blood dripping off those knives.
Again, there was no objection on the basis of
prosecutorial misconduct, nor did the defense request that the court
admonish the jury. (See People v. Frye, supra, 18
Cal.4th at p. 969.) Even assuming that the courts ruling on defendants
objection to the introduction of the knives into evidence rendered
further objection futile (see People v. Hill, supra, 17
Cal.4th at p. 820), defendants claim lacks merit. This is not a
situation in which the prosecutor asked the jury to draw the inference
that defendant had a bad character because he possessed a weapon
unconnected with the charged crimes. Rather, the prosecutor
legitimately referred to the knives in connection with the matter of
motive. He argued that the evidence from the crime scenes established
that whoever committed the crimes liked to use knives implying that
employing knives was an aspect of the murderers sexual perversion and
that sexual perversion as expressed by the use of knives was the
murderers motivation. The prosecutor discussed the similarities among
the victims, particularly that they were attractive women, most of whom
had been accosted or attacked while scantily clothed. He argued that the
women had been stalked, and that whoever killed the victims was
motivated by a sexual perversion. Thats the mold of domination, of
sexual perversion wanting to kill to see blood. Somebody who isnt quite
right. Somebody who has a desire to dominate, to express his sexual
perversion by seeing the breasts of women bleed. Then the prosecutor
asked the jury to conclude that defendant was a person who liked to use
knives, a circumstance that would support the inference that he shared
the motivation of the murderer. In support, the prosecutor pointed to
the knives defendant kept in his car and to statements defendant made to
friends. The prosecutor did not ask the jury to conclude that defendant
was the murderer because other uncharged crimes showed he had a bad
character or even because he traveled armed the prosecutor asked them
to conclude defendant was the murderer because there was circumstantial
evidence of his motivation. This argument was permissible.
Defendant also contends that the evidence of the
knives was inadmissible because the police violated his Fourth Amendment
rights by conducting the warrantless search of his automobile in which
the knives were discovered. At a hearing held prior to trial pursuant to
section 1538.5, the court determined that the police had probable cause
to conduct the search in conjunction with defendants arrest. It is
unnecessary for us to recite here the events that led to the arrest, the
seizure of the automobile, and the inventory search conducted the
following day, because even if the knives were to be viewed as the fruit
of a search conducted in violation of defendants rights under the Fourth
Amendment, any error would have been harmless beyond a reasonable doubt.
Although we have concluded that the knives had some relevance, they were
of limited probative value as defendant himself contends. In light of
the overwhelming evidence of defendants guilt of the charged crimes, the
admission of the knives, if error, would have to be viewed as harmless
beyond a reasonable doubt.
9. Sufficiency of the
evidence
Defendant contends the presentation of the evidence
was confusing and that the jury may have assumed that if defendant was
guilty of one crime, he must be guilty of all of the charged crimes.
Defendant does not offer any support for this claim. The jury properly
was instructed to decide each count separately (CALJIC No. 17.02), and
both the prosecution and the defense made the point during closing
argument that the jury should consider separately its verdict on each
charge. Accordingly we reject this claim.
Defendant attacks the sufficiency of the evidence to
support many of the counts charged against him, raising his claims in
multiple subparts.
We review the whole record in the light most
favorable to the judgment below to determine whether it discloses
substantial evidence that is, evidence which is reasonable, credible,
and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. (People v. Hillhouse
(2002) 27 Cal.4th 469, 496; see also People v. Berryman (1993) 6
Cal.4th 1048, 1082-1083 [same standard under the state and federal due
process clauses].) We presume in support of the judgment the existence
of every fact the trier could reasonably deduce from the evidence. [Citation.]
This standard applies whether direct or circumstantial evidence is
involved. (People v. Catlin (2001) 26 Cal.4th 81, 139.)
a. The murder of Tiffany
Schultz (Count 1)
Defendant contends there was insufficient evidence to
connect him to the murder of Tiffany Schultz. Murder is the unlawful
killing of a human being . . . with malice aforethought. ( 187, subd.
(a).) Such malice may be express or implied. It is express when there is
manifested a deliberate intention unlawfully to take away the life of a
fellow creature. It is implied, when no considerable provocation appears,
or when the circumstances attending the killing show an abandoned and
malignant heart. ( 188.) Premeditated murder is murder in the first
degree. ( 189.)
We reject defendants challenge to the sufficiency of
the evidence connecting him to the murder of Tiffany Schultz. There was
sufficient evidence from which the jury could infer defendants identity
as the murderer. Defendant recently had moved into the apartment complex
across the street from where Schultz was murdered. The jury could infer
that on the morning of the murder, defendant was seen, not in his own
apartment complex, but near Schultzs apartment, an hour or two prior to
the murder, giving a false account for his presence and in a position
where he could have observed Schultz sunbathing at her open doorway. The
jury could have drawn these inferences from the testimony of Dorothy
Curtiss, the manager of the Canyon Ridge Apartment complex where Schultz
lived, who testified she saw Schultz sunbathing in a bikini in the
doorway of her apartment around 10 a.m. on the morning of her murder.
Schultzs next door neighbor saw Schultz sunbathing in the same location
at approximately 12:20 p.m. Schultz spoke to a friend between 10 and
10:30 a.m., but failed to call the friend later in the morning, as the
friend had expected. Telephone calls to her placed around 12:30 p.m.
went unanswered, and about the same time witnesses heard sounds in
Schultzs apartment that were consistent with a violent struggle.
Curtiss further testified that between 10:30 and
10:45 on the morning of Schultzs murder, she encountered a man in front
of her office whom she was relatively certain was defendant. The office
abutted the stairs leading to Schultzs second-story apartment. The man
requested a hanger, stating he had locked himself out of his automobile.
Curtiss retrieved a hanger from her nearby apartment and gave it to the
man. To Curtisss surprise, the man proceeded toward the back of the
complex rather than out to the street, where he had indicated his
automobile was located. Curtiss departed on an errand at some time
between 11 and 11:30 a.m., and did not see anyone working on an
automobile on the street at that time or upon her return.
In addition, the jury could infer the identity of
Schultzs murderer from evidence establishing substantial similarities
among this murder and the other murders: the similarities between
Schultz herself and the other murder victims; the type of clustered,
deep stab wounds inflicted on Schultz and the other murder victims; the
partially disrobed or nude condition of the bodies in all the murders,
including that of Schultz; the proximity of the location of the Schultz
murder to the location of the ensuing similar murders of Weinhold and
Tarr; and other evidence establishing that defendant was a habitual
burglar who preyed primarily on young White women whom he followed to
their homes.
In addition, the interior and exterior doorknobs of
the door leading into the room where Schultzs body was found were marked
with bloody handprints in a honeycomb or cross-hatch design consistent
with a sock or gloves. Witness Beasley testified that defendant wore
socks over his hands when they committed burglaries together. Similar
bloody marks were discovered at some of the other murder scenes.
In light of all the evidence, a jury reasonably could
conclude defendant was guilty of murdering Schultz despite minor
distinguishing marks consisting of her having been stabbed more times
than the other victims and suffering an additional cut across her throat,
and despite nothing apparently having been stolen from her apartment.
Defendant also contends there was insufficient
evidence of premeditation and deliberation to support a first degree
verdict as to the murder of Schultz.
Generally, there are three categories of evidence
that are sufficient to sustain a premeditated and deliberate murder:
evidence of planning, motive, and method. [Citations.] When evidence of
all three categories is not present, we require either very strong
evidence of planning, or some evidence of motive in conjunction with
planning or a deliberate manner of killing. [Citation.] But these
categories of evidence, taken from People v. Anderson (1968) 70
Cal.2d 15, 26-27, are descriptive, not normative. [Citation.] They are
simply an aid [for] reviewing courts in assessing whether the evidence
is supportive of an inference that the killing was the result of
preexisting reflection and weighing of considerations rather than mere
unconsidered or rash impulse. [Citation.] (People v. Elliot
(2005) 37 Cal.4th 453, 470-471.)
With regard to planning, there is evidence from which
the jury could infer defendant noticed Schultz sunbathing in her bikini
up to two hours prior to the murder, giving him ample time to consider
and plan his crime prior to his return to the scene. The jury could
infer he possessed criminal intent prior to his commission of the crime,
because he employed a ruse to explain his presence near Schultzs
apartment. The bloody hand prints in a honeycomb or cross-hatch pattern
that were discovered at the scene support the inference the perpetrator
of the murder planned far enough in advance to bring gloves or socks for
his hands so he would not leave fingerprints. With regard to motive,
evidence of the other crimes committed by defendant indicated he
harbored animus against young White women. With regard to method, the
clustered stab wounds support an inference of a deliberate killing. (See
People v. Elliot, supra, 37 Cal.4th at p. 471 [Three
potentially lethal knife wounds . . . [and] 80 other stab and slash
wounds to her body [could have been] construed . . . as intimating a
preconceived design to kill].) The similarities between the Schultz
murder and the other murders support the inference defendant went to
Schultzs home armed with a knife and with the intent to kill. (See
People v. Carter, (2005) 36 Cal.4th 114,. 1184-1185 [the
circumstances of three similar murders by strangulation occurring in a
short period of time strongly indicate the killings were premeditated,
and the record as a whole is inconsistent with any suggestion that the
killings were not willful, premeditated, and deliberate]; People v.
Catlin, supra, 26 Cal.4th at pp. 140-141 [a common scheme
among charged and uncharged murders supplied evidence of the defendants
guilt of murder with malice aforethought].)
In sum, sufficient evidence supports the verdict of
guilty as to the first degree premeditated murder of Schultz.
b. The murder and rape of
Janene Weinhold and the burglary of her residence (Counts 2, 3, and
4)
Defendant contends there was insufficient evidence to
establish that he was responsible for the murder and rape of Janene
Weinhold. It is unclear whether he also challenges the sufficiency of
the evidence regarding the burglary of Weinholds apartment.
We disagree with defendants claim that the evidence
was insufficient as to any of the charges involving Weinhold. As noted,
[m]urder is the unlawful killing of a human being . . . with malice
aforethought. ( 187, subd. (a).) Murder in the course of certain
enumerated felonies, including rape and burglary, is murder in the first
degree. ( 189.) Forcible rape is an act of sexual intercourse that is
accomplished against a persons will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the person of
another. ( 261, subd. (a)(2).) A person who enters a dwelling with
intent to commit grand or petit larceny or any felony is guilty of
burglary. ( 459.)
There was ample evidence demonstrating that defendant
was responsible for the murder of Weinhold. A neighbor observed
defendant seated on the steps leading to Weinholds apartment close to
the time of the murder. The murder fit the pattern of the other murders
Weinhold was a young White woman who was murdered in her home at the
Buena Vista Gardens apartment complex in the middle of the day. Her body
lay positioned on the floor wearing only a bra. She had suffered 22 deep
stab wounds closely clustered in the chest area and administered with
force sufficient to penetrate bone. As in some of the other murders, the
assailant used a kitchen knife belonging to the victim. DNA evidence
strongly connected defendant to the crime. With respect to the rape
verdict, the evidence indicated that the victim was not involved in any
intimate relationships and that defendant was unknown to the victim,
circumstances supporting an inference that sexual intercourse occurred
against her will. Two months after the commission of this crime,
defendant told an acquaintance that he had gone on a date and forced
himself on the woman. Defendant much later remarked to a coworker that
he had sexual relations with a woman named Janene. Seminal fluid found
at the scene indicated a match with defendants DNA that would occur in
one out of 120,000 persons. It reasonably could be inferred from all the
evidence that defendant entered the apartment with the intent to commit
larceny or rape.
Defendant contends that his statements to his
acquaintance were made after the crime was committed and did not clearly
refer to the victim or to any charged offense. Nonetheless, they
supplied a reasonable inference in support of the verdicts. Defendant
objects that the DNA evidence demonstrated that there were 20 other
African-American persons in the San Diego area who could have left the
semen stains at the scene. But the circumstance that defendant was one
of 20 persons who could have done so, when considered with all the other
evidence linking him to the crimes, constituted weighty evidence of his
guilt.
Defendant points to various distinctions between the
murder of Janene Weinhold and the other murders. According to defendant,
the murder of Weinhold was the only one in which a sexual assault
accompanied the murder, and there was no evidence the perpetrator had
stolen her property or that she had been followed from a swimming pool
or a fitness center.
We disagree that the other murders lacked sexual
overtones. The various victims were fully or partially unclothed and
their bodies appeared to be displayed, sometimes with legs apart.
Although it does not appear that Weinhold was followed from a pool or
fitness center and there is no proof that defendant stole her property,
she bore the characteristics of the type of person targeted by defendant,
namely young, attractive White women who were alone in their homes
during the middle of the day in a certain neighborhood. The distinctions
among the murders did not preclude a jury from reasonably concluding
that defendant was responsible for the crimes committed against Weinhold.
c. Attempted burglaries of
the residence of Sarah Canfield and Stephanie Squires (counts 7 and
8)
Defendant contends the evidence was insufficient to
link him to these crimes and to establish the element of intent to steal.
As noted, burglary consists of entry into a home or certain other
structures with intent to commit grand or petit larceny or any felony.
( 459.) An attempt to commit a crime consists of two elements: a
specific intent to commit the crime, and a direct but ineffectual act
done toward its commission. ( 21a.)
We are not persuaded by defendants claim that there
was insufficient evidence of his identity as the perpetrator of the
attempted burglaries. In the first incident, Stephanie Squires
recognized defendant (perhaps from her having previously resided at the
Buena Vista Gardens apartment complex) when he followed her to the pool
at the Torrey Pines Village apartment complex. On both April 25 and
April 28, 1990, an African-American man climbed the stairs to Squiress
apartment and tried the door handle. Canfield identified defendant as
the person who, on April 28, 1990, appeared at her door. Other evidence
established that defendants vehicle was seen departing from the parking
lot soon after the second incident. A jury reasonably could infer,
particularly in light of the modus operandi involved in many of the
other crimes, that the man who tried the door on both occasions was
defendant. For the same reason, a jury reasonably could determine that
his intent was, in part, theft. (People v. Ramirez, supra,
39 Cal.4th at pp. 463-464.) Contrary to defendants claim, there was
evidence he already had stolen from his victims, namely, that he had
stolen an opal ring from Tarr.
