Supreme Court of California Justia
Citation 44 Cal.4th 1 original opinion 44 Cal. 4th 1031 a modification
People v. Page

Filed 6/26/08



Plaintiff and Respondent,



San Bernardino County


Super. Ct. No. FBA00246


Defendant and Appellant.

A jury convicted defendant Terrance Charles Page of the first degree murder of

Tahisha Clay (Pen. Code, § 187, subd. (a)) and of the commission of a lewd act upon a

child under the age of 14 years (Pen. Code, § 288, subd. (a)).1 The jury also found true

the special circumstance allegation that the murder was committed while defendant was

engaged in the commission of a lewd act upon a child. (§ 190.2, subd. (a)(17)(v).)

Following the penalty phase of the trial, the jury returned a verdict of death. Defendant

moved for a new trial (§ 1181), to strike the special circumstance finding, and to reduce

the penalty to life imprisonment without the possibility of parole (§ 190.4, subd. (e)).

The trial court denied the motions and sentenced defendant to death. The court also

sentenced defendant to a prison term of eight years for the commission of a lewd act upon

a child under the age of 14 years. (§ 288, subd. (a).) This appeal is automatic. (§ 1239,

subd. (b).)


All further statutory references are to the Penal Code unless otherwise indicated.


We affirm the judgment in its entirety.


A. Guilt phase evidence

1. The prosecution case

a. Summary

Tahisha Clay, six years of age, disappeared on April 23, 1993, when she chased a

ball down a hill to an area outside of defendant’s apartment. Her body was discovered

the next day in a mine pit seven miles away. She had been brutally beaten, suffocated,

sexually assaulted, and strangled to death. A swab taken from the outside of her vagina

revealed saliva consistent with defendant’s genetic profile. Blood discovered on one of

defendant’s shirts was consistent with Tahisha’s genetic profile. A plastic star found

embedded in defendant’s carpet matched stick-on earrings Tahisha was wearing shortly

before she disappeared. Soil on a pair of defendant’s pants, on a pair of his boots, and on

a mat from one of his vehicles was consistent with the minerals in the mine where

Tahisha’s body was dumped. There also was evidence establishing that defendant lied

when he told the police he had stayed home the evening Tahisha disappeared, and that he

had visited a restaurant that evening on the route between his home and the mine where

Tahisha’s body was found. Defendant exhibited an attitude that evening that evoked

suspicion, and he attempted to commit suicide the day after Tahisha’s body was


Because defendant contends the police unreasonably focused upon him to the

exclusion of other suspects, and planted evidence to implicate him in the crimes, we

describe the evidence as it was developed by the police investigation.

b. Tahisha’s disappearance

Tahisha resided in the Rimrock Apartments in Barstow with her mother, Marianne

Clay, her brother Stefan, nine years of age, and her mother’s boyfriend, Frank Mond.


The apartment complex was surrounded on three sides by a solid block wall five to six

feet high, and on the fourth and front side by an iron fence six feet high. An access code

was required to open the gate that secured the entrance to the complex. Tahisha’s father,

David Clay, served in the United States Army and was stationed at Fort Hunter Liggett,

about 80 miles south of Monterey. During David’s last visit with Tahisha and Stefan in

February 1993, he took the children to a mall in Bakersfield, where he purchased for

Tahisha a card of “stick-on” earrings. At the conclusion of the visit, Tahisha returned

with the earrings to Barstow.

On the day Tahisha disappeared — Friday, April 23, 1993 — her mother picked

her up from kindergarten at 4:00 p.m., and they arrived home about five minutes later.

On that particular day, Marianne found in her vehicle Tahisha’s card of stick-on earrings,

and gave them to Tahisha. Marianne explained to Tahisha that on the card particular

earrings were assigned to particular days, and that Tahisha should wear a pair of “Friday”

earrings because it was Friday. The “Friday” earrings were star-shaped. When they

arrived home, Tahisha went upstairs to their apartment, taking the card of earrings with

her. Her brother Stefan saw her put on star-shaped earrings in their room after she came

home from school.

Just prior to 5:00 p.m., Marianne drove Stefan to his piano lesson, and they

returned at approximately 5:40 p.m. While Marianne and Stefan were away a neighbor,

Ulrike Meyers, watched Tahisha. After they returned from the piano lesson, Tahisha

came back to the apartment for about 10 minutes, and then went back outside. Her

mother last saw her sometime after 6:00 p.m. when Tahisha was playing with other

children at the playground located outside the apartment.

Stefan soon joined Tahisha, and they began tossing a ball back and forth to each

other. At some point, the ball rolled down a hill and toward two satellite dishes that were

located on the grounds of the apartment complex. Tahisha went to retrieve the ball, and

Stefan saw her for the last time when she walked down the hill toward the satellite dishes.


As Stefan watched Tahisha head down the hill, he heard their mother call to them to

come inside. Stefan then turned around to go back to their apartment. He went upstairs

with his mother and told her Tahisha had gone to get the ball.

Approximately 10 minutes later, about 7:00 p.m., Marianne told Stefan to find

Tahisha, but he was unable to locate her. Marianne then checked at Meyers’s apartment

and at the apartments of Tahisha’s friends, but Tahisha was not at these locations.

Meyers estimated that Marianne came looking for Tahisha after 7:00 p.m., perhaps

7:30 p.m., and that it was starting to get dark. Marianne and other adults then walked

around the entire apartment complex, yelling Tahisha’s name, but she was not found. By

this time, at approximately 9:00 p.m., Frank Mond, Marianne’s boyfriend, returned home.

Mond contacted the Barstow Police Department and reported that Tahisha was missing.

In the meantime, as it was getting dark on Friday evening,2 Michael Elston,

another child who lived at the apartment complex, found Tahisha’s ball inside a fence

surrounding the satellite dishes.

c. The first week of the police investigation


The search of the apartment complex

Shortly after 9:00 p.m. on April 23, the first police officers arrived at the large

apartment complex and coordinated efforts among officers and private citizens to check

all the apartments and areas of the complex. Detective Mark Franey of the Barstow

Police Department arrived at the apartment complex at approximately midnight. Franey

was informed that efforts had been made to telephone or visit every apartment in the

complex, and that someone had been contacted at all but four or five of the units.

