IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
ROBERT EDWARD MAURY,
Defendant and Appellant.
Super. Ct. No. 87-8250
A jury convicted defendant Robert Edward Maury for the first degree
murders (Pen. Code, § 187)1 of Averill Weeden, Belinda Jo Stark and Dawn
Berryhill, the assault on Stark with intent to commit rape (§ 220), the robbery
(§ 211) of Berryhill, and the forcible rape (§ 261, subd. (2)) of Jacqueline H. It
found true special circumstance allegations of multiple murder (§ 190.2, subd.
(a)(3)) and robbery murder (§ 190.2, subd. (a)(17)(i)). After a penalty trial, the
jury returned a verdict of death, and the trial court imposed that sentence. This
appeal is automatic. (§ 1239, subd. (b).) As will appear, we affirm the judgment
in its entirety.
All further statutory references are to the Penal Code unless otherwise
A. Guilt Phase
1. The Prosecution’s Case
The prosecution presented a fact-intensive, circumstantial case of
defendant’s guilt, which interconnected three murders and the rape of a fourth
A central element in the case was the Shasta County Secret Witness
program (Secret Witness), which was established as a telephone “hotline” to
receive information from citizens about crimes committed in the county. A month
after Weeden’s disappearance in 1985, an anonymous caller called the Secret
Witness with information on the location of Weeden’s body in exchange for
reward money. This information led to the discovery of Weeden’s body.
Although the police suspected that defendant, Weeden’s roommate, had been
involved in her disappearance and was possibly the Secret Witness caller, there
was insufficient evidence of his involvement in Weeden’s death or that he was the
In 1986, defendant called the Secret Witness about seeking a reward for
information on an unrelated burglary. During the call, defendant identified
himself by name. The operator believed that he was the same person who had
previously provided information on Weeden.
At the end of June 1987, Berryhill and Stark disappeared. Soon afterwards,
the Secret Witness operator received a series of telephone calls from an
unidentified caller, whom she believed to be the previous caller. He provided
information leading to the discovery of the women’s bodies, which were later
located in the same rural area, within three-tenths of a mile of each other. The
caller again received monetary rewards for the information provided. When the
caller retrieved the reward money at a designated drop-off point, the police
identified him as defendant. After the police later confronted defendant with this
information, he made a series of incriminating statements, which eventually led to
b. Weeden’s disappearance
In May 1985, Weeden lived in Redding and rented a room in her house to
defendant. On Thursday, May 23, Eula Chartier, Weeden’s mother, spoke to
defendant several times on the telephone inquiring about her daughter’s
whereabouts. Defendant related that Weeden was at the store. On the last call,
defendant exclaimed, “How in the hell am I supposed to know where she is.”
Unable to locate Weeden, Chartier reported to the police that her daughter was
While searching for his sister, Bill Chartier asked defendant where she was.
Defendant gave conflicting stories. Ray Morris, who was with defendant at the
Weeden house on one occasion, told Chartier that he last saw Weeden riding off
with defendant on the back of his motorcycle.
Assigned to investigate the disappearance of Weeden, Redding Police
Detective Dave Mundy spoke with defendant at the police department on June 3,
1985. Defendant appeared to be “relaxed and self-assured” and denied any
involvement in Weeden’s disappearance. He related that the last time he had seen
Weeden was “either Thursday, Friday, or a Saturday.” At that time, defendant
drove Weeden on his motorcycle to a telephone booth, left her there while he went
to another location to pick up some drugs for Weeden, returned to pick her up, and
drove her back to her house. A week later, Detective Mundy spoke again with
defendant, who confirmed this account.
c. The 1985 Secret Witness telephone calls and discovery of
On June 19, 1985, an anonymous person called the Secret Witness,
inquiring as to how much he would receive for information on the location of
Weeden’s body. Shirley Landreth, who answered most of the incoming calls for
the Secret Witness, spoke to this person.
On August 8, 1985, the same person (whose voice Landreth recognized)
called and asked again about the amount of reward money he would receive for
information on the location of Weeden’s body. This time, having received
authorization to pay the reward money, Landreth agreed with the caller on the
amount. The caller then gave precise directions to a wooded area located off a
trail behind an automobile body shop in Redding. In relating the distances, he
used the term “meters.” Claiming that he knew the identity of the person
responsible for the Weeden killing, the caller offered to give information about the
“responsible” person if he received his reward money in a timely manner. He also
related that there were six unsolved murders in Shasta County and he could give
information to solve two others.
Based on the information provided by the caller, the police found Weeden’s
badly decomposed body. It had been covered with cardboard and what appeared
to be an old carpet. An autopsy, performed on August 23, 1985, revealed that
Weeden’s skull and the bone at the top of her throat had been fractured “at or near
the time of death.” The medical examiner opined that Weeden died from multiple
traumatic injuries; either fracture, independently, or both fractures in conjunction,
could have caused Weeden’s death. The fractured bone in Weeden’s throat was
consistent with manual strangulation.
After the discovery of Weeden’s body, Landreth received four more
telephone calls from the same caller in August 1985. On August 12, the caller
said that the person who had lived with Weeden was responsible for her death.
Although the caller refused to talk with Detective Mundy, he said he would call
back and answer questions that the officer gave to Landreth.
On August 15, 1985, the Secret Witness caller telephoned Landreth as
promised. Responding to Detective Mundy’s questions, the caller related that the
person responsible for Weeden’s death was named “Robert” or “Bob” and had
rented a room from Weeden; he knew this because he was “sort of with him”; he
was Bob’s drug connection and had gone with him to collect the money; Bob had
provided drugs to Weeden; and when Weeden could not pay for the drugs, Bob
went out of control and strangled her with a nylon clothesline obtained from
Weeden’s backyard. The caller further related that the killing occurred Thursday
night on a trail and the body was dragged to where it was found. He refused to
admit that he had observed the killing. Landreth asked, “If Bob denies [the
involvement], how can we nail him?” The caller responded, “Tell Bob that Dave
has talked to Frank” and that “it will scare the hmm [later described as a ‘four-
letter word’] out of him.”2
On August 15, 1985, the Secret Witness caller telephoned Landreth again
and responded to more questions provided by Detective Mundy. The caller related
that Weeden was picked up at dusk and killed with a six- to eight-inch rock at 7:00
or 8:00 p.m. on Thursday; he knew it was Thursday because it had been a
relative’s birthday; and Bob drove Weeden on his motorcycle while the caller
drove his own car. The caller reiterated that Weeden had been strangled beside
the trail, dragged to where she was eventually found, hit with a rock to make sure
that she was dead, and covered with leaves and branches. Bob returned later and
People who knew defendant testified that he used the term “Frank” to refer
to a liar.
covered Weeden’s body with an object such as a blanket, towel, or rug. In
describing where the police could find Weeden’s glasses, the rope, and the rock,
the caller again used the term “meters.” When Landreth related that the police
were unable to find the rope near the location of the body, the caller said that it
could be found next to a shed in Weeden’s backyard. The police later found a
nylon clothesline there. The caller said that he would check the next day and
warned that if he did not receive his reward money, they would not hear from him
On August 26, 1985, the same caller telephoned Landreth again.
Responding to more questions provided by Detective Mundy, the caller described
the clothing Weeden had worn and said that Bob covered the body with a rug.
When asked if anyone had seen Bob return to the body, the caller responded that
he did not know, although Bob had gone back several times on his dirt bike.
d. Defendant’s additional statements to the police about Weeden’s
On September 4, 1985, Detective Mundy spoke with defendant again at
defendant’s house. Defendant reiterated that he had driven Weeden on his
motorcycle to a telephone booth, left her there while he retrieved some drugs,
returned to Weeden, and then brought her back to her house. He believed this
occurred on Friday night, May 24, because he recalled that the next day he
attended a birthday party for his brother’s children.
In November 1985, defendant telephoned Shasta County Sheriff’s
Detective Chester Ashmun. This time, he offered information on the cause of
Weeden’s death to the effect that she had been strangled and hit on the head. He
wanted consideration on a possession of stolen property charge in an unrelated
case and immunity in the Weeden case. Detective Ashmun responded that he
might be able to help defendant on the unrelated case. After Detective Ashmun
related this information, Detective Mundy telephoned defendant. Defendant
offered to talk, conditioned upon receiving immunity on the Weeden case.
Detective Ashmun responded that only the district attorney could grant immunity.
The next day, November 21, 1985, Detective Mundy and Shasta County
District Attorney Steve Carlton interviewed defendant at defendant’s house.
Defendant stated that close to the time of his nephews’ birthdays, he returned to
Weeden’s house and found Morris strangling Weeden with a rope. Upon seeing
defendant, Morris dropped Weeden. Defendant believed that she was dead.
Another man, whom defendant did not know, pointed a gun at defendant. Morris
used the same rope to tie defendant’s hands. Morris and the other man placed
defendant in the back of Weeden’s truck with Weeden’s body. They drove to the
woods where they dumped Weeden’s body. Although Weeden was already dead,
Morris threw rocks at her body. Defendant convinced Morris not to shoot him by
promising the men anything they wanted. After returning to Weeden’s house,
Morris threatened that if defendant turned them in to the police, they would kill
On December 10, 1985, Detective Mundy spoke with defendant again.
Defendant repeated how Weeden had been strangled, but said he was not sure if
Weeden was dead when Morris dropped her. This time, however, defendant
claimed that Morris forced him, at gunpoint, to strike Weeden on the head with a
rock to disguise how she died. During the interview, defendant used the term
“meters,” which led Detective Mundy to suspect that defendant was the Secret
Witness caller. When asked if he was the caller, defendant denied it.
By November 1985, the police suspected that defendant was responsible for
e. The 1986 Secret Witness telephone calls
On September 11, 1986, over a year after receiving the last telephone call
from the Secret Witness caller, Landreth received a telephone call from a person
offering information on a burglary, unrelated to the Weeden case, in exchange for
a reward. Landreth recognized the person’s voice as the same caller who had
made the 1985 anonymous calls regarding Weeden. The caller identified himself
as “Bob” or “Robert Maury.”
A week later, the same person who had called Landreth about the unrelated
burglary, and whom Landreth believed had also called in 1985, called again. He
wanted immunity on the Weeden case. The Secret Witness calls from this person
stopped, but as shown below, resumed in August 1987, after the disappearances of
Berryhill and Stark.
In the spring of 1987, defendant called Detective Mundy. Upset because
his name had been leaked as a possible informant in an unrelated robbery trial,
defendant taunted Mundy that he would never really know what had happened to
Weeden and would “take Averill Weeden’s death to [Mundy’s] grave.”
f. The Jacqueline H. rape
On June 20, 1987, defendant began talking to Jacqueline H. and introduced
himself as “Maury as in hooray.” Defendant drove Jacqueline H. on his
motorcycle to her friend’s house, where she stayed for a few hours. She returned
home and then left her house at about dusk to go to a fair. About one and one-half
blocks from her house, Jacqueline H. saw defendant parked on the side of the
road. She wondered why he was there since she had not divulged her home
address. Defendant invited Jacqueline H. to a friend’s party at the bike trails in
Happy Valley. She accepted and he drove her on his motorcycle to the bike trails.
Defendant then turned onto a dirt road off Happy Valley Road, drove on some
smaller dirt trails for about a mile, and stopped in a clearing in the woods.
When Jacqueline H. saw that there was no one around, she became scared
and asked to be taken home. Fearing that she would be killed, Jacqueline H. took
her driver’s license from her purse and hid it in her back pocket. Initially,
defendant said that they should wait for a few minutes. He then placed a rope
around Jacqueline H.’s neck and demanded that she remove her clothes as he
tightened the slip knot around her neck. After Jacqueline H. removed her clothes,
defendant ordered her to lie down. When she complied, he raped her. Afterwards,
he drove Jacqueline H. home. Because Jacqueline H. felt that she had no one to
turn to, she did not immediately tell anyone about the rape.
In early August 1987, Jacqueline H. told her new boyfriend, Gary
Minoletti, about the rape. In late August, after the disappearance of Berryhill,
Jacqueline H. saw defendant drive up to a liquor store on his motorcycle.
Recognizing him, Jacqueline H. asked defendant if his name was Bob; he said it
was. Defendant asked Jacqueline H. if she was Berryhill. She then went inside
the store and told Minoletti that the man who had raped her was outside. When
Minoletti confronted him, defendant acknowledged that he was Bob Maury and
asked, “Is that Dawn?” When Minoletti replied no, defendant commented that
Jacqueline H. looked “just like” Berryhill. Minoletti wrote down defendant’s
license plate number and reported the rape to the police that night.
Detective Mundy was in charge of the rape investigation and never told
Jacqueline H. about the murder of Berryhill.
g. The disappearance of Berryhill
On Monday, June 22, 1987, two days after the rape of Jacqueline H.,
Berryhill disappeared. Earlier that morning, Berryhill kicked her boyfriend, Mike
Brumett, out of her South Market Street apartment. Later, Diana Williams
(Berryhill’s mother) was baby-sitting Berryhill’s six-month-old baby at Berryhill’s
apartment and answered the telephone. The caller identified himself as “Bob” and
wanted Berryhill to wait for him because he would be a few minutes late. He
asked if Berryhill was still living with her boyfriend. When Williams replied no,
defendant commented “good,” because he intended to rent Berryhill an apartment
and would not rent it to her if she was still with her boyfriend.4
About 2:00 p.m., not long after receiving a second telephone call from
“Bob,” Williams left Berryhill’s apartment to find her daughter. She saw Berryhill
talking to defendant in a park, about two blocks from the apartment. Defendant
was sitting on a dark “Honda-type” motorcycle. Berryhill returned to the
apartment with Williams. She told Williams that she was going to meet “Bob” at
8:00 p.m., that she had already been with him that day, and that they were going to
“Big Mama’s house” to buy “pot.” Williams left Berryhill’s apartment at 3:00
p.m., after giving her $100. That was the last time Williams saw her daughter.
Goldie Lane lived above Berryhill’s apartment. At about 9:00 p.m., on
June 22, 1987, Berryhill asked Lane for a ride to buy some marijuana. Lane
replied that her car’s lights were not working, but offered to baby-sit for Berryhill
if she could get a ride with someone else. Berryhill accepted and said that she
could get a ride with a guy on a motorcycle at the liquor store across the street.
Several minutes later, Berryhill brought her baby to Lane’s apartment and told
Lane that she was going to “cop some dope.” Lane offered some money, but
Berryhill declined because she had enough money. Berryhill showed Lane a roll
of money, put it back in her purse, and left. That was the last time Lane saw
At trial, Williams testified that defendant personally questioned her at the
preliminary hearing. She recognized defendant’s voice as the person with whom
she spoke on the telephone.
That night, Bill Koeller went to Berryhill’s apartment to retrieve some of
Brumett’s clothes for Brumett. Because Brumett thought Berryhill would become
upset if he appeared, Koeller dropped Brumett down the street before proceeding
to Berryhill’s apartment. Koeller spoke to Berryhill in front of her apartment.
When it was getting dark, he saw defendant approaching them from the liquor
store across the street. Berryhill waved defendant over to her. After defendant
approached them and spoke to Berryhill, Koeller decided to leave. As Koeller left
the area, he saw Berryhill leaving with defendant, on his “Honda-like” motorcycle.
Just before dusk on June 22, 1987, James Horan saw Berryhill in an
alleyway near her apartment. Horan wanted to buy marijuana, but Berryhill said
she did not have any to sell at that time. While they were conversing, Horan saw
Berryhill wave at a man crossing the street toward them. Although Horan gave a
general description of the man at trial, he could not identify defendant as that man;
he was too far away.
Because defendant matched the description of the man seen crossing the
street toward Berryhill and leaving on the motorcycle, Detective Mundy
questioned defendant about Berryhill several days after her disappearance.
Defendant admitted that he knew a Dawn that lived across the street from the
liquor store on South Market Street and that he had also met her in the park a
couple of times.
h. The disappearance of Stark
Stark also disappeared at the end of June 1987. Before her disappearance,
Stark was staying with her friend, Lucy Gray, in Fall River Mills. Gray last saw
Stark on June 24, 1987, two days after Gray’s birthday. On Gray’s birthday, Stark
showed Gray a small chrome-colored gun that she carried in her purse.
Gary Evans, Stark’s boyfriend, last saw Stark around June 25, 1987. At
that time, Stark told Evans that she was going to Nevada City to appear in court
two or three days later for a traffic violation. Stark never appeared for her court
appearance in Nevada City, scheduled on June 29, 1987. Because Stark
anticipated that she might have to spend some time in jail and she had a “habit of
coming and going,” Evans did not become concerned when she failed to contact
him. No one reported her disappearance to the police.
i. More Secret Witness calls, discovery of defendant as the Secret
Witness caller, and discovery of remains of Stark and Berryhill
On August 8, 1987, Landreth received a Secret Witness call from someone
asking how much money he would receive for revealing the location of the body
of a Gretchen Olsten. Landreth recognized the caller’s voice as the same person
who had made the 1985 telephone calls about Weeden and the 1986 call on an
unrelated burglary. She related that she needed to contact the program’s
coordinator about a reward. Landreth then obtained authorization to offer a
reward to the caller.
On August 17, 1987, the same person called several times. He told
Landreth that Olsten’s death had occurred about one and one-half months ago. He
stated that if he gave directions to the body’s location, he wanted to be paid that
day without an autopsy confirmation of the person’s identity. After Landreth and
the caller agreed on a reward amount for an unidentified body, the caller gave
specific directions to the body’s location in a wooded area in Happy Valley.
Landreth related this information to the Sheriff’s Office. The caller called back
that same day; Landreth said that the police could not locate the body. When she
asked if there was a power line in the area, the caller replied that they were on the
wrong road. The caller stated that when he picked up the reward money, he would
leave information about the person responsible in an envelope. He volunteered
that the “boyfriend was responsible.”
Wanting to confirm her identification of the caller, Landreth taped “one or
two sentences” during a telephone conversation. She played the tape for Detective
Mundy over the telephone and played it again for him in person. Having spoken
to defendant before, Detective Mundy identified defendant as the person on the
As prearranged, Detective Francis Brewer of the sheriff’s office left $500
reward money for the caller at the pickup point in the office of a title company in
Redding. Detective Brewer was told that in exchange for the reward money, the
caller would leave information on the identity of the killer. Defendant entered the
office and gave the title company’s director an envelope in exchange for an
envelope containing the reward money.5 Brewer retrieved the envelope left by
defendant and discovered it was empty. It was later determined that defendant’s
fingerprint was on the envelope.
Based on the information provided by the Secret Witness caller, on August
17, 1987, the police found scattered, decomposed human bones in the Happy
Valley area, the same general area where Jacqueline H. had been raped. Although
the caller had indicated that the body was that of “Olsten,” the remains were later
identified on October 16, 1987, as those of Stark.
The coroner could not determine the cause of death, but testified that
photographs of the crime scene showed that Stark had been sexually assaulted and
died of an unnatural death. In examining the body, the coroner noted that the
victim had suffered blunt trauma force to the upper jaw, which caused the
At trial, the title company’s director positively identified defendant as the
person who had claimed the reward money that day.
dislodgement of one of her teeth. He opined that because of the severity of the
injury and the lack of evidence that the body had responded to the injury, the
injury had occurred at or near the time of death.
Sergeant Wooden discovered a blanket about 130 yards from where Stark’s
remains had been found. At trial, two women who had lived with defendant in
1985 identified the blanket. Although the blanket found was in worse condition,
one woman viewed the blanket as identical, while the other woman thought that
the blanket was similar to one they had seen in defendant’s trailer.
After the discovery of Stark’s unidentified body, Detectives Mundy and
Newsome interviewed defendant about Berryhill’s disappearance on August 26.
Defendant theorized that Berryhill’s boyfriend “killed her or whatever,” but then
later said he had “no idea” what had happened to her. He admitted that on the day
he last saw Berryhill, he had taken her to buy marijuana, but that she was unable to
buy any because no one was home. He said that he had returned Berryhill, at
noon, to her apartment where her mother was baby-sitting. Defendant denied that
he took Berryhill anywhere that night and claimed that, instead, he had been on a
date with a Leanne Thurman that night. Before his date, he was with his friend
Dave Hancock at the home of Hancock’s boss and told Hancock he wanted to be
back home by 8:30 p.m. for his date.6
Hancock testified that during the summer of 1987, he and defendant were at
his boss’s ranch. After defendant announced that he was late for a date, he and
Hancock returned to their home in Happy Valley. Several minutes later, when it
was “almost dark,” defendant drove off on his maroon Yamaha motorcycle.
Sometime later, defendant revealed to Hancock that the date was with Berryhill,
but that she had already left with someone else before he got there. Although
Hancock did not know anyone by the name of Dawn Berryhill, defendant further
related that the police had spoken to defendant about her disappearance.
On September 15, 1987, Landreth received another telephone call from the
person whom she recognized as the Weeden and “Olsten” caller. The caller
wanted reward money for information regarding the body of Berryhill. The next
day, the same person called Landreth three times. During the course of these
telephone conversations, Landreth offered $500 for the location of an
“unidentified body.” The caller replied that he had already divulged the body’s
identity the previous day. They finally agreed that if the caller’s information led
to Berryhill’s body, he would receive $1,250, but that if it led to an unidentified
body or the body was not Berryhill’s, he would receive $500. The caller said that
they would know it was Berryhill by her hair. When asked if Berryhill was no
longer alive, he replied that he saw her boyfriend “do it to her.” The Secret
Witness program’s advisory committee instructed Landreth to cooperate with law
enforcement regarding any calls about Berryhill.
On the morning of September 22, 1987, the same caller telephoned
Landreth five times. Detective Mundy monitored and taped two of the telephone
conversations. During the course of the monitored conversations, Landreth lied
and said that the call was not being recorded. She assured the caller that she could
not recognize a person’s voice since she talked to so many people every day. The
caller described the area in Happy Valley where Berryhill’s body was located and
said that Berryhill had been strangled with a scarf. Mundy again recognized
On September 22, 1987, based upon the information received from the
caller, the police found a decomposed body in the Happy Valley area, about three-
tenths of a mile from Stark’s body and close to the area where Jacqueline H. had
been raped. The body (later identified as Berryhill’s) was under a mattress and
surrounded by dense brush and pine needles that had fallen from overhead trees.
It appeared that the mattress had been placed over the body some time after the
body had been placed there. There were pine needles in between the body and
mattress, but relatively few pine needles on top of the mattress. A scarf was
wrapped around the body’s neck. It was later determined that Berryhill died from
strangulation. The police found a .22-caliber bullet slug near the victim’s feet.
Later that day, after the body was found, Detective Mundy set up a
surveillance at the title company office, the prearranged site where the caller
would pick up the reward money. Detective Mundy saw defendant enter the office
where defendant picked up the reward money. An officer took photographs of
defendant entering and exiting the title company office. At trial, the title
company’s director positively identified defendant as the person who retrieved the
reward money that day.
On September 23, 1987, the police found Berryhill’s purse. The purse was
unzipped and contained no money. Its contents, including documents with
Berryhill’s name, were scattered around the purse. It appeared that the purse had
been there for awhile; the top of the purse and the scattered contents had been
bleached by the sun.
On September 30, 1987, the police searched defendant’s briefcase at his
brother’s house. Inside, they found a flat boot string, which was no more than five
feet in length. One end of the boot string was knotted while the other end was
pulled through the opening of the knot to form a sliding loop.
On October 5, 1987, Detectives Newsome and Mundy interviewed
defendant again. They showed defendant the boot string from his briefcase and a
photograph of him entering the title company office, and accused him of killing
the three women. At one point, Detective Newsome agreed to fix $580 in traffic
tickets for defendant if he gave them the name of Jane Doe One, the unidentified
corpse that was later identified as Stark. Defendant admitted that he knew “all
kinds of girls” who were missing, including Olsten, but denied that he killed
anyone. When Newsome commented that defendant would need help if he had
committed the murders, defendant asked to see a psychiatrist. A psychiatrist
would confirm that he did not commit the murders.
On October 14, 1987, Landreth received two more telephone calls from the
same Secret Witness caller. The caller was extremely upset that his anonymity
had not been guaranteed and complained that the police had taken photographs of
him picking up the Secret Witness reward money. He asked to meet with the
Secret Witness coordinator to complain about the breach of the program’s promise
of anonymity to its callers. Landreth responded that she would try to reach the
coordinator and asked him to call back.
The police asked Roy Del Carlo, a member of the Secret Witness’s board of
directors, to meet with defendant and impersonate himself as the program’s
director. Because the remains of the two people had not been identified yet, Del
Carlo was asked to try and discover the identities of the bodies and the perpetrator.
The caller called back and identified himself as Robert Maury. Landreth told
defendant that she had arranged for him to meet with Del Carlo, the Secret
Witness’s coordinator, on the following day.
On the next day, defendant called Del Carlo. Identifying himself as Robert
Maury, defendant suggested that they meet that same morning. During their
meeting, defendant was extremely upset that the police had photographed him
claiming the Secret Witness reward money and had seized some of his personal
items. He was also irate because the police had questioned his family members
and had accused him of being homosexual; his family thought he was a murderer.
Defendant demanded that unless the police apologized and returned his items, he
would print and post 10,000 posters and place an advertisement in the paper
discrediting the Secret Witness. When Del Carlo asked if he could provide
additional information about Stark’s still unidentified body, defendant replied that
a purse containing identification could be found near the body. Defendant wanted
a reward for this information; Del Carlo promised to pay defendant if the
information proved to be accurate and the purse was found.
Later that day, defendant took Del Carlo to the purse. Defendant pointed to
an object underneath some brush. When they got closer, Del Carlo saw that the
object was a purse or handbag. When asked about additional evidence that would
help the police, defendant replied that he could find a nickel-plated gun at that
location. During the search for the gun, defendant became nervous when he heard
a dirt bike and abandoned the search. On the ride back, defendant claimed that his
girlfriend’s brother told him about the bodies, that he took defendant to the bodies,
and that they took money and evidence from some of the purses. Defendant
offered to take Del Carlo to the brother to be arrested if the identification revealed
that the purse belonged to somebody that defendant knew.
With the police, Del Carlo returned to and retrieved the purse, which was
eight-tenths of a mile from Stark’s body. The purse contained Stark’s wallet,
driver’s license, and address book. Defendant’s fingerprints were on pieces of
paper inside the wallet. “Bob” had been written next to a telephone number on the
back of the address book. “Nick” was also written in parentheses. The police
later determined that defendant had given that same telephone number to others to
contact him. The purse did not contain any money or a weapon.
On October 16, 1987, Del Carlo arranged to meet defendant to pay him
$250 reward for the purse. Defendant said he would take Del Carlo to the gun. At
the meeting, defendant again demanded an apology, and wanted his motorcycle
back and some tickets fixed. He said that the Secret Witness had paid him $1,250
for the last body he had turned in. When Del Carlo asked how much it would cost
to recover the gun, defendant replied that there would be no extra charge because
it was part of the original deal. He was confident that the purse would identify
Jane Doe One (Stark). He indicated that there were more bodies and evidence in
the Happy Valley area and referred to another body that had been recovered with a
rope or scarf tied around the neck.