Defendant claims that Canfield was not completely
certain of her identification when she viewed the video lineup, and that
her identification was tainted by her prior observation of defendants
image on television news. Canfield was quite confident of her
identification at trial, however, and even at the video lineup she was
almost positive. In addition, the testimony of the apartment manager and
her husband supported Canfields identification.
d. Burglary of the
residence occupied by Leslie Hughes-Webb (Count 9)
Defendant challenges the sufficiency of the evidence
to establish that he was responsible for pushing his way into the
residence where Leslie Hughes-Webb was staying, in light of the
testimony of another witness who testified defendant was at a distant
spot in Old Town San Diego until 2:30 p.m. on the day of the attack. The
jury was entitled to determine that Hughes-Webb, who positively
identified defendant as her assailant, was more credible than the other
witness, Christine Fagan. Contrary to defendants assertion that there
was no evidence indicating that defendant entered the home with the
intent to commit theft, the similar crimes he committed in other homes
provided a basis for a jury to reasonably conclude that his intent was,
at least in part, to commit theft.
e. Burglary of the
residence of Michael Gromme (Count 17)
With respect to the burglary of Michael Grommes
residence, although the question is closer than in other counts, we
believe the evidence was sufficient to support this conviction. Shirley
Beasley testified that he and defendant burglarized an apartment that
was right upstairs from their own and removed all the liquor they found
in the home in order to provide supplies for a party. Beasley testified
that defendant retrieved a knife from the kitchen and walked through the
apartment. Beasley further testified that he and defendant spoke with an
older couple, the occupants of the apartment, shortly after the burglary
and that he commiserated over the burglary, falsely claiming the
apartment he shared with defendant also had been burglarized. On the
other hand, Beasley claimed he and defendant committed the burglary of
the apartment of an older couple whom he saw seated at the apartment
complexs pool as the burglary proceeded, even though Gromme resided
alone and was at work when the burglary occurred.
When we consider that Grommes apartment was indeed
right upstairs from the apartment shared by defendant and Beasley, that
Grommes account of the peculiar burglary (in which the perpetrators
removed his entire liquor supply) matched Beasleys account, and that
Gromme and Beasley both recalled an interaction shortly after the
burglary in which Beasley commiserated over the burglary and claimed to
have suffered one himself, we believe the evidence as a whole permitted
the jury reasonably to conclude that Beasley was mistaken or lied when
he stated the apartment belonged to an older couple whom he had seen at
the pool. The unusual burglary of Grommes residence was sufficiently
similar to the burglary described by Beasley, and Beasleys statements to
Gromme were so similar to the statements described by Beasley, that it
would be reasonable for the jury to conclude both witnesses were
describing the same incident. Although Beasley was an accomplice, his
testimony was corroborated by Grommes account of the target and location
of the burglary, the other evidence establishing Beasleys and defendants
partnership in crime during the relevant period, and Beasley and
defendants presence together shortly after the crime. (See People v.
Gurule, supra, 28 Cal.4th at p. 628.)
f. Attempted burglary of
the residence of Patricia Van (Count 23)
Defendant contends the evidence of attempted burglary
of the residence of Patricia Van on December 19, 1990, consisted of
nothing more than an innocent knock at the door, accompanied by an
inquiry after a friend. We believe, however, that the evidence was
sufficient to prove an attempted burglary. A neighbor saw defendant
examining the backyards of residences in that vicinity, then witnessed
him approach the Van residence through the side yard. Defendant arrived
there shortly after Van returned from working out at the Family Fitness
Center, and the evidence strongly suggests he had stalked Van and
followed her home. His approach to the front door and request for a
person who did not reside there was consistent with his approach during
the commission of other crimes. In addition, a completed burglary of the
home of Patricia Van took place one month after the attempt, and one of
Vans stolen earrings was traced to defendant. There was ample evidence
that the December 19, 1990 approach to the Van residence also
constituted an attempted burglary in which defendants activities went
beyond mere preparation but were frustrated by the vigilance of the
victims neighbor.
g. Attempted burglary of
the residence of Karyl Oldenburg (Count 22)
Defendant contends there was insufficient evidence to
support the guilty verdict of attempted burglary of Karyl Oldenburgs
residence. We disagree. The jury reasonably concluded that defendant was
stalking Oldenburg and that he followed her home from her workout at the
Family Fitness Center. Defendant appeared at her front door and, without
knocking or ringing the bell, started manipulating the doorknob. There
was evidence suggesting he used a credit card to unlock doors that were
not deadbolted, and his activity on this occasion was consistent with
such an effort, especially because he seemed to have something in his
hands as he turned the doorknob. In addition, Oldenburg witnessed him in
her backyard, where he had no legitimate business, approaching a sliding
glass door similar to the ones he had used to gain entry to other
residences that he had burglarized. There was sufficient evidence to
establish that defendant attempted to enter this residence with the
intent to steal.
h. Attempted burglary of
the Yates residence (Count 24)
Contrary to defendants claim, sufficient evidence
supported the verdict that he was guilty of the attempted burglary of
the residence occupied by Angela Yates. There was evidence indicating
that defendant followed Yates home from the Family Fitness Center,
parked at some distance from her residence, then entered the backyard of
the residence as Angela showered. He approached a sliding glass door at
the rear of the residence, but was frightened off when Angelas mother
saw him and screamed and the family dog emerged from the house.
Defendant was observed jumping over the fence of the Yates property and
driving off at a high rate of speed. In light of the evidence connecting
defendant to similar crimes, there was sufficient evidence to establish
that he stalked Angela Yates with the intent to enter her residence for
the purpose, at least in part, of committing theft.
*****
[1]
Defendant notes that Hughes-Webb stated on cross-examination that when
she informed the officer who was driving the patrol car of her doubts,
he said she would know when she saw the evening news. Defendant contends
this statement constituted a suggestive identification procedure, citing
Simmons v. United States (1968) 390 U.S. 377, 384.) Defendant has
forfeited this claim because he did not raise it below.
[2]
As respondent points out, defense counsel objected to certain numbered
exhibits, and the numbers represented only the steak knife and the
folding knives. The transcript of the hearing on the objection, however,
makes it clear that the court and counsel assumed the objection went to
the larger knife as well.
*****
i. Burglaries of the
residences of Depamphillis and Kinney (Counts 25 and 26)
Defendant contends there was insufficient evidence he
was responsible for the Depamphillis and Kinney burglaries. He relies
upon evidence reflecting that these burglaries occurred late at night,
unlike the other crimes. But the burglarized apartments were located in
the vicinity of the other crimes, and a car similar to that used by
defendant was observed at the scene. Moreover, items stolen during these
burglaries subsequently were traced to defendant.
j. Attempted burglary
of the residence occupied by Geralyn Peters Venvertloh (Count 27)
Defendant contends there was insufficient evidence to
link him to the attempted burglary of Geralyn Venvertlohs residence, and
of his intent to commit theft in the course of that incident. We
disagree. Although Venvertloh was unable to make a positive
identification at a photo or live lineup, her neighbor Jeffrey Pich
witnessed defendant attempting to break into Venvertlohs residence and
positively identified defendant and his vehicle. Defendants intent to
steal was established by his attempt to gain surreptitious entry to a
residence that did not belong to him, and by his having committed
numerous other burglaries in the same manner with the intent to commit
theft.
k. Felony-murder theory
Defendant contends there was insufficient evidence to
support the burglary convictions associated with the murders of Weinhold,
Tarr, Keller, and Pamela and Amber Clark, and therefore insufficient
evidence to support the murder verdicts as to these victims if the
verdicts were based upon a burglary or rape felony-murder theory. (Defendant
was not charged with a burglary in connection with the murder of Tiffany
Schultz.)
Murder committed in the perpetration of certain
felonies, including burglary and rape, constitutes murder in the first
degree. ( 189.) We have required as part of the felony-murder doctrine
that the jury find the perpetrator had the specific intent to commit one
of the enumerated felonies [in section 189] . . . . [Citations.] [Citation.]
It also is established that the killing need not occur in the midst of
the commission of the felony, so long as that felony is not merely
incidental to, or an afterthought to, the killing. (People v. Proctor
(1992) 4 Cal.4th 499, 532.) In addition, a homicide occurs in the
perpetration of an enumerated felony for the purpose of the felony-murder
rule if both offenses were parts of one continuous transaction. (People
v. Sakarias (2000) 22 Cal.4th 596, 624.)] There is no requirement
of a strict causal [citation] or temporal [citation] relationship
between the felony and the murder. (People v. Hart, (1999) 20
Cal.4th 546, 608-609.) In addition, [c]ircumstantial evidence may
provide sufficient support for a felony murder conviction. (People v.
Elliot, supra, 37 Cal.4th at p. 469 [sufficient evidence
supported [a] robbery-murder conviction based on evidence that [the]
victim usually carried several $1 bills, no paper currency was found on
[the] victim or in his taxi, and defendant had seven $1 bills on his
person at the time of his arrest, citing People v. Marks,
supra, 31 Cal.4th at pp. 230-231].)
Defendant contends the evidence left open the
possibility that he was invited into each murder victims home and did
not enter with felonious intent, a necessary element for proof of a
burglary. Defendant employs an incorrect test in assessing the
sufficiency of the evidence. The test is whether a reasonable juror
could have believed from all the evidence that defendant entered the
homes with intent to commit an enumerated felony. (People v.
Hillhouse, supra, 27 Cal.4th at p. 496; People v.
Proctor, supra, 4 Cal.4th at p. 532.) There was ample
evidence establishing that defendant entered each residence with the
intent to commit theft, considering defendants modus operandi and the
other similar burglaries he committed that clearly were theft related.
In addition, the jury properly was instructed that felony murder is not
proven unless the intent to commit the felony was formed prior to entry
into the residence, and that felony murder is not established by proof
that the defendant entered with the intent to commit murder.
Defendant reiterates that there was no evidence
indicating he entered Janene Weinholds residence with the intent to
steal or rape. He notes the absence of evidence of a forced entry, the
absence of evidence that property was missing from the residence, and
the absence of direct evidence concerning the interaction between
Weinhold and defendant when he presented himself at her door. But the
jury may rely upon circumstantial evidence to find that a felony murder
occurred (see People v. Elliot, supra, 37 Cal.4th at p.
469, People v. Marks, supra, 31 Cal.4th at pp. 230-231),
and specifically to establish the intent of the defendant. The defenses
claim that defendant may have been invited into the apartment before he
formed the intent to rape Weinhold or steal from the apartment is
inconsistent with the voluminous evidence of defendants stalking
behavior, including his acts prior to the commission of the Weinhold
murder, his statement that he had forced himself on a victim, his many
similar burglaries, the circumstance that he was evidently unknown to
Weinhold and that she was not interested in dating, and the
circumstances that his encounter with her was accompanied by loud sounds
and that she bore defensive wounds. The evidence suggests that the
sexual contact between defendant and his victim was not consensual, that
Weinhold did not voluntarily admit defendant to her home, and that he
did not form an intent to commit a theft or rape only after he entered
and on the spur of the moment, as a purely incidental objective. A
forced entry was not necessary to support the burglary verdict. (See
People v. Frye, supra, 18 Cal.4th at p. 954.) The jury
reasonably could conclude that defendant, well before he gained
admission to the apartment, intended to force himself upon the victim or
at least steal from her.
Defendant also contends there was insufficient
evidence to demonstrate that he formed the intent to steal prior to his
entry into the Tarr apartment. Again, the absence of evidence of a
forced entry is not determinative. The evidence of defendants modus
operandi constituted evidence of a common intent to steal that was
formed prior to entry into the residences of his victims. As noted,
defendant did steal an opal ring from Tarr. The jury reasonably could
believe that when he entered, defendant already intended to steal rather
than forming such intent only after the death of his victim.
The prosecutor suggested that defendant took the ring
as a souvenir, and defendant contends the evidence supports the view
that he stole a single ring from Keller merely as a souvenir rather than
entering her residence with a preexisting intent to steal. The murder of
Keller followed that of Tarr, and the acquisition of a second souvenir
reasonably could be viewed as one of the objects of defendants entry
into Kellers home rather than as a reflection of a spontaneous impulse
experienced following entry into the home.
With respect to the Clark murders, defendant
reiterates there was insufficient evidence of an intent to steal prior
to entry into the residence because, as he views the matter, there was
no evidence concerning the circumstances under which the perpetrator
entered the home, whereas there was evidence indicating that defendant
was dating persons who met the description of the Clarks. The jury
reasonably could conclude defendant was not dating the Clarks, but
entered their home with intent to commit theft an intent he carried out
in this and many other instances.
Defendant contends that because his convictions were
based upon insufficient evidence, he was deprived of his federal
constitutional rights to a fair jury trial in accordance with due
process of law, to be free from conviction of any crime absent proof
beyond a reasonable doubt [citation], and to reliable fact-finding
underlying capital guilt and penalty phase verdicts. The evidence was
sufficient to support each of the felony-murder verdicts, as we have
explained. That the evidence in some instances might be reconciled with
a contrary finding or that a jury reasonably could have determined that
each murder was not a felony murder is not a basis for reversal of any
of defendants conviction. (See People v. Lewis (2001) 26 Cal.4th
334, 368.)
Defendant also contends that because in his view the
evidence in support of the burglary convictions involving the murder
victims was inadequate, it was improper for the court to instruct on
felony murder. We disagree, having found the evidence of preexisting
intent to commit an enumerated felony to be sufficient with regard to
each of the murders.
Defendant next claims still under his general
challenge to the sufficiency of the evidence that it was improper for
the court to instruct on felony murder, because the thefts necessarily
were merely incidental afterthoughts to planned murders and thus could
not support a felony-murder verdict. (See People v. Green (1980)
27 Cal.3d 1, 52-54; People v. Thompson (1980) 27 Cal.3d 303,
321-325.) This claim is untenable in view of the number of occasions on
which defendant entered residences with the intent to steal and either
pawned the proceeds or used them as gifts for friends.
If defendants claim is that, because he committed
premeditated killings, he could not also have committed burglary for the
purpose of the felony-murder rule, his assertion is unconvincing. The
felony-murder rule do[es] not apply to a burglary committed for the
sole purpose of assaulting or killing the homicide victim. [Citations.]
(People v. Ramirez, supra, 39 Cal. 4th at p. 463,
quoting People v. Seaton (2001) 26 Cal.4th 598, 646.) On the
other hand, concurrent intent to kill and to commit the target
felony or felonies does not undermine the basis for a felony-murder
conviction. (People v. Gutierrez, supra, 28 Cal.4th at p.