According to the information received by Franey, one of the apartments at which there


On April 23, 1993, sunset — the moment the last ray of sun crests the horizon —

occurred at 7:27 p.m. in Barstow, twilight lasted until 7:53 p.m., and then it was dark.


had been no response was defendant’s apartment. Another belonged to the manager of

the apartment complex, who was out of town. The other apartments were vacant.

Defendant’s apartment was located directly across from the satellite dishes where

Tahisha’s ball was found. The apartment had a sliding glass door that faced the satellite

dishes. Stefan and his friends sometimes played in the area in front of defendant’s

apartment, and on occasion defendant emerged from his apartment and yelled at them.

Approximately two weeks prior to Tahisha’s disappearance, she and her friend, Carrie

Pizzo, 11 years of age, were riding their bicycles in front of defendant’s apartment when

defendant exited through his sliding glass door and told the girls to “get the hell out of

there.” Eight or nine months earlier, defendant had approached Ashley Cook, one of

Tahisha’s kindergarten classmates who also resided at the Rimrock Apartments. Ashley

was riding her bicycle in circles and singing when defendant attempted to grab her and

told her she was being too noisy. Between 1:00 and 1:15 a.m. on Saturday as the search

continued, Tahisha’s mother told Detective Franey about the incident involving Ashley

Cook, and Louis Jannsen, the maintenance man for the apartment complex, told Franey

that defendant was “kind of weird.” Franey also learned at this time that defendant’s

apartment was located near the satellite dishes.

Jannsen and Barstow Police Detective Leo Griego then went to the apartment

manager’s office to obtain information concerning defendant, and Franey walked to the

area of the satellite dishes. By this time, officers had expanded their search outside of the

apartment complex and had found a ball similar to Tahisha’s ball in a nearby park.

Franey traveled to the park, recovered the ball, and returned to the Clay apartment at

approximately 1:55 a.m., but Marianne informed Franey that the recovered ball was not

Tahisha’s ball.



First contacts with defendant

The police first contacted defendant at 2:35 a.m. on Saturday, April 24. Defendant

answered the door and invited Detectives Franey and Griego inside. They informed

defendant they were conducting an investigation concerning a missing child, and Griego

asked him the general questions the police had been asking all the tenants. Defendant

stated that he had not seen Tahisha and that he did not recognize her photograph. They

soon were interrupted by a third officer who called away Griego.

Detective Franey then assumed charge of the interview. Because Franey believed

that defendant had been seen earlier at the apartment complex but had not answered his

door, Franey asked defendant about his whereabouts earlier that evening.3 Defendant

responded that he had returned home at approximately 4:00 or 4:30 that afternoon from

Fort Irwin, where he worked for DynCorp, supervising the maintenance of firing ranges,

and had been in and out all evening. At this point in the interview, Franey was called

away. Griego completed the interview and briefly searched defendant’s apartment for

Tahisha. The officers’ initial contact with defendant was approximately seven minutes in

duration, from the time they entered his apartment until they departed.

Franey and Griego returned to question defendant on Saturday, April 24, because

of a discrepancy in the account he had provided earlier that morning — defendant had

informed Franey that he had been in and out of the apartment all evening, but had told

Griego that he had been at home from the time he returned from work. Also, Griego had

learned that defendant had been seen leaving his apartment at approximately 9:30 Friday

evening.4 Shortly before noon on Saturday, Griego spotted defendant in the apartment


Mr. Jannsen had informed Franey that Jannsen had knocked on defendant’s door

earlier and had received no response, and then later had telephoned defendant and
defendant had answered. It is not clear precisely when these events occurred.


Robert Hunskor, whose apartment was next to defendant’s unit, testified that he

was contacted by Mr. Jannsen sometime between 9:15 p.m. and 9:45 p.m. concerning

(footnote continued on following page)


complex’s laundry room. As Griego and Franey followed him back to his apartment,

they noticed he was carrying a laundry basket that appeared to contain bedding.

When Franey and Griego described to defendant the discrepancy in the

information he had provided, defendant explained that he had been in and out of his

apartment, going back and forth to his car and his garage, but had not left the apartment

complex all evening. Defendant also stated that someone had telephoned him Friday

evening and asked him whether there was a little girl playing in his apartment, and he had

told them there was not.5 The officers asked whether they could search defendant’s

vehicles and apartment, and he agreed, also giving them access to locked areas of his

garage. That was the final contact the police had with defendant on Saturday, April 24.

iii. Tahisha’s body is discovered

On Saturday afternoon, April 24, Ramiro Perez completed his work shift at Fort

Irwin, and obtained a ride home with a friend at approximately 3:00 p.m. After they left

Fort Irwin, Perez said he needed to relieve himself. The driver stopped her vehicle on

Fort Irwin Road, and Perez walked away from the car and over a hill so that he would not

(footnote continued from preceding page)

Tahisha’s disappearance. Hunskor then accompanied Jannsen on his search, and they
saw defendant leaving his apartment. Jannsen asked defendant whether he cared to help
look for Tahisha, but defendant did not join them. The next morning, Hunskor reported
to the police that he had seen defendant walking away from defendant’s apartment about
9:30 the previous evening.


On April 24, Beverly Ann Walker, a resident of the Rimrock Apartments who

assisted in the search by telephoning apartments, told Griego that she had reached
defendant the night before when she telephoned his apartment. On April 23, she had
returned home between 9:00 and 10:00 p.m. and had made telephone calls to residents for
an hour or more, until perhaps 11:00 or 11:30 p.m. Walker reported to Griego that in
responding to her, defendant had a bad attitude, asked why she was calling his home, and
stated that he did not have any children and did not appreciate her calling his home. She
testified that defendant’s reaction alarmed her, because everyone else was concerned
about the search for a missing girl six years of age, but defendant was not concerned.


be visible to his friend. When he walked over the hill, Perez saw a body later identified

as Tahisha’s at the bottom of the slope, about 15 feet away. It appeared that she had been

thrown over the hill and had rolled to the bottom. Perez reported his discovery to the


In response to Perez’s report, law enforcement officers fanned out along Fort

Irwin Road. After traveling approximately one mile down that road from its intersection

with Interstate Highway 15 without locating anything, Deputy Sheriff Robert Durbin of

the San Bernardino County Sheriff’s Department drove back and decided to check near a

mine excavation site that borders the road approximately one tenth of a mile from the

intersection. Durbin parked in a pullout area next to the site and walked into the

excavation, which had hills and gullies. At 5:50 p.m., Durbin looked down from an

embankment and observed a small body in the pit of the mine. The body was clothed in a

dress that was up over the torso, had no underclothing, and had white socks and a single

tennis shoe. When Durbin returned to his patrol vehicle, he found the other tennis shoe

on the ground in front of his car. Tahisha’s body was not visible from the road; it was

necessary to walk over a hill and look down into the pit of the mine to see her.

