The Supreme Court of California

opinion S014200

information

The People v. Jon Scott Dunkle

FACTS.

Guilt Phase.

Disappearance of John Davies

In November 1981, defendant, then 21 years old, was a close friend of the Davies family, who lived in Belmont. He often visited the Davies residence and spent time with 17-year-old Mark Davies and his 15-year-old brother John.

On the morning of Sunday, November 8, 1981, James Davies called the police to report his son John missing. Davies and his wife, Joan, had returned home around 1:30 a.m. and had noticed nothing amiss.

Joan had found John missing when she opened his bedroom door sometime after 8:30 a.m. John had laid out his church clothes and had left behind all his possessions, including his only pair of shoes.

He usually informed his parents of his whereabouts and, according to them, was not the sort of child who would be expected to run away. James and Joan Davies unsuccessfully made extensive efforts to locate John for several years after he disappeared.

Soon after the disappearance, James Davies called defendant to come over and help post flyers describing John. Defendant came over on the Wednesday or Thursday after the Sunday John was reported missing, and left with some flyers. He never visited the Davies family again.

Mark Davies testified that before John disappeared, defendant would comeby the Davies residence in his white Honda automobile. If he came to visit in the evening, he would throw rocks at Mark’s window so Mark could sneak out of the house without his parents’ knowledge.

They would drive to the Hassler Hospital site off Woodside Road and Highway 280 to explore the partially abandoned grounds. Mark last saw his brother John on Saturday, November 7, about 10:30 p.m., when Mark went to bed. Mark never heard from defendant after John’s disappearance.

Joan Davies testified that when defendant visited her sons, they would often sit in defendant’s car listening to music.

Initially, police theorized John had run away. Belmont Police Detective Jerrold Whaley contacted defendant in mid-1982, and defendant told him where John liked to hang out. Because the Davies family reported that defendant was John’s closest friend, Whaley contacted defendant often. By September 1984 the police were treating the disappearance as a possible kidnapping and had contacted the Federal Bureau of Investigation (FBI) for assistance.

On December 4, 1984, Whaley and FBI Agent Robert Deklinski twice interviewed defendant at his residence near Sacramento.

In the first interview, defendant denied seeing John on Saturday, November 7, 1981, claiming he did not leave his parents’ home that evening, and denied ever throwing rocks to summon Mark or John and sitting in his car listening to music with John.

In the second interview, Whaley and Deklinski probed the discrepancies between the Davies family members’ and defendant’s accounts; defendant was emphatic that he had neither thrown rocks at the boys’ bedroom windows nor listened to music with John in his car. Defendant also denied he had ever traveled with John to a hangout he called the “morgue,” evidently the Hassler Hospital grounds.

2. Murder of Lance Turner

On October 2, 1984, about 7:00 p.m., Belmont resident Margaret Turner called the police to report her 12-year-old son, Lance, missing from soccer practice. That day, Timothy O’Brien had driven his two sons and Lance to soccer practice at the fields behind Ralston Intermediate School.

O’Brien began coaching his team and did not see Lance again. Later, when the practice ended, O’Brien asked Lance’s coach, Ray Williamson, where Lance was. Williamson told him Lance was not at practice that day. Several boys reported seeing Lance head toward Waterdog Lake, three-eighths of a mile from the soccer field. A search followed.

William Russell arrived at 6:00 p.m. to pick up his son from soccer practice and, after taking his son home, joined the search for Lance. About 8:20 p.m., Russell shined a flashlight onto some bushes in a gully off the path to Waterdog Lake and saw feet sticking out of the bushes. Lance’s body was found under the overgrown brush.

Pathologist Peter Benson, M.D., testified Lance had died from blood loss due to multiple stab wounds. Two wounds to the heart were each fatal; two other wounds to the lungs were potentially life threatening. There were numerous defensive wounds to the arms and hands, as well as scratches, scrapes and bruises.