1141, italics added; see also People v. Mendoza (2000) 24
Cal.4th 130, 183.)
l. The murder of
Schultz
Still pursuing his instructional claims under the
general heading of the sufficiency of the evidence, defendant challenges
the first degree murder instruction as it applied to the murder of
Schultz. The trial court gave the jury a general instruction that first
degree murder could be established by proof of premeditation and
deliberation or by proof that the killing was committed in the
perpetration of an enumerated felony. Defendant complains the court did
not instruct the jury that the felony murder theory would not
apply to the charge that defendant murdered Schultz. Defendant contends
the jury even though a burglary was not charged in connection with the
Schultz murder nonetheless might have determined that
defendant entered Schultzs home with the intent to commit theft, and
therefore may have applied the felony-murder theory. We are not
persuaded that any error occurred. The jury may convict on a felony-murder
theory if the felony is proved beyond a reasonable doubt even if the
underlying felony has not been charged. (People v. Davis (1995)
10 Cal.4th 463, 514; see also People v. Kipp (2001) 26 Cal.4th
1100, 1131.) Moreover, in light of the other murders, the evidence taken
as a whole was sufficient to permit a reasonable jury to conclude that
defendant entered Schultzs home with the intent to commit theft.
10. Failure to instruct on
second degree murder
The prosecutor requested that the court instruct on
second degree murder. His concern was to avoid any possibility of an
issue on appeal concerning instructional error. Defense counsel agreed
the instruction should be given, voicing a desire that the jury have
something to consider other than an all-or-nothing choice between first
degree murder convictions and acquittal. At the courts request, defense
counsel proposed an evidentiary basis for a second degree murder
instruction. Counsel stated: I can envision, with respect to the first
homicide, the defendant being invited inside, there being an argument,
something brewing in between himself and the perpetrator and Tiffany
Schultz, and the state of mind of the perpetrator that is not indicative
of premeditation, deliberation, because of a fight, something being
found, some argument, then a struggle there and grabbing hold of the
knife which was inside the apartment and stabbing, but in a semi-heat-of-passion
as opposed to during the commission of a rape or during the commission
of a burglary where hes been invited inside. Thats the scenario that
could quite possibly have happened. That could be carried through to at
least one other homicide, maybe the Holly Tarr homicide as well as the
Keller homicide.
The court responded that counsel had provided at
least a plausible argument, explaining: Although Im skeptical, [counsel],
you have provided at least a scenario that could be based upon this
evidence. Thats as to count one. Other counts, the Clark counts, for
example, I cant imagine any scenario . . . that would be anything other
than first degree. The court reflected that to instruct on second degree
murder as to the Schultz murder alone might cause the jury to conclude
the court was directing a verdict on the other murder counts, so the
court concluded it would instruct on second degree murder without
limiting the instruction to the Schultz murder.
Although defense counsel favored instruction on
second degree murder, defendant himself vigorously opposed such
instruction. During extensive hearings, the court went to great length
to ensure that defendant understood the issue and that he knowingly and
voluntarily wished to forego instruction on second degree murder.
Defense counsel conceded he had no intention of arguing a second degree
murder theory to the jury but, contrary to his client, believed the
instruction would serve to give the jury choices.[1]
On the basis of language set forth in People v.
Frierson (1985) 39 Cal.3d 803, the trial court concluded that the
ultimate authority as to whether lesser included offense instructions
should be given was the defendant himself, not his or her attorney. The
court took additional steps to ensure that defendant understood the
choice he was making by opposing instruction on second degree murder,
including that defendant would not be able to claim error on appeal. The
court again asked defense counsel to state the evidentiary basis he
believed supported the instruction. Defense counsel maintained that he
could conceive of a state of facts where a person was invited in. That
is, there was no burglary, no felony burglary which would be the basis
of an automatic first degree murder finding where the individual inside
is confronted by the female, either after having been invited in by her
for whatever reasons, got that person inside. There was an argument, a
discussion. Counsel surmised that perhaps somehow there was a struggle,
struggle over the knife [obtained from inside the home]. At least one
blow caused death . . . . Could have been a killing absent premeditation
and deliberation. Counsel concluded that such a theory would apply to
all the killings except the Clark murders.
The court then stated its view that, despite defense
counsels recitation, the evidence was not sufficient to place a sua
sponte duty on the court to instruct on second degree murder, commenting
that all of the evidence supported guilty verdicts as to first
degree murder, if any. The court nonetheless undertook further
discussion with defendant designed to ensure that defendants decision to
forego instruction on second degree murder (despite defense counsels
request) was knowing and voluntary. The court asked him whether he would
waive any right that you would otherwise have to . . . [] [a] second
degree [murder] . . . instruction being provided to the jury, and
defendant responded in the affirmative. The court determined that it
would not instruct on second degree murder and announced that its
decision stemmed both from its view of the evidence and from defendants
request.
Defendant now contends, despite his request at trial
that the instruction not be given, that the courts failure to instruct
on second degree murder constituted reversible error, assigning various
constitutional bases for his argument.
[A] defendant has a constitutional right to have
the jury determine every material issue presented by the evidence [and]
. . . an erroneous failure to instruct on a lesser included offense
constitutes a denial of that right. . . . [Citation.] (People v.
Elliot, supra, 37 Cal.4th at p. 475.)
The trial court has authority to determine whether to
instruct on a lesser included offense such as second degree murder, and
if the court determines that there is sufficient evidence to warrant
such an instruction, the court should give the instruction. It is for
the court alone to decide whether the evidence supports
instruction on a lesser included offense. (People v. Barton
(1995) 12 Cal.4th 186, 196.) As we have stated, neither the prosecution
nor the defense should be allowed, based on their trial strategy, to
preclude the jury from considering guilt of a lesser offense included in
the crime charged. (Ibid.) Indeed, California decisions have
held for decades that even absent a request, and even over the
parties objections, the trial court must instruct on a lesser
offense necessarily included in the charged offense if there is
substantial evidence the defendant is guilty only of the lesser. [Citations.]
( People v. Carter (2005) 36 Cal.4th 1114, 1184, italics added,
italics in Carter.)
Despite the circumstance that it is the court
that is vested with authority to determine whether to instruct on a
lesser included offense, the doctrine of invited error still applies if
the court accedes to a defense attorneys tactical decision to request
that lesser included offense instructions not be given. (People v.
Barton, supra, 12 Cal.4th at p. 198; see also People v.
Horning (2004) 34 Cal.4th 871, 905.) Such a tactical request
presents a bar to consideration of the issue on appeal. (Ibid.)
In the present case, however, defense counsel did not make such
a tactical decision on the contrary, counsel requested the
instruction.
We need not determine whether this procedural bar to
our consideration of the issue on appeal applies when defense counsel
has requested the instruction but the defendant objects. As we shall
explain, we believe that the trial court correctly concluded that the
evidence adduced at trial was not such that the trial court was required
to instruct on second degree murder as a lesser included offense.
Instructions on lesser included offenses are
required whenever evidence that the defendant is guilty only of the
lesser offense is substantial enough to merit consideration by the jury.
[Citations.] Substantial evidence in this context is evidence from
which a jury composed of reasonable [persons] could . . . conclude[]
that the lesser offense, but not the greater, was committed. [Citations.]
(People v. Hughes (2002) 27 Cal.4th 287, 366-367, italics omitted.)
In the present case, the evidence in support of any second degree murder
conviction was not substantial enough to warrant consideration by the
jury. There was no sua sponte duty to instruct, and the court did not
err in refusing a request for an instruction that was not supported by
substantial evidence. (People v. Flannel (1979) 25 Cal.3d 668,
684-685; People v. Ceja (1994) 26 Cal.App.4th 78, 85.)
Murder is the unlawful killing of a human being . . .
with malice aforethought. ( 187, subd. (a).) Such malice may be express
or implied. It is express when there is manifested a deliberate
intention unlawfully to take away the life of a fellow creature. It is
implied, when no considerable provocation appears, or when the
circumstances attending the killing show an abandoned and malignant
heart. ( 188.) Murder that is committed with malice but is not
premeditated is of the second degree. (People v. Ramirez,
supra, 39 Cal.4th at p. 464; 189.)
Despite the strong evidence of premeditation
discussed above, defendant insists the evidence was such that the jury
could have concluded that the People had failed to prove premeditation
and deliberation or felony murder, the two bases upon which the first
degree murder verdicts rested. Defendant argues it was entirely possible
that the killings occurred in a quick explosion of violence after the
encounters be[gan] in a friendly fashion with the perpetrator invited
inside. He urges that there was slight evidence of planning or motive,
and that the manner of the killings according to the defense,
potentially representing an explosion of violence would suggest malice
but not premeditation. He notes that the prosecutor suggested the
perpetrator of the murders was mentally disturbed, and claims it would
be difficult to prove premeditation on the part of a deranged person.
Defendant also points to the prosecutors argument that the thefts may
have been afterthoughts, in support of his claim that there was evidence
suggesting he entered the victims homes without criminal intent.
We disagree. Defendant was not entitled to have the
jury instructed on all possible lesser included offenses, but only on
those offenses as to which there was evidence of substantial weight. (People
v. Hughes, supra, 27 Cal.4th at pp. 366-367.) In the
present case, such evidence of lesser included offenses would have to
suggest that defendant killed the victims with the general intent to
kill or with a reckless disregard for human life, but that he did not
kill in the course of committing a felony or with premeditation and
deliberation. But the evidence demonstrating premeditation was
overwhelming, and there was no evidence that defendant happened upon the
victims and rashly decided to kill them. There was no evidence of
substantial weight indicating that defendant entered the victims home at
their invitation; defendant relies upon only speculation in making such
a claim. Although an unpremeditated explosion of violence may constitute
a second degree murder, evidence of defendants motive and modus operandi
supplied overwhelming proof that he did not kill on a rash
impulse, but according to a premeditated design. As the trial court
observed, defense counsels request for a second degree murder
instruction was based upon speculative scenarios without any evidentiary
basis. Finally, we observe that the defense was alibi and mistaken
identity, not that defendant intended to kill but did not premeditate.
Defense counsel announced the defense had no intention of arguing a
second degree murder theory to the jury even if the court were to
instruct on it.
We reached a similar conclusion in People v.
Carter, supra, 36 Cal.4th 1114. In that case, within a
period of a few days, three women were fatally strangled under closely
similar circumstances. Not only does the manner in which each of these
three killings was perpetrated strongly indicate in itself that each of
the killings was willful, premeditated, and deliberate, but the entire
course of conduct clearly revealed by the evidence, taken as a whole, is
inconsistent with any suggestion that the killings were not willful,
premeditated, and deliberate. (Id. at pp. 1184-1185; see also
People v. Valdez (2004) 32 Cal.4th 73, 116 [speculation that
the victim might have been shot during a struggle did not require a
second degree murder instruction].)
Defendant refers to his statements that he was dating
the Clarks and a woman named Janene, and suggests in this court that
this evidence would support a claim that he entered the Clark and
Weinhold residences without intent to commit a felony and without a
premeditated intent to kill. But the jury, having convicted defendant of
burglary in connection with the Clark and Weinhold murders and of rape
in connection with the Weinhold murder, specifically rejected the theory
that he entered the Clark and Weinhold residences without intent to
commit a felony. In addition, there is no evidence that defendant
entered the residences and then suddenly decided to kill the victims in
an explosion of violence. All the evidence pointed to premeditation.
Even if we were to agree with defendant that the
court should have instructed on second degree murder (and that this
issue was not forfeited), any error in failing to give such instructions
would have been harmless. The erroneous failure to instruct on a lesser
included offense generally is subject to harmless error review under the
standard of People v. Watson (1956) 46 Cal.2d 818, at pages
836-837. Reversal is required only if it is reasonably probable the jury
would have returned a different verdict absent the error or errors
complained of. [Citations.] (People v. Rogers (2006) 39 Cal.4th
826, 867-868, fn. omitted; and see id., p. 868, fn. 16 [the
footnote describes potential exceptions for certain federal
constitutional violations]; see also People v. Ledesma (2006) 39
Cal.4th 641, 716; People v. Sakarias, supra, 22 Cal.4th
at p. 621 [a violation of the duty imposed by state law to instruct on
lesser included offenses is evaluated under the Watson standard];
People v. Breverman (1998) 19 Cal.4th 142, 165 [same]; but see
People v. Elliot, supra, 37 Cal.4th at p. 475 [characterizing
erroneous failure to instruct on a lesser included offense as a denial
of due process of law to be evaluated on appeal under the standard set
forth in Chapman v. California (1967) 386 U.S. 18, 24].) Having
considered whether the evidence supporting the existing judgment is
. . . relatively strong, and the evidence supporting a
different outcome is . . . comparatively weak (People v.
Rogers, supra, 39 Cal.4th at p. 870), we do not believe it is
reasonably probable that the absence of a second degree murder
instruction could have affected the outcome of the jurys deliberations.
Indeed any error would have been harmless beyond a reasonable doubt. As
we have seen, the evidence in support of second degree murder verdicts
not only was weak ― it was insubstantial, whereas the evidence relating
to the manner and circumstances of each crime and the modus operandi and
common marks among all the crimes overwhelmingly established
premeditation.
Even assuming the existence of some evidence
in support of defendants claim that he killed in a sudden,
unpremeditated explosion of violence, we observe that the jury also
convicted defendant of burglary as to five of the murders all but the
Schultz murder, as to which burglary was not charged thereby
necessarily determining that, contrary to defendants suggestion on
appeal, defendant did not enter the victims residences lacking felonious
intent. The verdicts also strongly indicate, in view of the facts
underlying the crimes, that the jury believed defendant had committed
five felony murders. In addition, the jury found true the special
circumstance allegation that he killed Janene Weinhold in the course of
a rape or attempted rape ( 190.2, subd. (a)(17)), thereby specifically
establishing that the jury determined that the Weinhold murder was a
felony murder. (See People v. Elliot, supra, 37 Cal.4th at
pp. 475-476; People v. Chatman (2006) 38 Cal.4th 344, 392; see
also People v. Hinton (2006) 37 Cal.4th 839, 883 [the jury
necessarily rejected defendants sole defense of duress when it convicted
him of attempted robbery, so that any lack of clarity in the second
degree murder instructions was harmless].)
Further, we already have rejected defendants claim
that there was insufficient evidence to support the burglary and rape
verdicts involving the murder victims, and his renewal of this claim in
the context of the present argument does not alter our conclusion. As
for the remaining murder count involving the murder of Schultz, we do
not believe the jury would have convicted defendant of second degree
murder of Schultz had it been instructed on that offense, in light of
the jurys verdicts as to the five other homicide charges.
Defendant contends that omission of the second degree
murder instruction constituted federal constitutional error.