Detective Franey was familiar with the excavation and the surrounding desert, and

testified that the area was used for “four-wheeling,” motorcycle riding, and target

shooting. On the day Tahisha’s body was found, a group of 14 campers were nearby and

had driven approximately seven vehicles on the dirt stretch of Fort Irwin Road that

borders the excavation. The pullout area on Fort Irwin Road where Durbin parked was

used to load trucks with material from the mine, could be used as a turnaround for

vehicles, and appeared to Franey to be well traveled, with many tire tracks. While Franey

was present at the scene, numerous drivers attempted to drive down the dirt road, but

were turned back because of the police investigation. The material on the ground was of

a type that would reveal footsteps, but was of a nature that generally would not retain

details permitting identification of a shoe print. The only shoe print that could be


identified was from Perez’s shoe. The police photographed the tire tracks adjacent to the

mine and checked the tire treads of all vehicles at the apartment complex that were

outside or in garages that had open doors, as well as the tire treads of police vehicles.

The police were able to identify tire tracks of the vehicle in which Perez had ridden, and

could see where the sheriff’s car had driven over that vehicle’s tire tracks, but were

unable to distinguish any other particular vehicle’s tire tracks in the numerous tire tracks

that had been made over one another.

In the course of examining tire treads at the apartment complex, the police asked

defendant for permission to inspect his vehicles’ tires, and defendant agreed. According

to Detective Franey, this contact with defendant occurred at approximately 6:30 p.m. on

Sunday, April 25.

iv. Defendant’s suicide attempt

At approximately 11:30 p.m. on Sunday, April 25, Police Officer Michael

Hayhurst was dispatched to defendant’s apartment in response to a report from a suicide

hotline that an individual at that apartment had taken an overdose of pills.6 He found

defendant, apparently unconscious, holding a large knife in his hand. Hayhurst removed

the knife, and defendant appeared to regain consciousness. Hayhurst asked defendant

what the problem was, and defendant told him that he had a lot of stress at work the prior

Friday, and that detectives had placed additional stress on him over the weekend


Officer Hayhurst testified that he was assigned to proceed to the apartment in

response to the suicide call at “about 11:30 p.m.” Dr. Naresh Ganesh, who was the
physician on duty at the emergency room that evening, testified that defendant arrived at
the emergency room “shortly before midnight” and “around 11:15 p.m.” Dr. Ganesh also
testified that defendant told him he had taken an overdose of pills “six hours before he
came so around 6:00 p.m. . . . he took them.” Because the evidence concerning the time
of the last police contact with defendant and the time defendant ingested an overdose of
pills is not precise, it is unclear whether defendant’s suicide attempt occurred before or
after he was contacted concerning the pattern of his tire treads.


regarding the case of a missing girl. Defendant stated that he could not take it anymore

and wanted to kill himself. The police arranged for him to be transported by paramedics

to Barstow Community Hospital. The knife apparently was left at the apartment.

At the emergency room, defendant repeated that he had suffered stress at work,

and stated he was upset because the police detectives considered him a suspect. Blood

tests confirmed that defendant had taken an overdose of medication containing

acetaminophen in a quantity sufficient to cause fatal liver toxicity. Hayhurst had

defendant placed on a 72-hour hold to allow a mental health evaluation. (Welf. & Inst.

Code, § 5150.) After spending approximately one day at Barstow Community Hospital,

defendant was transferred to the behavioral health ward at Victor Valley Community

Hospital, where the police allowed him to check himself in.


Search of defendant’s apartment

On Wednesday, April 28, Franey served a search warrant on defendant’s

apartment. He was accompanied by criminalist Patricia Lough, who entered the

apartment first to vacuum before anyone walked on the floor. She proceeded

methodically on her hands and knees, using a vacuum designed for forensic evidence

collection. While vacuuming defendant’s living room, Lough collected a small plastic

star. She had not seen the star before it was sucked into the vacuum. Lough also testified

she was not a “hair examiner” and did not recall whether there were any hairs in the filter.

Lough also found in a clothesbasket in defendant’s master bedroom a shirt that

had two spots of blood. Defendant was wearing the same shirt when Franey first spoke

to him in the early morning on Saturday, April 24. Although Franey had not noticed

blood on the shirt at that time, he had not looked for blood; the spots were very small, and

the lighting was poor. The shirt was similar to the shirt defendant was wearing when

Griego observed him in the laundry room on Saturday morning, April 24. On the floor

next to the shirt, Lough found a pair of pants that had a white dust-like material on the


legs. In the closet of the master bedroom, Lough found a pair of dress boots that also had

a white dust-like material on them. In the office area of the apartment, Lough found a

knife that had a speck, one millimeter in diameter, of what appeared to be blood on the

blade. The specimen was too small to yield information revealing DNA. Finally, Lough

removed the floormats from defendant’s two vehicles.

Detective Franey found in defendant’s apartment a collection of pornographic

magazines and videotapes. Fifty-five pornographic magazines were found on the

nightstand in defendant’s bedroom, including Shaved Pussy, Oriental Delight, and

Bridled. Shaved Pussy magazine contains sexually explicit photographs of young women

whose pubic hair has been shaved. Oriental Delight magazine also contains sexually

explicit photographs of young adult women. All of the models in these two magazines

are postpubescent, but some are posed with props such as stuffed toys and a lollipop, and

some are wearing knee socks and saddle shoes and have “pigtails” and bows in their hair.