Stephanie Olson, Kendra Durham, and Nicole Guthrie, students at Ralston Intermediate School at the time of the Turner homicide, testified that about 3:00 p.m. on October 2, 1984, they left school, skipping volleyball practice, and went down to Waterdog Lake to smoke cigarettes. A man whom Stephanie described as having dirty blond hair, pimples, and dirty teeth with a retainer approached them and started a conversation. He told them his name was Jon and said he had graduated from Carlmont High School the year before. He was drinking beer from a tall Budweiser can, which he offered to the girls.

The girls left after about 20 minutes. Another Ralston student saw a man with dirty blond hair near Waterdog Lake about 4:00 p.m. (None of these witnesses was asked to identify defendant in the courtroom. Olson, Durham and Guthrie gave the police a description of the man that was incorporated into a composite drawing used in the investigation of the Turner homicide. As discussed below (post, p. 7), in his confession to FBI agents, defendant described talking with the three girls shortly before he killed Turner.)

3. Investigation of Davies and Turner murders

On December 27, 1984, Belmont Police Detective Sergeant James Goulart interviewed defendant concerning the Turner homicide. Defendant was by then the only suspect in the crime. Detective Goulart advised him of his constitutional rights, and he agreed to speak with Goulart. Defendant denied having been at Waterdog Lake on October 2, 1984, claiming he had been at home until noon and then had gone to stores in Redwood
City to fill out employment applications, returning home by bus at 4:30 p.m. Later police contacts with those businesses turned up no such applications.

In January 1985, in an effort to gather information about the Turner homicide, Belmont Police Officer Lisa Thomas began working undercover at the Sacramento Carl’s Jr. restaurant where defendant was employed. There she encountered defendant several days a week, regularly visited him at his sister’s house, where he was residing, and sometimes went to a bar or movie with him. Defendant often spoke with Thomas about newspaper reports on the investigations, at one point showing her a collection of clippings.

On February 9, 1985, defendant told her the police and the FBI had been in his home for five hours, confronting him, and that he had lied to them. To Thomas, he maintained his innocence, claiming that on the day Turner was killed he had gone to Redwood City to fill out job applications. Defendant seemed impressed with the attention he was getting from the FBI.

In May 1986, James and Joan Davies met with defendant for several hours seeking information about John. Defendant said he had none. Joan Davies met with defendant again in July 1986, and he continued to insist he had no information.

On September 16, 1986, Charles Rice told Michael Wiley, a law enforcement investigator for the State of California, that defendant had admitted to killing John Davies and Lance Turner. (During the penalty phase, the jury was informed that Rice was defendant’s cellmate at the state prison in San Luis Obispo on that date. Defendant was then incarcerated on a burglary conviction arising out of an incident discussed post, at pages 72-75, in connection with a related appellate contention.)

Wiley testified that Rice voluntarily made a statement, asking nothing in return, and insisted on trying to obtain further information from defendant because he was appalled by the killings.

On September 22, 1986, Rice gave investigators two maps, drawn by defendant, of the crime scenes. A week later, defendant met with Rice, who was wearing a wireless transmitter, and described the Davies and Turner murders in graphic detail.

Defendant refused to report the crimes to the Belmont police because he did not trust them. He said he did trust the FBI, however, so Rice told defendant he had a friend who was an FBI agent and would help defendant if he confessed to him. Prison officials arranged to find an FBI agent to take the confession.

On October 3, 1986, FBI Special Agents Frank Hickey and Daniel Payne interviewed defendant at the state prison in San Luis Obispo. Rice was also present. Defendant was advised of his constitutional rights and signed a waiver.

Defendant stated that, before killing John Davies, he was at Half Moon Bay with three friends, drinking whisky and smoking marijuana. He then drove to the Davies residence, parked a few doors down the street, and entered through an unlocked door. He went to John’s bedroom and invited him to come and drink beer.