Specifically, he asserts that if his state law instructional error claim
is barred by the invited error doctrine, he still must prevail because
the courts failure to instruct on second degree murder constituted a
violation of his rights under the Eighth and Fourteenth Amendments to
the United States Constitution. He relies upon Beck v. Alabama,
supra, 447 U.S. 625, and related cases.[2]
We have not relied upon the invited error doctrine in rejecting
defendants instructional claim, however. Defendant adds that his federal
constitutional argument applies regardless of the cause of the courts
failure to instruct, relying upon the same principles. We also reject
this claim. Beck v. Alabama, supra, 447 U.S. 625, and its
progeny do not require that a court instruct upon a lesser included
offense as to which substantial evidence is lacking. (People v.
Valdez, supra, 32 Cal.4th at p. 118 [Because there was no
substantial evidence supporting an instruction on second degree murder,
the high courts decision in Beck is not implicated].) Nor, unlike
the situation in the Beck case, does our state prohibit the
giving of lesser included offense instructions in capital cases. Nor
under our state law can the absence of a lesser included offense
instruction force the jury into a choice between acquittal and a murder
conviction that necessarily would lead to the death penalty; even after
finding true an alleged special circumstance, a California jury may
elect to sentence the defendant to life in prison without the
possibility of parole. (People v. Valdez, supra, 32
Cal.4th at pp. 118-119.)[3]
Defendant further contends that the absence of a
second degree murder instruction violated the federal constitutional
principle that the jury, not the court, must decide the factual basis
for every element of a criminal charge, and essentially constituted a
directed verdict of first degree murder. He urges that the standard of
review for federal constitutional error established in Chapman v.
California, supra, 386 U.S. 18, 24, should apply.
Contrary to defendants claim, the courts failure to
instruct on second degree murder did not constitute a directed verdict
of first degree murder. Defendants reliance on People v. Figueroa
(1986) 41 Cal.3d 714, is misplaced. In that case the trial court
instructed the jury on all the elements of the charged securities law
violation, including the requirement that the item at issue actually be
a security. Then the court instructed the jury that the item was
a security, thereby improperly removing that element from the jurys
consideration. In the present case, however, the court did not instruct
the jury that any element of the crime of murder had been established.
Finally, defendant contends that omission of the
second degree murder instruction caused the jury to fail to fix the
degree of the crime as required by section 1157, which requires that
when a defendant is convicted of a crime that is divided into degrees,
the fact finder must find the degree of the crime and that failing such
action by the fact finder, the crime will be deemed to be of the lesser
degree. ( 1157.) This claim lacks merit. The question of degree properly
was not before the jury, and section 1157 had no application. (See
People v. Mendoza, supra, 23 Cal.4th at p. 910.) That
statute does not require the jury to make a determination of the degree
of the murder when substantial evidence does not exist that would
warrant the jurys considering the homicide to be anything less than
first degree murder. Defendant fails to provide any authority or
persuasive argument to the contrary.
11. Testimony of Anna
Cotalessa-Ritchie
Over defense objection that the evidence was more
prejudicial than probative and should be excluded pursuant to Evidence
Code sections 352 and 1101, Anna Cotalessa-Ritchie testified as follows.
She resided in the Buena Vista Gardens apartment complex. At
approximately noon on March 25, 1990, a few days prior to the April 3,
1990 murder of Holly Tarr, the witness walked from her residence to a
nearby convenience store. On her way to the store she saw defendant,
whom she later identified, standing at a bus stop across the street from
the store. On her return, at first she did not see defendant, but then
observed him walking toward her as she walked toward her home. He stared
at her during the time it took for her to proceed approximately 50 yards,
until they crossed paths. Several times she looked away and looked back,
and he still was staring at her. She passed him and proceeded 20 to 30
yards to the door of her second-story apartment. She fumbled for her
keys for a moment, then noticed defendant, now standing at the foot of
the stairs staring at her. When she looked at him, he bent over as if to
tie his shoes, which already were tied, but continued to stare at her.
She entered the apartment and locked the door. The incident made her
nervous, and she informed her husband of it. She reported the incident
to the police the day after the Tarr murder. In June 1991, she
identified defendant at a video lineup, having been instructed not to
view any publicity regarding the case prior to the lineup. In his offer
of proof, the prosecutor stated that the witness was a young woman in
her early 20s.
The prosecution offered the foregoing testimony on
the issue of identity and as evidence of modus operandi, relying upon
the asserted similarity between the incident and the crimes committed
against Tarr and Weinhold. The court overruled defendants objection,
explaining that the incident occurred close in time and place to the
Tarr and Weinhold murders, adding its determination that the evidence
was not more prejudicial than probative.
Ordinarily, evidence of a persons character is
inadmissible to demonstrate his or her conduct on a particular occasion
(Evid. Code, 1101, subd. (a)), except that evidence is admissible to
establish that a person committed a crime, civil wrong, or other act
when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident
. . .) other than his or her disposition to commit such an act. (Evid.
Code, 1101, subd. (b).) Evidence going to the issue of identity must
share distinctive common marks with the charged crime, marks
that are sufficient to support an inference that the same person was
involved in both instances. (People v. Gray (2005) 37 Cal.4th
168, 202.) A somewhat lesser degree of similarity is required to show a
common plan or scheme . . . . (People v. Ewoldt (1994) 7
Cal.4th 380, 402-403.) . . . [W]e review the trial courts ruling . . .
for abuse of discretion. [Citation. (People v. Gray, supra,
37 Cal.4th at p. 202.)
The trial court did not abuse its discretion.
Cotalessa-Ritchies testimony provided evidence of defendants other act
that was relevant to issues apart from his character or disposition,
namely identity and common scheme or plan. There was evidence that
defendant had followed other victims including witnesses who testified
at trial to their homes during the middle of the day; Tarr and Weinhold
were murdered in their apartments in the same complex where Cotalessa-Ritchie
resided and at the same time of day. The women had been murdered within
a short time of the Cotalessa-Ritchie incident, and Schultz was murdered
in an adjacent complex. There was evidence that murder victims Tarr and
Schultz both had been followed home by a young African-American man
after they left their apartments for a brief period, and murder victim
Weinhold had gone in and out of her apartment while doing laundry.
Schultz, Tarr, and Weinhold had been followed up a flight of stairs to
their second-story apartments; defendant followed Cotalessa-Ritchie to
the bottom of the stairway leading to her second-story apartment.
Finally, Cotalessa-Ritchie was of a similar age and belonged to the same
race and gender as all the murder victims and most of the other burglary
or attempted burglary victims. It was within the trial courts discretion
to conclude that the Cotalessa-Ritchie incident was highly similar to
the stalking activity engaged in by the perpetrator of several of the
other charged crimes, thereby providing evidence that it was defendant
and not some other man who committed the charged crimes. The trial court
properly could find that the similarity of the incident to the evidence
of defendants stalking behavior in many other instances provided
evidence of a common scheme or plan. Nor was the evidence of the
incident more prejudicial than probative.[4]
12. Exclusion of third
party culpability evidence
Defendant contends the trial court erred in excluding
certain third party culpability evidence. Specifically, defendant made
an offer of proof that Faie Fiorito would testify that a young African-American
man watched her as she worked out at the Family Fitness Center located
on Balboa Avenue in San Diego at approximately 6:30 p.m. on April 9,
1990. When she emerged into the parking lot some minutes later, the man
was seated behind her automobile and seemed to be trying to examine her
vehicle license plate and write something down. She watched for two
minutes, then drove home and telephoned the police. She participated in
the live lineup and would testify that defendant was not the person who
had watched her on that occasion, although that person met the general
description of the assailant in the series of murders with which
defendant was charged.
*****
[1]
We note defendants statement to the trial court: I do not want second
degree at all. Ill use the courts words, all or nothing. The court
pressed him on his understanding of the issue, and defendant responded,
What youre trying to tell me, your honor, is that if I was to be found
guilty and I have to go back to the appeal, I cant say that it was your
fault on the error because those are my wishes. [] But I still say []
the same thing. I do not want second degree. Because I feel that second
degree is telling the jury that I [did] something. I do not want that at
all. Later he said: I havent done anything. So why should I go any lower
to second degree.
[2]
The law at issue in Beck prohibited giving lesser included
offense instructions in capital cases while they remained available in
noncapital cases. Additionally, the jury was instructed that if they
found the defendant guilty, they were mandated to impose the death
penalty. (Beck, supra, 447 U.S. at p. 639, fn. 15.) In
such a case, the jury was left with only two options: to convict the
defendant of the capital crime, in which case they were required to
impose the death penalty, or to acquit. (Hopkins v. Reeves (1998)
524 U.S. 88, 95.) (People v. Valdez, supra, 32 Cal.4th
at p. 118, fn. 23.)
[3]
Because the court must instruct on lesser included offenses for which
there is evidence of substantial weight without respect to the wishes of
the prosecution or the defense, we need not reach defendants claim that
it would constitute a denial of equal protection and other
constitutional rights to adopt an arbitrary system whereby some, but not
all, defendants are permitted to control instruction of the jury on
lesser included offenses, depending upon the policy of the individual
court in which the defendant happens to appear. We need not respond to
defendants claim that the courts failure to instruct on second degree
murder removed an element of the offense from the jurys consideration
and constituted an impermissible directed verdict, because there was no
substantial evidence suggesting that defendant had committed second
degree murder.
[4]
Defendant contends admission of the evidence arbitrarily deprived him of
a state entitlement in violation of federal 5th and 14th Amendment due
process rights . . . and affected the reliability of the guilt verdict
that later supported a death judgment, violating [defendants] federal
8th and 14th Amendment rights. Because we have not found a violation of
state law and because the evidence did not undermine the reliability of
the guilt verdict, we reject this claim.
*****
The prosecution objected that the offer of proof was
inadequate under the standard established in Hall, supra,
41 Cal.3d 826. Specifically, there had been nothing linking the Balboa
Avenue Family Fitness Center to the crimes, and defendant also had
failed to provide any evidence concerning the location of Fioritos
residence. The court excluded the evidence, commenting that it had
admitted the Dhillon testimony over the prosecutions objection because
it described an event bearing many common marks with the charged crimes,
in that it took place at the same time of day and in the same location
as some of the charged murders, the same type of victim was targeted,
and the same method of entry into a home was attempted. By contrast, the
court found no suggestion in the evidence that a young African-American
man had displayed interest in a woman at a location and time different
from those involved in the charged offenses so as to link that event to
the present case.
Contrary to defendants position, there was nothing in
the proposed Faie Fiorito testimony that would link the person she had
seen watching her to the charged crimes. The proposed testimony would
not have provided direct or circumstantial evidence linking the third
person to the actual perpetration of the crime. (Hall, supra,
41 Cal.3d at p. 833.) Defendants attempt to equate the Fiorito testimony
with the testimony of Cotalessa-Ritchie is unavailing. As explained, the
latter testimony described an event that occurred close in time and
place to two of the charged murders and that shared significant common
marks with the charged crimes.
Defendant contends the evidence in question was
admissible on an additional ground to rebut the prosecutions evidence
linking defendant to the Miramar Road Family Fitness Center. Defendants
offer of proof did not pertain to any purported impeachment value of the
evidence, however, nor did the trial court rule upon any such claim.
Accordingly, this claim is forfeited. (Evid. Code, 353; People v.
Partida, supra, 37 Cal.4th 428 at pp. 434-435 [stating the general
rule in the context of an Evidence Code section 352 objection, but
permitting the defendant to make a narrow due process argument on appeal
based upon such a statutory objection at trial].) Nor do we believe this
evidence would have had any value for impeachment purposes.
Defendant complains that it was a violation of basic
principles of fairness to admit testimony by Cotalessa-Ritchie but to
exclude Fioritos testimony, and that the courts error in this regard
violated various of his constitutional rights.[1]
Even if this claim was not forfeited, it is not persuasive. Cotalessa-Ritchie
identified defendant and described behavior occurring in the same
location, at the same time of day, in the same general period, and of a
nature similar to the conduct of the person who murdered Tarr and
Weinhold. The circumstance that Fiorito observed a person do something
different at a location different from any involved in the present crime
and at a different time of day, and that this person was not defendant,
is not much more probative than recounting the activities of any young
man of the same racial background as defendant who exhibited interest in
a young White woman in San Diego at any time of day during the period in
which the murders were being committed. The only other point of
similarity is that Fiorito described an incident that occurred at a
Family Fitness Center but, as noted, it was a facility different from
any connected to any of the crimes underlying the present case.
13. Prosecutorial
misconduct
Defendant contends the prosecutor committed
misconduct in his opening statement to the jury by assertedly
exaggerating the probative value of a DNA analysis comparing the semen
found at the scene of the Weinhold murder with a sample of defendants
blood. Defendant asserts the prosecutor committed further, similar
misconduct in examining the experts he called to explain the evidence
and in relying upon this evidence in his closing argument to the jury.
Defendant argues the prosecutor improperly attributed more weight to the
evidence than it deserved, by characterizing the scientific analysis
that had been employed as conservative. He claims that, at the hearing
the court conducted pursuant to People v. Kelly (1976) 17 Cal.3d
24 to assess the admissibility of new scientific evidence, the
prosecutor failed to establish there was general agreement in the
scientific community that the analysis used was, in fact, conservative.[2]
In his opening statement to the jury, the prosecutor
stated that the Peoples DNA experts would inform the jury that using the
most conservative methods, that the odds of any person picked off the
street matching this banding pattern that Cleophus Prince shares with
the person that left semen, sperm at the scene [of Weinholds murder], is
1 out of 124,000.
Prosecution witness Dr. Lisa Forman explained the
basis for her evaluation of the probability of a match between
defendants blood sample and the sperm sample found at the scene. She
described her calculations and her estimate of the probability of a
match. The prosecutor inquired, what number did you come up with? Dr.
Forman replied: using the most conservative model, the model that shows
the frequency to be as common as it could be in any population, the
likelihood that a random person would share those sets of band . . . is
approximately one in 120,000. Later the prosecutor asked the witness
whether the number she had calculated was an exceedingly conservative
number? and she replied that it was. When Dr. Glenn Evans testified, the
prosecutor asked whether Dr. Formans modified ceiling method of
calculating the probability of a match was an extraordinarily
conservative estimate? Dr. Evans replied that it was in fact much more
conservative than many scientists would like to see. But it is the most
conservative estimate one can make. It gives every possible benefit of
the doubt.
In closing argument to the jury, the prosecutor made
use of the DNA evidence. He reminded the jury that Dr. Forman testified
that she applied the most conservative estimate of probabilities, the
ones that would give Mr. Prince the benefit of the doubt using
scientific principles, even those most conservative numbers said that it
would be one-out-of 120,000 chance of a random match. The prosecutor
added that Dr. Evans had confirmed this characterization of the evidence
three or four times. He goes, every benefit is given. This is a
conservative number. Every benefit of the doubt is given he repeated
that every step of the way.