On October 19, 1987, defendant spoke with Del Carlo on the telephone
again. Defendant inquired if they could identify the victim from the identification
in the purse; Del Carlo responded that he did not know. Defendant commented
that he knew what the identification was, and it would identify the body.
Defendant and Del Carlo met later that day. Defendant gave Del Carlo two traffic
tickets to fix and showed him some anti-Secret Witness fliers that he intended to
On October 20, 1987, defendant called Del Carlo. He said that because he
had received his motorcycle back, he would not post the fliers. Defendant agreed
to sign a document releasing the Secret Witness from liability for having divulged
his identity as the caller.
On October 21, 1987, defendant met Del Carlo and signed the release.
Because the police could not locate a gun, Del Carlo inquired about it again.
Defendant assured him that the gun was “out there” and that it was nickel-plated.
He related that he would try to get a better location on the gun from his girlfriend’s
brother, and would take him there so that he would leave his footprints and the
police could catch him. Defendant denied that he knew Stark. The police never
found a gun near Stark’s body.
At defendant’s suggestion, Detective Newsome arranged for Dr. Angela
Curiale, a psychologist, to meet defendant on October 23 and 30, 1987. In
between these two interviews, on October 26, Newsome spoke with defendant on
the telephone and asked him about the cause of Stark’s death. Defendant replied
that Newsome already knew it. When Newsome guessed that she was strangled,
defendant responded, “That’s what I heard.” During this conversation, defendant
said that he would tell Dr. Curiale what he knew about Stark’s death, and where he
had been told the murder weapon was located. Detective Newsome then met with
defendant in person after defendant demanded that the police return his property
taken from his brother’s house. During this meeting, defendant further
represented that he would give up Stark’s murder weapon when he met Dr. Curiale
on October 30.
During the interviews with Dr. Curiale, defendant claimed he did not know
the cause of Stark’s death. At the end of the October 30, 1987 session, Dr. Curiale
saw defendant pull out what appeared to be a flat boot string from his pocket and
quickly put it back. He commented that she should have searched his jacket while
she had the chance; it would have given her some insight into who he was.
j. Defendant’s arrest and subsequent events
On November 6, 1987, the police arrested defendant. They searched
defendant’s residence and found a Yamaha motorcycle and a Honda motorcycle.
On November 7, 1987, Sandra Morton saw a newspaper article about
defendant’s arrest, which contained photographs of Stark and defendant. Morton,
a bartender, recalled that defendant, Stark, and Evans had been in her bar in the
Fall River Mills Hotel toward the end of June 1987. At the time, defendant was
sitting alone with his chair leaning back against the wall and staring toward Stark.
Morton noticed defendant because he had a “strange face” and was sitting alone in
a generally friendly atmosphere. Morton called the sheriff’s office and positively
identified defendant’s photograph from a photographic lineup as the person she
had seen in the bar staring at Stark. At trial, she also positively identified
defendant as the person she had seen in the bar.
Patricia Huff and Evelyn Snipes also recognized defendant’s photograph in
the newspaper. Huff recalled that she had seen defendant and Stark talking with
each other in a liquor store one afternoon in late June or early July of 1987. Later
that evening, she saw Stark and Evans together in the Fall River Mills Hotel bar,
while defendant was seated by himself and staring in the direction of Stark.
Snipes, a clerk at a market in Fall River Mills, recalled that she had seen defendant
and Stark together at the market two or three times during the summer of 1987.
At defendant’s request, Detective Newsome met with defendant at the
county jail on November 18, 1987. When Detective Newsome advised defendant
of his Miranda rights, defendant said he wanted to talk, but only hypothetically,
and insisted that the conversation not be taped. After they signed an agreement
that defendant wrote to that effect, defendant discussed how he was going to
“beat” each criminal charge. Defendant claimed that Nick Pinada was a possible
suspect and offered that if the prosecution granted him immunity on two or three
of the cases, he would testify against Pinada regarding the murders of Stark and
Berryhill. He related that Pinada knew Stark and had killed more than one
On January 28, 1988, the day after the preliminary hearing in this case was
held, a newspaper reporter interviewed defendant in county jail. During the
interview, defendant claimed that he had not been in Fall River Mills since 1977
and that he had never seen Stark “in his life.” When asked about his fingerprints
that were found inside Stark’s purse, defendant admitted that he had opened her
purse. When asked about his fingerprints found on the envelope that was left at
the Secret Witness drop-off location, defendant said he did not know how they got
The defense claimed that the writing “Nick” on the back of Stark’s address
book was a reference to Nick Pinada, who was married to Cheryl Stapley. Before
their marriage, defendant had lived with Stapley during the first three months of
1987. The telephone number on the back of Stark’s book was Stapley’s telephone
number. Pinada testified that he had never met anyone named Belinda Jo Stark.
on the envelope, but conceded that they were his fingerprints. Defendant claimed
that “the real killer,” an acquaintance of his, told him the location of the two
women’s bodies found in the Happy Valley area and that he had killed them. He
also claimed that Morris had used “a rope or something” to strangle Weeden.
k. Other admissions made by defendant
At trial, several witnesses testified regarding incriminating statements made
by defendant. Norma Schwartz testified that on August 23, 1985, she worked with
defendant in a restaurant and had an argument with him. He then threatened,
“Listen bitch, I have killed before. And you’ll [be] just one more. And I’m going
to snuff you out.” Schwartz became frightened and reported the threat to her
Beth Von Millanich (defendant’s former girlfriend) testified that sometime
in 1985, defendant related that his landlord had been murdered, that he was a
suspect, and that he was excited that he was a suspect. Defendant appeared happy
about his status as a suspect.
In the summer or fall of 1986, defendant was in county jail on an unrelated
matter. As a jail trustee, defendant delivered towels to other inmates in their cells.
Defendant told Tracy Trantham, one of the inmates, that he knew who had killed
Weeden and that she was a “snitch” and “any snitch deserved to die.” Several
times, he said that he fantasized about “strangulation with sexual relations.” Once,
he asked Trantham if she had ever killed anyone. When she replied no, he related
that he had. Defendant also told Trantham that he hated women and that “they had
done a lot of things to burn him.”
In February and March 1987, defendant had a sexual relationship with
Stapley, who lived next door to him in Happy Valley. While having sex together,
defendant said that “they” had killed the landlady and that he had been brought in
for questioning on it. He laughed that he had “got off of that” and bragged that the
police could not “get him for nothing” and that he “can get off of anything.”
Defendant made her promise not to tell anyone about the landlady. At the time,
Stapley thought defendant was lying because she had neither heard nor read
anything about a landlady being murdered.
In the summer or fall of 1987, defendant and Shelley Sly were at a bar
while the movie Platoon was playing. Defendant told Sly that when he was in
Vietnam he had to kill lots of men and women. He related that he had to strangle
one and she died.
2. The Defense’s Case
The primary theory of the defense at trial was that the prosecution had not
proven its case against defendant. Regarding the Weeden murder charge, the
defense relied on defendant’s extrajudicial statements to Detective Mundy and
District Attorney Carlton that Morris killed Weeden and forced defendant to strike
her with a rock after she was already dead. To support that defense, defendant
presented evidence that Weeden had bought drugs with counterfeit money, that
Morris had been involved with her in buying drugs, that he possessed Weeden’s
truck after her disappearance, that he disassembled the truck and sold its parts, and
that he had been subpoenaed as a witness in defendant’s trial, but disappeared
before trial. The defense theorized that Morris strangled Weeden over drugs and
that he stole her truck after the killing. Defendant disputed that he made the 1985
Secret Witness calls regarding Weeden. He attempted to impeach Landreth’s
voice identification by establishing that her answering service took in 2,000 calls
per day and that one month before the preliminary hearing, she received a
telephone call and could not identify whether the caller was defendant, his brother,
or someone else.
Regarding the Jacqueline H. rape charge, defendant attempted to impeach
Jacqueline H. by presenting evidence that she had prior convictions and current
charges for theft-related offenses, that she was addicted to methamphetamine, and
that she had failed to seek medical attention or report the alleged rape until over
one month afterwards. A defense psychologist testified that acute paranoia may
be caused by heavy use of methamphetamine.
Regarding the Berryhill and Stark charges, the defense theory was that
defendant discovered the bodies accidentally while taking routine walks in the
Happy Valley area and that he made the Secret Witness calls to obtain reward
money, consistent with his history of helping the police as a paid informant. To
support his theory that Berryhill’s boyfriend, Brumett, killed Berryhill, defendant
presented evidence that Brumett was angry at Berryhill for throwing him out of
the apartment, that he had threatened to kill Berryhill, and that he was waiting for
Berryhill outside her apartment on the night of her disappearance. Defendant also
attempted to impeach Koeller’s identification of him as the last person seen with
Berryhill by presenting evidence that Koeller could not identify defendant in a
photographic lineup soon after Berryhill’s disappearance and that a witness might
have seen Berryhill on the following day.8
To support his defense that the prosecution failed to prove how or when
Stark died and that her death resulted from a homicide, defendant presented
testimony that several witnesses estimated they may have seen Stark in early July
and that Stark had suffered a facial injury in a car accident before her
disappearance. He denied that he knew Stark and attacked the reliability of the
identifications of his presence with Stark.
On rebuttal, Koeller explained that he did not identify defendant’s
photograph because he did not want to be a snitch.
B. The Penalty Phase
1. The Prosecution’s Case
In addition to relying on the circumstances of the charged offenses, the
prosecution introduced evidence of defendant’s two prior felony convictions for
receiving stolen property.
2. The Defense’s Case
The defense presented evidence relating to his mental condition, marijuana
abuse, and his family background, including the mental and physical abuse
inflicted on him and his siblings by his alcoholic father. In addition, defendant
read a statement to the jury in which he claimed he had a “normal childhood,”
denied that he suffered from depression, and declared, “You found me guilty of
three murders, one rape, one attempted rape and one robbery. It’s totally
unrealistic for you to give me life in prison without parole. If you think I’m guilty,
you give me the death penalty.”
A. Jury Selection Issues
Defendant contends that the trial court erred in granting several of the
prosecutor's challenges for cause and in denying two of his challenges for cause.
Whether the contention is that the trial court erred in excluding prospective jurors
who exhibited an anti-death-bias, or erred in failing to exclude prospective jurors
who exhibited a pro-death-bias, the same standard applies. (People v. Bradford
(1997) 15 Cal.4th 1229, 1318.) “A prospective juror may be challenged for cause
based upon his or her views regarding capital punishment only if those views
would ‘ “prevent or substantially impair” ’ the performance of the juror’s duties as
defined by the court’s instructions and the juror’s oath.” (People v. Cunningham
(2001) 25 Cal.4th 926, 975, quoting Wainwright v. Witt (1985) 469 U.S. 412,
424.) “On review of a trial court’s ruling, if the prospective juror’s statements are
equivocal or conflicting, that court’s determination of the person’s state of mind is
binding. If there is no inconsistency, the reviewing court will uphold the court’s
ruling if substantial evidence supports it.” (People v. Hillhouse (2002) 27 Cal.4th
1. Grant of Prosecutorial Challenges
The prosecutor challenged nine prospective jurors for cause. The trial court
granted eight of those challenges. Defendant now claims that the court erred in
granting six of the eight challenges for cause. As will appear, because the
challenged prospective jurors indicated either that they could not apply the death
penalty under any circumstance, or were not prepared to impose the death penalty
and were undecided as to their ability to do so, the trial court did not err in
excusing them. (People v. Cunningham, supra, 25 Cal.4th at pp. 980-982.)
Moreover, at the most, the potential jurors’ statements were equivocal and
conflicting regarding their ability to render a death verdict. Thus, we must defer to
the trial court’s determination of their states of mind.
a. Prospective Juror Fred R.
In his questionnaire and in response to the trial court’s questions,
Prospective Juror Fred R. stated that he might have problems applying the law to
the case because he has opposed the death penalty as an appropriate punishment
for “most of [his] adult life.” Further voir dire revealed the extent of Fred R.’s
opposition against the death penalty: he stated that society’s imposition of capital
punishment was “in a sense committing murder” and that he could not participate
in a procedure that imposes the death penalty on a person. On the other hand, he
related that there was an “extremely remote” possibility that he could impose a
death verdict, but that the decision would be an emotional one, rather than one
based on his “own reasoned conscience.” (See People v. Cunningham, supra, 25
Cal.4th at pp. 980-981 [prospective juror who could apply death penalty only if
victim was family member was properly excused].)
Exploring this discrepancy, defense counsel asked Fred R. which factor
weighed more heavily, the prospective juror’s desire to comply with the law or his
personal feelings about capital punishment. Fred R. replied, “That’s very difficult
because I don’t believe in the law in this particular case.” He could conceive of a
situation that would cause him to follow the law as instructed and impose the
death penalty, but “it would be a surprise.” During questioning by the prosecutor,
Fred R. reaffirmed his belief that capital punishment was “society’s version of
murder,” but stated that as a juror, he would have to take part in that process. To
further clarify Fred R.’s views, both the prosecutor and defense counsel asked him
whether he could sign a verdict form imposing death if he was the foreman. Fred
R. said he could not. Upon realizing that he would be required “to take complete
responsibility” for something that he could not justify, Fred R. stated that he did
not feel qualified within the law to sit as a juror in this case. He explained that his
initial opinion that he could be seated as a juror in a capital case, although
difficult, had been modified to the belief that he would not be qualified to sit as a
juror. Juror Fred R. was properly excused. (See People v. Cunningham, supra, 25
Cal.4th at p. 980 [prospective juror properly excused for cause when he stated that
he could not look at defendant and inform him that he had decided defendant
should die, and that he did not want to go through such proceedings].)
b. Prospective Juror Wyonne W.
Prospective Juror Wyonne W. stated that she could follow the law, and
maintain an open mind and be willing to listen impartially to the evidence at the
penalty phase. However, she later expressed doubts of her ability to “be a part of
putting somebody to death, even if that person was a part of many deaths.” When
asked if she could entertain the idea of putting defendant to death after
determining that he was guilty of three murders and listening to more evidence,
Wyonne W. replied, “I don’t think so.” Juror Wyonne W. was properly excused.
c. Prospective Juror Curtis B.
Prospective Juror Curtis B. expressed uncertainty as to whether he could
apply the law and impose the death penalty. His uncertainties appeared to stem
from the fact that his wife and friends knew defendant and he feared that he would
“have to answer” in his afterlife for a decision that would hurt someone else.
When asked by defense counsel if he could impose the death penalty if, after
rendering a guilt verdict and considering the evidence at the penalty phase, he
concluded that it was warranted and the appropriate punishment, Curtis B. replied
that he could not promise that. Juror Curtis B. was properly excused. (Cf. People
v. Ochoa (1998) 19 Cal.4th 353, 428 [voir dire question whether prospective juror
could promise to vote for death if she felt that death was the appropriate verdict
properly sought a commitment from her to perform her duty].)
d. Prospective Juror Joe T.
When asked if he could vote for the death penalty “no matter what the
circumstances were,” Prospective Juror Joe T. replied, “I don’t believe so. I’m not
certain.” After further questioning, he stated that he could not envision any
situation, as a juror, in which he could impose the death penalty. Juror Joe T. was
e. Prospective Juror Lori D.
Expressing some uncertainty as to whether she could impose the death
penalty, Prospective Juror Lori D. stated that she had taken an anti-death-penalty
stance in recent years, that she did not think it was right to impose the death
penalty, and that it could be “morally” wrong. Defense counsel asked if she would
be able to vote for death if, after listening to all the evidence, she determined that
the aggravating circumstances were so substantial in comparison to the mitigating
circumstances that it warranted death. Lori D. replied, “I don’t think so.” She was
properly excused. (People v. Cunningham, supra, 25 Cal.4th at p. 981
[prospective juror properly excused because she could not personally impose death
penalty despite viewing it as an appropriate punishment].)
f. Prospective Juror Joe H.
When initially asked if he had strong feelings about the death penalty,
Prospective Juror Joe H. responded that since he had never been asked about that
subject, he could not say. Although Joe H. once agreed that he could impose
verdicts of death or life without the possibility of parole, he later equivocated and
said that he did not know if he could impose either penalty. Upon further
questioning, Joe H. stated that he could not vote to impose the death penalty. He
explained that he had never had to think about the subject, but that, upon
reflection, he could not impose death. Juror Joe H. was properly excused.
2. Denial of Defense Challenges
Defendant challenged Jurors Scott S. and Curtis L. for their alleged pro-
death-penalty bias. Defendant faults the trial court for denying those challenges
for cause. Here, the record shows that defendant accepted the jury after having
exercised 23 of the 26 peremptory challenges allotted to him. To preserve a claim
based on the trial court’s overruling a defense challenge for cause, a defendant
must show (1) he used an available peremptory challenge to remove the juror in
question; (2) he exhausted all of his peremptory challenges or can justify the
failure to do so; and (3) he expressed dissatisfaction with the jury ultimately
selected. (People v. Cunningham, supra, 25 Cal.4th at p. 976; People v.
Crittenden (1994) 9 Cal.4th 83, 121.) Defendant failed to satisfy any of these
requirements. Therefore, his claim of error is not preserved for appeal. (People v.
Lewis (2001) 25 Cal.4th 610, 634.)
Nevertheless, defendant asserts that his claim is preserved because he was
justified in failing to use his available peremptory challenges to excuse the two
jurors. He argues that given the large number of prospective jurors who had been
exposed to pretrial publicity, it was likely that Scott S. and Curtis L., who had not
been so exposed, would have been replaced with two jurors who were prejudiced
by the pretrial publicity. However, defendant fails to give any record support for
that claim. Moreover, defense counsel expressed no dissatisfaction with the jury.
Thus, his argument is simply speculative. (See People v. Crittenden, supra, 9
Cal.4th at p. 121 [if defendant claims that the trial court wrongly denied challenge
for cause, he must demonstrate that the right to fair and impartial jury thereby was
Even if the issue were cognizable, defendant would not prevail. As shown
below, defendant ultimately passed for cause one of the jurors he now contests.
The other juror’s statements were, at most, conflicting. Accordingly, we must
defer to the trial court’s determination of his state of mind.
a. Juror Scott S.
When asked by defense counsel to assume that defendant was found to
have committed three deliberate and premeditated murders, and a rape and robbery
without justification, Scott S. replied that the death penalty would be appropriate.
However, he also said that he could keep an open mind regarding penalty. After
questioning Scott S., defense counsel challenged him for cause. The record
reflects that the trial court did not rule on the challenge at that time, but asked the
prosecutor if he had any questions of Scott S. Apparently sensing that Scott S.
was confused regarding the trial process, the prosecutor reviewed the guilt and
penalty phases in more detail. He explained that the law required that the jurors be
“neutral” on penalty at the start of the penalty phase and make their determination
based on the evidence, including circumstances of the crime and defendant’s
background, presented at the penalty phase. After the explanation, Scott S. stated
that he “probably could keep an open mind” at the penalty phase.
After the trial court noted the inconsistent answers given to defense counsel
and the prosecutor, Scott S. assured the court that he could keep an open mind on
the penalty regardless of the findings made at the guilt phase. When defense
counsel asked why his opinion had changed as to the appropriateness of the death
penalty, Scott S. explained that when he initially responded, he did not know that
defendant’s background was a relevant factor at the penalty phase. He assured
defense counsel that even if he found defendant guilty of three murders, a robbery,
and a rape, he could remain “completely neutral” regarding penalty. After the
second round of questioning, defense counsel passed Scott S. for cause. Thus, it
appears that after further questioning of Scott S., defense counsel changed his
mind about Scott S.’s ability to remain fair. Under these circumstances, defendant
cannot now complain of the trial court’s failure to grant his challenge of Scott S.
for cause. (People v. King (1970) 1 Cal.3d 791, 804 [any challenge for cause must
be seasonably made or is waived].)
b. Juror Curtis L.
When asked by defense counsel whether he could consider imposing either
death or life without parole if he concluded that defendant committed three
premeditated and deliberate murders without justification, Curtis L. indicated
twice that the decision would be hard, but that he would probably lean in favor of
the death penalty. In addition, when asked if he could assure the parties that he
would keep an open mind regarding punishment if he were convinced beyond a
reasonable doubt that defendant committed “three heinous, premeditated,
deliberate killings,” Curtis L. responded, “No, I couldn’t.” Later, the juror
qualified those answers by emphasizing repeatedly that he believed he was an
open-minded person and could remain so, that the appropriate punishment would
depend on the circumstances, the defendant’s state of mind at the time of the
crime, and the evidence presented, and that he would follow the instructions.
Moreover, Curtis L. stated that he was not opposed to the death penalty, but that
he believed it should not be imposed “lightly” and without “much thought and
soul searching.” The trial court denied defendant’s challenge for cause because
Curtis L. stated he could keep an open mind and follow the instructions. We find
that the trial court’s retention of Curtis L. is amply supported by the record.
B. Pretrial Issues
1. Suppression Motion
Defendant claims that the trial court erred in failing to grant his motion to
suppress evidence, pursuant to section 1538.5. He argues that the trial court
should have suppressed all evidence of his Secret Witness telephone calls to
Landreth relating to the three murder victims, including the content of those
conversations, and all evidence resulting from the Secret Witness calls, including
evidence of his identity as the caller. We find no error.
Defendant moved to suppress all evidence of the 1985 Secret Witness
telephone calls regarding Weeden and the 1987 Secret Witness telephone calls
regarding Berryhill and Olsten/Stark, including evidence of defendant’s identity as
the Secret Witness callers. In alleging a Fourth Amendment violation, defendant
relied on representations that the Secret Witness program guaranteed anonymity to
its callers. He argued that the police violated that guarantee of anonymity when
they illegally taped his telephone conversations with Landreth without a search
warrant, and illegally took photographs of and surveilled defendant at the title
company drop-off point for the purpose of establishing his identity as the Secret
The following uncontradicted evidence was presented at the suppression
hearing: The Secret Witness program of Shasta County was established by the
Soroptimists, a private service organization, to aid law enforcement in
investigating crimes. The program allows citizens to report information on
crimes, with the possibility of receiving a reward. The program’s advisory board
consists of private citizens and representatives from various law enforcement
agencies. Based on recommendations by various law enforcement agencies, the
board decides the reward offers to be made in specific criminal cases and the
proposed payoffs for information provided. The listed crimes and approved
reward offers are publicized in the newspapers, and on television and radio. The
board has the authority to deny requests for cooperation from law enforcement.
Landreth, the owner of an answering service, contracted with the Secret Witness
program to receive calls and information from tipsters, assigned tipsters a code
number for identification purposes, and relayed information to the appropriate law
enforcement agency. Funding for the program was not provided by law
enforcement, but by various service organizations.
The police began recording the telephone calls between defendant and
Landreth on September 21, 1987. Before that time, none of the calls between the
Secret Witness caller and Landreth had been recorded or monitored by the police.
However, the police decided to solicit the help of the Secret Witness program and
monitor the telephone calls after they began to suspect that defendant was the
Secret Witness caller on the August 1987 Olsten/Stark calls and on the September
1987 Berryhill calls.
On August 8, 1987, Landreth received an inquiry about the reward money
for the location of Olsten’s body and recognized the caller’s voice as the same
person who had made the 1985 Weeden calls. She recorded one of the telephone
calls on August 17 and played it for Detective Mundy to see if he could identify
the voice independently. He too recognized the voice and believed that defendant
was the caller.
On September 15, 1987, Landreth received a new inquiry about the reward
money for the location of Berryhill’s body and again recognized the caller’s voice
as the same person who had made the 1985 Weeden calls and the August 1987
Olsten/Stark calls. In addition, the caller referenced distances in terms of meters.
Landreth contacted Detective Brewer of the sheriff’s office regarding the caller’s
request for reward money in exchange for information on the location of the
On September 17, 1987, the Secret Witness board authorized payment of
the reward money. Also, in response to the request by Detective Brewer, the
board authorized Landreth to cooperate with law enforcement in the homicide
investigations, including monitoring and recording the Secret Witness calls
relating to Olsten/Stark, Berryhill, and Weeden and help in arranging the
surveillance of defendant. Detective Brewer informed the board that the police
suspected defendant had been the Secret Witness caller on all three homicide cases
and, based on the known circumstances, considered him a suspect in at least one,
if not all, of those homicides. They also believed defendant was using the Secret
Witness program for financial gain in committing the criminal acts. To determine
the identity of the Secret Witness caller, the police then taped subsequent Secret
Witness calls and had Landreth arrange for defendant to pick up the reward money
at a prearranged drop-off point on September 22. The police took photographs of
defendant entering and exiting the drop-off point.
The media has reported that the Secret Witness program assures anonymity
to its witness callers. Also, when a tipster makes a call to Landreth, she relates
that the caller’s identity will remain confidential, but that the information will be
used by law enforcement. The reason the Secret Witness program guarantees
anonymity is to provide a means for reluctant witnesses to provide information on
crimes to the police. The Secret Witness board members, including those from
various law enforcement agencies, agreed that the program guarantees anonymity
only to witnesses, and not criminals or tipsters who the police suspect are
providing information on their own crimes. To guarantee anonymity to such a
criminal would be contrary to the purpose of the Secret Witness program, i.e., to
solve crimes. The coordinator of the Secret Witness program testified that
although the program guarantees anonymity to a Secret Witness caller, a caller’s
identity remains confidential only as long as the caller keeps it a secret.
The trial court denied defendant’s suppression motion on the grounds that
(1) no caller to the Secret Witness program could have had a reasonable
expectation that the information divulged, or the caller’s identity, would remain
confidential if that information led the police to suspect the caller was the actual
perpetrator, and (2) defendant waived any expectation of privacy as to his identity
when he revealed his name during the 1986 call. The Attorney General argues
that we need not decide the waiver issue because defendant’s claimed subjective
expectation of privacy was objectively unreasonable. We agree.
“The standard of appellate review of a trial court’s ruling on a motion to
suppress is well established. We defer to the trial court’s factual findings, express
or implied, where supported by substantial evidence. In determining whether, on
the facts so found, the search or seizure was reasonable under the Fourth
Amendment, we exercise our independent judgment.” (People v. Glaser (1995)
11 Cal.4th 354, 362.)
The Fourth Amendment protects against unreasonable searches and
seizures. (Katz v. United States (1967) 389 U.S. 347, 353.) Its purpose is to
“safeguard the privacy and security of individuals against arbitrary invasions by
governmental officials.” (Camara v. Municipal Court (1967) 387 U.S. 523, 528.)
“The touchstone of Fourth Amendment analysis is whether a person has a
‘constitutionally protected reasonable expectation of privacy.’ ” (California v.