John agreed, and went with defendant to Edgewood Park in Redwood City near the Crystal Springs Reservoir. John was wearing a black T-shirt, blue corduroy pants and no socks or shoes. Defendant parked near a shooting range and, before leaving the car, removed a knife from the glove compartment. At that point, he “committed” himself to killing John. They walked half a mile to two miles down a dirt road. Defendant then stabbed John in the back, sat on his chest and stabbed him in the throat. When John struggled, defendant picked up a large rock and struck him in the head.

Defendant then dragged the body to an opening in the ground, pushed it in and left the scene, later disposing of his bloodstained clothing. A week after the murder, defendant returned to the area and observed that the body was bloated and animals were feeding on it. In May 1984, he returned again and observed a skull.

Asked about a motive for killing John Davies, defendant said that when he drank beer and smoked marijuana he became aggressive. He also noted that John used to cause a computer monitor to flash irritating statements that defendant would observe, and this angered him. Defendant drew a map for the investigators illustrating the location of John’s remains.

Regarding the murder of Lance Turner, defendant stated that on October 2, 1984, he was in the process of moving from Belmont to another part of the state. On that day, he bought a six-pack of beer and went to the park near Waterdog Lake to drink it. At 2:30 p.m., after some three hours at the lake, he went to an area near Ralston School. He climbed a tree known as the “smokers’ tree” and used his buck-type hunting knife to stab at it. Three junior-high-school-age girls came to the tree looking for a pack of cigarettes and dug up a matchbook with a distinctive inscription. The girls shared defendant’s last beer and one of them offered him a marijuana cigarette. At one point defendant saw a boy wearing athletic clothes run down the hill.

After the girls left, defendant stayed for another five minutes. Then, as he headed back toward the dock, he saw the boy jogging in the area. To get his attention, defendant asked him the time. The boy responded that it was 3:50, and turned away. As he turned, defendant stabbed him in the side with his hunting knife. The boy struggled as defendant stabbed him a second time, then went down to the ground and complied with defendant’s command to put his leg down.

In the course of the struggle, the boy bit defendant so severely on the thumb that he later lost the nail. Defendant stabbed him again, in the throat, and yet a fourth time near the heart. The boy then appeared dead. Defendant moved the body under some low bushes and went home. He later disposed of the knife and sheath in separate places and discarded his shoes out of concern that their prints could be identified. He correctly described a birthmark on the side of the boy’s neck.

Using a map defendant had drawn, Belmont police searched for John Davies’s remains and found items of clothing, bones and a skull. A forensic pathologist who examined the skull testified it was consistent with that of a young Caucasian male and bore evidence of blunt force trauma that could have been inflicted by a rock. Orthodontist Stan Wolken compared X-rays of his patient, John Davies, with X-rays of the remains, finding similarities between them.

On October 6, 1984, defendant led investigators into a field near a Carmichael residence and pointed out the shrubbery where he had discarded the knife he had used to kill Lance Turner. With the help of a metal detector, investigators found a folding Puma brand knife.

On two occasions in October 1986, for 45 minutes and five hours respectively, Psychiatrist James Missett, met with defendant at the request of the district attorney’s office. Dr. Missett read defendant his constitutional rights at the outset of each interview and defendant waived them. Defendant described having an interest in reading newspaper accounts of killings when he was in elementary school. He stopped doing so in fifth grade because “homicides weren’t part of my everyday scene.”

In sixth grade, defendant became aware that he wanted to kill someone after watching a movie in which an older boy was about to kill a younger boy to prevent him from disclosing a diary containing references to other murders. About the Davies murder, defendant said: “I thought to myself[,] you have got someone out in the middle of nowhere, here is your chance to kill someone. You have thought of killing someone before.”

After describing how he initially stabbed Davies, defendant told Dr. Missett he pinned Davies down with his knees on his shoulders and, when Davies asked what he planned to do, defendant said he was going to kill him. He told Davies to scream all he wanted before stabbing him in the throat and strangling him with his hands. Defendant said he stopped tothink whether he wanted to go through with it before he picked up a rock and hit Davies three times on the right side of the head.