Defendant contends the references to conservative
methods in reaching the probability estimate, both in the prosecution
witnesses testimony and during the prosecutors own statements,
constituted misconduct because they invited the jury to speculate that a
higher probability of a match actually existed. He suggests that the
testimony and argument constituted an effort to place before the jury
evidence that the court had deemed inadmissible at the Kelly
hearing.
Defendants claim of prosecutorial misconduct is
unpersuasive. First, defendant forfeited this claim because he did not
object upon that basis, either during testimony or during the
prosecutors argument, and there is no indication an objection would have
been futile or that an admonition would not have cured any harm. (See
People v. Welch, supra, 20 Cal.4th at p. 753.) Nor did he
raise such an evidentiary objection to the testimony of the experts.
Further, the prosecution presented ample evidence at the Kelly
hearing that the modified product rule was a conservative
analytic method created in order to produce a less incriminating result
than would be produced by the unmodified product rule. (See fn. 24,
ante.) Nor did the prosecutor commit misconduct simply by commenting
upon admissible evidence. Defendants reference to the constitutional
right to due process of law and a reliable factfinding proceeding add
nothing to his claim.
14. Closing the
proceedings
A criminal defendant has a right to a public trial
that is guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution and by article 1, section 15 of the California
Constitution. (Waller v. Georgia (1984) 467 U.S. 39, 46;
People v. Woodward (1992) 4 Cal.4th 376, 382.) Violation of this
right requires reversal of the judgment without examination of possible
prejudice. (People v. Woodward, supra, 4 Cal.4th at pp.
383-384.) Defendant contends the court violated his right to a public
trial by closing the courtroom during the brief portion of FBI Special
Agent Ankroms testimony that described a crime scene in a murder
committed subsequent to defendants arrest that remained under
investigation.
After considerable litigation, the trial court
refused to quash a subpoena directed to records of the San Diego County
Sheriffs Department concerning the circumstances of a murder committed
subsequent to defendants arrest. The records at issue consisted of an
autopsy report and a package of photographs taken at the autopsy.
Counsel were prohibited from copying the information and from publishing
or distributing the evidence or the results of their investigation
regarding that matter. The court explained that because the prosecution
in the present proceedings was relying in part upon evidence indicating
that the charged murders were signature crimes involving a single
perpetrator, the defense was entitled to explore the circumstances of
another murder committed subsequent to defendants arrest which, the
courts in camera review disclosed, bore certain common marks with the
charged crime. The court acknowledged the sheriffs claim that disclosure
could impair an ongoing investigation, but concluded that on balance the
defendants interest in a fair trial required disclosure. The court did
not rule on the question whether defendant could examine witnesses on
the subject of the unsolved crime. The sheriff sought appellate review,
but the Court of Appeal denied the petition for writ of mandate as
premature, noting that the trial court had not yet determined whether
the evidence was admissible and had otherwise demonstrated awareness of
the sheriffs concerns. The Court of Appeal presume[d] the court will
take appropriate precautions should it become necessary to admit the
material.
At trial, defense counsel sought permission to use
the materials to cross-examine the coroner, Dr. Blackbourne. The court
granted permission, limiting questioning to the facts of the autopsy.
The name of the victim, the location and precise time of the crime, and
evidence discovered at the crime scene were not to be mentioned. Defense
counsel questioned the coroner briefly as to the nature of the stab
wounds in the unsolved case, and the prosecution questioned the
witnesses concerning the dissimilarities between the unsolved crime and
the murders charged in the present case.
The issue in question arose again in the context of
FBI Special Agent Ankroms testimony. As described above, Ankrom
testified that a number of similarities among the six charged murders
justified the conclusion that a single person had committed all the
crimes. He referred to the position of the bodies, the number and
placement of the wounds, and certain other circumstances. Defendant
sought permission to examine Ankrom concerning the circumstances of the
other murder that occurred while defendant was in custody, claiming it
bore significant similarities to the charged crime and that the evidence
supported the inference that the perpetrator of the unsolved crime who
could not have been defendant might be responsible for the murders
charged against defendant. The prosecutor also requested the courts
permission to examine Ankrom concerning details of the crime scene in
the unsolved case. He pointed out Dr. Blackbourne already had testified
concerning this unsolved crime, and that he needed to examine Ankrom to
establish that there were important distinctions between the method of
killing in the other crime and the charged murders.
The court permitted examination of Ankrom under the
same limitations as those applied to Dr. Blackbourne. Defendant elicited
testimony that the unsolved murder bore certain similarities to the
charged murders, in that it involved a White woman murdered in her
residence who suffered more than 20 stab wounds and was discovered in a
state of partial undress. The prosecution elicited testimony that Ankrom
believed the unsolved murder was not committed by the person who
committed the charged murders.
During the prosecutors questioning, Ankrom
volunteered some details concerning the unsolved crime, but the court
intervened. A hearing followed on the question whether the details of
the unsolved crime could be the subject of further examination. Because
of the confidential nature of the information, the court suggested it
might be required to close the proceedings to the public.
Counsel for the San Diego County Sheriff objected to
any examination that would touch on details of the unsolved crime,
particularly the crime scene. The objections were based on the theory
that public dissemination of such information would compromise an
ongoing investigation into the unsolved crime. After conducting
extensive hearings, the trial court concluded that defendants
constitutional right to present a defense and confront his accusers
required that the questioning be permitted to go forward, but agreed
with counsel for the sheriff that the public would be excluded if either
counsel examined Ankrom concerning the crime scene facts underlying the
unsolved murder, including certain facts that were unknown to the public,
such as the nature of the fatal injuries involved in the other crime.
Both defendant and the prosecutor objected.
The trial court acknowledged the right to a public
trial, but noted that the right may be curtailed as necessary to serve
some higher value, including, in the courts view, insuring the integrity
of an ongoing murder investigation. The court explained that the sheriff
feared that the disclosure of crime scene observations and photographs
of the victim would prevent the sheriff from effectively interviewing
potential subjects or targets of the investigation, would create
problems from the standpoint of a confession, if confessions are made.
The court acknowledged that a trial must be open absent a compelling
contrary interest, but concluded after reviewing various options that
the potential for interference with the apprehension of the murderer
constituted such an interest. I do find that revealing this detailed
information concerning the crime scene, photographs of the victim live
or this autopsy would clearly affect the likelihood of the sheriffs
successful investigation of this crime, I think closure is the
appropriate method of dealing with this issue. [] . . . Ill give this
notice to all counsel at this point. Any examination of the witness
which does not deal with the details of the crime scene should and must
be done in open court as a part of the public process. [] I will order
the proceedings closed if and only if the examination deals specifically
with crime scene facts, description of the crime scene in this unsolved
case, photographs of the autopsy of the victim in the unsolved case
showing the nature of the wounds or live photographs of the victim. []
Any other matter other than that information, that could prevent the
sheriff from successfully apprehending the perpetrator in this unsolved
case will be done in open court. The court explained that it was
referring to very specific information that could only be known to the
killer . . . because I want to keep that information out of the public
record because that is precisely the type of information that will
prevent the sheriff from apprehending the killer who is at large at this
point.
Thereafter, when the prosecution and the defense
questioned Ankrom concerning the evidence disclosed at the crime scene
in the unsolved murder, the courtroom was closed to spectators. The
questions during the closed sessions related solely to crime scene
evidence and autopsy photographs, as directed by the court. Those
portions of the closing arguments that touched upon the sensitive crime
scene evidence also occurred in closed session.
The United States Supreme Court has made clear that
the right to an open trial may give way in certain cases to other rights
or interests, such as the defendants right to a fair trial or the
governments interest in inhibiting disclosure of sensitive information.
Such circumstances will be rare, however, and the balance of interests
must be struck with special care. We stated the applicable rules in
Press-Enterprise: [] The presumption of openness may be overcome
only by an overriding interest based on findings that closure is
essential to preserve higher values and is narrowly tailored to serve
that interest. The interest is to be articulated along with findings
specific enough that a reviewing court can determine whether the closure
order was properly entered. (Waller v. Georgia, supra,
467 U.S. at p. 45; see also NBC Subsidiary (KNBC-TV) Inc. v. Superior
Court (1999) 20 Cal.4th 1178, 1181.)
Similarly this court has explained that a public
trial ordinarily is one open to the general public at all times. [Citations.]
The Sixth Amendment public trial guarantee creates a presumption of
openness that can be rebutted only by a showing that exclusion of the
public was necessary to protect some higher value, such as the
defendants right to a fair trial, or the governments interest in
preserving the confidentiality of the proceedings. [Citation] When such
a higher value is advanced, the trial court must balance the competing
interests and allow a form of exclusion no broader than needed to
protect those interests. [Citation.] Specific written findings are
required to enable a reviewing court to determine the propriety of the
exclusion. [Citations.] (People v. Woodward, supra, 4
Cal.4th at p. 383, relying primarily on Waller v. Georgia,
supra, 467 U.S. 39]. )
In the present case, the trial court reasonably
concluded that the governmental and public interest in apprehending a
dangerous criminal justified a very minor infringement upon defendants
right to a public trial but only during a limited portion of
examination of a single witness and a brief segment of the argument to
the jury. The trial court balanced defendants right to present a defense
and his right to a public trial with the governments interest in
inhibiting disclosure of sensitive information. (Waller v. Georgia,
supra, 467 U.S. at pp. 45, 48.) Although [s]uch circumstances
will be rare and the balance of interests must be struck with special
care (id. at p. 45), we believe that the trial court in the
present case identified an overriding state interest in keeping secret
certain limited details concerning an unsolved crime. These details
concerned evidence that would be known only to the perpetrator details
that clearly should be kept confidential for use in questioning
witnesses. The closure affected only a small portion of a single
witnesss testimony and of the parties argument to the jury on that
portion of the evidence the public was not excluded from a substantial
portion of the trial or pretrial hearings. (See People v. Woodward,
supra, 4 Cal.4th at p. 384.)[3]
In the present case, an ample record demonstrates
that the trial courts concern for the ongoing investigation of the
unsolved crime justified the very limited closure of the courtroom that
occurred. The court carefully weighed the competing interests involved
and the options available to it, keeping the closure to the minimum
necessary to serve the states interest. As contemplated by the high
court in the Waller decision, these brief closures did not
infringe upon defendants right to a public trial.
15. Cumulative prejudice
Defendant contends cumulative prejudice requires
reversal of the guilt verdict, noting that the jury deliberated for
portions of 10 days. He alleges he was deprived of a fair trial and
reliable guilt determination in violation of state and federal
constitutional principles.
We have not identified any significant errors at the
guilt phase, nor do we believe there was cumulative prejudice.
Defendant claims that the charges were inflammatory
and that the jury probably placed the burden of proof upon him, and that
the circumstance that the jury convicted him of every charge, even those
as to which he believes there was insufficient evidence, indicates the
jury did not deliberate carefully. Defendant contends that even if the
trial court did not err in refusing to grant the motion for change of
venue, the effect of the intense pretrial publicity and the admission of
signature-crime evidence undermined the fairness of the trial to his
prejudice. He urges that the evidence was insufficient in many respects
and that even if we find otherwise, it was extremely weak.
In essence, defendant asks us to reevaluate the
evidence, claiming that assuming it was sufficient, the evidence was
close and the eyewitness identifications were weak when factors
discussed by his identification expert are considered. He contends his
possession of jewelry belonging to the victims was not conclusive
evidence that he was involved in stealing the jewelry. But all of this
evidence was for the jury to consider; it is not our function to
reevaluate the evidence to conclude whether the jury should have reached
a different result on the theory that the evidence was close. (See
People v. Manriquez (2005) 37 Cal.4th 547, 578.) Nor do we agree
that serious prosecutorial misconduct undermined the identification of
defendant as the perpetrator, arising from the circumstance that the
witnesses and the prosecutor commented, without objection, on the
presence of defense counsel at the lineup.
We have not found error as to any of these claims,
and we are not persuaded by defendants suggestion that a number of
issues he regards as close should require reversal on the ground of
cumulative prejudice.
B. Claims affecting the
penalty phase of the trial
1.Motion for a separate
penalty phase jury
After the guilty verdicts had been entered, defendant
moved for a new penalty phase jury, citing the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution. After hearing
argument, the court denied the motion.
Contrary to defendants claim on appeal, he was not
entitled to a separate jury for the penalty phase of the trial. Section
190.4, subdivision (c) requires that, absent good cause, the same jury
decide guilt and penalty at a capital trial. (People v. Earp
(1999) 20 Cal.4th 826, 890.) The statute expresses a long-standing
preference for a single jury to decide guilt and penalty (ibid.),
and we have rejected claims that this preference in itself constitutes a
denial of due process of law or violates the defendants right to a fair
trial and reliable guilt and penalty determination. (People v. Horton
(1995) 11 Cal.4th 1068, 1094.)
Good cause to discharge the guilt phase jury and to
impanel a new one must be based on facts that appear in the record as
a demonstrable reality, showing the jurys inability to perform its
function. (People v. Earp, supra, 20 Cal.4th at p. 891;
People v. Bradford (1997) 15 Cal.4th 1229, 1354, and cases cited.)
We review the courts denial of defendants motion for a second jury for
abuse of discretion. (People v. Bradford, supra, 15
Cal.4th at p. 1353.)
Defendant contends the court abused its discretion
because it would be impossible for a jury that had heard the guilt phase
evidence to decide upon an appropriate penalty. According to defendant,
he was entitled to a new penalty phase jury that had not heard at trial
the evidence of the eight charged burglaries and six charged attempted
burglaries offenses that, defendant asserts, were unconnected with the
capital crimes. He claims the burglaries and attempted burglaries could
not be considered in aggravation pursuant to section 190.2, factor (b),
because they did not involve force or violence.
Defendants argument fails because, as we explain
post, the court appropriately determined that the evidence of the
noncapital burglaries properly could be considered in
aggravation under section 190.3, factor (b), as evidence of prior
criminal activity . . . which involved the use or attempted use of force
or violence or the express or implied threat to use force or violence.