Ciraolo (1986) 476 U.S. 207, 211.) The analysis consists of a two-part inquiry:
“first, has the individual manifested a subjective expectation of privacy in the
object of the challenged search? Second, is society willing to recognize that
expectation as reasonable?” (Ibid.) “Thus a man’s home is, for most purposes, a
place where he expects privacy, but objects, activities, or statements that he
exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to
keep them to himself has been exhibited. On the other hand, conversations in the
open would not be protected against being overheard, for the expectation of
privacy under the circumstances would be unreasonable.” (Katz, supra, 389 U.S.
at p. 361 (conc. opn. of Harlan, J.).) “What a person knowingly exposes to the
public, even in his own home or office, is not a subject of Fourth Amendment
protection.” (Id. at p. 351.) Accordingly, the Fourth Amendment only protects
against those government intrusions without warrant or probable cause that violate
reasonable expectations of privacy. (Oliver v. United States (1984) 466 U.S. 170,
In arguing that the content of all his conversations with Landreth, as well as
his identity as the caller, should have been suppressed, defendant does not
distinguish between the pre-September 21, 1987, conversations that were not taped
and the conversations that were taped, on and after that date. Regarding the
untaped conversations, we perceive no governmental intrusion. Defendant called
the Secret Witness program and provided Landreth all of the information
voluntarily.9 Regarding the taped conversations, the police intrusion or
surveillance was lawful: they monitored the telephone calls because they
suspected that defendant was the Secret Witness caller and the killer of all three
victims. (§ 633.5.)10 Moreover, any expectation that the police would not
monitor a telephone call voluntarily initiated by defendant to the Secret Witness
program, presumably a law enforcement agent, is simply not an expectation that is
objectively reasonable, warranting Fourth Amendment protection. Similarly, the
police surveillance and photographing of defendant entering and exiting the drop-
off point is not a subject of Fourth Amendment protection since defendant
knowingly exposed his whereabouts in public.
By not differentiating between the unrecorded and unmonitored telephone
calls and the recorded and monitored ones, it appears that defendant is really
arguing that Secret Witness program’s promise of anonymity and its breach by
law enforcement violated his reasonable expectation of privacy and is therefore a
search proscribed by the Fourth Amendment. We reject that argument for a
number of reasons.
At the suppression hearing, defendant argued that the Secret Witness
program acted as an agent of law enforcement. For purposes of Fourth
Amendment analysis, the trial court adopted that assumption.
Section 633.5 provides, in pertinent part: “Nothing in Section 631, 632,
632.5, 632.6, or 632.7 prohibits one party to a confidential communication from
recording the communication for the purpose of obtaining evidence reasonably
believed to relate to the commission by another party to the communication of the
crime of . . . any felony involving violence against the person . . . . Nothing in
Section 631, 632, 632.5, 632.6, or 632.7 renders any evidence so obtained
inadmissible in a prosecution for . . . any felony involving violence against the
person, . . . or any crime in connection therewith.”
First, we fail to see how this alleged breach of a promise of anonymity rises
to a Fourth Amendment violation, i.e., a governmental intrusion or interference
that infringes upon a reasonable expectation of privacy as to the challenged search.
Second, defendant’s claim that the Secret Witness program promised
“complete anonymity” to all tipsters, including callers providing tips about crimes
they have committed or are suspected of committing, is not supported by the
record. Indeed, the trial court impliedly found otherwise. In its denial order, the
trial court stated: “No caller to a secret witness program could have a reasonable
expectation that the information he divulged would remain confidential. The term
confidential communication as defined in Evidence Code Section 632,
[subdivision] (c) includes only those communications carried on in circumstances
that would reasonably indicate that any party to the communication desired it to be
confined to the parties thereto. The obvious primary and publicized purpose of the
secret witness program is to gather information helpful to law enforcement in
apprehending and convicting persons responsible for criminal acts. The 1985 and
1989 newspaper clippings submitted in evidence as defendant’s ‘M-1’ and ‘M-2’
provide, just prior to the guarantee of anonymity, that ‘information provided will
be used by police and sheriffs’ investigators to gather evidence.’ Any reasonable
caller would know that the information provided would be passed on to law
“[I]n the view of this Court, under present Federal Law, society is not
prepared to recognize as reasonable or justifiable any expectation of anonymity by
a caller to an anonymous witness program, such as Secret Witness, under
circumstances in which the information the caller divulges reasonably gives law
enforcement probable cause to believe that the caller may be the perpetrator of a
serious crime to which the information relates. The primary purpose of such
anonymous witness programs is the apprehension and conviction of criminals.
The promise of anonymity is offered only for the purpose of inducing reluctant
informers to provide information which assists in this primary purpose. The
inducement derives from the protection from publicity or retaliation that the
informer receives by remaining anonymous. People v. Callan, 194 [Cal.App.]3d
563, partially quoted by defendant in brief, also stresses that ‘It is the promise of
anonymity which allays the fear of criminal retaliation which otherwise
discourages citizen involvement in reporting crime.’
“Any reasonable voluntary provider of information to such a program must
know that such information will be used to identify and apprehend the criminal
perpetrator. If that information logically leads to an investigation of the caller as a
suspected perpetrator, the reason for the promise of anonymity disappears, and the
promise can no longer justifiably be relied upon by the caller, certainly not to the
extent of evidence exclusion under the Fourth Amendment of the Constitution.”
Although the trial court couched the expectation of privacy analysis in
constitutional terms, it appears that the trial court was also making findings of fact.
By finding that no reasonable person would believe that a suspect’s identity would
remain anonymous simply because he or she provided information, the trial court
impliedly found that the Secret Witness program did not, in fact, guarantee
anonymity under all circumstances. The evidence supports that implied finding of
fact. A flier publicizing the program stated:
“Are you a witness to a crime . . . but afraid to tell anyone? Then ‘Secret
Witness’ is for you. Are you a concerned citizen? Do you have knowledge of a
crime? Are you afraid that if you tell, you’ll be in danger? . . .
“If you have any information on a crime, the Secret Witness Program has a
telephone answering service you can call or a post office box you can write. You
can remain anonymous and not give your name.
“If a Secret Witness reward has been posted for a certain crime that needs
to be solved and the information you reported leads to the arrest and conviction of
the individual responsible, the Secret Witness Program will pay you an award.
“And . . .
“You will remain unknown. This is Guaranteed! . . .
“You will not be involved. – The authorities will develop their own
evidence from your information. . . .”
Thus, the flier assures anonymity to those witnesses who fear retaliation if
they come forward with information, and states that an award will be paid if the
reported information leads to the arrest and conviction of the individual
responsible. When the stated purpose of anonymity (protection of fearful
witnesses) and the intended purpose for the information (arrest and conviction of
perpetrators) are considered together, the flier cannot reasonably be understood to
assure readers that a criminal, by providing information on a crime, would be
shielded from prosecution and conviction for that same crime. Moreover, the
uncontradicted testimony at the suppression hearing reflects that the people
associated with the Secret Witness program understood that the program only
guarantees anonymity to witnesses, and not criminals or tipsters who the police
suspect are providing information about their own criminal activities.
Accordingly, we also reject defendant’s claim that he did not voluntarily consent
to the “search and seizure,” i.e., the acquisition and use, of his Secret Witness
statements, because they were obtained by fraud, subterfuge, and trickery.
Finally, we reject defendant’s Fifth Amendment and due process claim. He
argues that his Secret Witness statements to Landreth, including his admission or
confession to Landreth that “Bob” had killed Weeden, were involuntary because
they were improperly induced by promises of anonymity and rewards.
At trial, defendant failed to object to admission of his statements and raise
the involuntariness claim on the constitutional grounds he now asserts. Thus, he
has forfeited his claim on appeal. (People v. Ray (1996) 13 Cal.4th 313, 339 [a
claim of involuntariness generally will not be addressed for the first time on
appeal]; People v. Mayfield (1993) 5 Cal.4th 142, 172 [same].)
Defendant argues that his trial counsel’s failure to preserve his current
challenge to his Secret Witness statements amounts to ineffective assistance of
counsel. We disagree. For the reasons stated above, defendant’s claim that he
was induced by promises of complete anonymity is unfounded. Moreover, the
Secret Witness program’s offers of rewards and anonymity were not coercive, and
a suppression motion could not have been properly granted on this ground.
Coercive activity by the state is a necessary predicate to the finding that a
confession or admission is not voluntary. (Colorado v. Connelly (1986) 479 U.S.
157, 163; People v. Clark (1993) 5 Cal.4th 950, 989, fn. 14.) Here, defendant
initiated and instigated the negotiations for a reward, which had been generally
offered to the public, in return for information about the missing victims.
Defendant named his own terms in exchange for his statements, decided for
himself with whom he would negotiate, and solicited and received the reward he
wanted as a consideration for telling what he knew. Thus, defendant’s desire to
provide information to obtain a reward was entirely self-motivated. (See, e.g.,
People v. Steger (1976) 16 Cal.3d 539, 550; People v. Barker (1986) 182
Cal.App.3d 921, 933; People v. Andersen (1980) 101 Cal.App.3d 563, 582; see
also Hunter v. Swenson (D.C.Mo. 1974) 372 F.Supp. 287, 301-302.) Under such
circumstances, defendant’s statements were clearly voluntary.
2. Alleged Incompetence of Counsel—Failure to Renew Change of
Defendant claims that his trial counsel was ineffective for failing to renew a
motion for change of venue after jury voir dire. On June 28, 1988, before voir
dire, defendant filed a motion for a change of venue. After an evidentiary hearing,
the trial court denied the motion without prejudice to renewal during jury
selection. Following the denial, defendant petitioned for a writ of mandate, which
was summarily denied by the Court of Appeal. Defendant filed a petition for
review in this Court (Maury v. Superior Court, S008628, Jan. 17, 1989), which
was also summarily denied on March 2, 1989. A jury was then selected on June 9,
1989. Defendant did not renew the motion for change of venue after selection of
“[W]hen a trial court initially denies a change of venue motion without
prejudice, a defendant must renew the motion after voir dire of the jury to preserve
the issue for appeal. Here, although expressly invited by the court to renew the
motion after jury selection, defendant failed to do so.” (People v. Williams (1997)
16 Cal.4th 635, 654-655; see also People v. Hart (1999) 20 Cal.4th 546, 598;
People v. Bolin (1998) 18 Cal.4th 297, 312.) Recognizing the procedural default,
defendant claims that his counsel was incompetent for failing to renew the motion
after jury voir dire. The record fails to reveal any incompetence.
Defendant has the burden of proving ineffective assistance of counsel.
(People v. Malone (1988) 47 Cal.3d 1, 33.) To prevail on a claim of ineffective
assistance of counsel, a defendant “ ‘must establish not only deficient
performance, i.e., representation below an objective standard of reasonableness,
but also resultant prejudice.’ ” (People v. Hart, supra, 20 Cal.4th at p. 623.) A
court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance. (Strickland v. Washington
(1984) 466 U.S. 668, 689.) Tactical errors are generally not deemed reversible,
and counsel’s decisionmaking must be evaluated in the context of the available
facts. (Id. at p. 690.) To the extent the record on appeal fails to disclose why
counsel acted or failed to act in the manner challenged, we will affirm the
judgment unless counsel was asked for an explanation and failed to provide one,
or unless there simply could be no satisfactory explanation. (People v. Mendoza
Tello (1997) 15 Cal.4th 264, 266.) Moreover, prejudice must be affirmatively
proved; the record must demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p.
In passing on a motion for change of venue, the trial court looks to the
following factors, among others: the nature and gravity of the offense, the size of
the community, the status of the defendant, the popularity and prominence of the
victim, and the nature and extent of the publicity. (People v. Sanders (1995) 11
Cal.4th 475, 505.) Defendant argues that because there was a reasonable
likelihood that he could not receive a fair and impartial trial in Shasta County,
defense counsel should have renewed the motion for change of venue. Reiterating
many of the same arguments that had been presented to the trial court on the initial
motion for change of venue, defendant points to the gravity and nature of the
crimes, the small size of the community, and the extensive media coverage,
including newspaper articles and television and radio broadcasts.
At the evidentiary hearing, the trial court heard the testimony of two
defense experts who had reviewed the publicity about the case and conducted a
public opinion survey in Shasta County. According to the survey’s results, 90
percent of those surveyed recognized defendant’s case. Of those who had heard of
the case, 54 percent believed that defendant was guilty. One of the defense
experts opined that, at the time of the evidentiary hearing, there was a reasonable
likelihood that defendant would not get a fair trial in Shasta County. The
prosecution’s expert attacked the survey’s validity and accuracy. In denying the
motion for change of venue, the trial court found that the survey’s results were
inaccurate and biased and that the expert’s opinion regarding the unlikelihood of a
fair trial was also entitled to little weight. The court also found that there would
be at least a year between the occurrence of most of the publicity and the start of
trial, the publicity about the case was “neither slanted against the defendant nor
reflect[ed] a spirit of revenge in the community,” and the victims and the
defendant were not prominent members of the community.
Defendant does not claim that defense counsel was incompetent in
presenting the initial change of venue motion. Indeed, he now relies extensively
on the same newspaper articles and television and radio broadcasts presented to
the trial court by defense counsel. Rather, he argues that because many of the
prospective jurors (including the actual jurors) had been exposed to some pretrial
publicity, he could not receive a fair trial and counsel should have renewed the
motion. Although, as defendant points out, seven of the 12 jurors and three of the
five alternates had been exposed to pretrial publicity, our independent evaluation
of the record reveals that, for the most part, few jurors recalled the specifics and
none had formed a resolute impression of defendant’s guilt. Instead, all of the
jurors and alternates expressed that they could be fair and impartial.
In light of these responses, counsel could have recognized that the effect of
the publicity had not been as substantial as feared, especially after a year and one-
half interim, and that a renewed motion to seek a change of venue would have
been futile. (People v. Bolin, supra, 18 Cal.4th at p. 314.) Indeed, defendant used
only 23 of his 26 allotted peremptory challenges to excuse jurors from the panel
and only three of his five challenges to excuse alternate jurors. “ ‘The failure to
exhaust peremptories is a strong indication “that the jurors were fair, and that the
defense itself so concluded.” [Citation.]’ (People v. Price [(1991)] 1 Cal.4th
[324,] 393.) This last point can be decisive. (People v. Daniels (1991) 52 Cal.3d
815, 853-854 [277 Cal.Rptr. 122, 802 P.2d 906].)” (People v. Dennis (1998) 17
Cal.4th 468, 524; cf. Gallego v. McDaniel (9th Cir. 1997) 124 F.3d 1065, 1071-
1072 [absence of actual prejudice evidenced by seven jurors who were passed over
Because defense counsel could have reasonably decided not to renew the
motion for a change of venue, and because the record indicates that the pretrial
publicity did not affect the jurors’ ability to decide the case fairly, defendant has
failed to establish error or prejudice. (People v. Mendoza Tello, supra, 15 Cal.4th
at pp. 266-267.) We will not second-guess counsel’s preference for this particular
jury over another, unknown jury panel. (See People v. Bolin, supra, 18 Cal.4th at
p. 314; White v. State (Ga.Ct.App. 1996) 473 S.E.2d 539, 543; Solomon v.
Commissioner of Correctional Services (E.D.N.Y. 1992) 786 F.Supp. 218, 227.)
3. Contentions Regarding Severance Motions
a. General principles
Defendant makes several arguments complaining of the joinder of the
Weeden murder and Jacqueline H. rape charges. Joinder and severance of
different criminal charges against the same defendant are governed by section 954,
which states that an “accusatory pleading may charge two or more different
offenses connected together in their commission, . . . or two or more different
offenses of the same class of crimes or offenses, . . . provided, that the court in
which a case is triable, in the interests of justice and for good cause shown, may in
its discretion order that the different offenses or counts set forth in the accusatory
pleading be tried separately or divided into two or more groups and each of said
groups tried separately.” As we have held, “Offenses falling within this
description, but charged in separate pleadings, may be consolidated for trial in
order to promote judicial efficiency (see People v. Mason (1991) 52 Cal.3d 909,
935 [277 Cal.Rptr. 166, 802 P.2d 950]), and a trial court’s rulings on joinder are
reviewed for abuse of discretion (People v. Cummings (1993) 4 Cal.4th 1233,
1283-1284 [18 Cal.Rptr.2d 796, 850 P.2d 1]).” (People v. Koontz (2002) 27
Cal.4th 1041, 1074.)
b. Severance of the Weeden murder
Defendant made no motion to sever the Weeden murder count from the
other charges. Defendant now claims that the trial court erred in failing, sua
sponte, to sever his trial on the Weeden murder or to give limiting instructions,
and that this error violated his right to due process and a fair trial under the Fifth,
Sixth, Eighth and Fourteenth Amendments of the United States Constitution and
analogous provisions of the California Constitution. He also argues that he was
deprived of the effective assistance of counsel because his attorney failed to move
for severance and to request the appropriate limiting instruction. As explained
below, we reject those claims.
i. Failure to sever or to request severance
People v. Hawkins (1995) 10 Cal.4th 920, 939-940, disposes of defendant’s
claim that the trial court had a sua sponte duty to sever. There, we stated:
“Section 954, however, imposes no sua sponte duty of severance on trial courts.
That section, as quoted above, requires the defendant to make a showing of ‘good
cause’ in order to obtain severance, and defendant’s failure to request a severance
waives the matter on appeal. Nor do we find any authority to support defendant’s
argument that the Fifth, Sixth, Eighth or Fourteenth Amendments of the United
States Constitution, or their California counterparts, impose such a duty.” (Id. at
p. 940.) Because defendant failed to request severance of the Weeden murder
count, he has forfeited his claim.
Regarding defendant’s ineffective assistance of counsel claim, we find
neither incompetence of counsel nor prejudice resulting from his attorneys’ failure
to move for severance. (See Strickland v. Washington, supra, 466 U.S. at pp. 687-
694.) Defendant argues that a motion to sever, had it been made, should have
been granted because the joinder of the Weeden murder case, which was “very
weak,” with the other charges, unfairly prejudiced him. In addition, he argues that
his sole defense of duress could not be raised because the joinder of the multiple
murder charges allowed the prosecution to allege the multiple-murder special
circumstance, which resulted in the classification of the Weeden homicide as a
death-eligible crime. However, the trial court would not have abused its discretion
by denying a motion to sever.
First, the murder offenses fall within the same class of crimes and thus were
properly joined. (People v. Bradford, supra, 15 Cal.4th at p. 1315 [murder
offenses belong to the same class of crimes].) Second, there was a common and
distinctive modus operandi in all of the murders. To be admissible to demonstrate
a distinctive modus operandi, the evidence must disclose common marks or
identifiers, that, considered singly or in combination, support a strong inference
that the defendant committed the crimes. (Id. at p. 1316.) The victims were
females who were acquainted with defendant. There was evidence that all three
murder victims died from strangulation. Landreth testified that the same Secret
Witness caller requested reward money in exchange for information on the
location of the bodies of all three victims. Apart from these three victims, the
Secret Witness program had never received any other requests for reward money
in return for a tip on the location of a body. Moreover, the caller waited until after
the bodies had decomposed to make the Secret Witness calls. Thus, evidence of
the distinctive Secret Witness calls made by the same person on all three offenses
reflected common elements of substantial importance.
Further, evidence relating to the Berryhill and Stark offenses would have
been admissible at a separate Weeden murder trial on the issue of the identity of
the Weeden caller. The evidence strongly indicated, particularly the surveillance
of defendant at the Secret Witness drop-off point, that he made the Berryhill and
Stark telephone calls. Indeed, defendant conceded that he had made these calls.
On the other hand, defendant denied making the Weeden calls. Because Landreth
believed that the same person made the Weeden, Berryhill, and Stark calls,
evidence that defendant made the Berryhill and Stark calls was relevant to show
that defendant made the Weeden calls.
Thus, the similarities of the offenses together with evidence that defendant
made all of the Secret Witness calls, were sufficient to establish a common modus
operandi, raising a strong inference that defendant killed Weeden. Because
evidence of the murders was cross-admissible, any likelihood of prejudice was
dispelled. (People v. Arias (1996) 13 Cal.4th 92, 126.) For that reason alone, no
abuse of discretion would have occurred in denying severance. (Id. at p. 128.)
Moreover, defendant’s assertions of prejudice are not supported by the
record. First, the evidence in the Weeden murder case was far from weak.
Defendant made inconsistent statements to the police. Initially, he denied any
involvement in Weeden’s disappearance, but then claimed that he was present
during her murder and forced to strike her with a rock. Defendant made numerous
admissions to Landreth (that Weeden’s roommate “Bob” or “Robert” had killed
her), Detective Ashmun (that Weeden had been strangled and hit on the head with
a rock), and Detective Mundy (that Morris had strangled Weeden and forced him
to strike her with a rock). He made more admissions to Norma Schwartz (that he
had killed before), Beth Von Millanich (that he was happy and excited about being
a suspect in the murder of his landlord), Tracy Trantham (that he knew who had
killed Weeden, that she was a “snitch,” that any “snitch deserved to die,” and that
he had killed before), and Cheryl Stapley (that he had killed his landlady, that he
had been brought in for questioning and laughed that he had “got off of that,” and
that he “can get off of anything”). Finally, defendant told two or three different
stories to Bill Chartier and taunted Detective Mundy that he would never really
know what had happened to Weeden, and Mundy would take her death to his
Second, although the joinder of the murder charges gave rise to the special
circumstance allegation (§ 190.2, subd. (a)(3)), we will reject defendant’s claim
that he was entitled to and thereby improperly deprived of a duress defense. (See,
post, at pp. 86-88.) Thus, defendant has failed to show prejudice from the joinder
and the resultant conversion of the Weeden murder into a death-eligible crime.
Because much of the incriminating evidence in the Stark and Berryhill
charges would have been used in a separate Weeden murder trial to prove identity
and defendant has failed to establish prejudice from the joinder, the trial court
would not have abused its discretion by refusing to grant a motion to sever had
such a motion been made. No reasonable probability existed that, had defense
counsel moved for severance, the motion would have been granted. Accordingly,
defendant has failed to establish prejudice from counsel’s omission.
ii. Failure to give limiting instruction
Defendant also contends that the trial court erred in failing to provide sua
sponte an instruction limiting the jury’s consideration of the Stark and Berryhill
crimes in deciding defendant’s guilt of the Weeden murder. The trial court has no
sua sponte duty to give a limiting instruction on cross-admissible evidence in a
trial of multiple crimes. (People v. Hawkins, supra, 10 Cal.4th at p. 942.) We
similarly reject the claim that defense counsel was incompetent for failing to
request a limiting instruction on the cross-admissible evidence. A reasonable
attorney may have tactically concluded that the risk of a limiting instruction
(suggesting to the jury that the evidence supporting the Stark and Berryhill
murders was relatively strong) outweighed the questionable benefits such
instruction would provide. (Ibid.)
c. Severance of the Jacqueline H. rape
the trial court erred in denying his motion to sever
the Jacqueline H. rape count. He claims that the prosecution argued and the trial
court incorrectly agreed that the evidence on the charges relating to Weeden,
Berryhill, and Stark was admissible in the Jacqueline H. case to identify defendant
as the rapist. Defendant argues that the evidence was not relevant in the rape case
because the issue there involved consent, not identity. He mischaracterizes the
basis for both the prosecution’s argument and the trial court’s ruling.
Immediately before Jacqueline H.’s testimony, defendant moved for
judgment of acquittal of the assault with intent to commit rape charge relating to
Stark and also moved to sever the rape charge relating to Jacqueline H. He
explained that the purpose of the motion for acquittal was to “set up a basis for
severance.” He conceded that there were “clear grounds” to join the rape count
with the assault with intent to commit rape count, but argued that, because there
was insufficient evidence to support the assault charge, the trial court should
dismiss that charge. He further argued that, once the assault count disappeared,
there would be no basis to join the rape charge with the three murder cases. The
prosecution responded that the motion for severance was untimely because it
should have been made before trial, but that, in any event, evidence relating to the
Jacqueline H. rape was relevant as to the identity of the murderer of the three
The trial court denied both motions. Although the court found the
severance motion untimely, it then proceeded to rule on the merits. It found that
evidence on the rape count would have been cross-admissible in a separate trial on
the murder charges to establish the identity of the perpetrator and that the
probative value of the cross-admissible evidence outweighed the prejudicial effect
of joinder. Specifically, it found that the rape and the murders had the following
similarities: defendant tightened a rope around Jacqueline H.’s neck before he
raped her; Weeden and Berryhill were strangled with a clothesline rope and scarf,
respectively; defendant told Detective Newsome that he had heard that Stark had
been strangled; and the bodies of Berryhill and Stark were found and Jacqueline
H. was raped in the same general remote area of Happy Valley. In addition, the
court found that the boot string that defendant showed Dr. Curiale was cross-
admissible evidence on the murder and rape charges and that the evidentiary
strengths of the murder and rape charges were relatively similar.
Because the trial court correctly ruled on the merits, we need not decide the
timeliness issue. Murder and rape are assaultive crimes against the person and, as
such, are “offenses of the same class of crimes” within the meaning of section 954
and were properly joinable. (People v. Arias, supra, 13 Cal.4th at p. 127; People
v. Alvarez (1996) 14 Cal.4th 155, 188.) Because the statutory requirements for
joinder were met, defendant can establish error only on a clear showing of
prejudice. (People v. Koontz, supra, 27 Cal.4th at p. 1075.) He has failed to meet
As the trial court ruled, the evidence of the rape would have been cross-
admissible in separate trials on the murder charges. In addition to the similarities
described by the court, there were other similarities relating to the murder and rape
offenses. Berryhill, Stark, and Jacqueline H. were young, small, and slim women
who knew defendant. Berryhill and Stark’s disappearances and Jacqueline H.’s
rape occurred within a short period of time of each other. Thus, the incidents
disclosed a distinctive modus operandi tending to establish the killer’s identity.
(People v. Bradford, supra, 15 Cal.4th at p. 1316; People v. Marshall (1997) 15
Cal.4th 1, 28.) Also, as with the Jacqueline H. offense, there was evidence that the
attack on Stark was sexually motivated. Thus, evidence in support of the offenses
against Stark and Jacqueline H. was cross-admissible on the issue of intent.
(Marshall, supra, at p. 28; People v. Davis (1995) 10 Cal.4th 463, 508.) Because
evidence of the murders and rape was cross-admissible, no abuse of discretion
occurred in failing to sever. (People v. Arias, supra, 13 Cal.4th at p. 128.)
C. Guilt Phase Issues
1. Sufficiency of the Evidence
evidence, in several respects, was insufficient to
support the judgment. In reviewing a criminal conviction challenged as lacking
evidentiary support, “ ‘the court must 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, supra, 27 Cal.4th at p. 496.) The same
standard of review applies to cases in which the prosecution relies mainly on
circumstantial evidence (People v. Rodriguez (1999) 20 Cal.4th 1, 11), and to
special circumstance allegations (People v. Ochoa, supra, 19 Cal.4th at pp. 413-
414). An appellate court must accept logical inferences that the jury might have
drawn from the circumstantial evidence. (Rodriguez, supra, at p. 11.) As will
appear, we reject defendant’s attempts to reargue the persuasiveness of the
evidence and conclude that the evidence was sufficient to support (1) the Stark
murder and assault with intent to commit rape convictions, (2) the Berryhill
murder and robbery convictions and robbery-murder special-circumstance finding,
and (3) the Jacqueline H. rape conviction.
a. Stark murder conviction
Defendant contends that the evidence was insufficient to support his
convictions for Stark’s murder and the assault of Stark with intent to commit rape.