Bridled magazine depicts nude and semi-nude women who are bound to objects such as

chairs and stocks by devices such as ropes and collars. Some have objects strapped into

their mouths or tape over their mouths, some are blindfolded, and some have mousetraps

or C-clamps attached to their nipples. In many of the photographs, the models exhibit

expressions that reflect pain or fear, but none of the photographs portrays strangulation.

The three magazines bear inscriptions on their covers that all models are over 18 years of


Detective Franey described the 55 magazines found on defendant’s nightstand as

“hard-core” or “triple-X” pornography. Another 58 magazines, described by Franey as

“soft-core” pornography, were found on a bookshelf in the hallway. In addition, 195

X-rated videotapes bearing 550 separate movie titles were stored in a metal cabinet in the

apartment. Finally, more than 100 nonpornographic films were found on an open

bookshelf adjacent to the metal cabinet. A list of the 113 magazines, identified by title

and the location they were found in the apartment, and including a brief description of


each magazine, was admitted into evidence. The actual magazines found in defendant’s

bedroom were admitted into evidence. A list of the 550 pornographic movies, identified

by title, also was admitted into evidence.7

vi. Defendant’s whereabouts on April 23

On April 30, one week after Tahisha disappeared, Detectives Franey and Griego

interviewed defendant at Victor Valley Community Hospital. Defendant continued to

assert he had stayed home all evening on April 23. When Griego told defendant that

Hunskor and Jannsen had seen him leaving at approximately 9:30 that evening, defendant

claimed he was confused.

Approximately one week after Tahisha disappeared, the police interviewed Holly

Robles, a waitress at Coco’s Restaurant, and learned that defendant had not remained at

his home the entire evening of April 23. Robles testified that defendant regularly came

into the restaurant between 8:00 p.m. and 10:00 p.m. On April 23, he entered the

restaurant between 9:00 p.m. and 9:30 p.m., ordered an iced tea, and stayed about 20

minutes. Defendant told Robles that a little girl who had “wandered off Rimrock” was

missing. He told Robles that it was the mother’s fault, because mothers do not watch

their children and leave them with babysitters. He also told Robles that he was on call in

the event they found the missing girl and needed a helicopter.8

Robles testified that defendant seemed edgy that evening, “[p]laying with napkins

and stuff,” which she could not recall seeing him do when she had waited on him on

other occasions. She testified that he was “scared and jumpy,” that his eyes were red, and


After the trial court ruled that the three magazines selected by the prosecution —

Shaved Pussy, Oriental Delight, and Bridled — were admissible, defendant did not object
to the admission of additional evidence concerning his pornography collection.


Over the course of defendant’s visits to Coco’s Restaurant, he had told Robles

stories he fabricated about working as a medical helicopter pilot. His claim that he was
on call apparently was a reference to this fictitious career.


that she could tell something was wrong. She also had the impression that defendant did

not care about the girl who was missing, but she further stated that he “seemed normal”

concerning the girl’s disappearance.

Coco’s Restaurant is located on Main Street in Barstow, several blocks from

Interstate Highway 15. Defendant usually went to work by driving on Main Street to

Interstate 15, then proceeding on the interstate highway to Fort Irwin Road. The distance

from the Rimrock Apartments to the location of Tahisha’s body on Fort Irwin Road was

approximately seven miles. Detective Franey drove this route several times and arrived

at the location where Tahisha’s body was found within nine to 11 minutes while keeping

within the speed limit.

d. Expert testimony

i. Tahisha’s


On Tuesday, April 27, Dr. Frank Sheridan, a forensic pathologist, performed an

autopsy on Tahisha. Tahisha was four feet tall and weighed 50 pounds. Dr. Sheridan

testified that her body exhibited a grouping of injuries that occurred while she was

alive — injuries that were accompanied by bruising, swelling, and redness — and a

grouping of injuries that occurred at or after the time of death, when her body no longer

reacted to injuries.

Dr. Sheridan began by describing the injuries to Tahisha’s head. She had bruises

and abrasions on her upper and lower lips, likely caused by someone placing a hand over

her mouth to suffocate or silence her. She also had bruises and abrasions on the bridge of

her nose, her cheeks, and her chin, which might have been inflicted during a struggle.

There also was bruising in her right temple area. Finally, she had suffered at least two

major blows to the back of her head, which caused bleeding in the subdural space

between her skull and her brain. Dr. Sheridan testified that the presence of a subdural

hemorrhage strongly suggests that the injury was caused when Tahisha’s head was in


motion and was slammed forcibly into a hard flat surface, such as a floor. Her head

might have been slammed into something more than twice, but a blow against the same

area of the head as an earlier blow would not cause distinguishable subdural bleeding.

Tahisha also suffered injuries on her arms that had elements of both bruising and

abrasions, a combination that typically is seen when someone has been struggling. She

had a large bruise as well as abrasions on her left shoulder, and a bruise in the iliac crest

region of her back. Dr. Sheridan testified that the blows to Tahisha’s head and the

injuries to her back and shoulder were consistent with her having been thrown to the floor

and held down while she struggled. She also had bruises on her legs and a bruise in her

pubic area just above her vagina.

Her body exhibited injuries inflicted by a sexual assault. The vaginal walls were

bruised, and the hymen was disrupted. When Dr. Sheridan initially examined the body,

blood was flowing from the vagina, indicating there was a laceration as well as bruising.

Based upon the location of the bruising, Dr. Sheridan determined that something had

been inserted at least one inch inside Tahisha’s vagina. Based upon the level of

inflammation associated with the vaginal injuries, Dr. Sheridan concluded that Tahisha

was alive for longer than one hour, but not longer than three or four hours, after the

vaginal injuries were inflicted.

Tahisha’s heart and lungs had tiny, scattered, surface hemorrhages that resulted

from obstruction of her breathing. Her suffocation, together with the other injuries she

suffered while alive, were consistent with someone grabbing her, placing a hand over her

mouth, and throwing her down on the floor, followed by a struggle, obstruction of her

breathing, and a sexual assault. Tahisha may have lost consciousness due to the blows to

her head or the suffocation, but neither of these injuries appeared to be the cause of death.