B. Penalty Phase

1. Prosecution case in aggravation

The prosecution introduced evidence that defendant had attempted, in separate incidents, to kill Steve Murphy and Monte Hansen, and had murdered Sean Dannehl. The prosecution also presented evidence, described below in connection with related contentions (see pp. 68-72, post), of defendant’s threat to kill jail nurse Angela Beck and his burglary of the home of Richard Rennie.

a. Attempted murder of Steve Murphy

On November 5, 1982, 16-year-old Steve Murphy attended a party at a friend’s house in San Mateo. Leaving the party around 11:30 p.m., he walked another friend home. Murphy was heading toward his own residence, 15 to 20 houses away, when he lost consciousness. He awoke after daylight the next morning near a large dirt area surrounded by trees. He fell unconscious again and next woke up in a hospital, discovering that his spleen and a kidney had been surgically removed. He spent the next three weeks in the hospital with broken ribs and a broken pelvis. His injuries caused him to miss several months of school.

In October 1986, after obtaining a waiver of constitutional rights, San Mateo Police Officer Joseph Farmer spoke with defendant about the assault on Murphy. Defendant admitted he had been drinking alcohol on the beach before driving his car up the hill on 42d Avenue in San Mateo. He saw someone walking on 42d Avenue and made two or three right turns to encounter the person again.

He deliberately ran over the person, put him in the back of his car, and drove himto an isolated area in Belmont at the Marburger turnaround. He took the person out of the car and laid him on the roadway. Defendant referred to the person as “Steve Murphy,” but did not explain how he had learned the victim’s name.

b. Attempted murder of Monte Hansen

In 1982, Monte Hansen, then 16 years old, often went out drinking with defendant. On New Year’s Eve that year, Hansen invited defendant to come to his house, as his parents were out. Defendant arrived shortly before midnight, apparently under the influence of alcohol, and told Hansen he felt dizzy. Hansen told him to drink some water and went out into the backyard to smoke a cigarette. There, he turned to observe defendant approaching him, a two-by-four-inch board studded with nails in his raised hand. Defendant struck at Hansen with the board. One blow hit him in the head, but Hansen blocked the rest of the blows with his forearm. Defendant was smiling as he attacked Hansen. Defendant then reentered the house and Hansen saw him put a knife back in a kitchen cabinet. Hansen screamed at defendant to get out and told defendant he would kill him if he harmed his little brother, who was asleep in a bedroom. Defendant ran toward his car and Hansen never saw him again.

On February 28, 1985, undercover officer Lisa Thomas told defendant a false story about her involvement in a hit-and-run accident. Defendant then told her how he had run over Steve Murphy and assaulted Monte Hansen; a recording of the conversation was played for the jury.

c. Murder of Sean Dannehl

Around 6:00 p.m. on July 2, 1985, 12-year-old Sean Dannehl went to a friend’s house in Sacramento, riding his bicycle. When he did not return home by 9:00 p.m., his mother called the friend’s house and learned Sean had left around 7:30. His father and mother and her husband searched for him. His body was found six days later at Lower Sunrise Park. A board with a nail in it and a beer can were found at the scene.

An autopsy revealed the cause of death to be two stab wounds to the heart, one penetrating a rib, caused by something thick, pointed and dense, consistent with a marijuana pipe tool. Sean also suffered a perforating wound to the skull consistent with the nail-embedded board. Insect activity in the facial and neck area also suggested the presence of some type of wound there.

Sacramento Detective Robert Bell questioned defendant on July 5, 1985. Defendant said he did not know about the missing boy, but he admitted that on July 2 he was on a bicycle trail at Lower Sunrise Park drinking beer with friends until about 8:30 p.m., when he rode home. He claimed a flat tire prevented him from arriving at home before 10:00 p.m. Anton Martinez and Paul Stanley confirmed they were on the bicycle trail with defendant that day, drinking beer and smoking marijuana until they parted around sunset.