We conclude that there was substantial evidence to support both convictions.
Disputing that he even knew Stark, defendant claims that there was not
enough evidence to prove that Stark’s death resulted from a homicide, as opposed
to an accidental death or suicide, or that he killed her. To the contrary, evidence
of defendant’s connection to Stark’s death was overwhelming. First, evidence of
the Secret Witness calls and the similarities of the victims established a pattern
linking defendant with the killings. The jury could reasonably infer that defendant
made all of the Secret Witness calls and provided information that only the killer
or an eyewitness would know about Weeden, Stark, and Berryhill. On August 8,
1987, someone telephoned the Secret Witness program seeking a reward for
information on the location of a body. Landreth recognized the caller’s voice as
the same person who had called with information on Weeden. She also believed
that the caller was the same person who had called on September 11, 1986, and
identified himself as defendant.
On August 17, 1987, when the caller gave directions to the body, he stated
that the death occurred about one and one-half months ago, which coincided with
the date of Stark’s disappearance. He also related to Landreth that the boyfriend
was responsible for the death and that he would leave information about the
person responsible in an envelope when he retrieved the reward money. Although
defendant left an empty envelope without any information as promised, the police
found defendant’s fingerprint on the envelope. Thus, defendant’s fingerprint
corroborated Landreth’s belief that defendant was the Stark case Secret Witness
Almost three months after Berryhill’s disappearance, beginning on
September 15, 1987, Landreth of the Secret Witness program began receiving a
series of anonymous telephone calls relating to Berryhill. The caller had
information on the location of Berryhill’s body and began negotiating for reward
money in return for that information. Landreth recognized the caller’s voice as the
same person who had previously called regarding Weeden and Olsten/Stark and
decided to tape two of the telephone calls on September 22, 1987. Detective
Mundy listened to the taped conversations and confirmed that the caller’s voice
belonged to defendant. In return for providing information on the whereabouts of
Berryhill’s body, the caller picked up the reward money at the title company office
on September 22, 1987, as prearranged. During the surveillance, the police
confirmed defendant’s identity as the Berryhill case Secret Witness caller. Thus,
there was ample evidence that defendant was the Secret Witness caller regarding
all three women and that he knew that Stark had been killed.
Moreover, the similarities of the victims further linked defendant to the
killings.11 Weeden, Stark, Berryhill, and Jacqueline H. were small, petite women
that defendant knew. The disappearances of Stark and Berryhill occurred only one
Defendant failed to object to the admissibility of “other crimes” evidence or
ask for a limiting instruction. Consequently, he has forfeited his claim that
evidence of the other two murders and one rape could not be used to prove
identity. Because the evidence was admissible to prove identity, intent, and
motive, we reject defendant’s incompetence of counsel claim. (People v. Ewoldt
(1994) 7 Cal.4th 380, 402-403; People v. Daniels, supra, 52 Cal.3d at pp. 856-
week and two days after the Jacqueline H. rape and their bodies were found in the
same general area where Jacqueline H. had been raped. Also, it was undisputed
that defendant was familiar with and took walks in that area. Moreover, two
residents saw a man matching defendant’s general description drive his
motorcycle into the wooded area where Stark and Berryhill’s bodies were later
found. One witness testified that he saw the man at least twice, while the other
witness said she saw him about five times and that he stayed in the woods for
about an hour. The visits occurred about a month or two before the police
searched the area. Thus, the jury could reasonably infer that, before and/or during
the Secret Witness calls, defendant periodically checked to make sure the bodies
were still there to ensure that he would receive his reward money. It could further
reasonably infer that the reward money motivated defendant, at least in part, to kill
Second, defendant’s actions and statements to the police and others amply
supported a finding of guilt. Several days after Stark’s body had been found,
defendant spoke with Detective Newsome. Despite the fact that the identity and
gender of the body had not been determined, defendant noted similarities between
that case and the Weeden case: both bodies were female and had been discovered
in the woods. Also, despite the fact that Stark’s purse was not close to her body,
defendant took Del Carlo to Stark’s purse and knew that the purse contained
material that would identify the body. When asked by Del Carlo if there was
additional evidence that would help the police in solving the crime, defendant
related that he could show him the location of a .357-caliber nickel-plated gun.
Although Stark owned such a gun, the police did not find it in her purse.
Defendant’s brother described a small pistol similar to the one owned by Stark; he
told the police that defendant had asked him to dispose of it. A blanket, similar to
one owned by defendant, was found close to Stark’s body.
On October 26, 1987, defendant told Detective Newsome that he had heard
Stark was strangled and that he would reveal the location of the murder weapon
when he met with Dr. Curiale on October 30. Yet, during the interview with Dr.
Curiale, defendant claimed he did not know anything about Stark’s death. At the
end of the interview on that date, defendant pulled out a boot string from his jacket
and commented that Dr. Curiale should have searched his jacket because it would
have given her some insight into who he was. Thus, the jury could reasonably
infer from defendant’s admissions, as well as the inconsistencies of his statements,
that he had strangled Stark with a boot string and left her body in the woods.
Finally, the jury could reasonably reject defendant’s claim that he did not
know Stark and discovered the body accidentally. Defendant told a newspaper
reporter that he had never seen Stark and had not been in Fall River Mills since
1977. However, three witnesses testified that they had seen defendant in Fall
River Mills, either staring at Stark or with her before her disappearance. He also
told the same reporter and Del Carlo that the “real killer” had confessed to the
killings of Stark and Berryhill and that defendant discovered the location of their
bodies from the killer. Thus, defendant’s extrajudicial statements conflicted with
the testimony of impartial witnesses and with his own defense.
Defendant makes much of the fact that the experts could not determine the
cause of Stark’s death. However, the prosecution and defense experts agreed that
Stark died of unnatural causes. Also, the evidence at the scene reasonably
supported an inference of sexual activity or an effort to that end. Dr. Boyd
Stephens, the coroner, concluded that someone besides Stark had removed her
pants: her pants and underpants were away from the area where her body had
decomposed and were not stained with decomposition fluids; one of her pant legs
was partly reversed with the pant leg rolled up; the pants zipper had been zipped
down completely and her panties were completely inside out; and one of her socks
and shoes were still on her foot. Further, there was no evidence explaining why
Stark would be in a wooded, remote area by herself or that she frequented or ever
visited the area. Moreover, it was undisputed that she had planned to travel to
Nevada City from Fall River Mills to attend a court appearance on June 29, 1987,
but never made it. Her boyfriend testified that he last saw Stark on or about June
25, 1987, when she told him of her travel plans. Her friend, Lucy Gray, believed
that she last saw Stark on June 24, 1987. In light of defendant’s extrajudicial
admissions, Dr. Stephens’s testimony, and the circumstances of Stark’s
disappearance, defendant’s assertion that Stark’s death resulted from an accident
or suicide is simply speculative.
Accordingly, the jury could reasonably infer from the evidence that
defendant knew, strangled, and killed Stark; that he waited several months for the
body and the evidence to decompose before attempting to gain reward money; that
he was the Secret Witness caller who provided details about Stark that only the
killer would know; and that he lied to the police, revealing a consciousness of
b. Stark assault with intent to commit rape conviction
Sufficient evidence also supported the conviction for assault with intent to
commit rape. “ ‘The essential element of [assault with intent to commit rape] is
the intent to commit the act against the will of the complainant. The offense is
complete if at any moment during the assault the accused intends to use whatever
force may be required.’ ” (People v. Davis, supra, 10 Cal.4th at p. 509.) “ ‘[I]f
there is evidence of the former intent and acts attendant to the execution of that
intent, the abandonment of that intent before consummation of the act will not
erase the felonious nature of the assault.’ ” (Id. at pp. 509-510.)
Defendant argues that the prosecution failed to prove that he was the person
responsible for the assault, that Stark did not consent to sexual intercourse, that
someone intended to rape Stark, and that any sexual assault occurred before
Stark’s death. Based on Stark’s clothing, as reflected above, Dr. Stephens
concluded that someone besides Stark had removed her pants and that the scene
was consistent with the occurrence of a sexual assault. Although defendant argues
that the scene is also consistent with consensual sex, the jury could reasonably
infer an assault from the evidence that Stark had suffered a fractured jaw at or near
the time of death, that she was strangled and killed by defendant, and that nothing
consensual had occurred. Moreover, the prosecution was not required to prove
that a rape had occurred, but only that Stark had been assaulted with an intent to
commit rape. Based upon Dr. Stephens’s testimony and evidence that defendant
forcibly raped Jacqueline H. in the same area less than a week before the assault,
the jury could reasonably infer that defendant assaulted Stark with the intent to
rape.12 (See People v. Davis, supra, 10 Cal.4th at pp. 509-510.)
c. Berryhill murder conviction
Defendant argues that the evidence does not support the Berryhill murder
conviction. He is wrong. First, there is credible evidence that Berryhill was last
Sergeant Wooden testified that, although there were no decomposition fluid
stains on Stark’s pants, he detected a “light odor” of decomposition and saw a
grease-like stain on the pant leg. Defendant argues that the “light odor” and stain
is conclusive evidence of the presence of decomposition fluid, which establishes
that Stark’s pants were removed after her death. Not so. There was no scientific
evidence linking the “light odor” and stain to decomposition fluid. The jury could
reasonably conclude that they were caused by something other than human
decomposition fluid. Moreover, defendant’s argument that the pants were
removed after Stark’s death is not dispositive; the jury could still reasonably
conclude that Stark had been assaulted while alive and that defendant intended to
rape her during the assault.
seen with defendant before her disappearance and that she planned to meet with
defendant on the night of June 22, 1987, to buy some marijuana at “Big Mama’s
Second, defendant told different stories about his plans on the night
Berryhill disappeared. Defendant admitted to the police that he had been with
Berryhill on the day of her disappearance, but denied that he took her anywhere
that night. Defendant claimed that on the night Berryhill disappeared, he had been
on a date with a Leanne Thurman and that he had been late for his date because he
had been with his friend Dave Hancock at the home of Hancock’s boss. Although
Hancock could not remember the precise date, he testified that, during the summer
of 1987, he and defendant were at his boss’s home when defendant related that he
needed to return home because he was late for a date that night. Defendant drove
off on his maroon Yamaha motorcycle for the date. Sometime afterwards,
defendant revealed to Hancock that the date was with Berryhill, but that she had
already left by the time he arrived. Thus, the jury could reasonably infer that
defendant lied about his date with Thurman and that he was really with Berryhill
on the night she disappeared.
Third, as with the Stark crimes, the jury could reasonably consider the
similarities of the victims and infer that defendant made all of the Secret Witness
calls and provided information that only the killer or an eyewitness would know
about Weeden, Stark, and Berryhill. The caller (defendant) described the location
of the body and said that Berryhill had been strangled with a scarf. When the
police found Berryhill’s body that same day, her body was covered with a mattress
and pine needles. After removing the mattress, the police determined that a scarf
was wrapped around the neck area of the vertebra; however, the scarf was not
immediately evident. Goldie Lane, Berryhill’s neighbor, identified the clothing
and scarf found on Berryhill’s body as the same items she had worn on the night
of her disappearance. Finally, defendant’s extrajudicial statement to Landreth that
he “saw her boyfriend do it to [Berryhill]” conflicted with his defense.
Accordingly, the jury could reasonably infer from the evidence that
defendant was the last person seen with Berryhill on the night before her
disappearance; that he strangled her that night with the same scarf she wore when
she left the house; that he waited several months for the body and the evidence to
decompose before attempting to gain reward money; that he was the Secret
Witness caller who provided details about Berryhill that only the killer would
know; and that he lied to the police thereby revealing a consciousness of guilt.
d. Berryhill robbery conviction and robbery-murder special-
the robbery conviction should be reversed because of
insufficient evidence that Berryhill had any money on her when she was killed or
that any money was taken by force or fear. (People v. Morris (1988) 46 Cal.3d 1,
20, fn. 8, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535,
543, fn. 5.) Similarly, he argues that there was insufficient evidence to support the
robbery-murder special-circumstance finding because the evidence showed the
perpetrator’s primary criminal goal was not to steal but to kill and the robbery was
merely incidental to the murder. (Morris, supra, at p. 21.) To the contrary, there
was substantial evidence that Berryhill was robbed and that she was murdered
while defendant was engaged in the commission of a robbery.
On the day of her disappearance, Berryhill told her mother that she was
going to meet “Bob” at 8:00 p.m. and go to “Big Mama’s house” to buy
marijuana. Williams gave her daughter $100. Before leaving the house on the
night of her disappearance, Berryhill asked Lane for a ride to buy some marijuana.
When Lane offered to baby-sit instead, Berryhill said she could get a ride from “a
guy on a motorcycle.” Berryhill said she had enough money to buy “some dope,”
showed Lane a roll of money, and placed it in her small hand purse. Soon
afterwards, Berryhill was last seen riding off with defendant on his motorcycle. A
larger purse was located near Berryhill’s body. Lane testified that Berryhill
carried her marijuana in the larger purse. Although Berryhill did not put her
money in that purse, Lane stated that the purse with the money could fit inside the
larger one. Because there was no marijuana in Berryhill’s marijuana purse and the
purse with the money was missing, the jury could reasonably infer that defendant
stole either the money or marijuana from Berryhill. Moreover, because Berryhill
was killed by strangulation with her own scarf, and only two days earlier
defendant had forced Jacqueline H. to submit to rape by threatening to strangle
her, the jury could reasonably infer that defendant strangled and killed Berryhill
while engaged in the commission of a robbery. (§ 190.2, subd. (a)(17).)
“ ‘[W]hen one kills another and takes substantial property from the victim,
it is ordinarily reasonable to presume the killing was for purposes of robbery.’ ”
(People v. Hughes (2002) 27 Cal.4th 287, 357.) Even “ ‘[i]f a person commits a
murder, and after doing so takes the victim's wallet, the jury may reasonably infer
that the murder was committed for the purpose of obtaining the wallet, because
murders are commonly committed to obtain money.’ ” (Ibid.) That defendant
may have harbored a concurrent intent to kill does not invalidate the robbery-
murder special circumstance. (People v. Barnett (1998) 17 Cal.4th 1044, 1160.)
Accordingly, substantial evidence supported the robbery conviction and the
robbery-murder special-circumstance finding.
e. Jacqueline H. rape conviction
Defendant claims that the evidence was insufficient to support his
conviction for the rape of Jacqueline H. on two grounds. First, he argues that
Jacqueline H.’s testimony was incredible, based on the absence of visible injuries
and evidence that Jacqueline H. failed to report the rape or seek help afterwards,
had a reputation as a liar, was a drug addict and convicted thief, and may have
suffered from drug-induced paranoia. In deciding the sufficiency of the evidence,
we ask whether “ ‘after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’ ” (People v. Hatch (2000) 22 Cal.4th 260,
272.) Conflicts and even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial judge
or jury to determine the credibility of a witness and the truth or falsity of the facts
upon which a determination depends. (People v. Huston (1943) 21 Cal.2d 690,
693.) We resolve neither credibility issues nor evidentiary conflicts; we look for
substantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The finding
of guilt was amply supported by Jacqueline H.’s testimony.
Second, defendant contends that, even if Jacqueline H.’s testimony is
believed, she never expressly stated that the act of sexual intercourse was against
her will. Thus, he argues, the evidence was insufficient to show lack of consent.
Defendant’s claim is based on the remarkable and unsupported assertion that,
because lack of consent and force or fear are separate elements, the same evidence
cannot be used to prove “non-consent” and “force or fear.” Contrary to his claim,
evidence of force or fear is directly linked to the overbearing of a victim’s will; the
prosecution is required to demonstrate that the act of sexual intercourse was
accomplished against the victim’s will by means of force, violence, or fear of
immediate and unlawful bodily injury. (People v. Iniguez (1994) 7 Cal.4th 847,
856.) We agree with the Attorney General that there is ample evidence from
which the jury could reasonably infer that Jacqueline H. did not consent to sexual
intercourse, i.e., her testimony that she feared for her life, that defendant rejected
her request to take her home, that she disrobed and lay on the ground only after he
placed and tightened a rope around her neck and ordered her to do so, and that,
after the act of intercourse, she grabbed a screwdriver from a leather pouch
attached to the motorcycle to protect herself.
2. Evidentiary Issues—Voluntariness of Defendant’s Statements
Defendant contends that his statements to the district attorney and police in
1985 and to Dr. Curiale were involuntarily made.
a. General principles
In reviewing the voluntary character of incriminating statements, “ ‘[t]his
court must examine the uncontradicted facts surrounding the making of the
statements to determine independently whether the prosecution met its burden and
proved that the statements were voluntarily given without previous inducement,
intimidation or threat. [Citations.] With respect to the conflicting testimony, the
court must “accept that version of events which is most favorable to the People, to
the extent that it is supported by the record.” ’ ([People v. Hogan (1982) 31
Cal.3d 815,] 835.)” (People v. Thompson (1990) 50 Cal.3d 134, 166.) “In order
to introduce a defendant’s statement into evidence, the People must prove by a
preponderance of the evidence that the statement was voluntary. [Citation.]
. . . When, as here, the interview was tape-recorded, the facts surrounding the
giving of the statement are undisputed, and the appellate court may independently
review the trial court’s determination of voluntariness.” (People v. Vasila (1995)
38 Cal.App.4th 865, 873.)
A statement is involuntary if it is not the product of “ ‘a rational intellect
and free will.’ ” (Mincey v. Arizona (1978) 437 U.S. 385, 398.) The test for
determining whether a confession is voluntary is whether the defendant’s “will
was overborne at the time he confessed.” (Lynumn v. Illinois (1963) 372 U.S. 528,
534.) “ ‘The question posed by the due process clause in cases of claimed
psychological coercion is whether the influences brought to bear upon the accused
were “such as to overbear petitioner’s will to resist and bring about confessions
not freely self-determined.” [Citation.]’ [Citation.] In determining whether or not
an accused’s will was overborne, ‘an examination must be made of “all the
surrounding circumstances—both the characteristics of the accused and the details
of the interrogation.” [Citation.]’ [Citation.]” (People v. Thompson, supra, 50
Cal.3d at p. 166.)
A finding of coercive police activity is a prerequisite to a finding that a
confession was involuntary under the federal and state Constitutions. (People v.
Benson (1990) 52 Cal.3d 754, 778, citing Colorado v. Connelly, supra, 479 U.S. at
p. 167.) A confession may be found involuntary if extracted by threats or
violence, obtained by direct or implied promises, or secured by the exertion of
improper influence. (Benson, supra, at p. 778.) Although coercive police activity
is a necessary predicate to establish an involuntary confession, it “does not itself
compel a finding that a resulting confession is involuntary.” (People v. Bradford
(1997) 14 Cal.4th 1005, 1041.) The statement and the inducement must be
causally linked. (Benson, supra, at pp. 778-779.)
b. Admissibility of defendant’s November 21, 1985, statements to
district attorney and police
On November 21, 1985, Detective Mundy and District Attorney Carlton
interviewed defendant. During the tape-recorded interview, defendant related that
he walked in on the murder of Weeden by Morris and another man, that they tied
defendant up at gunpoint and took him with them to dispose of Weeden’s body
and threatened to kill him if he told anyone about their involvement in the murder.
The trial court allowed the jury to hear the taped interview and admitted the tape
recording and transcript of the interview into evidence. Defendant contends that
because his November 21 statements were involuntarily made, the trial court
violated his due process rights in admitting them into evidence. His claims lack
First, defendant argues that the trial court erred in failing to rule expressly
on the voluntariness of his November 21, 1985, statements. However, the record
reflects no error. As part of his section 1538.5 pretrial motion to suppress
evidence, defendant moved to suppress his November 21 statement. In rejecting
defendant’s Fourth Amendment claim and denying the suppression motion
relating to that statement, the trial court expressly found that the November 21
statements were “voluntary beyond a reasonable doubt.” During trial, the trial
court asked the parties whether the voluntariness of the November 21 statements
was a “contested issue.” The following discussion occurred:
“[DEFENSE COUNSEL]: I don’t think we have any problem with the
statements made in ’85. Now, the defense is constrained fromor at least we do
not wish to stipulate to the admission of any of these statements.
“THE COURT: Right.
“[DEFENSE COUNSEL]: Then, again, we don’t wish to be obstreperous
either, so I don’t think there’s an issue of voluntariness as to the ’85 statements.”
“[DEFENSE COUNSEL]: Let me suggest that the parties get together and
I think we can agree at least to disagree and form the issues so it can be done
quickly Tuesday morning, if necessary. And whatever rulings would be
necessary––I certainly don’t expect anything on the ’85 tape.
“[PROSECUTOR]: You don’t expect anything what?
“[DEFENSE COUNSEL]: Challenge on the voluntariness.”
Later, when the prosecutor introduced the tape and transcript of the
interview into evidence, defense counsel objected only to the accuracy and use of
the transcript. Although the trial court did not expressly find that the November
21 statements were voluntarily made, such finding was implied from the court’s
order admitting the statement into evidence. (Evid. Code, § 402, subd. (c) [“[a]
ruling on the admissibility of evidence implies whatever finding of fact is
prerequisite thereto; a separate or formal finding is unnecessary unless required by
statute”]); People v. Daniels (1969) 1 Cal.App.3d 367, 374.) In light of
defendant’s failure to object to admission of the evidence on voluntariness
grounds, the lack of an express finding on that issue was not error.
Defendant argues that if the trial court’s admission implies a finding of
voluntariness, such finding was erroneous. He claims that the November 21
statements were involuntary as a matter of law because they were induced by a
promise of leniency on an unrelated possession of stolen property charge and an
agreement that defendant’s statements would not be used against him on the
Weeden murder. The record fails to support defendant’s claim.
In November 1985, before his court appearance on the unrelated stolen
property case, defendant spoke to Shasta County Sheriff’s Detective Ashmun.
Defendant volunteered that he had information on the Weeden homicide, and
wanted “consideration” on the case he was currently facing and “immunity” on the
Weeden case. Defendant stated that Weeden had been strangled and hit in the
head. After defendant’s statements, Detective Ashmun said he might help
defendant on the stolen property case if he had helpful information on the Weeden
case. Detective Ashmun told Detective Mundy, the investigator on the Weeden
case, that defendant had information about the Weeden murder and was willing to
talk about it.
Detective Mundy met with defendant on November 20, 1985. Defendant
told Detective Mundy that he would be willing to talk to him “conditionally” and
that he wanted to talk about “immunity.” Detective Mundy responded that he
“could not grant immunity, that it would have to come from the district attorney.”
The detective arranged to have another interview with defendant on the next day.
On November 21, 1985, Detective Mundy and District Attorney Carlton
interviewed defendant at his residence. At the beginning of the interview,
defendant informed them that he had pleaded guilty to the crime of possession of
stolen property and was facing county jail time on the conviction. He further
stated that Detective Ashmun seemed to think that “if I cooperated in this
investigation, then I might not get no jail time . . . and that was one of the things I
would like to get out of this, assuming I know anything that can help you.” (Italics
added.) When District Attorney Carlton began to reply, “I can’t tell you before
. . .” defendant interrupted and said, “Right, I’m not asking.” The district attorney
continued to say that he could not tell defendant whether he would benefit before
they heard his statement and determine its truthfulness. Defendant then
acknowledged, “Well, I’ll start off by telling you what happened that day,” and
“you can answer a couple of my questions.”
Defendant gave a lengthy statement in which he blamed Morris and another
man for Weeden’s death. At the end of the interview, defendant explained that, if
not for the impending jail commitment, he would never have come forward with
the information. He reiterated that he wanted to avoid jail time and that Detective
Ashmun said he “might be able to get off easy.” (Italics added.) Although, as
defendant argues, his motivation was to avoid jail time on the unrelated case, his
further claim that the authorities promised consideration on the unrelated case in
return for information on the Weeden case is unavailing.13
Similarly, no promises of immunity were made as to the Weeden case. At
the beginning of the interview, defendant said he did not want to be arrested and
Although there were no promises made, defendant received three years’
probation on a felony conviction of possession of stolen property without a county
jailed immediately for telling them “things that somebody else might not know.”
He stated, “I know I can’t get charged with murder because I didn’t do it, a,
immunity that way, I’m not really worried about it, immunity that anything, see if
I was to come up with some information that not very many people should know, I
don’t want that used against me, saying I did it just because I know that.” (Italics
added.) The district attorney informed defendant that immunity had “not been
granted to you,” that “you’re not being offered immunity,” and that “I don’t have
the power to give you immunity anyway, you understand that.”
Defendant replied, “I understand that, but I don’t wanna be thrown in jail
for an accessory that I had nothing to do with, j – just because . . . .
“[DEFENDANT]: I happened to walk in on something, there’s no reason I
should have to go to jail for it.
Okay, I’m not, I’m not questioning that, what I’m trying to
talk to you about is, there has been some mention of, of immunity in this case and
immunity has not been granted and you don’t have immunity.”
“[DEFENDANT]: [Inaudible], I realize that.
“[CARLTON]: And if a, if it ever came to be, that we wanted to give you
immunity, we’d have to hear what you had to say and we’d have to evaluate and
investigate to determine whether we thought it was truthful or not. Do you
“[DEFENDANT]: Yes sir.
“[DEFENDANT]: So I have nothing.
“[CARLTON]: Well, I’m not, I’m not saying that . . . I’m not saying that
you, a, that immunity won’t sometime be offered to you, but immunity would
never be offered to you until we knew what we were getting.” (Italics added.)
Focusing on isolated fragments of the conversation, defendant argues that
the district attorney implicitly assured defendant twice that the information would
not be used against him. Twice, when defendant stated his desire that the
volunteered information would not be used against him, the district attorney
merely prefaced his responses with “Okay.” We fail to see how that phrase
equates to such an agreement, especially in light of Carlton’s express and repeated
statements that immunity was not being granted at that time.
Finally, defendant contends that the district attorney engaged in “unethical
conduct” by violating then rule 7-103 of the California Rules of Professional
Conduct, which provided, in pertinent part, that “A member of the State Bar shall
not communicate directly or indirectly with a party whom he knows to be
represented by counsel upon a subject of controversy without the express consent
of such counsel. . . .” (Italics added.) However, defendant was represented by
counsel only on an unrelated charge and not on the Weeden murder. (See People
v. Webb (1993) 6 Cal.4th 494, 527 [Sixth Amendment right to counsel is “offense-
specific,” i.e., it attaches only to those offenses for which adversary judicial
criminal proceedings have begun].) He fails to establish the applicability of the
rule to the district attorney’s conduct or how an alleged breach of the ethical rule
affected the verdict. Indeed, we fail to see how admission of defendant’s
statements “seriously undermined his defense,” as defendant claims, since his
extrajudicial statements to the police formed the evidentiary basis for his defense
that Morris killed Weeden.14
Defendant also alleges that defense counsel were incompetent for failing to
object to his “involuntary” statements to Detective Ashmun that Weeden had been
strangled and hit in the head. As with the November 21, 1985, interview, no
promises were made in exchange for information on the Weeden case. Detective
Ashmun simply said he might help defendant on the unrelated case. Because the
(footnote continued on next page)
c. Admissibility of defendant’s statements to Dr. Curiale
Defendant claims that the trial court committed prejudicial error in
admitting certain statements that he made to Dr. Curiale, a psychologist with the
Department of Corrections, on the grounds that they were made involuntarily and
were privileged (Evid. Code, § 1012). Dr. Curiale interviewed defendant on
October 23 and 30, 1987. At trial, defendant objected to admission of all of his
statements during the interviews on the ground that they were made involuntarily
and were more prejudicial than probative, under Evidence Code section 352.