None of the injuries resulted in bleeding, other than the injury to her vagina.

Tahisha died from strangulation. No bruises were visible on the exterior of her

neck, indicating that she no longer was struggling at the time of her death, but bruising


had occurred deep in the muscles around the larynx and trachea, which is typical of

forcible compression of the neck. The evidence of blockage of the flow of blood through

her jugular veins included hemorrhaging within the eyes and scalp, congestion in the

blood vessels in her brain, and hemorrhaging into the bone around the ear. None of these

symptoms involved bleeding outside the body. Dr. Sheridan testified that strangulation

must continue approximately two and one-half to three minutes to cause death.

Tahisha also suffered a cut approximately three centimeters in length on her neck.

The wound was inflicted with a sharp instrument, probably a knife. It was an incised

wound rather than a stab wound, meaning it ran across her skin. The injury was the type

that could occur if someone held a knife to her throat and moved it across her skin. The

cut was not deep and was not life threatening. It appeared from the crime scene

photographs and from the small amount of blood on Tahisha’s clothing that only a small

quantity of blood had flowed from this wound, a circumstance indicating the wound was

inflicted at or near the time of death.

Finally, there were scrapes on Tahisha’s arms, legs, torso, chest, back, and head

that did not display any redness or bruising, indicating they occurred at or after the time

of death. Because the type of white chalky material found in the mine site was associated

with these scrapes, the latter injuries probably occurred when Tahisha’s body was thrown

down the embankment into the mine pit. The condition of Tahisha’s body when found on

Saturday, April 24, was consistent with her having been killed sometime on Friday night,

April 23. Dr. Sheridan agreed that the actions that caused these various injuries “[c]ould

be characterized as a very vicious assault on a six-year-old girl . . . .”


Swabs from Tahisha’s body

Criminalist Lough collected evidence from Tahisha’s body, including swabs of the

inside and outside of her vagina, as well as a rectal swab. Lough began testing the swabs

on April 27, before any sample of blood from defendant had been submitted to the crime


laboratory. Lough’s testing detected the presence of saliva on the outer genital area.

Further testing indicated that the person whose saliva was found on Tahisha’s body had

ABO type A blood. Tahisha had ABO type O blood, which excluded her as the source of

the saliva. Defendant is among those persons comprising approximately 30 percent of

the population who have ABO type A blood.

Criminalist David Stockwell subsequently performed DNA testing on the external

vaginal swab. He found DNA that was consistent with Tahisha’s DNA, and also DNA

from another person. The three genetic markers that were inconsistent with Tahisha’s

DNA were consistent with defendant’s DNA.9 These markers appear on different

chromosomes, and thus are independently inherited; that is, whether a person inherits one

protein has no relation to whether that person inherits another protein. Stockwell testified

that the frequency of individuals having the same genetic markers as found in the DNA

that was foreign to Tahisha is approximately one in 400,000.

Criminalist Donald Jones analyzed the internal vaginal swab and the rectal swab

using a technique known as restriction fragment length polymorphism, or RFLP. The

RFLP procedure employs an enzyme that recognizes certain sequences of DNA and

severs or “restricts” the DNA in certain locations. The length of particular sequences of

DNA will vary among individuals. Therefore, the RFLP test may establish that DNA

from more than one individual is present by revealing different lengths of the selected


Stockwell tested the DNA for seven markers, and found three markers that were

inconsistent with Tahisha’s DNA. The DQA1 marker matched defendant’s marker. The
GYPA marker results reflected a type A, which was Tahisha’s type, and a type B, which
was foreign to Tahisha. The presence of both A and B types reflected that the foreign
donor was type B or type AB, because any “A” from a type AB foreign donor would be
indistinguishable from Tahisha’s type A. Defendant is a GYPA type B. The D1S80
marker matched defendant’s marker.


sequences of DNA, and may establish whether the foreign DNA is consistent or

inconsistent with a particular foreign donor.

Because the internal swabs were collected from parts of the body that slough off

epithelial cells, these swabs contained large amounts of Tahisha’s DNA. Lough had

suggested to Jones that these swabs also might contain foreign DNA from saliva.

Therefore, Jones had the task of attempting to identify any foreign epithelial cells shed

from the mouth in saliva, amidst a much larger quantity of epithelial cells from the

victim. In attempting to maximize the amount of any foreign DNA in the tested sample,

Jones used 10 to 12 times the amount of sample that normally is tested.

Jones’s RFLP test generated results that reflected the presence of Tahisha’s DNA,

as well as some sequences of DNA that were different lengths from the sequences of

Tahisha’s DNA. Jones testified that “overloading” of the sample may have resulted in a

higher incidence of “partially digested” DNA — sequences that were not severed at the

proper site on the DNA and therefore were a different length. In Jones’s opinion, the

sequences of DNA that were a different length from Tahisha’s DNA were “partial

digests” rather than foreign DNA. Although Jones concluded that the sequences that

were of a different length from Tahisha’s DNA were due to partial digests, he also

testified that such sequences could result from foreign DNA or from bacterial DNA

present in the body; if they were the result of foreign DNA, they were not the product of

defendant’s DNA.

iii. Blood on defendant’s shirt

Criminalist Lough performed a test on a spot of blood one millimeter in diameter

located on the neck of a shirt found in defendant’s apartment, to determine whether five

different genetic markers were present. Lough was able to extract only one genetic

marker — identified as a PGM 1 subtype — because the sample was very small. That


subtype appears in approximately 40 percent of the population. The genetic marker

matched Tahisha’s blood, but did not match defendant’s blood.