Defendant contends that even if the burglary and
attempted burglary counts properly were considered under section 190.3,
factor (b), reversible error still occurred because the trial court did
not instruct the jury how it should determine whether or not these
crimes involved force or violence within the meaning of section 190.3,
factor (b).[4]
Putting aside the tenuous connection between this claim and defendants
contention that the trial court abused its discretion in denying his
motion for a separate penalty phase jury, the claim fails because, as we
have held, instruction pursuant to the terms of section 190.3, factor
(b) suffices, and a clarifying instruction is not required. (People
v. Dunkle (2005) 36 Cal.4th 861, 922.)[5]
2. Pitchess motion
The prosecution informed the defense that it would
present in aggravation the testimony of San Diego County Deputy Sheriff
Samuel Sheppard, who would recount an incident in which defendant had
assaulted him in the county jail during the course of the trial. After
the guilt phase verdict had been entered but before commencement of the
penalty phase of the trial, defendant filed a motion seeking discovery
of documents that recorded complaints against Sheppard for use of
excessive force on persons in custody. (See Pitchess v. Superior
Court (1974) 11 Cal.3d 531 (Pitchess).) In support,
defendant supplied defense counsels declaration recounting the officers
asserted use of force against defendant and also alleging that other
individuals had filed complaints against the officer for use of
excessive force. Defendant demanded all written records of any instance
of the officers use of force on any person in custody, names, addresses,
and telephone numbers of all persons who had submitted complaints
against the officer, and any documents recording disciplinary actions
taken or investigations or possible disciplinary action to be taken
against Sheppard related to the deputys treatment of persons in custody.
The San Diego County Sheriff did not oppose
defendants request for names, addresses, and telephone numbers of
complaining parties and witnesses involved in complaints against Deputy
Sheppard during the previous five years, but the sheriff opposed release
of any other material. The court evidently concluded that defendant had
made a showing sufficient to require the court to order the sheriffs
department to produce the records for the courts examination. The court
conducted an in camera hearing and reviewed the sheriffs department
records. Neither the prosecutor nor defense counsel were present at that
hearing.
Subsequently, on the record, the court concluded that
good cause is shown to provide counsel with a list of witnesses which
will be provided to all parties and a protective order will issue as to
this list, but the court ruled good cause did not exist to order
disclosure of any other material named in defendants discovery motion.
On July 19, 1993, a disclosure and protective order
was filed. It directed the sheriffs department to disclose to defendant
the names[] of complainants and witnesses regarding allegations of
excessive force or violence by Deputy . . . Sheppard . . . , for the
five-year period immediately preceding the arrest of the defendant,
subject to a protective order prohibiting dissemination of the
information.
Defendant contends the trial court infringed upon his
constitutional rights, because he could not examine the sealed record of
the in camera hearing in the trial court to determine whether the court
ruled correctly on his discovery motion.[6]
More specifically, he contends that the Fifth and Fourteenth Amendments
to the United States Constitution guarantee that he have access to a
full and accurate record for the purpose of appellate review. He asserts
the silence of the record undermines the reliability of the death
judgment, and that his Sixth Amendment rights to confrontation and to
counsel are implicated.
We are not persuaded by defendants constitutional
claims.
[S]tate law entitles a defendant only to an appellate
record adequate to permit [him or her] to argue the points raised in the
appeal. [Citation.] Federal constitutional requirements are similar. The
due process and equal protection clauses of the Fourteenth Amendment
require the state to furnish an indigent defendant with a record
sufficient to permit adequate and effective appellate review. [Citations.]
Similarly, the Eighth Amendment requires reversal only where the record
is so deficient as to create a substantial risk the death penalty is
being imposed in an arbitrary and capricious manner. [Citation.] The
defendant has the burden of showing the record is inadequate to permit
meaningful appellate review. [Citation.] (People v. Rogers,
supra, 39 Cal.4th at pp. 857-858.) It is also defendants burden to
show that deficiencies in the record are prejudicial. (People v.
Howard (1992) 1 Cal.4th 1132, 1165.)
Defendant fails to demonstrate that the record is
inadequate to permit effective review in this court. The in camera
hearing to which defendant alludes was transcribed and has been examined
by this court. The appellate record available to defendant is not so
deficient as to create a substantial risk the death penalty was being
inflicted in an arbitrary and capricious manner within the meaning of
the Eighth Amendment. (People v. Rogers, supra, 39 Cal.4th
at p. 857.) Moreover, the trial court proceedings properly occurred in
camera and were sealed, as were the documents that formed the basis for
the trial courts ruling. (People v. Mooc (2001) 26 Cal.4th 1216,
1229.)
Certainly, a defendants right to discovery is
intended to ensure a fair trial and an informed defense based upon all
relevant and reasonably accessible information. (People v. Gonzalez
(2006) 38 Cal.4th 932, 960.) On the other hand, defendants right to
counsel, to put on a defense, and to confrontation were not violated
simply because the court followed the practice we outlined in
Pitchess and have endorsed for many years, a practice we have
concluded adequately balances the defendants right to a fair trial with
the officers right of privacy. (See Pitchess v. Superior Court,
supra, 11 Cal.3d 531; see also People v. Samuels
(2005) 36 Cal.4th 96, 109; Alford v. Superior Court (2003) 29
Cal.4th 1033, 1043; City of Los Angeles v. Superior Court (2002)
29 Cal.4th 1, 14-16; People v. Mooc, supra, 26 Cal.4th at
pp. 1226-1227, 1229; City of San Jose v. Superior Court (1993) 5
Cal.4th 47, 50-53.)
In the present case, the trial court found good cause
to examine the evidence concerning possible complaints against the
officer. The proceedings conducted by the court were consistent with the
standard we have established. As we have stated, the court should review[]
the pertinent documents in chambers and disclose[] only that information
falling within the statutorily defined standards of relevance. [Citations.]
The trial court may not disclose complaints more than five years old,
the conclusions of any officer who investigates a citizen complaint of
police misconduct, or facts so remote as to make [their] disclosure of
little or no practical benefit. [Citations.] Typically, the trial court
discloses only the names, addresses, and telephone numbers of
individuals who have witnessed, or have previously filed complaints
about, similar misconduct by the officer. [Citation.] (Warrick v.
Superior Court (2005) 35 Cal.4th 1011, 1019.) The trial court
followed precisely the procedure we have outlined.[7]
This court routinely independently examines the
sealed records of such in-camera hearings to determine whether the trial
court abused its discretion in denying a defendants motion for
disclosure of police personnel records. (See People v. Lewis & Oliver
(2006) 39 Cal.4th 970, 992; People v. Chatman, supra, 38
Cal.4th at p. 398; People v. Samuels, supra, 36
Cal.4th at pp. 110-111; People v. Hughes, supra, 27
Cal.4th at p. 330 [noting that customarily appellate counsel are not
permitted to view transcripts of sealed Pitchess motion hearings].)
The record in the present case is adequate to permit
meaningful appellate review. It includes a full transcript of both
segments of the in camera hearing and the documents that formed the
basis for the courts conclusion that defendant was not entitled to the
complaints that had been filed against Sheppard. The court directed that
the officers personnel file not be copied and inserted into the record,
but the court adequately stated for the record the contents of that
file. (See People v. Mooc, supra, 26 Cal.4th at p. 1229
[in some circumstances it suffices for the court to state for the record
what documents it examined].) The court noted that there was not a
single item indicating that Sheppard ever had suffered discipline for
any reason.
We have reviewed the record under seal and
independently conclude that the trial court did not abuse its discretion
in its ruling upon the Pitchess motion. (See People v.
Hughes, supra, 27 Cal.4th at p. 330 [an abuse-of-discretion
standard of review applies].) Moreover, the trial court ordered
disclosure of the names of complainants and witnesses in the first two
incidents (the third being the one involving the complaint filed by
defendant). Defendant had access to the information needed to explore
the possibility that the deputy had been involved in the prior use of
excessive force. Defendant offers no explanation why this information
was inadequate, nor do we find any.
3. Victim-impact evidence
After appropriate objections from defendant and
hearings held on several occasions, the court permitted the prosecution
to introduce a videotape of a 25-minute interview of Holly Tarr that had
been taped a few months prior to her death. Defendant contends the tape
was inflammatory and went beyond the type of so-called victim-impact
evidence that may be admitted consistently with constitutional
principles. He claims a violation of his right to a fundamentally fair
trial and to confront and cross-examine witnesses, citing the Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution. In
addition, he claims the introduction of the evidence and its probable
emotional impact upon the jury violated his right to due process of law
and a reliable penalty determination, citing Evidence Code section 352
and the Fifth, Eighth, and Fourteenth Amendments.
*****
[1]
We also are unpersuaded by defendants claims that the inconsistent
rulings on the Fiorito and Cotalessa-Ritchie testimony constituted an
arbitrary and fundamentally unfair application of state evidentiary
rules (see U.S. Const., 5th & 14th Amends; Hicks v. Oklahoma,
supra, 447 U.S. 343, 346) and a deprivation of the right to a
fair jury trial in accordance with due process of law, to present all
relevant evidence, to compulsory process, to confrontation, and to
reliable factfinding (citing U.S. Const., 5th, 6th, 8th, & 14th Amends).
[2]
The DNA evidence in the present case was subjected to an analysis using
the so-called modified product rule. In testing genetic material for
forensic purposes, the final part of the analysis is a calculation of
the statistical probability that a characteristic found in the crime
scene sample and the defendants sample would be represented in sample
genetic material from a random selection of the population. A
statistical operation known as the product rule is employed. The
product rule states that the probability of two events occurring
together is equal to the probability that the first event will occur
multiplied by the probability that the second event will occur. (People
v. Jones (2003) 29 Cal.4th 1229, 1250, fn. 5.) Originally the
product rule was the subject of spirited debate, some population
geneticists arguing that the relevant random samples were composed
without regard to population substructures, that is without adequately
accounting for subgroups among various ethnicities. In response, the
product rule was artificially modified to produce a
conservative result in order to avoid overstating the incriminating
value of the test result, and this court concluded that the modified
rule had been accepted in the scientific community and produced evidence
admissible under this courts Kelly standard. (People v.
Venegas (1998) 18 Cal.4th 47, 85, 87, 89.) It was the product of
this modified statistical operation that the trial court in the present
case determined was generally accepted in the relevant scientific field.
The prosecution experts testified accordingly. This court subsequently
recognized that additional research had resolved the scientific
controversy that led to the modified product rule, leaving intact the
integrity of the unmodified product rule. (People v. Soto,
supra, 21 Cal.4th at p. 538 [[s]everal developments . . .
indicate that the controversy over population substructuring and use of
the unmodified product rule has dissipated].) Accordingly, in the
present case the experts in fact did use a conservative method
compared with the less conservative unmodified product rule. (Ibid.,
see also id. at p. 541.)
[3]
We find support for our conclusion in decisions from other jurisdictions.
In U.S. v. Sherlock (9th Cir. 1989) 962 F.2d 1349, for example,
the court commented that the right to a public trial is not absolute,
but on occasion must give way . . . to other interests essential to the
fair administration of justice. [Citations.] [] Federal courts have
recognized limitations on that right where a judge has excluded
spectators during a witnesss testimony for a justifiable purpose, noting
cases that permit carefully tailored closure to protect witnesses from
harassment and physical harm. (Id. at p. 1356.) Many decisions
have approved limited closure during the testimony of undercover
officers, both in the interest of the officers personal safety and to
prevent disruption of the officers ongoing investigations. (Ayala
v. Seckard (2d Cir. 1997) 131 F.3d 62, 72 [closure during undercover
officers testimony to maintain effectiveness of undercover operations];
United States ex rel. Lloyd v. Vincent (2d Cir. 1975) 520 F.2d
1272, 1274, and cases cited [same]; People v. Hinton (N.Y.
1972) 286 N.E.2d 265, 267 [closure because of the danger to
investigative agents effectiveness and personal safety;] see People
v. Gonzalez (N.Y. App.Div. 2000) 716 N.Y.S.2d 23; see also
Sevencan v. Herbert (2d Cir. 2002) 316 F.3d 76, 84-85 [officers
safety was involved, and the closure served an overriding interest and
was no broader than necessary].)
[4]
The court instructed pursuant to section 190.3, factor (b), and pursuant
to CALJIC No. 14.50 on burglary.
[5]
Defendant claims that the courts error in denying his motion for a
separate penalty phase jury violated various constitutional rights. He
claims that when good cause for a separate penalty phase jury has been
shown, denial of a motion for a separate penalty phase jury constitutes
an arbitrary deprivation of a state entitlement in violation of his
right to due process of law. But he did not demonstrate good cause for
the empanelment of a separate jury. We also reject defendants claims
that this purported state law error rendered the penalty verdict
unreliable in violation of the Eighth and Fourteenth Amendments, that
the taint of the inadmissible burglary evidence deprived defendant of
his right to a fair jury trial by an unbiased factfinder in violation of
the due process clause of the United States Constitution, and that the
error caused the jury to act without adequate guidance in violation of
the Eighth and Fourteenth Amendments. Nor did the unitary jury so skew
the balancing process that defendant was deprived of his right under the
Eighth Amendment to have the jury fairly consider his evidence in
mitigation.
[6]
On October 17, 2001, we denied defendants motion to unseal the
transcript of the in camera Pitchess hearing.
[7]
Defendant suggests that his trial counsels presence at the in camera
hearing, along with the opportunity to examine witnesses, might have
elicited exculpatory evidence, otherwise supported his defense in the
present case, or given rise to unknown constitutional claims of error,
but this claim finds no support in the record we have reviewed.
*****
In a capital trial, Eighth Amendment principles
ordinarily do not prevent the sentencing authority from considering
evidence of the specific harm caused by the crime in question. (Payne
v. Tennessee (1991) 501 U.S. 808, 825.) The high court has explained
that the prosecution has a legitimate interest in rebutting the
mitigating evidence that the defendant is entitled to introduce by
introducing aggravating evidence of the harm caused by the crime, reminding
the sentencer that just as the murderer should be considered as an
individual, so too the victim is an individual whose death represents a
unique loss to society and in particular to his family. (Ibid.)
[W]e also have found such evidence (and related victim character
evidence) admissible as a circumstance of the crime under section 190.3,
factor (a). (People v. Robinson, supra, 37 Cal.4th at p.
650, and cases cited.) We have cautioned, however, that allowing such
evidence under factor (a) does not mean that there are no limits on
emotional evidence and argument. (Id. at p. 651, quoting
People v. Edwards (1991) 54 Cal.3d 787, 836.)[1]
The jury must face its obligation soberly and rationally, and should
not be given the impression that emotion may reign over reason. (People
v. Robinson, supra, 37 Cal.4th at p. 651.)
Defendant contends the tape-recorded interview was
emotionally inflammatory, thereby creating a danger that the jury would
reach a decision based purely upon emotion. He claims that under
constitutional principles and in accordance with Evidence Code section
352, the prosecution should not have been permitted to introduce victim-impact
evidence in which an attractive, articulate, and talented young
performer with a stage background literally comes back from the dead to
share her plans and dreams with the jury. He characterizes the videotape
as an extraordinarily emotional presentation.