After an evidentiary hearing, which included a review of the entire taped
interviews, the trial court concluded that defendant’s statements were voluntarily
made. It made the following findings: “I think [defendant] voluntarily put himself
in the position of being interrogated, with full knowledge that he was waiving his
rights, and he fully understood what Dr. Curiale’s position was and what her
intentions were, and he demonstrated that constantly throughout the tapes.”
The trial court ruled that, under Evidence Code section 352, portions of the
interviews were irrelevant and playing the entire tapes would be time-consuming.
It instructed the prosecutor to edit the tapes. The court allowed the jury to hear
limited portions of the taped interviews and admitted an edited transcript of those
After reviewing the record, we find that defendant’s statements were
voluntarily made. It is undisputed that defendant’s statements to Dr. Curiale were
made during noncustodial interviews. At the evidentiary hearing, Detective
Newsome testified that during a September 29, 1987, interview with defendant at
(footnote continued from previous page)
claim lacks merit and because his statements formed the basis for his defense,
counsel cannot be faulted for failing to object.
his brother’s house, defendant initiated a discussion about talking to a psychiatrist
and said he would be willing to talk to one if the police made the arrangements
and payment. At another interview on October 5, defendant offered to talk to a
psychiatrist again. When the police accused defendant of the murders and asked if
he needed help, defendant denied that he killed anyone, declared that they could
not prove it, and encouraged Detective Newsome to find “the best criminal
psychologist or psychiatrist” because he or she would say defendant was “not
capable of these things.” He also challenged Detective Newsome to “take [him] to
a jury trial to prove that [he] did it.”
The police asked Dr. Curiale to interview defendant to assist them in
determining if defendant committed the crimes and in obtaining information,
evidence, or, if possible, a confession from defendant. On October 23, 1987,
defendant met Dr. Curiale and Detective Newsome at the lobby of the Shasta Inn,
but then spoke with Dr. Curiale alone. At the beginning of the interview,
defendant stated: “You’re going to tell me that . . . things that I can say, can will
be used against me and maybe you’re not going to read me my rights, but you are
going to advise me of the fact that whatever information you might get from me
will be used against me and these will be turned over to the police whether it turns
up people or not. I already know all that. I, I don’t have to be here talking to
you.” Dr. Curiale responded, “Right,” and emphasized that, because she was
working for law enforcement, the privilege and confidentiality “rests with them.”
Defendant replied that he understood. Also, at some point, defendant commented
that the interview was probably being taped. Before the interview ended, they
agreed to meet again.
On October 30, 1987, defendant met Dr. Curiale in the same lobby. During
the interview, Dr. Curiale commented that defendant had not told her anything
more than what she had read in the police reports or newspapers. Defendant
responded, “I told you the first time I met you that I would never tell you anything
that I knew would be a mistake or could get me thrown in jail . . . there’s no way
that I’m gonna ever tell you anything that you’re gonna be able to use to throw me
in prison, I have not lied to you in that respect.” When Dr. Curiale responded,
“No you haven’t, you’ve been very consistent in that, but I’m not interested in
what gets you to prison,” defendant expressed his skepticism by stating, “Sure you
are, because whatever I tell you, you’ll tell them, now if I was to hire you, and a,
or the County was to hire you on my behalf or whatever and the anonymity and
everything laid with between us, well then, you know, might be a different story.
But right now, they’re pulling your strings, not me and not the County, well I
guess in a way the County, but like a mental health program.” Detective
Newsome and Dr. Curiale testified that defendant ended both interviews himself
Thus, the evidence reflects that defendant offered to talk with a
psychologist, voluntarily met with Dr. Curiale twice, knew that he was not
required to talk with her, was not in custody during the interviews, and was free to
end the interview and leave at any time, which he did. Even though he understood
that his statements were not confidential, would be related to the police, and could
be used against him, defendant freely spoke with Dr. Curiale. (People v.
Henderson (1977) 19 Cal.3d 86, 97-98.)
Nevertheless, defendant claims that his statements were involuntary
because (1) he was intoxicated by marijuana during the interviews, (2) Dr. Curiale
used psychological manipulation to coerce his incriminating statements, and (3)
law enforcement coerced defendant into seeing a psychologist by harassing him
and his family. The evidence reflects otherwise. Regarding the intoxication
allegation, both Dr. Curiale (who saw and heard defendant during the interviews)
and Detectives Newsome and Mundy (who overheard defendant during the
interviews) testified that he did not appear to be under the influence of a drug, that
he appeared to understand the questions asked of him, that he responded and asked
questions appropriately, and that his conversations were coherent and intelligent.
Although defendant smoked a cigarette that he said was marijuana during the
October 30, 1987, interview, Dr. Curiale stated that his behavior did not change
after smoking it. Moreover, absent state coercion, defendant cannot complain that
any self-induced intoxication rendered his statements involuntary. (See Colorado
v. Connelly, supra, 479 U.S. at p. 163.)
Regarding the psychological manipulation claim, although the evidence
reflects that Dr. Curiale tried to trick defendant into admitting his guilt, defendant
recognized the attempted ruse and refused to succumb to any deception. In an
attempt to get more information from defendant, Dr. Curiale represented that she
was “off duty,” implying that she was no longer working for the police. Also, Dr.
Curiale attempted to elicit incriminating evidence by comparing defendant to a
notorious killer who had received much publicity and by promising that defendant
would be in her book. As the trial court correctly found, the evidence reflects that
defendant did not believe her and was not influenced by Dr. Curiale’s techniques.
Deception does not necessarily invalidate an incriminating statement. (People v.
Thompson, supra, 50 Cal.3d at p. 167; see also Illinois v. Perkins (1990) 496 U.S.
292, 297 [“mere strategic deception” not coercive].) “The courts have prohibited
only those psychological ploys which, under all the circumstances, are so coercive
that they tend to produce a statement that is both involuntary and unreliable.”
(People v. Ray, supra, 13 Cal.4th at p. 340.) In this case, Dr. Curiale’s ploys do
not fall into that category.
Regarding defendant’s harassment claim, there is conflicting evidence.
Defendant’s brother testified that Detectives Newsome and Mundy repeatedly
accused defendant of being gay, illiterate, and a mass murderer, and having a split
personality. On the other hand, although the detectives told defendant and his
family they believed he was guilty of one or more of the murders, they denied
making the first three accusations. With respect to this conflicting testimony, we
must accept that version of events which is most favorable to the People, to the
extent that it is supported by the record. (People v. Thompson, supra, 50 Cal.3d at
p. 166.) On the other hand, the detectives admitted that they considered the
possibility that defendant may have had a split personality (“good Bob/bad Bob”)
and may have mentioned that possibility to defendant and his family. Even if the
police had mentioned to defendant and his family of their belief in a “good
Bob/bad Bob,” this does not amount to official coercion. Defendant initiated the
topic of a psychiatrist and offered to talk to one for the purpose of exonerating
himself. Indeed, during the interview, he repeatedly denied any responsibility for
the murders, in accordance with his planned purpose. Thus, defendant’s will was
not overborne when he spoke to Dr. Curiale. (Lynumn v. Illinois, supra, 372 U.S.
at p. 534.)
On the claim of privilege, because defendant failed to object to admission
of his statements on this ground, it is forfeited. (Evid. Code, § 353, subd. (a);
People v. Sims (1993) 5 Cal.4th 405, 448; People v. Collie (1981) 30 Cal.3d 43,
49.) In any event, the claim is meritless. The evidence is uncontradicted that Dr.
Curiale’s and the police’s purpose for the interview was to obtain information and
evidence from defendant, and not to conduct psychological treatment or a
psychological evaluation or diagnosis. (People v. Henderson, supra, 19 Cal.3d at
pp. 97-98; People v. Cabral (1993) 12 Cal.App.4th 820, 826-828.)
Finally, even if defendant’s statements were involuntary, their admission
was harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S.
279; People v. Cahill (1993) 5 Cal.4th 478, 509-510.) Although the taped
statements were lengthy, the prosecution admitted only limited portions of the
interviews. During the edited version, which the jury heard, defendant stated that
he had “no conscience,” and that, although he did not serve in Vietnam, he wanted
to “rape, burn, pillage, kill” the Viet Cong. He commented that the Secret Witness
program “bred crime by paying people to turn in bodies” and that “a person could
almost make a living by killing people and later turning in their bodies for the
reward.” At the end of the interview, defendant pulled out what appeared to be a
boot string from his pocket and told Dr. Curiale that she should have searched his
coat while she had the chance because it would have given her insight into who he
was. However, defendant steadfastly denied any responsibility for the murders
and offered no information about them. Given the overwhelming evidence against
defendant, admission of his statements was not prejudicial.
d. Admissibility of polygraph evidence
Defendant challenges the exclusion of evidence that he passed a polygraph
examination. According to defendant’s offer of proof, he “passed” the polygraph
test regarding the death of Weeden. He argued that evidence of the test results
was relevant to identify Weeden’s murderer and he sought to introduce the
polygraph evidence to support his extrajudicial statements that someone else killed
Weeden. Defendant requested an evidentiary hearing to establish the “validity” of
the polygraph examination and the examiner’s “expert qualification.” Relying on
Evidence Code section 351.1, the trial court denied defendant’s motion for an
evidentiary hearing. Defendant claims that the trial court’s refusal to hold an
evidentiary hearing violated his Sixth and Fourteenth Amendment rights to present
a defense and call favorable witnesses.
Evidence Code section 351.1 provides that the results of a polygraph
examination or the opinion of a polygraph examiner “shall not be admitted into
evidence in any criminal proceeding . . . unless all parties stipulate to the
admission of such results.”
Here, the trial court properly excluded the expert testimony regarding
defendant's polygraph examination. Excluding such evidence does not violate
defendant’s constitutional right to present a defense. (United States v. Scheffer
(1998) 523 U.S. 303, 312 [per se military rule excluding all polygraph evidence in
court-martial proceedings does not abridge defendant’s Fifth or Sixth Amendment
rights to present defense].) In finding that a per se rule excluding all polygraph
evidence was not arbitrary or disproportionate in promoting the legitimate interest
of ensuring that only reliable evidence is introduced at trial, the high court stated:
“[T]here is simply no consensus that polygraph evidence is reliable. To this day,
the scientific community remains extremely polarized about the reliability of
polygraph techniques.” (Id. at p. 309.) “This lack of scientific consensus is
reflected in the disagreement among state and federal courts concerning both the
admissibility and the reliability of polygraph evidence.” (Id. at pp. 310-311, fn.
omitted.) Implicit in the Legislature’s passage of Evidence Code section 351.1 is
the conclusion that “[L]ie detector tests themselves are not considered reliable
enough to have probative value.” (People v. Thornton (1974) 11 Cal.3d 738, 764,
disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn.
12.) A per se rule excluding polygraph evidence is a “rational and proportional
means of advancing the legitimate interest in barring unreliable evidence.”
(Scheffer, supra, at p. 312.)
Moreover, contrary to defendant’s claim, his defense was not significantly
impaired by exclusion of the polygraph examination results. Although defendant
chose not to testify, exclusion of the polygraph evidence did not preclude him
from introducing any factual evidence of the charged offense and did not prohibit
him from testifying on his own behalf. (United States v. Scheffer, supra, 523 U.S.
at pp. 316-317; see also People v. Espinoza (1992) 3 Cal.4th 806, 818 [exclusion
under Evid. Code, § 351.1 of defendant’s offer to take a polygraph test did not
violate due process; defendant was not foreclosed from effectively challenging
prosecution’s case or from presenting crucial exculpatory evidence].) Rather,
defendant was barred merely from introducing expert opinion testimony to bolster
his own credibility, in support of his extrajudicial statements. (Scheffer, supra, at
p. 317.) “A polygraph is not so crucial that its absence precludes a defendant from
mounting a defense.” (In re Aontae D. (1994) 25 Cal.App.4th 167, 175.)
People v. Wilkinson (2002) 102 Cal.App.4th 72, review granted
December 11, 2002, S111028, we will decide whether Evidence Code section
351.1’s exclusion of polygraph evidence is absolute or whether a defendant, on a
proper showing, is entitled to a Kelly/Frye hearing regarding the admissibility of
proposed defense polygraph evidence. (People v. Kelly (1976) 17 Cal.3d 24, 30-
32; Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014.) Even if the
Kelly/Frye test remains applicable to polygraph evidence notwithstanding the
enactment of Evidence Code section 351.1, we note that defendant’s offer of proof
was woefully inadequate. He failed to present an offer of proof that polygraph
evidence was generally accepted in the scientific community. (People v. Ayala
(2000) 23 Cal.4th 225, 264; People v. Jackson (1996) 13 Cal.4th 1164, 1212;
People v. Fudge (1994) 7 Cal.4th 1075, 1122.) Defendant merely asserted that he
would proffer evidence of the “competency” of the polygraph examination results,
without saying what that evidence was or what he specifically sought to show.
Thus, he is in “ ‘ “no position to assign error in the trial court’s ruling.” ’ ”
(Jackson, supra, at p. 1212.)
3. Alleged Ineffectiveness of Counsel
Defendant contends that defense counsel rendered ineffective assistance for
(1) failing to object to evidence of Landreth’s voice identification of defendant as
the Weeden case Secret Witness caller, (2) failing to request a cautionary jury
instruction relating to voice identifications, (3) failing to object to hearsay
statements, and (4) failing to object to Jacqueline H.’s testimony. These
contentions lack merit.
a. Failure to object to preliminary hearing voice identification
At the preliminary hearing, defendant cross-examined Landreth, while
acting as his own cocounsel. At trial, Landreth testified that at the preliminary
hearing, she recognized defendant’s voice as the same person who had called the
Secret Witness program in regard to Weeden, “Olsten,” and Berryhill. There was
no objection to this testimony. Defendant argues that counsel should have
objected because Landreth’s voice identification at the preliminary hearing (which
she made “only to herself”) was unreliable and the identification procedure was
impermissibly suggestive. The Attorney General responds that because the
identification procedure during the preliminary hearing was not unduly suggestive
and Landreth’s voice identification of defendant was reliable, counsel was not
required to object since an objection would have been futile. We need not decide
the merits of the claim because the record reveals that counsel’s failure to object to
testimony regarding Landreth’s voice identification can reasonably be attributed to
a choice of trial tactics because it was not critical evidence.
In 1985, Landreth spoke with the Secret Witness caller about the Weeden
case at least six times. On September 11, 1986, Landreth received a telephone call
from someone she recognized as the same person who had made the 1985 Secret
Witness calls. The caller gave her information regarding an unrelated burglary
and revealed his name. Landreth recalled that the caller may have said, “Well, this
is Bob” or may have said his name was “Robert Maury.” A week later, on
September 19, the same person called again, this time asking Landreth for
immunity on the Weeden case. She realized that the September 11 caller, who
identified himself as “Bob” or “Robert Maury,” was the same person as the
Weeden case Secret Witness caller.
In August 1987, Landreth began receiving a series of telephone calls from
the same caller regarding the location of “Olsten’s” body. Landreth recognized
that the voice belonged to the same person as the caller on the Weeden case and
the unrelated burglary. She taped one of the telephone calls and played it for
Detective Mundy to confirm that the voice belonged to the same Robert Maury
whom she had spoken to before. Detective Mundy confirmed Robert Maury was
the person on the tape.
During closing argument, defense counsel repeatedly attacked as unreliable
Landreth’s recognition of defendant’s voice during the series of telephone calls.
Thus, the record indicates that counsel believed that Landreth’s recognition of
defendant’s voice in 1985 to 1987 was the critical evidence, and not her voice
identification at the preliminary hearing. Whether to object to arguably
inadmissible evidence is a tactical decision; because trial counsel’s tactical
decisions are accorded substantial deference, failure to object seldom establishes
counsel’s incompetence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1121.) We
cannot say that counsel’s decision not to object to evidence of Landreth’s
preliminary hearing voice identification was not a legitimate tactical choice.
(People v. Davis (1969) 270 Cal.App.2d 841, 844 [failure to object to lineup
procedure may have been legitimate tactical decision].)
In addition, because other independent evidence established that defendant
was the Weeden case Secret Witness caller, counsel’s failure to object to
Landreth’s preliminary-hearing voice identification was not prejudicial.
b. Failure to request cautionary instruction
Defendant claims that counsel was incompetent for failing to request a
pinpoint instruction for Landreth’s preliminary-hearing voice identification,
similar to CALJIC No. 2.92 (eyewitness identification). Because her voice
identification was not crucial evidence, the failure to give a cautionary instruction
as to that evidence was not prejudicial.
c. Failure to object to hearsay statements of Morris
Bill Chartier, Weeden’s brother, testified that Morris related that he saw
Weeden riding off with defendant, on the back of defendant’s motorcycle, and
“that’s the last time she was ever seen.” Defense counsel did not object to this
testimony. Defendant now claims that counsel was ineffective for failing to object
to Morris’s hearsay statement.
Here, given the overwhelming evidence establishing defendant’s guilt of
the Weeden murder, it is not reasonably probable that a determination more
favorable to defendant would have resulted, in the absence of counsel’s omission.
(Strickland v. Washington, supra, 466 U.S. at p. 694.) The evidence reflected that
defendant was the Secret Witness caller regarding all three murder victims. He
knew the location of the bodies of the victims and used this information for
financial gain. In addition, defendant made numerous admissions regarding
Weeden’s death to Landreth, Detective Ashmun, Detective Mundy, and various
acquaintances, and gave several conflicting stories to Chartier regarding Weeden
after her disappearance. Defendant argues that Morris’s hearsay statement was the
only direct evidence that rebutted defendant’s assertion that Morris killed Weeden.
Not so. In the spring of 1987, after he had told Detective Mundy that Morris
killed Weeden, defendant declared that Detective Mundy “would never really
know what happened to Averill Weeden” and that Mundy would take her death to
his grave. Because defendant has failed to establish prejudice, the issue of
deficient performance need not be reached. (People v. Rodrigues, supra, 8 Cal.4th
at p. 1126.)
d. Failure to object to Jacqueline H.’s testimony
Defendant contends that defense counsel were incompetent for failing to
object to Jacqueline H.’s testimony on the ground that her testimony was coerced
by the district attorney, in violation of his right to due process. Analogizing to
accomplice testimony cases, defendant claims that Jacqueline H. agreed to testify
in conformity with her preliminary hearing testimony in return for benefits
promised by the district attorney. The evidence fails to support his claim.
“ ‘ “[A] defendant is denied a fair trial if the prosecution’s case depends
substantially on accomplice testimony and the accomplice witness is placed, either
by the prosecution or the court, under a strong compulsion to testify in a particular
fashion.” [Citation.] Thus, when the accomplice is granted immunity subject to
the condition that his testimony substantially conform to an earlier statement given
to police [citation], or that his testimony result in defendant’s conviction [citation],
the accomplice’s testimony is “tainted beyond redemption” [citation] and its
admission denies defendant a fair trial. On the other hand, although there is a
certain degree of compulsion inherent in any plea agreement or grant of immunity,
it is clear that an agreement requiring only that the witness testify fully and
truthfully is valid.’ (Fn. omitted.)” (People v. Badgett (1995) 10 Cal.4th 330,
At trial, the district attorney asked Jacqueline H. if any promises were made
to her in return for her testimony. Jacqueline H. replied, “I have been offered
nothing. . . . Except for not having to do time in jail, in the same jail with
[defendant].” At the time of trial, a burglary charge and bad check charge were
pending against Jacqueline H. Both crimes had occurred and, obviously, both
charges had been filed after Jacqueline H.’s preliminary hearing testimony in
which she testified that defendant had raped her. Jacqueline H.’s attorney,
representing her on both criminal cases, confirmed that the district attorney
promised only that Jacqueline H. would not serve any time in the same jail with
defendant in return for her testimony. Thus, the district attorney’s promise was
not conditioned on Jacqueline H. testifying in a particular fashion or on the
testimony’s achieving a particular result.
Moreover, unlike the accomplice cases, there was not “a certain degree of
compulsion” inherent in Jacqueline H.’s agreement with the district attorney. She
did not avoid prosecution or receive a favorable criminal disposition in exchange
for her testimony. Instead, as the Attorney General points out, Jacqueline H. was
simply receiving an express assurance that the prosecution would make every
effort to protect her from her assailant, an assurance any victim would reasonably
expect from the prosecution.15
Nothing about the agreement was improperly coercive. Thus, counsel were
not ineffective for failing to object to Jacqueline H.’s testimony on that ground.
(People v. Gurule (2002) 28 Cal.4th 557, 617.)
4. Alleged Prosecutorial Misconduct
Defendant contends that the prosecutor committed various acts of
misconduct during both the guilt and penalty phases, including misconduct during
We reject defendant’s claim that there were “unacknowledged” agreements
that Jacqueline H. testify in a certain manner. Although bail had been reduced and
the preliminary hearing had been delayed in Jacqueline H.’s criminal cases,
defendant fails to establish any causal connection between these events and her
testimony in this case. The fact that the district attorney filed criminal charges
against Jacqueline H. after her preliminary hearing testimony indicates that
Jacqueline H. did not receive “unacknowledged” benefits in exchange for her trial
opening and closing arguments and introducing inflammatory and prejudicial
evidence.16 However, he did not object to any of these instances at trial. Because
an objection could have cured any harm, the contentions are not cognizable on
appeal.17 (People v. Hillhouse, supra, 27 Cal.4th at p. 501.)
Defendant argues that there was no waiver because objections would have
been futile. We have reviewed the comments defendant cites and find no
pervasive misconduct indicating the futility of objecting. (People v. Hillhouse,
supra, 27 Cal.4th at pp. 501-502; People v. Riel (2000) 22 Cal.4th 1153, 1212-
1213.) Many of the prosecutors’ comments were fair inferences drawn from the
evidence. (People v. Osband (1996) 13 Cal.4th 622, 700.) Moreover, the
prosecutors’ use of “I believe” before their argument that death was the
appropriate penalty was not an improper injection of their personal beliefs, but
simply a permissible “rhetorical device” to urge the jury, after weighing the
aggravating and mitigating circumstances, to return a verdict of death. (Id. at p.
722 [“ ‘I think,’ ” preceding the argument that defendant should “ ‘have no
Although this claim involves both the guilt and penalty phases, we consider
the entire claim here because the arguments are related.
In addition to the forfeited prosecutorial misconduct claims, defendant
contends that the Secret Witness program’s payment to him for information on the
location of the victims’ bodies constituted outrageous government conduct in
violation of his due process rights because it provided the incentive for murder.
Because defendant failed to raise this claim or present evidence to support it, the
claim is forfeited. In any event, it would fail. Even assuming the Secret Witness
program acted as a government agent, its conduct fell far short of government
conduct “ ‘so grossly shocking and so outrageous as to violate the universal sense
of justice’ ” (United States v. Restrepo (9th Cir. 1991) 930 F.2d 705, 712.) There
was no direct and continuous government involvement in the creation and
maintenance of criminal operations. (See United States v. Mitchell (9th Cir. 1990)
915 F.2d 521, 525-526 [due process prevents conviction where undercover agents
engineer and direct the criminal enterprise from start to finish].)
recourse to our sympathies,’ ” did not improperly inject prosecutor’s personal
beliefs into the argument].)
Regarding some of the alleged instances of prosecutorial misconduct,
defendant claims defense counsel were ineffective for not objecting. However,
deciding whether to object is inherently tactical, and the failure to object will
rarely establish ineffective assistance. (People v. Hillhouse, supra, 27 Cal.4th at p.
502; People v. Scott (1997) 15 Cal.4th 1188, 1223.) As we explain, this is not one
of those rare cases.
First, defendant claims that defense counsel should have objected to the
prosecutor’s “serial killer theme” during the opening and closing arguments in
which the prosecutor often improperly referred to the crimes as “murders,” to the
perpetrator as a “killer,” to the murders as part of a series of killings by the same
person, and to defendant as a “serial killer.” These references appear to be apt
descriptions of the crime and the person who committed them. (People v.
Edwards (1991) 54 Cal.3d 787, 840 [use of the word “execution” was an apt
description of the crime].) Moreover, counsel could have reasonably concluded
that the prosecutor’s comments, as well as his characterizations of the defense
expert’s testimony, were fair inferences drawn from the evidence. Thus, counsel
cannot be faulted for failing to object. (People v. Price, supra, 1 Cal.4th at p. 387
[counsel not ineffective for failing to make futile objections].)
Second, defendant argues that the prosecutor improperly introduced various
statements defendant made to Landreth, the police, Dr. Curiale, and Shelley Sly,
and that defense counsel was incompetent for failing to object to these statements
as inflammatory and prejudicial, improperly reinforcing the prosecutor’s “serial
killer theme.” However, these statements were parts of interviews or
conversations in which defendant made admissions establishing consciousness of
guilt or made false statements as part of his attempt to evade detection and deceive
the police. Evidence Code section 356 permits introduction of statements “on the
‘same subject’ ” or which are necessary for the understanding of the statements
already introduced. (People v. Breaux (1991) 1 Cal.4th 281, 302.) The isolated
statements defendant cites were themselves either admissions or necessary to
understand the context of defendant’s admissions, and were relevant to show a
culpable state of mind. Thus, counsel could reasonably have chosen not to object
to the evidence or to the prosecutor’s reference to such evidence during argument.
Third, defendant faults defense counsel for failing to object to the
prosecutor’s comparison of defendant to Nazi leaders Adolf Eichmann (during
closing argument at the guilt phase) and Adolf Hitler (during closing argument at
the penalty phase). However, the prosecutor’s reference to “one of the main
executioners at a Nazi concentration camp,” without reference to a specific name,
was made only to point out that multiple murderers can look like “common,
ordinary looking” people, such as defendant. (People v. Jones (1997) 15 Cal.4th
119, 180 [prosecutor’s references to notorious murderers who committed heinous
crimes for irrational purposes but apparently were legally sane was not
misconduct], overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800,
823, fn. 1.) Nor did the prosecutor refer to Hitler by name or compare defendant
to Hitler. He simply noted that the anniversary of the beginning of World War II
fell on that day of trial and argued that defendant “waged a war on society and
society had to struggle back,” as it did during World War II. The prosecutor did
not suggest that the offenses charged against defendant were as heinous as those
committed by Eichmann or Hitler. (Jones, supra, at p. 180.) Counsel was not
incompetent for failing to object. (People v. Harpool (1984) 155 Cal.App.3d 877,
886 [counsel is not required to make futile objections or motions merely to create
a record impregnable to assault for claimed inadequacy of counsel].)