Criminalist Stockwell tested a second spot of blood, which appeared on the upper

left front of the shirt and measured several millimeters in diameter. Stockwell analyzed

two genetic markers identified as GM/KM (or gamma marker and kappa marker). These

two markers are independently inherited, and they provide useful statistics by which to

distinguish among various population groups. Among the three racial groups that

comprise the majority of San Bernardino County — Caucasians, African-Americans, and

Hispanics — the type of GM protein in the bloodstain never appears among Caucasians

or Hispanics, but appears in approximately three of every 1,000 individuals of African-

American ancestry, including those having mixed-race ancestry. Because the GM protein

in the bloodstain excluded Caucasians and Hispanics as possible sources, Stockwell

considered the frequency of the bloodstain’s type of KM protein among the African-

American population. This type of KM protein found in the bloodstain occurs in

44.9 percent of individuals with African-American ancestry, including those having

mixed-race ancestry. These results excluded defendant, who is Caucasian, as a source of

the bloodstain. These two factors matched Tahisha, whose father is African-American

and whose mother is Caucasian.

Although the type of testing performed in 1993 required use of the entire

bloodstain, after that testing there remained cellular material that had adhered to the

fabric. This material was saved in anticipation of advances in testing technology. In

1996, Stockwell was able to test seven locations on the DNA for genetic markers that are

independently inherited.10 Each of the seven markers matched Tahisha’s blood.


These sites were identified as DQA1, LDLR, GYPA, HBGG, D7S8, GC, and

D1S80. The protein on these sites is found in the population with African-American
ancestry, including mixed-race ancestry, with the following frequencies: (1) DQA1 —

(footnote continued on following page)


Stockwell calculated that the frequency with which someone with this genetic profile

would appear in that population is one in 400 million.

iv. Stains on defendant’s shirt

There was a pink stain on the left sleeve of defendant’s shirt, which appeared to be

similar in color to pink stains on the front of Tahisha’s dress. Criminalist Lough was

unable to determine what caused the pink stain on the shirt or whether that stain was

caused by the same substance as the stains on Tahisha’s dress. Lough could not find any

expert who could compare the stains on the two articles of clothing, but a Federal Bureau

of Investigation (FBI) laboratory agreed to compare the stain on defendant’s shirt to other

substances provided by Lough in an attempt to find a match. The FBI laboratory was

provided four of Tahisha’s lipsticks, but they did not match the pink stain on defendant’s



The plastic star

On April 28, the day Lough vacuumed a plastic star from the carpet, Franey was

unaware Tahisha had been wearing stick-on star earrings on the day she disappeared.

The investigation into possible sources of the pink stains on defendant’s shirt and

Tahisha’s dress led Franey, on May 3, 1993, to question Tahisha’s family about anything

she may have been wearing as makeup. He asked Stefan what Tahisha “had on” the day

she disappeared, but apparently did not specify that he was referring to makeup. In

response, Stefan retrieved a card that held stick-on earrings, and told Franey that Tahisha

had been wearing the star earrings labeled as “Friday” earrings. Franey observed that the

star impression on the card was approximately the same size as the plastic star that Lough

(footnote continued from preceding page)

3.3 percent, (2) LDLR — 34.8 percent, (3) GYPA — 23.2 percent, (4) HBGG — 20
percent, (5) D7S8 — 37.9 percent, (6) GC site — 14.6 percent, and (7) D1S80 — about
6 percent of that population.


had vacuumed and collected from defendant’s carpet. Franey confirmed with Tahisha’s

mother and with the neighbor, Ulrike Myers, that Tahisha had been wearing the star

earrings that day.

Franey could not find any store in Barstow that sold stick-on earrings identical to

those on Tahisha’s card of earrings. Franey learned from Tahisha’s father that Tahisha’s

card of earrings was purchased at the Kids Mart store in Bakersfield. Franey determined

that there was no Kids Mart store in Barstow. Franey purchased from the Bakersfield

Kids Mart store several packages of the stick-on earrings for comparison and testing.

Franey also purchased the brand of stick-on earrings that were available in Barstow.

Criminalist Craig Ogino tested a stick-on earring from a package purchased at the

Kids Mart store in Bakersfield to evaluate whether the earring found in defendant’s

apartment might have been tracked into his abode on the bottom of a shoe. Ogino stuck

the earring to the sole of a shoe and took five steps on a sidewalk like that outside

defendant’s apartment. Examined under a microscope, the stick-on earring had pitting

and scratch marks. In contrast, the stick-on earring found in defendant’s apartment did

not have the same type of damage. Ogino concluded that no one had walked on the stick-

on earring found in defendant’s apartment.

Criminalist William Matty, who specialized in analyzing “tool marks” —

manufactured items that have been marked in some manner by another object —

examined the stick-on star earring found in defendant’s apartment, the card of stick-on

earrings produced by Stefan, and the cards of stick-on earrings purchased by Franey in

Bakersfield and Barstow. The markings were not adequate to establish that the stick-on

earring found in defendant’s apartment came from the earring card obtained from Stefan,

but Matty determined that the stick-on earring was from the type of card produced by

Stefan and obtained by Franey in Bakersfield, but not from the type purchased by Franey

in Barstow. Matty also concluded that the stick-on earring was identical in appearance to

“Friday” stick-on earrings on the cards purchased in Bakersfield, and that this earring


matched the outline of a star that was faintly visible in the location where a “Friday”

earring would have been located on the card obtained from Stefan.

vi. Bentonite

Erich Paul Junger, an expert on forensic trace examination and forensic geology,

studied the pants and boots retrieved from defendant’s apartment, the floormats obtained

from his vehicles, and a sample of the geologic substance taken from the mine location

where Tahisha’s body was found. The material from the mine was bentonite, a fluffy

clay containing bits of other minerals. Junger found bentonite in the toes, the side seam,

and some webbing in the shoes. There also were white smears of bentonite on the pants,

and particles of bentonite inside the pants cuffs. Finally, traces of bentonite were found

on a car mat from one of the vehicles. The bentonite found on defendant’s belongings

was of the same color and type as the bentonite taken from the crime scene. The

bentonite had the same general ratio of other minerals mixed in, and was relatively pure

compared to bentonite that may be found at other sites, such as quarries that have been

abandoned and exposed to the elements. The shoes and pants did not have any sand or

other types of stray soil that might be picked up if the wearer had walked around places

in addition to walking in a bentonite deposit. Junger testified that because only bentonite

was found on the items of apparel, the material could be analyzed and characterized

despite the small sample obtained from the items. Junger concluded that the bentonite on

defendant’s belongings could have come from the excavation where Tahisha’s body was