After Sean’s body was found, Detective Bell contacted defendant, who agreed to accompany investigators to the police station. After waiving his constitutional rights, defendant denied knowing anything about Sean’s murder. Investigators drove defendant to his sister’s residence, where he was staying. Defendant and his sister agreed to a search of the house; no evidence was found.

Defendant later voluntarily returned to the police station to provide hair, blood and saliva samples. The next day, July 10, 1985, defendant showed Detective Bell where on the bicycle trail he had had a flat tire and where he and his friends had met to drink beer. Defendant also assisted investigators in searching for his missing marijuana pipe tool, accompanying them to several smoke shops and finding one tool he said resembled the one he had lost. On July 15, 1985, defendant telephoned Detective Bell to tell him Paul Stanley’s blood might be found on his (defendant’s) bicycle because Stanley had fallen and might have bled on it.

On August 19, 1985, in an effort to get defendant to confess, undercover narcotics officer Ronald Goesch, posing as “Ron Cross,” left a letter at defendant’s house. The letter advised that Cross lived near the river, the police were pressuring him, and he knew what defendant had done and would be communicating with him again. Defendant gave the letter to Detective Bell. Officer Goesch left another letter and called defendant four days later, asking to meet with him. Goesch said he knew about “the board” and “other stuff,” and wanted money or he would go to the police and give them evidence, adding that he needed the money to avoid his own arrest. Defendant did not respond and did not appear at the time Goesch requested.

After investigators questioned defendant about the Ron Cross information, defendant telephoned Detective Bell, upset at the course of the investigation. In the course of the conversation, defendant asked, hypothetically, what might happen if he confessed to the crime. He also asked, hypothetically, if he were at the scene, saw the victim screaming and took no action to save him, whether his inaction would get him in trouble.

Department of Corrections Sergeant Michael Wiley took Charles Rice’s report of defendant’s confessions. On September 28, 1986, in Wiley’s office, Wiley overheard defendant describe to Rice, who was wearing a wireless microphone, the murders of Lance Turner, John Davies and Sean Dannehl.

On October 3, 1986, following defendant’s agreement to confess to the murders to the FBI (see p. 6, ante), FBI Special Agents Frank Hickey and Daniel Payne asked defendant about the Dannehl murder. Charles Rice was also present during the interview.

Defendant stated that on July 2, 1985, he had left his home at 11:30 a.m. and ridden his bicycle to the American River Park, where he met an acquaintance, Anton. They bought some beer and went to Anton’s house, where another friend met them.

The three rode their bicycles back to the park and smoked marijuana and continued to drink beer. Defendant drank four tall beers and three 12-ounce cans of beer. About 8:30 p.m. they parted, and defendant rode his bicycle to a vista point. He saw Sean Dannehl riding his bicycle towards Sunrise Boulevard, commenting to Agent Hickey, “I knew right then I was going to stop him and kill him.”

He chased after Sean, ramming Sean’s bicycle with his own. When Sean fell off his bicycle, defendant grabbed his arm and led him to a large tree. Sean cooperated, causing defendant to want to humiliate him, over Sean’s pleas that defendant not hurt him. Defendant forced Sean to take off his clothes and put them in a pile. A two-by-four lay in the area; defendant put it over Sean’s eyes as he lay on his back. Defendant was carrying an electrician’s instrument with a pick, which he thrust into Sean’s chest, near his heart. After Sean protested that defendant had promised not to hurt him, defendant put a hand over his mouth and stabbed him again, causing the blade of the instrument to separate from the handle.

Defendant retrieved the blade, screwed it back into the handle and stabbed Sean in the eyes. He then rode his bicycle home, removing the handle from the pick along the way and discarding the pieces separately. At home, defendant washed his clothes and buried his bloody socks in a flowerbed near a library three blocks from his house. He signed a written statement incorporating his confession, drew a map of the crime scene, and gave investigators a sketch of his pick tool.

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