Fourth, defendant claims that, during the penalty phase closing argument,
the prosecutor improperly argued that defendant “forfeited his right to sympathy
and redemption.” Contrary to defendant’s argument, the prosecutor did not tell the
jury it could not consider sympathy, but properly argued that under the facts of the
case, defendant does not deserve sympathy. “Although a jury is entitled to
consider sympathy in its penalty determination—and it would be improper to
suggest otherwise [citation]—the jury is not required to feel sympathy for
murderers. The prosecution may properly argue that the particular facts do not
warrant sympathy; the defense may properly argue the opposite.” (People v.
Edwards, supra, 54 Cal.3d at p. 840.) Again, counsel was not incompetent for
failing to object.
Finally, contrary to defendant’s claim, the three murders were not “close”
cases. Rather, the evidence against defendant was overwhelming. Any reasonable
jury would have reached the same verdicts in the absence of the alleged instances
of prosecutorial misconduct. (People v. Bolton (1979) 23 Cal.3d 208, 214.)
5. Instructional Issues
a. Duress instruction
At trial, defendant claimed that he struck Weeden with a rock under duress
because he feared that Morris would shoot him if he did not do so. The trial court
instructed that “A person is not guilty of a crime when he engages in conduct,
otherwise criminal, when acting under threats and menaces under the following
circumstances: [¶] 1. Where the threats and menaces are such that they would
cause a reasonable person to fear that his life would be in immediate danger if he
did not engage in the conduct charged and [¶] 2. If such person then believed
that his life was so endangered.” (See CALJIC No. 4.40 (5th ed. 1988).) The
court also instructed that such threats are not a defense “[w]here a person commits
a crime punishable with death” and that “[a] first degree murder with a special
circumstance is a crime punishable with death.” (See CALJIC No. 4.41 (5th ed.
that the limitation in CALJIC No. 4.41 deprived him of
a duress defense to the Weeden murder in violation of the Eighth Amendment and
his right to due process. He argues that the multiple-murder special-circumstance
allegation permitted classifying the Weeden homicide as a crime punishable by
death under section 26 and that, had he been tried separately on that charge before
the deaths of Berryhill and Stark, he would have been entitled to a duress defense
without limitation. However, duress is not a defense to any murder. (People v.
Anderson (2002) 28 Cal.4th 767, 770, 780.) Because the instructions were unduly
favorable to defendant, he cannot complain.
Although duress cannot reduce murder to manslaughter by negating malice
(People v. Anderson, supra, 28 Cal.4th at pp. 770, 781-784), the court nevertheless
gave instructions that authorized the jury to consider the effect of threats on the
mental states requisite to murder and manslaughter. The jury was told that to
establish that a killing is murder, the prosecution had the burden of proving
beyond a reasonable doubt that the “act which caused the death was not done . . .
in a killing punishable by death, in the honest belief in the necessity to protect
oneself against imminent peril to life or great bodily injury, whether or not that
belief was reasonable or unreasonable.” It was further told that “there is no malice
aforethought in a killing punishable by death if the killing occurred in the honest
belief in the necessity to protect oneself against imminent peril to life or great
bodily injury, whether or not that belief was reasonable or unreasonable” and that,
in such instance, the offense is voluntary or involuntary manslaughter. Again,
because the instructions were unduly favorable to defendant, he cannot complain.
Although defendant was deprived of the complete defense of duress, he was
permitted to use the same underlying facts to mitigate the crime. Thus, in finding
defendant guilty of murdering Weeden, the jury necessarily rejected defendant’s
duress defense. (People v. Beardslee (1991) 53 Cal.3d 68, 86-87; People v.
Sedeno (1974) 10 Cal.3d 703, 721, overruled on other grounds in People v.
Breverman (1998) 19 Cal.4th 142, 149.)
b. Unanimity instruction
the trial court was required to instruct sua sponte
in the language of CALJIC No. 17.01 that, before finding defendant guilty of the
murder of Weeden, the jurors had to agree unanimously on the act or acts that
caused her death. He claims that the instruction was mandatory because the
evidence reflected that Weeden’s death could have resulted from either
strangulation or being hit on the head with a rock, or from the combination of both
injuries. We reject that claim.
The medical examiner testified that Weeden’s death was caused by
strangulation, a blow to the head, or a combination of both injuries. Initially,
defendant called the Secret Witness program and told Landreth that “Bob”
strangled Weeden with a nylon clothesline on a trail and dragged her body to the
location where it was found. In a later telephone call to Landreth, defendant
repeated that information, but added that she had been hit with a rock to ensure her
death. Defendant later told the police that Morris strangled Weeden to death with
a rope, that Morris dumped her body in the woods, and that he threw rocks at her
body even though she was already dead. Still later, defendant told the police that
although Morris strangled Weeden, he forced defendant to strike her on the head
with a rock. Defendant was not sure if Weeden was dead when he struck her. The
prosecution’s theory was that defendant killed Weeden by strangulation or a
combination of strangulation and a blow to the head. The defendant’s theory was
that he did not strangle Weeden, but merely struck her with a rock under duress.
A requirement of jury unanimity typically applies to acts that could have
been charged as separate offenses. (People v. Jenkins (2000) 22 Cal.4th 900,
1025; People v. Beardslee, supra, 53 Cal.3d at p. 92.) A unanimity instruction is
required only if the jurors could otherwise disagree which act a defendant
committed and yet convict him of the crime charged. (Beardslee, supra, at p. 93.)
Here, the evidence did not reflect multiple independent acts, any of which could
have led to Weeden’s death. Rather, the evidence showed that the ligature
strangulation contributed, at least in part, to her death. The prosecution contended
that defendant committed both acts and that Weeden’s death was caused by
strangulation or strangulation in combination with the blow to the head.
Defendant did not contest that Weeden’s death was caused, at least in part, by the
strangulation. Instead, he claimed that a man named Morris strangled her and that
Morris forced him to throw a rock at her. Thus, the two theories were based on a
continuous course of conduct, whose acts were so closely connected in time as to
form part of one transaction. (People v. Crandell (1988) 46 Cal.3d 833, 875,
disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-
365; People v. Dominick (1986) 182 Cal.App.3d 1174, 1208.)
Defendant argues that a unanimity instruction was necessary because some
jurors might have decided that defendant strangled her, while others might have
determined that he inflicted a death blow to the head without strangling her.
However, even if some of the jurors believed that defendant strangled Weeden,
they would have concluded that he was the actual perpetrator. If some jurors
believed that defendant only threw a rock at Weeden’s head after she was already
dead, they would have found no causation. But if some of the jurors believed that
defendant only threw a rock at Weeden while she was still alive, while rejecting a
duress defense, they would have concluded that he was an aider and abettor.
Thus, defendant’s conduct as an aider and abettor or as a direct perpetrator could
result only in one criminal act and one charge. (People v. Jenkins, supra, 22
Cal.4th at p. 1025.) “Under these circumstances, ‘[j]urors need not unanimously
agree on whether the defendant is an aider and abettor or a principal even when
different evidence and facts support such conclusion.’ ” (Id. at pp. 1025-1026; see
also People v. Champion (1995) 9 Cal.4th 879, 931 [two theories that defendant
was the actual perpetrator and aider and abettor were based on a single course of
conduct]; People v. Beardslee, supra, 53 Cal.3d at p. 93 [same].)
c. Reasonable but mistaken belief in consent
Defendant contends that the trial court erred in failing to instruct, sua
sponte, on the defense of reasonable and good faith mistake of fact regarding a
person’s consent to sexual intercourse (CALJIC No. 10.65; People v. Mayberry
(1975) 15 Cal.3d 143, 153-158). Our review of the record shows no substantial
evidence to trigger a sua sponte obligation to give such an instruction.
Mayberry defense has two components, one subjective, and one
objective. The subjective component asks whether the defendant honestly and in
good faith, albeit mistakenly, believed that the victim consented to sexual
intercourse. In order to satisfy this component, a defendant must adduce evidence
of the victim’s equivocal conduct on the basis of which he erroneously believed
there was consent. [¶] In addition, the defendant must satisfy the objective
component, which asks whether the defendant’s mistake regarding consent was
reasonable under the circumstances. Thus, regardless of how strongly a defendant
may subjectively believe a person has consented to sexual intercourse, that belief
must be formed under circumstances society will tolerate as reasonable in order
for the defendant to have adduced substantial evidence giving rise to a Mayberry
instruction.” (People v. Williams (1992) 4 Cal.4th 354, 360-361, fn. omitted.)
A trial court’s duty to instruct, sua sponte, on particular defenses arises
“ ‘only if it appears that the defendant is relying on such a defense, or if there is
substantial evidence supportive of such a defense and the defense is not
inconsistent with the defendant’s theory of the case.’ ” (People v. Barton (1995)
12 Cal.4th 186, 195, citing People v. Sedeno, supra, 10 Cal.3d at p. 716; People v.
Rhoades (1987) 193 Cal.App.3d 1362, 1367; People v. Romero (1985) 171
Cal.App.3d 1149, 1156.) Here, defendant concedes that he did not rely at trial on
the defense of mistake of fact. Rather, defendant contends that the prosecution’s
evidence supported such a defense and that the defense was consistent with his
theory of the case. We disagree.
The prosecution’s evidence showed that Jacqueline H. agreed to
accompany defendant only after defendant tricked her by saying that her friend
was having a party and offering to take her there. After defendant drove her to a
deserted area, Jacqueline H. became scared and asked defendant to take her home.
Defendant then placed and tightened a rope around her neck, and demanded that
she take off her clothes. Defendant then ordered her to lie down and raped her. A
defendant relying on a Mayberry defense must produce some evidence of the
victim’s equivocal conduct that led him reasonably to believe she consented to the
act. (People v. Bruce (1989) 208 Cal.App.3d 1099, 1104; People v. Romero,
supra, 171 Cal.App.3d at p. 1156.) However, here, we see no substantial evidence
of the victim’s “equivocal conduct that would have led a defendant to reasonably
and in good faith believe consent existed where it did not.” (People v. Williams,
supra, 4 Cal.4th at p. 362.)
Moreover, defendant offered no evidence showing he believed that
Jacqueline H. had consented to sexual intercourse. To warrant a court’s giving
CALJIC No. 10.65, the record must contain evidence, whether direct or
circumstantial, of the defendant’s state of mind at the time the offense was
committed. (People v. Simmons (1989) 213 Cal.App.3d 573, 581; People v.
Rhoades, supra, 193 Cal.App.3d at p. 1369.) Defendant did not testify. He
presented neither circumstantial evidence of his state of mind at the time of the
offense nor evidence that controverted the victim’s testimony regarding the
circumstances of the offense. Instead, defendant presented only evidence of
Jacqueline H.’s dishonest character, drug addiction, and motive to lie. During
closing argument, he argued that Jacqueline H. lied about the rape and surrounding
events, and suffered from drug-induced paranoia at the time of the offense.
Indeed, defendant never admitted that he engaged in sex with Jacqueline H.,
consensual or otherwise. (See People v. Gonzalez (1983) 141 Cal.App.3d 786,
793 [Mayberry instruction need not be given sua sponte if defendant does not
testify and the “only ‘evidence’ concerning his belief was his counsel’s theory
[mistake of fact] in closing argument”].) Thus, an instruction on the defense of
reasonable but mistaken belief in consent would have been inconsistent with
defendant’s theory of the case.
Accordingly, under these circumstances, the trial court had no sua sponte
duty to instruct on the Mayberry defense. (People v. Rhoades, supra, 193
Cal.App.3d at p. 1369 [no sua sponte duty to give Mayberry instruction where
“[d]efendant’s counsel never suggested he was relying on the mistake of fact
defense, tendered no evidence to support such a defense, and did not request the
instruction defendant now claims it was error to withhold”].)
d. Reasonableness of fear of immediate and unlawful bodily injury
Defendant claims that the trial court committed reversible error in failing to
instruct sua sponte on an “essential element of the rape charge,” that Jacqueline
H.’s fear of immediate and unlawful bodily injury had to be reasonable.
We rejected a similar claim in People v. Anderson (1966) 64 Cal.2d 633.
There, the defendant argued that the trial court had a sua sponte duty to instruct the
jury as to the requisite force or fear as necessary elements of the crime of robbery.
We responded as follows: “[Defendant] does not, however, challenge the content
of the robbery instructions given, nor did he request any additional instructions at
the trial. [¶] Defendant’s contention essentially is that the instructions given
needed amplification or explanation; but since he did not request such
amplification or explanation, error cannot now be predicated upon the trial court’s
failure to give them on its own motion.” (Id. at p. 639.)
Similarly, here, the trial court properly instructed the jury on the general
principles of law governing the rape charge. In giving CALJIC No. 10.00 (5th ed.
1988), the trial court instructed on the specific elements of rape, including the
requirement that the act of sexual intercourse “was accomplished by means of
force, violence, or fear of immediate and unlawful bodily injury.”18 Since the
instruction given did not omit or withdraw an element from the jury’s
determination, defendant was required to request an additional or clarifying
instruction if he believed that the instruction was incomplete or needed
The trial court read to the jury the fifth edition of CALJIC No. 10.00
(1988), which did not include amplifying language regarding the reasonableness
of the victim’s fear. CALJIC No. 10.00 (6th ed. 1996) now adds: “[The fear of
immediate and unlawful bodily injury must be actual and reasonable under the
circumstances [, or if unreasonable, the perpetrator must have known of the
victim’s fear and taken advantage of it].]”
elaboration. (People v. Cox (1991) 53 Cal.3d 618, 669; People v. Bell (1989) 49
Cal.3d 502, 550.) This he failed to do.
Moreover, the failure to give a clarifying instruction could not have
affected the outcome. Given Jacqueline H.’s testimony that she was alone and
“scared to death” when defendant tightened the rope around her neck and forced
her to disrobe and lie down, it is inconceivable that the jury would have
determined that Jacqueline H.’s fear, before and during the sexual assault, was
unreasonable. In addition, the evidence overwhelmingly supported a finding that
the rape was accomplished by the other alternative means of force and violence.19
e. Variance between information and rape instruction
The amended information charged defendant with “FORCIBLE RAPE, in
violation of Section 261(2) of the Penal Code, a felony” and alleged that he
committed the willful and unlawful act of sexual intercourse “by means of force
and fear of immediate and unlawful bodily injury.” The jury was instructed that it
could find defendant guilty of rape by determining that he had accomplished the
act of sexual intercourse “by means of force, violence, or fear of immediate and
unlawful bodily injury.” Defendant claims that his Sixth Amendment right to
Defendant argues that the jury could have believed part of her testimony,
that she became afraid that defendant was going to kill her during the motorcycle
ride to the Happy Valley area, but disbelieved that defendant forced her, with a
rope tied around her neck, to submit to sexual intercourse. If so, it could have
further determined that the fear of being killed during the motorcycle ride was
unreasonable and was the sole reason Jacqueline H. submitted to sexual
intercourse. Aside from being speculative, defendant’s argument ignores the
defense theory of the case at trial. Defense counsel argued that Jacqueline H. may
have experienced drug-induced paranoia causing her to “see things different than
reality” and think “that she’s being raped.” Counsel never conceded that an act of
sexual intercourse ever took place between defendant and Jacqueline H.
notice and his right to due process were violated because the jury might have
convicted him of an uncharged offense, rape by means of violence. We disagree.
First, defendant has forfeited his right to object to an alleged variance
between the pleading and the proof by failing to raise the objection in the trial
court. (People v. Blankenship (1951) 103 Cal.App.2d 60, 66, disapproved on
other grounds in People v. Collins (1960) 54 Cal.2d 57, 60.)
Second, contrary to defendant’s assertion, rape by means of violence is not
a different offense from rape by means of force or fear; these terms merely
describe different circumstances under which an act of intercourse may constitute
the crime of rape. (See People v. Collins, supra, 54 Cal.2d at p. 59.)
Third, defendant has failed to show or even assert that he was prejudiced by
the variance. (People v. Thomas (1987) 43 Cal.3d 818, 828, 830.) “The test of the
materiality of variance in an information is whether the pleading so fully and
correctly informs a defendant of the offense with which he is charged that, taking
into account the proof which is introduced against him, he is not misled in making
his defense.” (People v. Guerrero (1943) 22 Cal.2d 183, 187.) Here, the
information charged defendant with forcible rape, in violation of former section
261, subdivision (2). That section defined rape in 1987 as “an act of sexual
intercourse accomplished with a person not the spouse of the perpetrator . . .
[w]here it is accomplished against a person’s will by means of force, violence, or
fear of immediate and unlawful bodily injury on the person or another.” (As
amended by Stats. 1986, ch. 1299, § 1, p. 4592.) Thus, defendant was put on
notice by the information that he was being charged with an offense that could be
accomplished “by means of force, violence, or fear of immediate and unlawful
bodily injury.” Moreover, Jacqueline H.’s testimony at the preliminary hearing
gave defendant notice of the particular circumstances of the offense, i.e., that her
testimony could support a finding of rape by means of violence, as well as by
means of force or fear. (Thomas, supra, at pp. 829-830.)
Finally, the variance was not of such a substantial character as to have
misled defendant in preparing his defense. (People v. Collins, supra, 54 Cal.2d at
p. 60.) Here, in finding defendant guilty of rape, the jury found Jacqueline H.’s
testimony credible. That evidence equally supported findings of rape by means of
force, violence, or fear. It is inconceivable that the jury would have found
defendant guilty of rape by means of violence, but not by means of force or fear.
Under these circumstances, the variance was immaterial.
f. Reasonable doubt issues
Without objection, the trial court gave the standard instructions on (1)
circumstantial evidence (CALJIC Nos. 2.01 [sufficiency of circumstantial
evidence–generally], 2.02 [sufficiency of circumstantial evidence to prove
specific intent], 8.83 [sufficiency of circumstantial evidence to prove the special
circumstance], and 8.83.1 [sufficiency of circumstantial evidence to prove mental
state]); (2) the credibility and weight of the evidence (CALJIC Nos. 2.21.2
[witness willfully false] and 2.22 [weighing conflicting testimony]); and (3) the
definition of reasonable doubt (CALJIC No. 2.90). Defendant claims that those
instructions given, singly and collectively, impermissibly diluted the reasonable
Regarding the instructions on circumstantial evidence, we have repeatedly
rejected defendant’s argument. Those instructions, which refer to an interpretation
of the evidence that “appears to you to be reasonable” and are read in conjunction
with other instructions, do not dilute the prosecution’s burden of proof beyond a
reasonable doubt. (People v. Hughes, supra, 27 Cal.4th at pp. 346-347; People v.
Osband, supra, 13 Cal.4th at pp. 678-679; People v. Ray, supra, 13 Cal.4th at pp.
Regarding CALJIC No. 2.21.2, defendant argues that it lowers the standard
of proof for conviction by permitting the jury to assess the testimony of
prosecution witnesses under a “probability of truth” standard.20 We have rejected
a similar claim that the instruction, as applied to the defendant’s testimony,
increases the burden of proof from raising a reasonable doubt to meeting a
“probability of truth.” (People v. Beardslee, supra, 53 Cal.3d at p. 94.) “The
qualification attacked by defendant as shifting the burden of proof (‘unless from
all the evidence you shall believe the probability of truth favors his testimony in
other particulars’) is merely a statement of the obvious—that the jury should
refrain from rejecting the whole of a witness’s testimony if it believes that the
probability of truth favors any part of it. [¶] Thus CALJIC No. 2.21 does nothing
more than explain to a jury one of the tests they may use in resolving a credibility
dispute.” (Beardslee, supra, at p. 95.) Although defendant here attacks the
instruction as applied to prosecution witnesses, the same rationale applies.
(People v. Brown (1996) 42 Cal.App.4th 1493, 1502-1503; People v. Wade (1995)
39 Cal.App.4th 1487, 1493-1494; People v. Foster (1995) 34 Cal.App.4th 766,
772-776.) When CALJIC No. 2.21.2 is considered in context with CALJIC Nos.
1.01 (consider instructions as a whole) and 2.90 (burden of proof), “the jury was
adequately told to apply CALJIC No. 2.21.2 ‘only as part of the process of
determining whether the prosecution had met its fundamental burden of proving
CALJIC No. 2.21.2 provides: “A witness, who is willfully false in one
material part of his or her testimony, is to be distrusted in others. You may reject
the whole testimony of a witness who willfully has testified falsely as to a material
point, unless, from all the evidence, you believe the probability of truth favors his
or her testimony in other particulars.”
[defendant’s] guilt beyond a reasonable doubt.’ [Citation.]” (Foster, supra, at p.
Regarding CALJIC No. 2.22, defendant argues that it impermissibly dilutes
the reasonable doubt standard because it allows the jury to resolve conflicting
testimony by weighing “the convincing force of the evidence.”21 Again, when this
instruction is considered with CALJIC Nos. 1.01 and 2.90, “ ‘[I]t is apparent that
the jury was instructed to weigh the relative convincing force of the evidence
(CALJIC No. 2.22) only as part of the process of determining whether the
prosecution had met its fundamental burden of proving [defendant’s] guilt beyond
a reasonable doubt . . . .’ ” (People v. Clay (1984) 153 Cal.App.3d 433, 461-462;
People v. Salas (1975) 51 Cal.App.3d 151, 157.)
Finally, with respect to former CALJIC No. 2.90, we have repeatedly held
that the phrases “depending on moral evidence” and “to a moral certainty”
correctly define reasonable doubt. (People v. Turner (1994) 8 Cal.4th 137, 203;
People v. Jennings (1991) 53 Cal.3d 334, 385-386.) Because the instruction,
individually, correctly defines reasonable doubt, we reject defendant’s claim that
this instruction, when considered together with the other complained-of
instructions, was improper. (People v. Osband, supra, 13 Cal.4th at pp. 678-679.)
CALJIC No. 2.22 provides: “You are not bound to decide an issue of fact in
accordance with the testimony of a number of witnesses, which does not convince
you, as against the testimony of a lesser number or other evidence, which appeals
to your mind with more convincing force. You may not disregard the testimony of
the greater number of witnesses merely from caprice, whim or prejudice, or from a
desire to favor one side against the other. You must not decide an issue by the
simple process of counting the number of witnesses [who have testified on the
opposing sides]. The final test is not in the [relative] number of witnesses, but in
the convincing force of the evidence.”
g. Alleged Carlos error
Carlos v. Superior Court (1983) 35 Cal.3d 131, we incorrectly held that
intent to kill was a necessary element of the felony-murder special circumstance,
and in People v. Turner (1984) 37 Cal.3d 302, we extended the Carlos holding to
the multiple-murder special circumstance. In People v. Anderson (1987) 43
Cal.3d 1104, 1149, we overruled both Carlos and Turner, dispensing with the
requirement of an intent to kill by the actual killer. Because the murders here
occurred during the “window period” between Turner and Anderson, the intent to
kill requirement of Turner applies to the multiple-murder special circumstance
charged in connection with those murders. (People v. Johnson (1993) 6 Cal.4th 1,
In accordance with Turner, the trial court instructed on the multiple-murder
special-circumstance allegation as follows:
“To find the special circumstance, referred to in these instructions as
multiple murder convictions, is true, it must be proved:
“1. The defendant has in this case been convicted of at least one crime of
murder of the first degree and one or more crimes of murder of the first or second
“2. That the defendant intended to kill a human being or intended to aid
another in the killing of a human being in one first degree murder of which you
have found him guilty and in at least one other murder of which you have found
him guilty.” (Italics added; see CALJIC No. 8.81.3.)
Regarding the above instruction, defendant does not claim that the trial
court incorrectly instructed on the intent requirement for the actual killer. Rather,
he contends that the court erroneously instructed on the intent requirement with
respect to aider-and-abettor liability. He argues that the instruction did not
necessarily require the jury to find that the aider and abettor intended to kill,
because one may intend to aid another who happens to kill someone but not intend
to kill that person. However, based on the instructions given and the evidence
presented, we conclude that, if the jury predicated murder liability on an aiding
and abetting theory, it necessarily found that defendant intended to kill.
Of all three murders, the evidence supported an aiding and abetting theory
only on the Weeden murder count. That evidence consisted solely of defendant’s
extrajudicial statements to the police that he happened to come upon Morris as he
was strangling Weeden. Initially, defendant stated that he believed Weeden was
dead after Morris strangled and dropped her, but later stated that he was not sure if
she was dead at that time. He also related that Morris forced him at gunpoint to
strike Weeden on the head with a rock so no one would know how she died.
On the remaining murder counts, there was no evidence that defendant
aided and abetted another in the killings of Berryhill or Stark. Based on the
evidence, the jury could only find defendant guilty of murder as the actual killer of
those victims. Yet the jury was properly instructed that the actual killer must have
intended to kill a human being as an element of the multiple-murder special
circumstance. Thus, if the jury predicated its multiple-murder special-
circumstance finding on the Berryhill or Stark murder conviction, it was correctly
instructed that intent to kill was an element. Indeed, as defendant concedes, the
jury expressly found that the first degree murder of Berryhill was “perpetrated by
a wilful, deliberate, and premeditated killing” and thus necessarily determined that
defendant intended to kill Berryhill. Because the multiple-murder special-
circumstance finding required the jury to have found at least two intentional
killings and we are not sure which two murder convictions the jury used to support
that finding, we examine whether the jury could have determined that defendant
intended to aid and abet Morris in the killing of Weeden without intending to kill
her, as defendant asserts.
The jury was instructed, in the language of CALJIC No. 3.00, that “The
persons concerned in the commission of a crime who are regarded by law as
principals in the crime thus committed and equally guilty thereof include: [¶]
1. Those who directly and actively commit the act constituting the crime, or [¶]
2. Those who aid and abet the commission of the crime.” The trial court further
instructed, in the language of CALJIC No. 3.01, that “A person aids and abets the
commission of a crime when he (1) with knowledge of the unlawful purpose of the
perpetrator and (2) with the intent or purpose of committing, encouraging, or
facilitating the commission of the crime, by act or advice aids, promotes,
encourages or instigates the commission of the crime.” The challenged instruction
told the jury that a multiple-murder special-circumstance finding required that
defendant “intended to kill a human being or intended to aid another in the killing
of a human being.” But in the context of all of the instructions given, the jury was
also told that to find aider and abettor liability, it must find both that defendant
intended to commit the “aiding” act of killing Weeden and that he did so with
knowledge of the perpetrator’s criminal purpose, i.e., to kill her. (People v.
Bunyard (1988) 45 Cal.3d 1189, 1242.)
Moreover, there was no evidence to support a finding that defendant aided
Morris in killing Weeden without knowing that Morris intended to kill her.
According to defendant’s story to the police, Morris forced defendant to strike
Weeden on the head with a rock to mask the cause of death. Thus, if the jury
believed defendant and found that he intentionally aided and abetted the actual
killer, as required by the challenged instruction, it necessarily found, under the
instructions and evidence given, that he knew he was aiding in an intentional
killing. The jury could not have found that defendant “aided” the killing only
accidentally or unintentionally. (People v. Hardy (1992) 2 Cal.4th 86, 192-193;
People v. Garrison (1989) 47 Cal.3d 746, 790-791.) On the other hand, if the jury
found defendant was the actual killer of Weeden, it was properly instructed on
intent to kill. Under the circumstances of this case, we conclude that the jury
necessarily found defendant intended to kill in at least two of the murders.