We have viewed the videotape recording. It comprises
a 25-minute interview with the victim, Holly Tarr, conducted at a local
television station in the community of Okemos, Michigan. The court also
admitted a transcript of the interview, which was provided to defense
counsel and members of the jury prior to the playing of the tape. The
trial court excluded portions of the videotape depicting Tarrs
musical performances, because it determined that this evidence would be
cumulative. The interviewer devoted nearly the entire interview to Tarrs
training and interest in acting and singing, adding a few questions
concerning Tarrs ability to balance school and artistic commitments. The
tape recording exhibits a young female interviewer and Tarr, seated in
chairs in front of a plain backdrop. There is no music and there are no
cuts to other images of Tarr the interview is a calm, even static,
discussion of Tarrs accomplishments and interests that takes place
entirely in a neutral, bland setting. Under ordinary circumstances, the
two young womens discussion would appear unlikely to invite empathy or
emotional response.
The jury viewed the videotape near the conclusion of
the victim-impact testimony, and the tape was both preceded and
succeeded by brief testimony from Tarrs mother. Prior to the playing of
the videotape, testimony on the same subject was contributed by her
natural father, Paul McKean Tarr, Jr., and her stepfather, Mark Rubin.
Mr. Tarr spoke at length about his daughters love for the theatre as
well as the drastic effect her murder had had upon his life. Rubin
barely spoke his own name before he was reduced to tears, requiring a
recess to permit him to compose himself. The jury already had heard
testimony from five other family members of victims Schultz, Weinhold,
and Keller.
Case law pertaining to the admissibility of videotape
recordings of victim interviews in capital sentencing hearings provides
us with no bright-line rules by which to determine when such evidence
may or may not be used. We consider pertinent cases in light of a
general understanding that the prosecution may present evidence for the
purpose of reminding the sentencer . . . [that] the victim is an
individual whose death represents a unique loss to society (Payne v.
Tennessee, supra, 501 U.S. at p. 825), but that the
prosecution may not introduce irrelevant or inflammatory material that diverts
the jurys attention from its proper role or invites an irrational,
purely subjective response. (People v. Edwards, supra,
54 Cal.3d at p. 836.)
In one capital case, the court rejected a relevance
challenge to the admission of a videotape recording that was used to
demonstrate a particular skill for which a victim was nationally
recognized. (Whittlesey v. State (Md. 1995) 665 A.2d 223.) In
Whittlesey, the court approved the admission of a 90-second
videotape of a murder victim playing the piano. The court agreed with
the trial court that the tape could illustrate the victims talent better
than any photograph. (Id. at p. 251.) In response to defense
objections that testimony provided by the victims parents rendered such
evidence cumulative, the court stated that [i]n reviewing objections
based on relevance, great deference is afforded the trial judge in
regulating the conduct of a trial. (Ibid.)
Another court permitted introduction of a videotape
recording that had been condensed to three minutes, determining that the
evidence fell within the accepted category of a quick glimpse of the
life which [the defendant] chose to extinguish. (State v. Allen
(N.M. 1999) 994 P.2d 728, 751.) The court in that capital case also
noted that a photograph from the same videotaped event had been
presented to the jury without objection. (Ibid.; see also
State v. Gray (Mo. 1994) 887 SW2d 369, 389 [videotape of victims
family at Christmas held admissible].)
On the other hand, two courts were particularly
reluctant to allow videotape evidence that served as a memorial to the
victim, finding that the probative value of such evidence was outweighed
by the risk of unfair prejudice to the defendant. (See U.S. v.
Sampson (D.Mass. 2004) 335 F.Supp.2d 166; Salazar v. State
(Tex.Crim.App. 2002) 90 S.W.3d 330.) In Sampson, the court
excluded a 27-minute videotape that consisted of 200 still photographs
depicting the victim at various stages of life from birth until death,
set to evocative contemporary music. (U.S. v. Sampson, supra, 335
F.Supp. at p. 191.)
Reviewing facts that we characterized as extreme (People
v. Robinson, supra, 37 Cal.4th at p. 652), the Texas Court of
Criminal Appeals disapproved of similar videotape evidence in Salazar
v. State, supra, 90 S.W.3d 330, finding that in this
noncapital case the trial court had abused its discretion in admitting a
17-minute videotape tribute to a murder victim. In remanding for an
assessment of prejudice, the court stated in Salazar that the
punishment phase of a criminal trial is not a memorial service for the
victim (id. at pp. 335-336) and that [w]hat may be entirely
appropriate eulogies to celebrate the life and accomplishments of a
unique individual are not necessarily admissible in a criminal trial. (Id.
at p. 336.) The court complained that the trial court had not seen the
videotape before it was played to the jury and consequently was unable
to weigh the probative value of the tape against its prejudicial impact.
(Id. at pp. 336-337.) The reviewing court emphasized the risk of
unfair prejudice, noting the video contained many images from the adult
victims infancy and childhood. (Id. at pp. 337-338.)
Courts must exercise great caution in permitting the
prosecution to present victim-impact evidence in the form of a lengthy
videotaped or filmed tribute to the victim. Particularly if the
presentation lasts beyond a few moments, or emphasizes the childhood of
an adult victim, or is accompanied by stirring music, the medium itself
may assist in creating an emotional impact upon the jury that goes
beyond what the jury might experience by viewing still photographs of
the victim or listening to the victims bereaved parents. The trial court
in the present case clearly understood the power of this type of
evidence, commenting early in the proceedings that I have a great deal
of concern about the medium of a videotape creating a situation of grave
prejudice, and that there is a qualitative difference between a
videotape and a still photograph from an emotional standpoint. In order
to combat this strong possibility, courts must strictly analyze evidence
of this type and, if such evidence is admitted, courts must monitor the
jurors reactions to ensure that the proceedings do not become injected
with a legally impermissible level of emotion.
Although we caution courts against the routine
admission of videotapes featuring the victim, we do not believe that
prejudicial error occurred under the circumstances of the present case.
The videotaped evidence did not constitute irrelevant information or
inflammatory rhetoric that divert[ed] the jurys attention from its
proper role or invite[ed] an irrational, purely subjective response. (People
v.Edwards, supra, 54 Cal.3d at p. 836.) Unlike the
material presented in the Sampson and Salazar cases,
as we have explained the videotaped interview of Holly Tarr did not
constitute an emotional memorial tribute to the victim. There was no
music, emotional or otherwise. The tape did not, as the trial court in
the present case initially feared it might, display the victim in her
home or with her family, nor were there images of the victim as an
infant or young child. The setting was a neutral television studio,
where an interviewer politely asked questions concerning the victims
accomplishments on the stage and as a musician and the difficulty she
experienced in balancing her many commitments, touching only briefly
upon her plan to attend college in the fall and follow the stage as a
profession. If not for the circumstances of her subsequent murder, the
videotape admitted at trial likely would be of modest interest to anyone
apart from Tarr and her friends and family. The loss of such a talented
and accomplished person is poignant even for a stranger to contemplate,
but the straightforward, dry interview depicted on the videotaped
recording was not of the nature to stir strong emotions that might
overcome the restraints of reason.
Significantly, the record on appeal also establishes
that the trial court not only excluded portions of the interview
displaying Tarr in performance, it also closely observed the jury for
signs of emotional distress and made a careful record of its
observations. During the numerous hearings on the admissibility of the
videotaped evidence, the trial court repeatedly commented that it would
not be allowing the proceedings to be hijacked by an emotional setting
of pathos. The court scrutinized the jury for evidence of emotional
response during the playing of the tape, focusing on not only the jurors
but on all members of the spectating audience. At the completion of the
interview, the court allowed only a few more minutes of testimony from
Tarrs mother before dismissing the jury for the remainder of the day.
When the session resumed the following morning, the court entertained
further objections by defense counsel to the playing of the videotape.
The court addressed each of defense counsels contentions, ultimately
concluding that although there was in fact an emotional response from
certain members of the jury, the court didnt see emotion running
roughshod over judgment. The court assured both the prosecution and
defense counsel that if it had observed an overly emotional response, it
would not have hesitated to declare a mistrial, but that such a response
simply did not occur.
The trial court concluded that although jurors
exhibited sadness, their response was no stronger than they had
displayed during the testimony given by members of the victims families.
According to the observations made by the court, no one on the jury
broke down and cried or appeared overcome by emotion. The prosecutor did
not exploit the emotional impact of the videotape, but instead refrained
from any mention of the taped interview in closing argument. Based upon
the nature of the evidence and the courts close observation of the jury,
we conclude that defendants claims are without merit.
Defendant also contends his right to confront and
cross-examine witnesses was violated by the introduction of the
videotaped interview. He argues the admission of the videotaped
interview effectively amounted to having the victim return from the
grave to testify to legally irrelevant matters, with no opportunity for
the defense to confront and cross-examine this witness.
The trial court found no merit in defendants argument,
reasoning that the videotaped interview was not being admitted for the
truth of its recorded statements. Rather, it was admitted to demonstrate
to the jury Tarrs reactions to the questions, her demeanor and, the
court further stated, the content of the tape is secondary. The court
surmised there would be no significant factual revelations stemming from
the playing of the videotape because much of the information pertaining
to Tarrs interests and plans already had been presented to the jury via
testimony from the victims family members.
We agree with the trial court that the videotape
recording was not offered primarily for the truth of the statements it
contained and that even if it was offered in part for the truth of those
statements, the information conveyed was cumulative to other testimony
as to which defendant did have an opportunity for cross-examination. In
addition, as we have explained, we are confidant that the admission of
the tape recording was not prejudicial under the circumstances of the
present case.
4. Instruction on and
jurys consideration of the burglaries not directly related to the
murders
Defendant argued at trial that the jury should not be
permitted to consider certain guilt phase evidence as a circumstance in
aggravation under section 190.3, factor (b). Specifically, he asserted
that the jury should not be permitted to consider guilt phase evidence
concerning the burglaries and attempted burglaries that were not
directly connected with the capital offenses. He argued that these
assertedly unrelated offenses did not come within section 190.3, factor
(b), because they did not involve force or violence.
The trial court disagreed with defendant. The court
instructed the jury that the burglaries and attempted burglaries may
have involved the use of force or violence or the express or implied
threat of violence, but that it was for the jurors to decide whether
they believed beyond a reasonable doubt that defendant committed those
acts, whether they involved the use or attempted use of force or
violence or the expressed or implied threat to use force or violence,
and whether the acts were criminal. (The court instructed the jury that,
as a matter of law, perjury (one of the charged offenses) does not
involve force or violence and could not be considered under section 190.3,
factor (b).)
Defendant contends on appeal that noncapital crimes
of which a defendant was convicted in the same proceeding never may be
considered at the penalty phase as evidence in aggravation under section 190.3,
factor (b), whether the crimes are violent or not. In support he cites
People v. Miranda (1987) 44 Cal.3d 57 (disapproved on another
point in People v. Marshall (1990) 50 Cal.3d 907), in which we
declared that factor (b) pertains only to criminal activity other than
the crimes for which the defendant was convicted in the present
proceeding. (People v. Miranda, supra, 44 Cal.3d at p.
106.) The quoted language does not carry the meaning that defendant
attributes to it, because the issue in the Miranda decision
involved the danger that a jury would double-count evidence under
section 190.3, factor (a) (circumstances of the crime) and factor (b) (other
criminal activity involving violence) ― not whether convictions in the
same proceeding that were unrelated to the capital crimes could be
considered under factor (b). Evidence presented at the guilt phase may
be considered at the penalty phase of the trial ( 190.4, subd. (d)), and
defendant offers no logical reason to support the conclusion that
evidence that otherwise would be admissible under factor (b) would
become inadmissible because of a joinder with capital offenses.
Defendant contends the charged burglaries and
attempted burglaries that were unconnected temporally with the capital
offenses did not all involve violence or the threat of violence.
Defendant claims that thirteen of the fifteen present factor (b)
burglaries and attempted burglaries did not involve any evidence of
arming or knife movement [sic] at all. He contends the jury
instructions on the burglary and attempted burglary charges improperly
permitted the jury to rely upon the offenses as aggravating evidence
even though they did not involve the use or threat of force or violence,
in violation of section 190.3, factor (b).
We disagree with defendant and agree with the trial
court that, under the circumstances of the present case, the evidence
was sufficient to permit a rational trier of fact to conclude beyond a
reasonable doubt that the burglaries and attempted burglaries involved
at least an implied threat of violence. (See People v. Clair
(1992) 2 Cal.4th 629, 672-673 [stating standard].) We base our
determination on all the evidence concerning defendants use of violence
in the burglaries that culminated in the capital murders; his possession
of knives (either his own or those that originated in the home he was
burglarizing) in various of the capital and noncapital crimes; his
stalking behavior in most of the noncapital burglaries and attempted
burglaries; his repeated attempts to burglarize residences knowing that
their young female inhabitants were at home and possibly were showering;
his violence during the Hughes-Webb burglary; his statement to his
accomplice Moheshea Beasley that if the resident of an apartment had
appeared unexpectedly during a burglary, he would have slit her throat;
and Shirley Beasleys testimony that during one of their joint burglaries,
defendant took a knife from the kitchen of the burglarized residence and
instructed Beasley that if the resident returned, Beasley should step
aside and defendant would handle it. Shirley Beasley also testified that
defendant told him that if a resident returned to a house defendant was
burglarizing, defendant would stab the person in the heart or the neck.
(See People v. Michaels (2002) 28 Cal.4th 486, 536 [illegal
possession of weapons along with evidence defendant used those or
similar weapons in other crimes could be considered under section 190.3,
factor (b)]; see also People v. Monteil (1993) 5 Cal.4th 877, 936
[actual or threatened violence in burglary]; People v. Tuilaepa
(1992) 4 Cal.4th 569, 589 [illegal possession of weapon in custody
constitutes implied threat of violence]; People v. Clair,
supra, 2 Cal.4th at pp. 676-677 [evidence that defendant picked up a
knife during a burglary to avoid apprehension and make good his escape
could be an implied threat to use the knife against anyone who might
interfere].)
Defendant contends the courts instructions were
inadequate to inform the jury of its responsibilities, and he surmises
that the standard instructions on section 190.3, factor (b) would permit
a juror to conclude that any residential burglary is a crime of violence,
even if no force was used in making entry.[2]
Defendants principal contention seems to be that the
court should have afforded additional guidance on the meaning of the
terms force and violence ― terms he claimed involve technical legal
distinctions not a matter of common knowledge. We previously have
rejected the identical claim, and defendant offers no persuasive reason
for us to reconsider our holding. (People v. Dunkle, supra,
36 Cal.4th at p. 922 [rejecting state law and Eighth Amendment claims].)[3]
5. Prosecutorial
misconduct
Petitioner contends the prosecutor committed
misconduct during his questioning of defense expert James Park and
during argument to the jury.