Junger also examined 27 soil samples collected by Detective Franey in the

Barstow area. Franey consulted with persons who worked at Fort Irwin, in order to

determine the various locations to which someone who worked in range control might

walk, and collected 19 of the samples at Fort Irwin. Franey also collected three samples

at the Rimrock Apartments, and five samples at various locations in the desert, including


in and around the mine where Tahisha’s body was found. Two samples taken from sites

within the quarry contained bentonite, but the samples taken from Fort Irwin, defendant’s

apartment complex, and other locations did not contain bentonite. There are six bentonite

mine sites within a 50-mile radius of the crime scene, but only the site where Tahisha’s

body was found had white bentonite.

vii. Pubic hair found on Tahisha’s dress

Tahisha’s dress was not removed until the autopsy was performed. The dress then

was delivered to criminalist Lough for examination. Upon removing the dress from its

sealed bag on April 30, Lough found a pubic hair on the dress. Lough had examined the

dress at the mine pit, but she had not seen the pubic hair at that time. The pubic hair did

not match defendant’s, defendant’s girlfriend’s, Tahisha’s mother’s, or her mother’s

boyfriend’s hair. Five other hairs found on Tahisha’s dress matched Tahisha’s hair.

Forensic expert Junger testified that the pubic hair had a razor-cut edge such as one might

find on a hair that had been shaved in the manner depicted in Shaved Pussy magazine.

He also testified that hair is resilient and may be transferred easily from one location to


2. The defense case

a. Evidence concerning defendant’s background, character, conduct, and


Defendant did not testify at trial, but evidence concerning his life and character

was presented by psychologist Edward Fischer, who examined defendant, and by

defendant’s family and friends. Defendant was born in 1951. He had two brothers —

Kenneth, born in 1949, and Kevin, born in 1963 — and two sisters — Deborah, born in

1954, and Brenda, born in 1957. The five siblings were raised by defendant’s mother and

stepfather, who struck his wife and children with his hands, spanked defendant, and hit

defendant with a belt. As a child, defendant was timid, shy, and passive, and had no

close friends. He was taunted and called retarded by his siblings and other children. He


received poor grades in school, and was in special education classes from the seventh

grade until he left high school during his junior year and enlisted in the Army at 17 years

of age. As an adult, he remained passive and avoided confrontation.

Defendant served in Thailand, Vietnam, and Korea. While in the Army, he

worked as a wheeled vehicle mechanic, and became sergeant first class in charge of a

small motor pool. Defendant met his future wife, Kwang Lee Chong, in Korea. Their

first child was born in 1976; they wed in 1978; the family moved to the United States in

1979, and their second child was born in 1980. In 1981, the Army transferred defendant

to Allentown, Pennsylvania. In Allentown, Kwang purchased a convenience store, and

when the Army transferred defendant to Hawaii in 1984, Kwang remained in Allentown

with their children to operate the store. In 1987, the Army transferred defendant to Fort

Irwin. Defendant and Kwang remained friends, and their children visited defendant once

after he was transferred to Fort Irwin, but Kwang and defendant did not reside together

after 1984, and they divorced several years prior to his arrest. They remarried after his

arrest. Kwang testified that defendant was a wonderful father and a good husband.

Defendant became depressed after his marriage failed, and began drinking

alcoholic beverages more than he had in the past. While serving in the military at Fort

Irwin, defendant began drinking during the day, and sometimes would leave work after

lunch and go out into the desert and become intoxicated. Defendant received a “bad

efficiency report” after an officer discovered his alcohol-related activities, and defendant

then was given the option of retiring from the military. He chose to do so in July 1988,

after 20 years of military service, rather than face further military discipline.

When defendant retired from the military, he became a firing range maintenance

supervisor at Fort Irwin for DynCorp, a military contractor. His supervisor at DynCorp,

Larry Blaine, testified that defendant was a hard worker and an exacting supervisor to the

15 employees who worked under him, and performed his job extremely well. In 1992,

when Dyncorp was awarded a five-year contract to continue managing Fort Irwin, the


new contract’s listing of job titles that were funded pursuant to the contract did not

include defendant’s job title. Thereafter, despite Blaine’s reassurances, defendant had a

fear, bordering on the abnormal, of losing his job. Blaine also testified that defendant

was generally quiet and withdrawn at work. Blaine did not believe that defendant

attempted suicide because of job concerns, and also did not believe he could have

committed the crimes with which he was charged. When defendant’s apartment was

cleared out after his arrest, Blaine was shocked to learn that defendant had been taking

property from DynCorp and the Army.11

Vicki Evans, whom defendant supervised at Dyncorp, testified that defendant was

very concerned about job security and spoke of that frequently. In 1991, when Evans

underwent chemotherapy and could not work, defendant visited her once or twice a week

to ask whether she needed anything. During those visits, he always was a gentleman to

her daughter, who then was 12 or 13 years of age. Evans testified that defendant was

very passive, and in her view would not commit the charged crimes.

Manuila Cahill testified that she and her daughter, Monique, commuted with

defendant to and from Fort Irwin, where she worked and Monique attended school.

Sometimes she and Monique watched movies at defendant’s apartment, and he always

was very nice and a very good friend. Cahill was surprised that defendant was interested

in the sort of pornography admitted into evidence, that he might attempt suicide, and that

he would steal from his employer. Monique testified that she met defendant when she


Defendant’s criminal history was minimal. As a teenager, he entered a neighbor’s

trailer without permission, entered a neighbor’s shop without permission, and was seen
looking into the windows of a residence. In 1987, defendant was investigated for
shoplifting a cassette tape at the Fort Irwin Exchange, was punished with the loss of two
months’ pay, and received a letter of reprimand. When defendant’s apartment and garage
were searched, it was discovered he had taken about $1,700 of property from DynCorp
and the federal government.


was 11 or 12 years or age, and that he was a sweet, caring, sensitive, calm, polite, and

respectful person who never would scream at a child or grab a child who was riding a


Deborah Wartenbe, the manager of the Rimrock Apartments, testified that

defendant complained about loud children riding their bikes, climbing on the fence by the

satellite dishes, and playing around his apartment, which was in a building of the

complex that housed only adults. She also testified that he usually washed his laundry on

Saturday morning.