(People v. Marshall (1996) 13 Cal.4th 799, 852; Hardy, supra, at pp. 192-193.)
Even if error had occurred, it was harmless. (People v. Johnson, supra, 6
Cal.4th at pp. 44-46.) Given defendant’s admissions, his many inconsistent
statements, and his attempts to capitalize financially from the killings,
overwhelming evidence existed of his intent to kill all his victims.
D. Penalty Phase Issues
1. Admissibility of Polygraph Evidence
Defendant claims that the trial court’s refusal to admit evidence of the
polygraph result regarding Weeden’s death violated his right, under the Eighth and
Fourteenth Amendments, to have relevant mitigating evidence presented to the
At trial, defendant argued that evidence that he “passed” the polygraph test
regarding Weeden’s death was admissible as a factor in mitigation and to establish
lingering doubt. The trial court denied the request to admit the evidence, relying
on Evidence Code sections 351.1 and 352. It found that any “possible probative
value” of the polygraph evidence was outweighed by its “doubtful reliability” and
the fact that its admission would be “potentially cumbersome and time-
The Attorney General argues that “the unambiguous language of Evidence
Code section 351.1, subdivision (a), prohibits the admission of the polygraph
results in the present case.” He asserts that United States v. Scheffer, supra, 523
U.S. at pages 309-316, disposes of defendant’s claim. Relying on Paxton v. Ward
(10th Cir. 1999) 199 F.3d 1197, defendant responds that a state court’s rule of
evidence may not be mechanically applied to infringe on a defendant’s rights
under the Eighth and Fourteenth Amendments to present mitigating evidence in a
capital case. (Paxton, supra, at p. 1214; but cf. Goins v. Angelone (4th Cir. 2000)
226 F.3d 312, 326, fn.7 [“ ‘[U]nder current controlling precedent, the Constitution
does not mandate admission of polygraph results in capital sentencing
proceedings’ ”].) Paxton ruled that Scheffer is distinguishable because it did not
involve a capital defendant’s constitutional right to present mitigating evidence.
(Paxton, supra, at p. 1215.) Unlike Paxton, here the trial court did not deny
admission of the polygraph results based on a mechanical application of Evidence
Code section 351.1. Rather, the court exercised its discretion under Evidence
Code section 352, finding that any “possible probative value” of the polygraph
evidence was outweighed by its “doubtful reliability.”
If Evidence Code section 351.1 permits a defendant to make a Kelly/Frye
showing (see ante, at p. 77), as in the guilt phase, defendant failed to present an
offer of proof that polygraph evidence was generally accepted in the scientific
community. Because such an offer of proof is necessary to preserve the issue for
appeal, defendant cannot assign error in the trial court’s ruling. (People v. Fudge,
supra, 7 Cal.4th at p. 1122; see also People v. Burgener (2003) 29 Cal.4th 833,
870.) Without the threshold showing of reliability, polygraph evidence is not
“highly relevant” to the question of proper punishment. (Fudge, supra, at pp.
1122-1123 [polygraph evidence was not “highly relevant” mitigating evidence
demonstrating good character or supporting a lingering doubt of guilt].) In
addition, defendant failed to show that the particular polygraph test results being
proffered were reliable. Unlike this case, in Paxton, the reliability of the excluded
polygraph evidence in that individual case was demonstrated by the fact that the
state relied on it in dismissing an earlier charge against defendant. (Paxton v.
Ward, supra, 199 F.3d at p. 1214.)
that the polygraph evidence was relevant mitigating
evidence on the issue of relative culpability. He argues that some jurors, at the
guilt phase, could have based their first degree murder verdict on the finding that
defendant did not kill Weeden, but only aided and abetted Morris in the
commission of felony robbery during which Weeden was killed. Thus, he argues,
the polygraph test results showing that defendant did not kill Weeden would
support his lack of culpability. However, there was no evidence that defendant
aided and abetted Morris in the commission of a robbery, but only evidence that
he aided and abetted Morris in the commission of murder, i.e., defendant’s
extrajudicial statement that Morris forced him to throw a rock at Weeden.
Although there was evidence that Morris took Weeden’s truck, there was no
substantial evidence that Weeden’s killing was committed to take her truck. Thus,
exclusion of the polygraph test results was not “highly relevant” to the question of
2. Denial of Mistrial Motion
Defendant contends that the trial court abused its discretion in failing to
grant his motion for a mistrial after the jury foreman was replaced with an
alternate juror during the penalty phase. On appeal, we review the trial court’s
denial of a motion for mistrial under the deferential abuse of discretion standard.
(People v. Mayfield (1997) 14 Cal.4th 668, 756.) The decision whether to
investigate possible juror bias, incompetence, or misconduct, as well as the
ultimate decision whether to retain or discharge a juror, rests within the sound
discretion of the trial court. (People v. Bradford, supra, 15 Cal.4th at p. 1351.) If
any substantial evidence exists to support the trial court’s exercise of its discretion,
the court’s action will be upheld on appeal. (Ibid.) Here, the trial court did not
abuse its discretion.
August 24, 1989, the jury returned its guilt phase
verdicts and special circumstance findings. On the following day, the jury
foreman, Jimmie K., informed the clerk that he had concerns about the trial. On
Tuesday, August 29, the trial court questioned Jimmie K. about his concerns. The
foreman related that after the proceedings had been adjourned on Thursday
afternoon following the guilt phase verdicts, he overheard a female bartender
telling someone that she knew defendant. When Jimmie K. asked how she knew
defendant, the bartender responded that defendant had choked and attempted to
rape her in 1984 or 1985. The trial court granted defendant’s challenge of the
foreman. Jimmie K. then informed the court that another juror, Annette S., was
present during part of his conversation with the bartender. Because he left without
discussing the conversation with Annette S., he did not know if she overheard it.
Jimmie K. assured the court that he had not discussed the bartender incident with
any of the other jurors, including Juror Annette S.
On Wednesday, August 30, 1989, defendant moved for a mistrial on the
penalty phase, which the trial court denied. Later that day, the court examined
Juror Annette S. The juror informed the court that she overheard the bartender say
that she had a “run-in” with defendant and that “he was supposed to have choked
her.” When asked how that discussion affected her, Annette S. replied, “I don’t
know. You can’t believe everything you hear.” Defendant challenged Annette S.
The prosecutor opposed the challenge and proposed that the court inform her that
the prosecution investigated what the bartender had related and determined it was
not true. When the juror returned to the courtroom, the court told Annette S. that
the prosecution determined that defendant was not the person that the bartender
had been talking about. Annette S. assured the court that she accepted the fact that
defendant had not been involved in that incident and could disregard the
information she overheard. The court admonished Annette S. not to discuss the
bartender incident with any of the other jurors.
On the following day, the trial court deferred ruling on the defense
challenge of Annette S. After the parties had rested, but before the penalty phase
deliberations, the defense renewed the challenge to Annette S. The court granted
the motion and replaced Annette S. with an alternate juror.
Defendant now argues that the trial court should have granted a mistrial
because Jurors Jimmie K. and Annette S. might have spoken to the other jurors
about the bartender’s statement that defendant choked and attempted to rape her.
Defendant argues that Jimmie K. told the court that he had discussed “this matter”
in superficial ways with the other jurors and that “this matter” was a reference to
the bartender’s statement.22 The People respond that defendant misreads the
record and points out that, after the guilt phase verdict, the trial court adjourned
the proceedings and the jury did not return to court for the penalty phase until
Thursday, August 31, 1989. Because the bartender’s remark occurred after the
guilt phase verdicts and adjournment and the jury did not return to court until after
the court had questioned Jimmie K. on August 29, the juror’s reference to this
matter must have been to the guilt phase portion of trial, which had just been
completed before the jurors’ separation on August 24. For the same reasons, the
People state that Juror Annette S. could not have spoken to the other jurors about
Defendant relies on the juror’s response during the following exchange:
“[DEFENSE COUNSEL]: Q. Mr. [K.], did you find occasion to discuss
this case with any other juror prior to the deliberations?
“A. No, sir.
“Q. And how about after the verdict, did you discuss this matter with any
juror after the verdict?
“A. No, sir. In other than superficial ways, no; going down the stairs,
because we all separated there.” (Emphasis added.)
the outside information because the court questioned her on August 30, a day
before the jury returned to court.
In his reply brief, defendant concedes that the People’s chronology is
correct and that the evidence reflects that the two jurors could not have related the
bartender’s statements to the other jurors in the courthouse. Nevertheless, he
maintains that the trial court’s failure to ask Annette S. if she had already spoken
to other jurors about the outside information and to make similar inquiries of the
remaining jurors was prejudicial error. He argues that since Jimmie K. and
Annette S. socialized at the bar, they may have socialized and spoken with the
other jurors outside of court about the incident. In light of the record, this
argument is speculative.
Second, defendant complains that, because the 10 remaining original jurors
had already found him guilty of the charges beyond a reasonable doubt and were
so “entrenched” in their views of guilt, the two replacement jurors could not freely
deliberate and express opposing views of the evidence. We fail to see how that
argument supports his claim that the substitution of two jurors denied him a fair
and impartial jury. Indeed, if his premise is true, that the 10 guilt phase jurors
could not fairly and impartially deliberate as to the appropriate penalty, defendant
would be better off with two replacement jurors who were not so “entrenched” in
Third, defendant contends that the 10 remaining original jurors, who had
found defendant guilty of the charged offenses, could not possibly have
disregarded past guilt phase deliberations and begun deliberations anew as related
to the issue of lingering doubt. In light of the instructions given, that argument is
simply speculative. Because deliberations on the guilt phase of trial were
complete and verdicts of guilt had been returned, the jury was instructed that “you
are not required to again render verdicts as to the guilt or innocence of the
defendant nor truth of the special allegations. Those verdicts have already been
rendered in the guilt portion of the trial.” However, as to the deliberations relevant
in determining penalty, the jury was instructed that “The People and the defendant
have the right to a verdict reached only after full participation of the 12 jurors who
return the verdict. This right may be assured only if you begin your deliberations
again from the beginning. You must, therefore, set aside and disregard all past
deliberations and begin deliberating anew. This means that each remaining
original juror must set aside and disregard the earlier deliberations as if they had
not taken place.” The jurors were further told that they were to consider the
“circumstances of the crimes of which defendant was convicted” and “all of the
evidence which has been received during any part of the trial.” As to lingering
doubt, the jurors were instructed that “[t]o the extent that you have any lingering
or residual doubts as to the defendant’s guilt of the crimes of which he has been
convicted in this case, or the existence of any circumstances found to be true in
this case, you may consider such lingering or residual doubts as the basis for
determining that life imprisonment without possibility of parole is the appropriate
Thus, “the instructions made clear not only that lingering doubts as to guilt
could be considered in mitigation, but also that the penalty phase jury was to
deliberate on this question as an integrated whole, to set aside any previous
discussion on the question, and to review in its common deliberations any relevant
guilt phase evidence.” (People v. Cain (1995) 10 Cal.4th 1, 67.) In other
contexts, we have rejected defendant’s underlying premise that jurors, who had
previously returned guilty verdicts in the guilt phase of trial, could no longer be
impartial. (See People v. Bradford, supra, 15 Cal.4th at pp. 1354-1355; People v.
Ainsworth (1988) 45 Cal.3d 984, 1029.) If we were to accept defendant’s
argument, substitution of jurors at the penalty phase could never occur under any
circumstances, resulting in automatic mistrials. We decline to do so because, as in
this case, “unforeseen circumstances may require substitution of a juror at the
penalty phase of a capital trial, even though the alternate did not take part in the
guilt phase deliberations.” (People v. Fields (1983) 35 Cal.3d 329, 351, fn. 9.)
Accordingly, defendant has failed to show that the trial court abused its
discretion in denying his motion for a mistrial.
3. Factor (a) Instruction
Defendant claims the trial court erred in instructing the penalty phase jury
that before considering section 190.3, factor (a) (circumstances of the crime), as a
circumstance in aggravation, each “juror must be satisfied beyond a reasonable
doubt that the defendant, in fact, committed such charged crime or crimes.”
(Italics added.) He argues the instruction precluded full participation in penalty
deliberations by any substitute juror who did not participate in the guilt verdict
because that juror might have had a doubt about defendant’s guilt. The claim fails.
The trial instructions specifically directed each juror to “decide the matter
for yourself after a careful discussion of the evidence and the instructions with the
other members of the jury.” The jury was also informed that “[t]he People and the
defendant have the right to a verdict reached only after full participation of the 12
jurors who return the verdict.” (Italics added.) Viewed as a whole, there is no
reasonable likelihood the jury misconstrued or misapplied the instructions, and
therefore no federal constitutional violation occurred. (See People v. Barnett,
supra, 17 Cal.4th at p. 1161; People v. Samayoa (1997) 15 Cal.4th 795, 833;
People v. Avena (1996) 13 Cal.4th 394, 417.)
Even assuming error, prejudice to defendant is not identified, or apparent,
from an instruction that would allow a substitute juror to believe he or she was not
bound by the jury’s guilt verdict in determining the ultimate penalty. The jury in
this case unanimously returned a verdict in favor of death. It is unimaginable that
a penalty phase juror who entertained a reasonable doubt about a defendant’s guilt
would favor death over life imprisonment, or that the challenged instruction could
somehow have increased the likelihood of a death verdict. Under any standard of
harmless error, no prejudice is discernable.
4. District Attorney’s Discretion to Charge Capital Punishment
Defendant contends the judgment should be reversed because the district
attorney improperly exercised his discretion to seek the death penalty against
defendant for reasons contaminated by bias and conflict of interest arising from
the district attorney’s personal and emotional involvement in the case, and
“motivated purely by his own self-interest.” The available remedy, which
defendant did not seek below, is provided under section 1424, governing motions
to disqualify the prosecuting attorney for conflict of interest or other evidence of
overriding bias. (See People v. Millwee (1998) 18 Cal.4th 96, 123.)23 Defendant’s
failure to move to disqualify the district attorney in the trial court bars appellate
review of the claim.
We also observe that the district attorney has broad prosecutorial discretion
in deciding whether to seek the death penalty. (People v. Steele (2002) 27 Cal.4th
Section 1424 provides that a motion to disqualify a district attorney “may
not be granted unless the evidence shows that a conflict of interest exists that
would render it unlikely that the defendant would receive a fair trial.” Section
1424 establishes “a two-part test: (i) is there a conflict of interest?; and (ii) is the
conflict so severe as to disqualify the district attorney from acting? Thus, while a
‘conflict’ exists whenever there is a ‘reasonable possibility that the DA’s office
may not exercise its discretionary function in an evenhanded manner,’ the conflict
is disabling only if it is ‘so grave as to render it unlikely that defendant will
receive fair treatment.’ [Citation.]” (People v. Eubanks (1996) 14 Cal.4th 580,
594, fn. omitted; see also People v. Millwee, supra, 18 Cal.4th at p. 123.)
1230, 1269; People v. Kraft (2000) 23 Cal.4th 978, 1078.) Absent proof of
invidious discrimination (see People v. Pinholster (1992) 1 Cal.4th 865, 971;
Murgia v. Municipal Court (1975) 15 Cal.3d 286, 300) or vindictive prosecution
because of a defendant’s exercise of his legal rights (In re Bower (1985) 38 Cal.3d
865, 874-877), neither of which defendant alleges in this case, “as a general matter
a defendant who has been duly convicted of a capital crime under a constitutional
death penalty statute may not be heard to complain on appeal of the prosecutor’s
exercise of discretion in charging him with special circumstances and seeking the
death penalty.” (People v. Lucas (1995 ) 12 Cal.4th 415, 477.) “[T]o the extent
defendant is claiming a violation of due process in the charging decision,
defendant did not make a motion to dismiss or to strike the special circumstances
on this basis, and should not be permitted to raise the matter for the first time here.
(People v. Edwards, supra, 54 Cal.3d at p. 827 [claim of vindictive prosecution
not preserved for appeal unless it was a basis for motion to dismiss in trial
court].)” (Lucas, supra, at p. 477.)
5. Constitutionality of the Death Penalty24
Defendant challenges the sentencing scheme under California’s 1978 death
penalty law for reasons previously rejected by this court in other cases. He raises
no basis for reconsideration of those rulings.
Specifically, a jury’s finding of aggravation based on the circumstances of a
crime under section 190.3, factor (a), does not impermissibly permit consideration
of a factor that is vague and overbroad, or allow guilt phase crimes to be counted
more than once as aggravating factors, thereby unfairly weighting sentencing
Defendant does not raise Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct.
deliberations in favor of death. (People v. Hughes, supra, 27 Cal.4th at pp. 404-
405; People v. Barnett, supra, 17 Cal.4th at p. 1179; People v. Crittenden, supra, 9
Cal.4th at p. 156.) In itself, introduction of evidence of unadjudicated criminal
activity under section 190.3, factor (b), does not offend the federal Constitution.
(People v. Samayoa, supra, 15 Cal.4th at p. 863; People v. Bacigalupo (1993) 6
Cal.4th 457, 478.) Application of the words “extreme” and “substantial” in
section 190.3, factors (d) and (g), does not impermissibly limit consideration of
mitigating factors in violation of the federal Constitution. (People v. Barnett,
supra, 17 Cal.4th at pp. 1178-1179; People v. Williams (1997) 16 Cal.4th 153,
276; People v. Scott, supra, 15 Cal.4th at pp. 1227-1228.) Because the jury was
instructed on miscellaneous sympathy evidence under section 190.3, factor (k),
“[t]he temporal language in section 190.3, factors (d) and (h) (consideration of any
extreme mental or emotional disturbance or impairment from mental disease or
defect or the effects of intoxication at the time of the offense ), [does] not preclude
the jury from considering any such evidence merely because it did not relate
specifically to defendant’s culpability for the crimes committed.” (People v.
Hughes, supra, 27 Cal.4th at p. 405, fn. 33.)
requested, there is no error in the trial court’s failure to delete as
inapplicable mitigating factors (e) (whether victim participated in crime) and (f)
(moral justification for crime) of section 190.3 from the standard statutory
instructions, if the jury, as in this case, was properly instructed to consider and be
guided by all the factors “ ‘if applicable,’ ” since “we assume the jury properly
followed the instruction and concluded that mitigating factors not supported by
evidence were simply not ‘applicable.’ ” (People v. Sanchez (1995) 12 Cal.4th 1,
79; see also People v. Frye (1998) 18 Cal.4th 894, 1027; People v. Turner, supra,
8 Cal.4th at pp. 207-208.)25 No rule of constitutional law requires that aggravating
factors must be proved beyond a reasonable doubt or that aggravating factors must
outweigh mitigating factors beyond a reasonable doubt. (People v. Koontz, supra,
27 Cal.4th at p. 1095; People v. Barnett, supra, 17 Cal.4th at p. 1178; People v.
Holt (1997) 15 Cal.4th 619, 684.) The burden of proof for mitigating and
aggravating factors need not be specified, except for “other crimes” evidence.
(People v. Carpenter (1997) 15 Cal.4th 312, 417-418; People v. Samayoa, supra,
15 Cal.4th at pp. 852-853, 862.) Sentencing instructions are not unduly vague
because they fail to identify which factors are aggravating and which are
mitigating, or to explain to the jury how to treat any inapplicable factors. (People
v. Turner, supra, 8 Cal.4th at pp. 207-208.) Because the appropriate penalty is
not presumed and is a question for each individual juror, no presumption exists in
favor of life or death in determining penalty in a capital case. (Samayoa, supra, at
pp. 852-853; see also Holt, supra, at p. 684 [“capital sentencing is a moral and
The trial court is not required to give an instruction that the meaning of
“life without possibility of parole” actually means life in prison without possibility
of parole, since such an instruction would be inaccurate. (People v. Arias, supra,
13 Cal.4th at pp. 172-173; see also People v. Earp (1999) 20 Cal.4th 826, 903;
People v. Jones, supra, 15 Cal.4th at pp. 189-190.) Jury unanimity is not required
on aggravating circumstances, which are not elements of an offense. (People v.
Medina (1995) 11 Cal.4th 694, 782; People v. Pride (1992) 3 Cal.4th 195, 268;
Defendant appears to characterize factors (e) and (f) of section 190.3 as
potentially applicable in aggravation. Those factors, however, have been
consistently and correctly viewed only as mitigating. (See People v. Marshall,
supra, 13 Cal.4th at pp. 856-857.)
People v. Bacigalupo (1991) 1 Cal.4th 103, 147, judg. vacated and cause
remanded (1992) 506 U.S. 802.) Written findings and reasons for the jury’s death
verdict are not constitutionally required. (People v. Hughes, supra, 27 Cal.4th at
p. 405; People v. Kraft, supra, 23 Cal.4th at p. 1078; People v. Turner, supra, 8
Cal.4th at p. 209; People v. Frierson (1979) 25 Cal.3d 142, 178-180.) Finally,
defendant’s claim that this court’s appellate review process is impermissibly
influenced by political considerations is rejected for the reasons explained in
recent cases addressing the same claim. (People v. Kipp (2001) 26 Cal.4th 1100,
1140-1141; People v. Hughes, supra, 27 Cal.4th at p. 406.)
6. Disproportionate Punishment
Defendant asserts that his death judgment for murdering three people
should be set aside because it is disproportionate to his personal culpability. The
claim rests in part on the contention that he murdered his victims because the
government provided him with reward money for turning in their bodies, thereby
effectively making the government the instigator. He also relies on the mitigating
evidence presented to the jury during the penalty phase relating to his family
background, mental condition, and marijuana abuse. Although we decline to
conduct an intercase proportionality review (People v. Frye, supra, 18 Cal.4th at
p. 1029; People v. Mincey (1992) 2 Cal.4th 408, 476), we do undertake an
intracase review to determine whether the penalty is disproportionate to
defendant’s personal culpability.
That process requires us to “examine the circumstances of the offense,
including its motive, the extent of the defendant’s involvement in the crime, the
manner in which the crime was committed, and the consequences of the
defendant’s acts. The court must also consider the personal characteristics of the
defendant, including age, prior criminality, and mental capabilities. [Citation.] If
the court concludes that the penalty imposed is ‘grossly disproportionate to the
defendant’s individual culpability’ [citation], or, stated another way, that the
punishment ‘ “ ‘shocks the conscience and offends fundamental notions of human
dignity’ ” ’ [citation], the court must invalidate the sentence as unconstitutional.”
(People v. Hines (1997) 15 Cal.4th 997, 1078.)
Even assuming the validity of defendant’s contention that the government
bears responsibility for what he did because it enabled him to make money
murdering people (a contention we find dubious), intracase proportionality review
examines “ ‘ “whether [a] defendant’s death sentence is proportionate to his
individual culpability, irrespective of the punishment imposed on others.”
[Citation.]’ ” (People v. Padilla (1995) 11 Cal.4th 891, 961, overruled on other
grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1; People v. Hill (1992)
3 Cal.4th 959, 1014, overruled on other grounds in Price v. Superior Court (2001)
25 Cal.4th 1046, 1069, fn. 13.) The guilt or culpability of codefendants or third
parties does not affect that analysis. (Hill, supra, at p. 1014; see also People v.
Riel, supra, 22 Cal.4th at p. 1223; People v. Mincey, supra, 2 Cal.4th at p. 476.)
Here, defendant’s sentence is not disproportionate to his personal
culpability, even if he was not the most heinous murderer or his crime the most
abominable. (See People v. Hughes, supra, 27 Cal.4th at p. 406; People v.
Padilla, supra, 11 Cal.4th at p. 962; People v. Marshall (1990) 50 Cal.3d 907,
938.) Defendant brutally murdered three people, in part, to collect money. On
this record, the sentence of death is not disproportionate to defendant’s personal
responsibility and moral guilt. (See Marshall, supra, at p. 938.)
7. Effect of Delay Between Sentence and Execution; Constitutionality
of Lethal Injection
Defendant argues that his sentence must be vacated because of (1)
unconstitutional delay in the length of time his automatic appeal has been pending,
and (2) the method used in carrying out the death sentence (lethal injection).
These claims have been raised and rejected in other capital cases. (People v.
Koontz, supra, 27 Cal.4th at p. 1096; People v. Ochoa (2001) 26 Cal.4th 398, 462-
463.) No reason appears for revisiting those decisions.
8. Other Challenges to Penalty Phase Instructions
Defendant claims error in the trial court’s failure to instruct the jury sua
sponte on the beyond-a-reasonable-doubt standard26 for “other crimes” that were
not directly alleged under section 190.3, factor (b), but implicitly raised as
aggravating circumstances by the prosecution. Defendant points to the
prosecution’s closing argument asking the jury to base its penalty decision on the
evidence presented in both the guilt and the penalty phases. The prosecution also
characterized defendant as a serial killer and inferentially referred to Adolf Hitler
and Adolf Eichmann. Defendant contends that the result may have been that the
jury considered section 190.3, factor (b), aggravation from defendant’s various
statements, reported in the guilt phase, suggesting he committed more than the
three killings for which he was charged and convicted.
CALJIC No. 8.87, which defendant asserts should have been given,
instructs the jury as follow: “Evidence has been introduced for the purpose of
showing that the defendant has committed the following criminal [act[s]]
[activity]: which involved [the express or implied use of force or violence] [or]
[the threat of force or violence]. Before a juror may consider any criminal [act[s]]
[activity] as an aggravating circumstance in this case, a juror must first be satisfied
beyond a reasonable doubt that the defendant  did in fact commit such criminal
[act[s]] [activity]. A juror may not consider any evidence of any other criminal
[act[s]] [activity] as an aggravating circumstance. [¶] It is not necessary for all
jurors to agree. If any juror is convinced beyond a reasonable doubt that the
criminal activity occurred, that juror may consider that activity as a fact in
aggravation. If a juror is not so convinced, that juror must not consider that
evidence for any purpose.”
The claim fails. First, in the absence of a request, the trial court is under no
duty to give an instruction at the penalty phase regarding evidence received at the
guilt phase. (People v. Anderson (2001) 25 Cal.4th 543, 588; People v. Lang
(1989) 49 Cal.3d 991, 1039.) Even when section 190.3, factor (b), criminal
activity is expressly alleged, which was not the case here, “the rule absolving the
court of a sua sponte duty to instruct on the elements of crimes introduced under
[section 190.3,] factor (b) ‘ “is based in part on a recognition that, as [a] tactical
matter, the defendant ‘may not want the penalty phase instructions . . . [to] lead the
jury to place undue emphasis on the crimes rather than on the central question of
whether he should live or die.’ [Citations.]” ’ ” (Anderson, supra, at p. 588.) If a
trial court need not instruct a jury sua sponte as to the elements of alleged other
crimes, given the possible undue emphasis, which the defense may fear the jury
will place on them (People v. Hawkins, supra, 10 Cal.4th at pp. 963-964), a trial
court is obviously under no sua sponte obligation to instruct the jury on the
prosecution’s burden of proving other crimes that are not clearly introduced under
section 190.3, factor (b). (See People v. Lang, supra, 49 Cal.3d at p. 1040; People
v. Rich (1988) 45 Cal.3d 1036, 1121-1122; People v. Poggi (1988) 45 Cal.3d 306,
341; People v. Williams (1988) 44 Cal.3d 1127, 1147.)