James Park, a former associate warden at San Quentin
prison, testified on defendants behalf. Park described prison conditions
and the daily life experienced by persons sentenced to life imprisonment
without possibility of parole. He described the generally stabilizing
influence of life prisoners upon prisoners serving shorter terms. During
cross-examination, the court sustained defendants objection to the
prosecutors question whether the witness previously had personalized his
testimony. The prosecutor then asked whether the witness was predicting
how hes [defendant] going to do. The witness stated he had not testified
to that effect. The prosecutor then asked: But in the past, youve talked
about a specific defendant doing well in prison? You predicted that,
havent you? The defense successfully objected on relevance grounds.
According to defendant, the prosecutors questions
insinuated that the witness would not speak of defendant personally
because the witness knew there was nothing good that could be said about
him. According to defendant, the questions undermined important defense
evidence in mitigation, and [n]o admonition could have undone the harm
caused by this misconduct. Defendant alleges this purported misconduct
rendered the penalty trial fundamentally unfair and thereby constituted
a denial of the right to due process of law under the United States
Constitution. In addition, once the prosecutor used improper leading
questions to imply evidence that did not exist and would not have been
relevant if it did exist, there was no realistic manner in which the
defense could have confronted the improper implication. This deprived [defendant]
of his federal 6th and 14th Amendment rights to confront and
cross-examine the witnesses against him . . . [and] effectively deprived
[defendant] of his right to present witnesses in his own behalf.
Defendant also claims denial of his constitutional right to a reliable
penalty phase determination and his constitutional right to have the
jury consider his evidence in mitigation.
The witness never answered the prosecutors questions.
Defendant did not seek an admonition to the jury to disregard the
prosecutors questions, a circumstance that ordinarily causes the
forfeiture of a claim. Claims of prosecutorial misconduct ordinarily are
forfeited for the purpose of appeal unless the defendant objects to the
asserted misconduct at trial and requests an admonition to the jury, or
an admonition would not have cured the harm. (People v.Fiereo
(1991) 1 Cal.4th 173, 211.)
Moreover, the jury was instructed that the attorneys
questions do not constitute evidence, and that it should not speculate
concerning the answer that might have been given to a question or assume
the truth of any insinuation suggested by a question as to which an
objection was sustained. As a general matter, we may presume that the
jury followed the instructions it was given (People v. Cunningham
(2001) 25 Cal.4th 926, 1014), and defendant has failed to supply any
persuasive reason to suppose the jury instead would have accepted as
evidence the insinuation allegedly implicit in the prosecutors questions.
Defendant also argues that in closing argument, the
prosecutor improperly appealed to the passions of the jury and invited
the jury to engage in a mechanical weighing process, in violation of
various constitutional rights. Defendant points to the prosecutors
argument that the defense was inviting the jury to impose the same
penalty life in prison without possibility of parole that would have
been the minimum punishment had defendant committed only the offenses
against Janene Weinhold. The prosecutor pointed to the additional
aggravating factors of defendants five other murders. He suggested that
defense counsel essentially would be arguing that the other five murder
victims did not count that these women are freebies. Lets throw these
bodies in. And we are not going to exact one more day, one more ounce of
punishment against [defendant] for killing six than we would the one.
Defendant did not object to the argument, nor did he
seek an admonition to the jury. Under the circumstances, he forfeited
any claim based on the principles stated above. In addition, contrary to
defendants claim, we do not believe that the prosecutor told the jury
that all multiple murders automatically warrant the death penalty, nor
do we believe his argument was an improper appeal to passion or invited
the jury to engage in a mechanical weighing process. The circumstances
of the charged capital crimes are appropriate factors in aggravation,
and it is not improper to suggest that a defendant who murders six
persons is more culpable and therefore should receive a more severe
sentence than a defendant who murders only one victim.
Defendant cites a decision filed by a majority of the
Illinois Supreme Court holding that a similar argument constituted
reversible error at the penalty phase of a capital murder trial. (People
v. Kuntu (Ill. 2001) 752 N.E.2d 380, 403.) The decision held that
the prosecutors argument was a call to the jury to act on the basis of
passion and prejudice and also amounted to an argument that all multiple
murders automatically must be punished by death. (Ibid.) The
prosecutors reference to five free murders, the majority maintained, was
simply an inflammatory statement with no basis in either law or fact; it
is tantamount to the conclusion that, as a matter of law, a person who
kills more than two persons should be sentenced to death. (Ibid.)
The decision concluded that standard jury instructions informing the
jury that the prosecutors argument does not constitute evidence did not,
under the particular facts of the case, cure the prosecutors asserted
misconduct. The court concluded that [i]n light of the closely balanced
evidence presented at the penalty phase of the death sentencing hearing,
the risk is simply too great that the prosecutors comments improperly
influenced the jurys sentencing decision. (Id. at p. 404.)
We believe that the three dissenting justices in
Kuntu took the better view. As the dissent pointed out, and as we
believe is true in the present case as well, the prosecutor at no time
argued that the death penalty should always be imposed when more than
two persons are killed. Instead, the State implied, through its comments,
that the offense was particularly egregious and especially deserving of
the death penalty. The State commented, as it has a right to do, that
defendants crime was an atrocious crime that resulted in the senseless
death of seven victims . . . . Thus, the States comments, although
inartful, were not misstatements of the death penalty law and should not
be construed in such a fashion. (People v. Kuntu, supra,
752 N.E.2d at p. 409 (dis. opn. of Fitzgerald, J.).)
6. Failure to exclude
evidence of defendants possession of a weapon while he was in custody
Defendant contends the trial court erred in
determining that it lacked the discretion ordinarily afforded by
Evidence Code section 352 which acknowledges the courts discretion to
exclude evidence that is more prejudicial than probative to exclude
evidence of defendants possession of a weapon in jail as a factor in
aggravation under factor (b).
In People v. Box (2000) 23 Cal.4th 1153, 1201,
we declared that the trial court retains its traditional discretion to
exclude particular items of [section 190.3, factors (a) or (b)]
evidence that are to be used in a manner that is misleading,
cumulative, or unduly inflammatory. In addition, factor (b) evidence,
even if it depicts the moral blameworthiness of the defendant, may
nonetheless be excludable under Evidence Code section 352 insofar as it
unfairly persuades jurors to find the defendant guilty of the crimes
commission. (Ibid.) Even assuming error under Box in the
present case, any error could not have been prejudicial. Defendant
presents no reason for us to conclude that the evidence in question was
unduly inflammatory or prejudicial. He contends the evidence
might demonstrate that defendant was likely to be dangerous in the
future, but such an inference was proper.[4]
7. Challenges to the
California death penalty scheme
Defendant raises various constitutional challenges to
the California death penalty statute, but we reject them as we have done
in prior cases.
a. Admitting evidence of prior unadjudicated crimes
in aggravation does not violate the Fifth, Sixth, Eighth, or Fourteenth
Amendment guarantees of fair trial, trial by an impartial jury, speedy
trial, and reliability, or the prohibition on placing persons twice in
jeopardy for the same offense. (People v. Box, supra, 23
Cal.4th at p. 1217.)
b. Failure to require that the jury unanimously find
the aggravating circumstances true beyond a reasonable doubt, to find
unanimously and beyond a reasonable doubt that aggravating circumstances
outweigh mitigating circumstances, or to require a unanimous finding
beyond a reasonable doubt that death is the appropriate penalty does not
violate the Fifth, Eighth, or Fourteenth Amendment guarantees of due
process and a reliable penalty determination. (People v. Box,
supra, 23 Cal.4th at p. 1217.)
The California death penalty statute is not
unconstitutional in failing to require the jury to make written findings
concerning the aggravating circumstances it relied upon, nor does the
failure to require written findings preclude meaningful appellate review.
(People v. Morrison (2004) 34 Cal.4th 698, 730-731.) Neither
Apprendi v. New Jersey (2000) 530 U.S. 466, nor Ring v.
Arizona (2002) 536 U.S. 584, nor Blakely v. Washington
(2004) 542 U.S. 296 affects California death penalty law or otherwise
justifies reconsideration of the foregoing decisions. (People v.
Morrison, supra, 34 Cal.4th at p. 731.) At oral argument in
the present case, defense counsel filed a letter that added a citation
to the high courts recent, related decision in Cunningham v.
California (2007) 549 U.S. [127 S.Ct. 856]. The Cunningham
decision involves merely an extension of the Apprendi and
Blakely analyses to Californias determinate sentencing law and has
no apparent application to the states capital sentencing scheme. In
Apprendi, supra, 530 U.S. 466, the high court found a
constitutional requirement that any fact, other than a prior conviction,
which increases the maximum penalty for a crime must be formally charged,
submitted to the fact finder, treated as a criminal element and proved
beyond a reasonable doubt. [Citation.] But under the California death
penalty scheme, once the defendant has been convicted of first degree
murder and one or more special circumstances has been found true beyond
a reasonable doubt, death is no more than the prescribed
statutory maximum for the offense; the only alternative is life
imprisonment without the possibility of parole. (People v. Anderson
(2001) 25 Cal.4th 543, 589-590, fn. 14.) Defendants failure to supply
any discussion or analysis of the Cunningham decision leaves us
with no basis to conclude that it should cause us to alter our views.
c. The California death penalty statute does not fail
to narrow the class of persons eligible for the death penalty as
required by the Eighth Amendment and article 1, section 17 of the
California Constitution. (People v. Gray, supra, 37
Cal.4th at p. 237; People v. Smithey (1999) 20 Cal.4th 936,
1017.)
d. Contrary to defendants claim, comparative
intercase proportionality review is not required by the United States
Constitution. (People v. Snow (2003) 30 Cal.4th 43, 126, 127),
but intracase proportionality review is available. (People v.
Hillhouse, supra, 27 Cal.4th at p. 511.)
e. The use of the terms extreme or substantial does
not improperly limit the jurys consideration of mitigating evidence in
violation of the Fifth, Sixth, Eighth, or Fourteenth Amendments. (People
v. Smith (2003) 30 Cal.4th 581, 642.)
f. Nor does the prosecutorial discretion to charge
special circumstances or seek the death penalty under the [California
death penalty] statute violate the federal Constitution. (People v.
Box, supra, 23 Cal.4th at p. 1217.)
g. Delay in the appointment of counsel on appeal and
in processing the appeal does not inflict cruel or unusual punishment
within the meaning of the state or United States Constitutions. (People
v. Lenart (2004) 32 Cal.4th 1107, 1131.)
h. Contrary to defendants claim, the statutory
sentencing factors are not so arbitrary, broad, or contradictory that
they provide inadequate guidance to the jury. (People v. Morrison,
supra, 34 Cal.4th at p. 729.
i. There is no constitutional requirement of a
presumption in favor of a sentence of life imprisonment without the
possibility of parole. (People v. Maury (2003) 30 Cal.4th 342,
440.)
j. Appellate review of death judgments is not
impermissibly influenced by political considerations in violation of the
Fifth, Sixth, Eighth, or Fourteenth Amendments to the United States
Constitution. (People v. Kipp, supra, 26 Cal.4th at pp.
1140-1141.)
k. Defendant contends that the various violations of
state and federal law he has asserted also constitute a violation of
international law, but he fail[s] to establish the premise that his
trial involved violations of state and federal constitutional law. (People
v. Jenkins, supra, 22 Cal.4th at p. 1055.) Further, [t]o
the extent defendant alleges violations of the International Covenant on
Civil and Political Rights . . . his claim lacks merit, even assuming he
has standing to invoke this covenant. (People v. Cornwell (2005)
37 Cal.4th 50, 106; People v. Brown (2004) 33 Cal.4th 382,
404.)
8. Cumulative prejudice
Defendant contends that guilt phase errors that may
have been harmless at the guilt phase were prejudicial at the penalty
phase. He cites (1) asserted error in admitting evidence of the knives
discovered in his automobile at the time of his arrest; and (2) admission
of evidence of ambiguous statements made by [defendant] which were not
sufficiently tied to the present crimes, but which nonetheless portrayed
[defendant] as having a negative attitude toward females. Defendant
contends this assertedly improperly admitted character evidence affected
the penalty determination and also might have caused the jury to dismiss
any lingering doubts they had concerning defendants guilt. Defendant
also contends the prejudicial impact of any guilt phase error on the
penalty determination is subject to review under the Chapman v.
California, supra, 386 U.S. 18, standard for review of
federal constitutional error, rather than the Brown (1988) 46
Cal.3d 432 test for state law error at the penalty phase. But [w]e have
explained that Browns reasonable possibility standard and
Chapmans reasonable doubt test . . . are the same in substance and
effect. (People v. Gonzalez, supra, (38 Cal.4th at p.
961, fn. omitted.) As we have concluded, the admission of the evidence
of the knives was harmless under the most exacting standard of review (see
People v. Robinson, supra, 37 Cal.4th at p. 655), and we
have rejected defendants claim concerning the admission of his
statements.
III. CONCLUSION
For the foregoing reasons, the judgment is affirmed
in its entirety.
Name of Opinion People v. Prince
Opinion No. S036105
Date Filed: April 30, 2007
Court: Superior
County: San Diego
Judge: Charles R. Hayes
*****
[1]
Defendant contends that this courts decision in People v. Edwards,
supra, 54 Cal.3d 787, limits victim impact evidence to evidence
that logically shows the harm caused by the defendant. (Id. at p.
835.) He suggests that victim impact evidence must be such as to portray
the victim as he or she was when the defendant confronted the victim and
that the videotape showed far more than what she was like when her
killer saw her, thereby going well beyond showing the harm caused by the
killer. We reject the assertion, as we have rejected similar claims in
other cases, that our law disallows evidence of the victims
characteristics that were unknown to his killer at the time of the crime.
(People v. Roldan (2005) 35 Cal.4th 646, 732, and cases cited, fn.
omitted.)
[2]
Defendant also complains that the court never communicated to the jury
its view that the burglaries were not part of an overall scheme that
included the murders. The courts point in making this declaration was to
explain why it rejected the prosecutors argument that all the noncapital
burglaries and attempted burglaries could be considered under section 190.3,
factor (a), the circumstances of the crime.
[3]
Having found no error, we also reject defendants claim that the asserted
error denied him various state and federal constitutional rights.
[4]
For the same reason that we rejected defendants state law claim, we
reject his claim that he suffered an arbitrary deprivation of the
benefit of state law (Hicks v. Oklahoma, supra, 447 U.S.
343) and that he was deprived of the right to a reliable penalty
determination. (Woodson v. North Carolina, supra, 428 U.S.
280.)