Second, even assuming the prosecution’s closing argument could be
deemed to invite jury consideration of unalleged “other crimes” evidence,
something we do not accept, the jury was expressly directed under CALJIC No.
8.86, relating to defendant’s prior felony conviction for receiving stolen property,
that it “may not consider any evidence of any other crime as an aggravating
circumstance except as otherwise provided in these instructions.” In assessing the
instruction to determine whether the jury was adequately guided under the Eighth
or Fourteenth Amendment, we look to whether it is reasonably likely the jury
understood the instruction and correctly applied it. (See People v. Barnett, supra,
17 Cal.4th at p. 1161.) In doing so, we conclude there was no reasonable
likelihood the jury considered or relied on “other crimes” evidence, which it was
expressly told not to consider unless directed otherwise.
Defendant also contends that the failure to label each factor as either
aggravating or mitigating rendered the factors unconstitutionally vague because
the jury was left without guidance about their meaning and application, allowing
the jury to consider in aggravation such factors as intoxication and mental
impairment, which may be considered only in mitigation. The claim does not
survive the United States Supreme Court ruling in Tuilaepa v. California (1994)
512 U.S. 967, 975-979, upholding section 190.3, factors (a), (b), and (i), against a
challenge that the factors were unconstitutionally vague because the sentencer was
not instructed on how to weigh any particular fact in the capital sentencing
decision. “Indeed, we have repeatedly held that ‘trial courts are not required to
identify particular sentencing factors as aggravating or mitigating and that the
1978 death penalty law is constitutional despite the absence of such a
requirement.’ ” (People v. Turner, supra, 8 Cal.4th at p. 208; see also People v.
Pinholster, supra, 1 Cal.4th at p. 973.)
Defendant adds that the penalty phase instructions in his case allowed the
jury to consider previous guilt instructions on voluntary intoxication (CALJIC
Nos. 4.20, 4.22), which informed the jury that intoxication did not negate the
criminality of defendant’s actions for the purpose of determining guilt. Defendant
argues that, notwithstanding penalty instructions to the jury that it could consider
whether intoxication impaired defendant’s mental capacity in determining penalty,
the jury could still view intoxication as one of the circumstances of the crime, and
therefore treat it as aggravating, despite case law identifying intoxication as
mitigating. But the mitigating nature of section 190.3, factors (d), (e), (f), (g), (h),
and (k), “is clear even in the face of contrary argument.” (People v. Montiel
(1993) 5 Cal.4th 877, 944.) Here, it should be noted, the record reflects no
argument by the prosecution that intoxication, whether from alcohol or marijuana,
or any mental or emotional disturbance, should be considered as anything but
mitigating. No reasonable likelihood appears that the jury misunderstood or
misapplied the penalty instructions. (See People v. Marshall, supra, 13 Cal.4th at
pp. 857-858 [despite trial court error in failing to instruct jury to consider evidence
of defendant’s intoxication in determining penalty, prosecution argument did not
misdirect jury from considering relevant evidence of defendant’s consumption of
alcohol prior to offense].)
9. Cumulative Prejudice in Guilt and Penalty Phases
Defendant concludes his challenge to the penalty judgment by asserting that
the cumulative effect of the errors he raises mandates reversal. Our review of the
record leads us to a different conclusion. No errors are discernable. No
reasonable possibility exists that the sentencing jury would have reached a
different result absent any of the alleged errors.
We affirm the judgment in its entirety.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Maury
Original Appeal XXX
Opinion No. S012582
Date Filed: April 24, 2003
Judge: William R. Lund
Attorneys for Appellant:
Joseph E. Chabot, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson,
Assistant Attorney General, Ward A. Campbell and Stanley Cross, Deputy Attorneys General, for Plaintiff
Counsel who argued in Supreme Court (not intended for publication with opinion):
Joseph E. Chabot
639 Front Street, 4th Floor
San Francisco, CA 94111
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
|1||The People (Respondent)|
Represented by Attorney General - Sacramento Office
Stanley A. Cross, deputy
P.O. Box 944255
|2||Maury, Robert Edward (Appellant)|
Represented by Joseph Ephraim Chabot
c/o Levy, Ram, Olson & Rossi
639 Front St., Fourth Floor
San Francisco, CA
|3||Maury, Robert Edward (Appellant)|
Represented by Habeas Corpus Resource Center
Michael Laurene, Executive Director
50 Fremont Street, Suite 1800
San Francisco, CA
|Apr 24 2003||Opinion: Affirmed|
|Nov 3 1989||Judgment of death|
|Nov 13 1989||Filed certified copy of Judgment of Death Rendered|
|Jan 26 1990||Application for Extension of Time filed|
By Court Reporters to Complete R.T.
|Feb 2 1990||Extension of Time application Granted|
To Court Reporters To 2-27-90 To Complete R.T.
|Apr 23 1990||Application for Extension of Time filed|
By Court Reporters to Complete R.T. & Applic. for Relief from Default.
|Apr 23 1990||Extension of Time application Granted|
To Court Reporters To 5-18-90 To Complete R.T.
|Oct 11 1990||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, Joseph E. Rasch-Chabot, Esq., is hereby appointed to represent appellant on his automatic appeal now pending in this court.
|Nov 13 1990||Application for Extension of Time filed|
By Applt to request correction of Record.
|Nov 13 1990||Extension of Time application Granted|
To Applt To 1-14-91 To request Corr. of Record.
|Jan 10 1991||Application for Extension of Time filed|
By Applt to request correction of Record.
|Jan 11 1991||Extension of Time application Granted|
To Applt To 3-15-91 To request Corr. of Record.
|Mar 13 1991||Compensation awarded counsel|
|Mar 13 1991||Application for Extension of Time filed|
By Applt to request correction of Record.
|Mar 15 1991||Extension of Time application Granted|
To Applt To 5-14-91 To request Corr. of Record.
|May 7 1991||Filed:|
Applic. of Applt for Association of Counsel (Michael F. Ram, Esq.)
|May 10 1991||Order filed:|
The application of appellant to associate Michael F. Ram as counsel in the above-entitled automatic appeal is granted.
|May 10 1991||Application for Extension of Time filed|
By Applt to request correction of Record.
|May 15 1991||Extension of Time application Granted|
To Applt To 6-13-91 To request Corr. of Record.
|Jun 13 1991||Note:|
Applt's request for correction Etc. filed this Date in Superior Court.
|Jul 10 1991||Compensation awarded counsel|
|May 27 1992||Compensation awarded counsel|
|Oct 21 1992||Compensation awarded counsel|
|Oct 18 1993||Compensation awarded counsel|
|Dec 15 1993||Compensation awarded counsel|
|Feb 28 1994||Filed:|
Applt's Pro per Applic.
|Jul 17 1995||Motion filed|
By Applt to Augment and Settle Record on Appeal (Note: Record not Yet certified By Trial Court) (9 Pp. Excluding attached Exhibits)
|Jul 24 1995||Opposition filed|
To Applt's motion To Augment & Settle Record (10 Pp.)
|Jan 24 1996||Order filed:|
Appellant Robert Edward Maury's 7-17-95, motion to settle the record on appeal, which is unopposed, is granted as to the five hearings between appellant's attorney and the trial court relating to disbursement of Penal Code section 987.9 funds. The record shall be settled as promptly as possible. If it is not settled by 4-1-96, appellant is directed to inform this court of the reasons for the delay, and when settlement is expected. Appellant's 7-17-95, motion to augment the record on appeal to include the jurors' individual notes, and to make these notes available to appellant, is denied. Appellant's letter filed 2-28-94, construed as a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118, is denied.
|Mar 14 1996||Compensation awarded counsel|
|Apr 3 1996||Filed:|
Decl of Joseph E. Chabot Re: Applt's motion to Settle the Record.
|May 9 1996||Compensation awarded counsel|
|May 15 1996||Compensation awarded counsel|
|Jun 20 1996||Compensation awarded counsel|
|Jul 16 1996||Record on appeal filed|
C-24 (6,802 Pp.) and R-41 (13,164 Pp.); Clerk's Transcript includes 2,513 pages of Juror Questionnaires.
|Jul 16 1996||Appellant's opening brief letter sent, due:|
|Aug 13 1996||Application for Extension of Time filed|
To file Aob.
|Aug 14 1996||Extension of Time application Granted|
To 10-25-96 To file Aob.
|Aug 19 1996||Compensation awarded counsel|
|Oct 23 1996||Application for Extension of Time filed|
To file AOB
|Oct 30 1996||Extension of Time application Granted|
To 12-24-96 To file Aob.
|Nov 26 1996||Compensation awarded counsel|
|Dec 24 1996||Application for Extension of Time filed|
To file AOB
|Jan 7 1997||Extension of Time application Granted|
To 2-24-97 To file Aob.
|Feb 27 1997||Application for Extension of Time filed|
To file AOB
|Mar 3 1997||Extension of Time application Granted|
To 4-25-97 To file Aob.
|Apr 28 1997||Application for Extension of Time filed|
To file Aob.
|Apr 29 1997||Filed:|
Second Decl of Joseph Chabot in support of request for Eot.
|May 1 1997||Extension of Time application Granted|
To 6-24-97 To file Aob.
|May 14 1997||Compensation awarded counsel|
|Jun 24 1997||Application for Extension of Time filed|
To file AOB (6th Request).
|Jun 26 1997||Extension of Time application Granted|
To 7-24-97 To file Aob.
|Jul 21 1997||Application for Extension of Time filed|
To file Aob.
|Jul 22 1997||Extension of Time application Granted|
To 9-22-97 To file Aob.
|Sep 23 1997||Application for Extension of Time filed|
To file Aob.
|Oct 1 1997||Filed:|
Suppl Decl in support of request for Eot.
|Oct 7 1997||Extension of Time application Granted|
To 11-21-97 To file Aob. no further Extensions of time Are Contemplated.
|Nov 21 1997||Application for Extension of Time filed|
To file Aob.
|Nov 24 1997||Extension of Time application Granted|
To 12-22-97 To file Aob. no further Extensions of time Are Contemplated.
|Dec 22 1997||Application for Extension of Time filed|
To file Aob.
|Dec 23 1997||Extension of Time application Granted|
To 2-20-98 To file Aob. no further Extensions of time will be Granted.
|Feb 20 1998||Application for Extension of Time filed|
To file Aob.
|Feb 26 1998||Extension of Time application Granted|
To 3-23-98 To file AOB no further Extensions of time will be Granted.
|Jun 24 1998||Filed:|
Applic. for Assoc. of Counsel & Substitution of Counsel.
|Jun 26 1998||Filed:|
Supplement to Applic. for Association of Counsel & Substitution of Counsel.
|Jun 26 1998||Filed:|
Suppl Proof of Service.
|Oct 15 1998||Order filed:|
Appellant Robert Edward Maury's opening brief shall be filed on or before Monday, November 2,1998. If the brief is not filed by that date, the court will consider issuing an order directing counsel Joseph E. Chabot to show cause before this court, when the matter is ordered on calendar, why counsel should not be held in contempt of court and sanctions imposed for the delay in the appellate process occasioned by the numerous extensions of time to file the brief that this court has granted since August 1996.
|Nov 12 1998||Change of Address filed for:|
Atty Joseph Chabot.
|Nov 12 1998||Motion filed|
By Applt to Augment the Record.
|Nov 12 1998||Motion filed|
By Applt to file Overlength brief (Aob). (brief submitted Under Separate Cover.)
|Nov 20 1998||Motion filed|
Suppl certificate of Service of Notice of change of Address
|Nov 20 1998||Motion filed|
By Applt for Relief from Default to file Aob.
|Nov 23 1998||Order filed:|
Granting motion of Applt for Relief from Default to file Aob. and motion to file Overlength Opening brief.
|Nov 23 1998||Appellant's opening brief filed|
(3 Vols. - 714 Pp.)
|Dec 22 1998||Compensation awarded counsel|
|Dec 23 1998||Application for Extension of Time filed|
By Respondent to file Respondent's brief
|Dec 30 1998||Extension of Time application Granted|
To 2-22-99 To file Respondent's brief
|Feb 18 1999||Compensation awarded counsel|
|Feb 18 1999||Application for Extension of Time filed|
To file Resp's brief.
|Feb 24 1999||Extension of Time application Granted|
To 4-23-99 To file Respondent's brief
|Apr 21 1999||Application for Extension of Time filed|
To file Resp's brief.
|Apr 26 1999||Extension of Time application Granted|
To 6-22-99 To file Respondent's brief
|Jun 30 1999||Application for Extension of Time filed|
To file Resp's brief.
|Jul 2 1999||Extension of Time application Granted|
To 8-23-99 To file Respondent's brief
|Jul 9 1999||Filed:|
Pro Se Req. that Defendants Signature be attached to Any Mtns. or other Paperwork filed in this case on Defendants behalf.
|Jul 16 1999||Received letter from:|
Pro Se request that the Defendant in this case be Heard
|Aug 19 1999||Application for Extension of Time filed|
To file Resp's brief.
|Aug 25 1999||Extension of Time application Granted|
To 10/22/99 To file Resp's brief.
|Aug 31 1999||Filed:|
Pro Se request that the Defendant in the Above entitled case be Afforded Reasonable Access to the Justice System.
|Sep 22 1999||Filed:|
Pro Se request that the Defendant be appointed New Counsel or be Given A Date for Execution
|Sep 23 1999||Change of Address filed for:|
Atty. Joseph E. Chabot.
|Sep 24 1999||Filed:|
Declaration of Joseph E. Chabot in support of Application for Association of Counsel and Substitution of Counsel.
|Oct 22 1999||Application for Extension of Time filed|
To file Resp's brief.
|Oct 25 1999||Filed:|
Declaration of Michael Ram in support of Appl for Association of Counsel and Substitution of Counsel
|Oct 26 1999||Extension of Time application Granted|
To 12/21/99 To file Resp's brief. no further Extensions of time Are Contemplated.
|Oct 28 1999||Filed:|
Amended Declaration of Service by mail.
|Dec 16 1999||Order filed:|
Appellant's motion entitled, "Request That Defendant's Signature be Attached To Any Motions Or Other Paper Work Filed In This Case On The Defendant's Behalf," received 7-9-99, is denied. Appellant's motion entitled, "Request That The Defendant In This Case Be Heard," received 7-16-99, is not properly before this court and will not be considered. It is hereby returned to appellant. (People v. Clark (1992) 3 Cal.4th 41, 173.). Appellant's motion entitled, "Request That The Defendant In The Above Entitled Case Be Afforded Reasonable Access To The Justice System," received 8-31-99, is denied. Appellant's motion entitled "Request That Defendant Be Appointed New Counsel Or Be Given A Date for Execution," received 9-22-99, is denied.
|Dec 21 1999||Filed:|
Motion to file brief over 280 pages. (Resp's brief submitted Under Separate Cover)
|Dec 29 1999||Order filed:|
Resp's Appl for Leave to file Resp's brief in Excess of 280 pages Is Granted.
|Dec 29 1999||Respondent's brief filed|
|Jan 6 2000||Filed:|
Amended Declaration of Service
|Feb 22 2000||Application for Extension of Time filed|
To file reply brief.
|Feb 28 2000||Extension of Time application Granted|
To 3/20/2000 To file reply brief.
|Mar 20 2000||Application for Extension of Time filed|
To file reply brief.
|Mar 23 2000||Extension of Time application Granted|
To 5/19/2000 To file reply brief.
|May 5 2000||Motion filed|
Motion of Michael F. Ram to withdraw as Assoc. Counsel for Applt
|May 11 2000||Filed:|
Amended Proof of Service
|May 22 2000||Application for Extension of Time filed|
To file reply brief.
|May 25 2000||Extension of Time application Granted|
To 7/18/2000 To file reply brief.
|Jul 18 2000||Application for Extension of Time filed|
to file reply brief. (fourth request)
|Jul 20 2000||Extension of Time application Granted|
To 9/18/2000 to file reply brief.
|Aug 7 2000||Filed:|
application for appointment of Therese Y. Cannata as lead counsel for applt for habeas corpus/executive clemency proceedings.
|Aug 16 2000||Order filed:|
In conjunction with the order filed this day permitting Joseph E. Chabot to withdraw as counsel of record for death row inmate Robert E. Maury with respect to the investigation and/or initiation of habeas corpus/executive clemency proceedings related to applt's auto. appeal now pending in this court, Chabot is ordered to reimburse this court the sum of $28,000. Subject to Chabot's timely and satisfactory completion of his on-going obligations with regard to representation of applt Maury on Maury's auto. appeal, the court will permit Chabot to satisfy this reimbursement order from future hourly billing for the auto. appeal to which Chobot may otherwise become entitled. This order is without prejudice to Chabot's ability to seek -- upon adequate demonstration -- a credit for habeas corpus work that Chabot has already performed "that is determined by the court to be of value to the court." (Payment Guideline V, subpart B ["Court Action Upon Nonperformance of Work, and Reimbursement of Fees Upon Withdrawal of Appointed Counsel"].)
|Aug 16 2000||Substitution of counsel ordered|
Good cause appearing, the applic. of lead appointed counsel for permission to withdraw as habeas corpus/executive clemency atty of record for applt Robert E. Maury, filed 6/23/98, and 9/24/99, are granted, and the applic. of assoc. appointed counsel for permission to withdraw as atty of record for applt Robert E. Maury, filed 5/5/2000 is granted. The order appointing Joseph E. Chabot as counsel of record for applt Robert E. Maury, filed 10/11/90, is hereby vacated with respect to the investigation and/or initiation of habeas corpus/executive clemency proceedings related to applt's pending capital appeal, and the order appointing Michael F. Ram as assoc. counsel of record for applt Robert E. Maury, filed 5/10/91, is hereby vacated. Mr. Chabot shall remain as counsel of record for applt's capital appeal, and shall continue to be responsible for all applt duties specified in Supreme Court Policies Regarding Cases Arising From Judgments of Death, policy 3, standards 1-1 and 2-1. Therese Y. Cannata is hereby appointed as habeas corpus/executive clemency counsel in place of Joseph e. Chabot and Michael F. Ram on behalf of applt Robert E. Maury, and has responsibility for all habeas corpus/executive clemency duties specified in policy 3, standards 1-1 and 2-1. Mr. Chabot is directed to deliver to Ms. Cannata, within 30 days from the filing of this order, a copy of the entire case file relating to Robert E. Maury's capital appeal and related habeas corpus proceedings currently in his possession, including, but not limited to, the reporter's and clerk's transcripts, all case files and documents obtained from applt Maury's trial counsel, all case reports from investigators, legal assistants and paralegals, and copies of all other documents filed in this court.
|Sep 15 2000||Application for Extension of Time filed|
to file reply brief. (5th request)
|Sep 20 2000||Extension of Time application Granted|
To 11/17/2000 to file reply brief.
|Nov 17 2000||Application for Extension of Time filed|
To file reply brief. (6th request)
|Nov 21 2000||Extension of Time application Granted|
To 1/16/2001 to file reply brief.
|Jan 16 2001||Application for Extension of Time filed|
To file reply brief (7th request)
|Jan 18 2001||Extension of Time application Granted|
To 3/19/2001 to file reply brief. No further ext. of time are contemplated.
|Mar 20 2001||Application for Extension of Time filed|
To file Reply Brief. (8th request)
|Mar 22 2001||Extension of Time application Granted|
To 5/18/2001 to file Reply Brief. No further extensions of time will be granted.
|May 18 2001||Application to file over-length brief filed|
To file file reply brief. (163 Pp. reply brief submitted under separate cover)
|May 23 2001||Filed:|
Application of applt. to file reply brief in excess of page limit is granted.
|May 23 2001||Appellant's reply brief filed|
|May 30 2001||Filed:|
Notice of change of telephone number for atty. Joseph Chabot.
|Nov 2 2001||Counsel's status report received (confidential)|
from atty Cannata.
|Feb 5 2002||Counsel's status report received (confidential)|
from atty Cannata.
|Feb 22 2002||Compensation awarded counsel|
|May 22 2002||Compensation awarded counsel|
|Sep 3 2002||Counsel's status report received (confidential)|
from atty Cannata.
|Sep 4 2002||Compensation awarded counsel|
|Nov 26 2002||Compensation awarded counsel|
|Dec 13 2002||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as February 2003 calendar. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" due no later than 10 days after the case has been set for oral argument.
|Dec 16 2002||Counsel's status report received (confidential)|
from atty Cannata.
|Jan 7 2003||Case ordered on calendar|
2-5-03, 9am, Sacramento
|Jan 16 2003||Filed letter from:|
Respondent, dated 1/15/2003, re focus issues for oral argument.
|Jan 16 2003||Filed letter from:|
Appellant, dated 1/15/2003, re focus issues for oral argument and requesting 45 min. for argument.
|Jan 21 2003||Order filed|
The request of appellant for 45 minutes for oral argument is granted.
|Feb 5 2003||Cause argued and submitted|
|Apr 3 2003||Order filed|
Appellant's "Motion to Augment Record," filed on Nov. 12, 1998, is granted. The clerk is directed to file, as part of the record on appeal, "Transcript on Appeal Curiale I -- Oct. 23, 1987," and "Transcript of Appeal Curiale II -- Oct. 30, 1987."
|Apr 3 2003||Filed:|
"Transcript on Appeal Curiale I -- Oct. 23, 1987: and "Transcript on Appeal Curiale II -- Oct. 30, 1987."
|Apr 9 2003||Compensation awarded counsel|
|Apr 14 2003||Change of Address filed for:|
Habeas corpus counsel Therese Y. Cannata.
|Apr 21 2003||Counsel's status report received (confidential)|
from atty Cannata.
|Apr 24 2003||Opinion filed: Judgment affirmed in full|
Majority Opinion by Chin, J. -- joined by George, C. J. , Kennard, Baxter, Werdegar, Brown, and Moreno, JJ.
|May 9 2003||Received:|
proof of service for applt's 1-30-2003 letter re: additional authorities.
|May 9 2003||Rehearing petition filed|
by appellant. (9 pp.)
|May 13 2003||Time extended to consider modification or rehearing|
to 6/23/2003, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Jun 18 2003||Rehearing denied|
|Jun 18 2003||Remittitur issued (AA)|
|Jun 18 2003||Opinion modified - no change in judgment|
|Jun 26 2003||Received:|
Acknowledgment of receipt of remittitur.
|Jul 11 2003||Order filed (150 day statement)|
|Aug 14 2003||Counsel's status report received (confidential)|
from atty Cannata.
|Sep 9 2003||Received letter from:|
U.S.S.C., dated 9-4-2003, advising extension of time was granted to 10-16-2003 to file cert petition.
|Oct 27 2003||Received letter from:|
U.S.S.C. dated 10-23-2003, writ of certiorari filed on 10-16-2003, placed onm the docket 10-23,2003 as No. 03-7062.
|Dec 23 2003||Request to file document under seal filed (in AA proceeding)|
Motion to file application and supporting declaration of Therese Y. Cannata for leave to withdraw as habeas corpus counsel.
|Dec 23 2003||Received:|
Application by Therese Y. Cannata for leave to withdraw as habeas corpus counsel received conditionally under seal.
|Dec 23 2003||Counsel's status report received (confidential)|
from atty Cannata.
|Jan 12 2004||Certiorari denied by U.S. Supreme Court|
|Jan 14 2004||Application to file document under seal denied|
The motion of attorney Therese Y. Cannata, filed December 23, 2003, to file under seal her application to withdraw (and supporting declaration) as appointed habeas corpus/executive clemency counsel of record on behalf of condemned inmate Robert Edward Maury, is denied. The clerk is ordered to return such documents, lodged conditionally under seal but not yet filed, to the moving party. (See Cal. Rules of Court, rule 12.5(e)(7).)
|Jan 16 2004||Filed:|
application by Therese Y. Cannata for leave to withdraw as counsel for habeas corpus and executive clemency proceedings.
|Jan 20 2004||Motion to withdraw as counsel filed|
Amended application by Therese Y. Cannata for leave to withdraw as counsel for habeas corpus and executive clemency proceedings.
|Jan 23 2004||Counsel's status report received (confidential)|
from atty Cannata.
|Feb 4 2004||Order filed|
In conjunction with the order filed this day permitting Therese Y. Cannata to withdraw as appointed habeas corpus/executive clemency counsel of record for condemned inmate Robert Edward Maury, Ms. Cannata is ordered to reimburse this court the sum of $10,000, subject to her ability to demonstrate to the court that she should be credited, as appropriate, for habeas corpus "work performed that is determined by the court to be of value to the court." (See "Payment Guidelines for Appointed Counsel Representing Indigent Criminal Appellants in the California Supreme Court," guideline V ["Court Action Upon Nonperformance of Work, and Reimbursement of Fees Upon Authorized Withdrawal of Appointed Counsel"].). George, C.J., was absent and did not participate.
|Feb 4 2004||Order appointing Habeas Corpus Resource Center filed|
Good cause appearing, the application of appointed counsel for permission to withdraw as habeas corpus/executive clemency attorney of record for condemned inmate Robert Edward Maury, filed January 16, 2004 (amended application filed Jan. 20, 2004), is granted. The order appointing Therese Y. Cannata as habeas corpus/executive clemency counsel of record for condemned inmate Robert Edward Maury, filed August 16, 2000, is hereby vacated. On the court's own motion, the Habeas Corpus Resource Center is hereby appointed as habeas corpus/executive clemency counsel of record for condemned inmate Robert Edward Maury. Counsel is appointed for purposes of all postconviction proceedings in this court, and for subsequent proceedings, including the preparation and filing of a petition for clemency with the Governor of California, as appropriate. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 24 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of prior habeas corpus counsel's declaration, in support of her motion to withdraw, to the effect that she was unable to discharge her duty to investigate and, if appropriate, present a habeas corpus petition on behalf of condemned inmate Robert Edward Maury. Therese Y. Cannata is directed to deliver to the Habeas Corpus Resource Center, within 30 days from the filing of this order, the entire case file relating to condemned inmate Robert Edward Maury's capital appeal and related habeas corpus proceedings currently in her possession, including, but not limited to, all habeas corpus investigation work product, trial files, trial transcripts, and investigation reports, copies of all documents filed in this court, and all related materials that she has obtained from Maury or his trial counsel, legal assistants, paralegals, experts and investigators, or from any other source. George, C.J., was absent and did not participate.
|Feb 5 2004||Related habeas corpus petition filed (post-judgment)|
|Feb 5 2007||Note:|
Amended petition for writ of habeas corpus filed this date, no. S122460.
|Nov 23 1998||Appellant's opening brief filed|
|Dec 29 1999||Respondent's brief filed|
|May 23 2001||Appellant's reply brief filed|