Defendant’s former girlfriend, Sylvia Twiford, met defendant in 1987, and resided

with him for one and one-half years in 1991 and 1992. Sylvia testified that on Saturday

mornings, defendant would wash his laundry, vacuum, dust, and do any other cleaning.

She also testified that when children played around the satellite dish by his apartment, he

would shoo them away, sometimes yelling at them. She saw him lose his temper and

scream and yell at a man who angered him, but she described him as a hard-working,

kind, considerate, introverted, shy, and overall nice person who would not commit the

charged crimes.

DuWayne Vandruff worked with defendant and became friends with him at Fort

Irwin when both men were in the Army and they began to work for Dyncorp. Vandruff

described defendant as an “all-around nice guy.” Vandruff resided at defendant’s

apartment for two or three months, and remembered children being near the satellite dish

outside defendant’s apartment, but never saw defendant yell at the children. Vandruff did

not believe defendant was capable of committing the charged crimes.

b. Evidence concerning defendant’s activities on April 23 and 24, 1993

Larry Blaine testified that on April 23, defendant did not express any concern

about his job, and that defendant’s demeanor was normal when he left work. The only

concern defendant expressed to Blaine on April 23 was that defendant needed to leave at


approximately 4:30 p.m. so he would not be late picking up his carpool riders. Manuila

Cahill testified she was commuting with defendant in April 1993 and usually arrived

home at approximately 5:30 p.m.

Robert Hunskor, whose apartment was next to defendant’s, testified that he was

contacted by Mr. Jannsen sometime between 9:15 and 9:45 p.m. concerning Tahisha’s

disappearance. The two men then walked by defendant’s apartment as defendant exited

from his front door. When the threesome reached the area where cars were parked,

defendant and the other two men parted ways. Hunskor did not recall that defendant had

anything in his hands as he left his apartment. From Hunskor’s apartment, Hunskor

could not see the area between defendant’s door and defendant’s vehicles, and did not

know whether defendant had made additional trips between his apartment and his

vehicles. Defendant seemed “normal” to Hunskor when Jannsen and Hunskor

encountered him that evening. Hunskor’s and defendant’s apartments shared an internal

wall, but Hunskor did not hear any noises from defendant’s apartment on April 23 or at

any other time.

Holly Robles was working her shift as a waitress at Coco’s Restaurant in Barstow

on the evening of April 23, 1993. Robles testified that on that evening, defendant arrived

at the restaurant between 9:00 and 9:30 p.m. and departed about 20 minutes later.

When Beverly Walker, a resident of the Rimrock Apartments, returned home on

April 23, it was dark and there were at least three police cars at the apartment complex.

She agreed to assist in the search for Tahisha and received a list of telephone numbers to

call, which she began calling between 9:30 and 10:00 p.m. Walker made telephone calls

to residents for an hour or more, until perhaps 11:00 or 11:30 p.m. At some point during

this time period, Walker contacted defendant by telephone at his apartment.

At 1:15 a.m. on April 24, Detective Griego observed defendant’s vehicle in a

parking area of the apartment complex. At 2:35 a.m., Franey and Griego went to

defendant’s apartment. Defendant appeared to have been sleeping, and was calm when


the officers spoke to him. Shortly before noon on Saturday, defendant was in the

apartment complex’s laundry room, apparently just finishing washing some laundry.

c. DNA evidence

Marc Taylor, a forensic scientist, evaluated the DNA testing performed by the

prosecution’s experts. With respect to the outer vaginal swab, Taylor testified that

Stockwell properly performed the DNA testing on this sample, that Stockwell’s results

were accurate, and that these results were what one would expect to find if defendant had

left his saliva on Tahisha. Taylor also stated that the figure of one in 400,000 was “a

close estimate.” With respect to Jones’s testing of the internal vaginal and rectal swabs,

Taylor criticized Jones’s decision to “overload” the sample. Taylor also testified that the

results of Jones’s RFLP test reflected either “partial digestion” of Tahisha’s DNA or

foreign DNA, and that if the DNA was foreign, it did not match that of defendant. Taylor

agreed that the test results did not establish the presence of foreign DNA.

Taylor did not find any flaws in Stockwell’s testing of the blood found on

defendant’s shirt, and agreed that all of the markers in that blood matched those of

Tahisha. In calculating the frequency with which an individual with these markers would

appear in the population, Taylor expressed discomfort with a formula using the GM and

KM statistics in combination with the other DNA markers. Instead, multiplying together

the frequency of the markers, without consideration of the GM and KM statistics, Taylor

calculated that all of these remaining markers would appear in one in every 552,000


d. Bentonite

Dr. Joan Esther Fryxell, a geology expert, testified that the sample of bentonite

collected from defendant’s belongings was too small to permit identification of its source.

Fryxell also testified that the color of bentonite is not a reliable characteristic with which

to determine its source, because if the minerals in the clay are light colored, the addition


of a small amount of impurities may change the color drastically, while dark minerals

will be affected only minimally by the addition of impurities. Accordingly, the chemical

composition of two samples may be nearly identical, but their colors may be different.

Fryxell agreed that the bentonite found on defendant’s belongings was similar to

the bentonite from the crime scene, but stated that the primary characteristics of the

bentonite found on defendant’s belongings also were similar to those of the bentonite

found in other locales. She testified that most of the terrain in the Fort Irwin area that is

used for firing ranges is weathered and would not have soil that would match the

bentonite from the crime scene. She agreed it was unlikely the bentonite on the dress

boots found in defendant’s apartment could have come from walking in the flat areas of

Fort Irwin. She also testified that a bentonite fragment found on the work boots

defendant kept at work and wore while supervising the maintenance of the firing ranges

did not match the bentonite found on his dress boots or the bentonite from the crime

scene. She confirmed she had been told by the defense that defendant did not have any

explanation regarding the source of the bentonite on his dress boots.

William Mann, the owner of the company that operated the excavation site where

Tahisha’s body was found, testified that his company’s active operation of the excavation

site was sporadic; about twice a year, a bulldozer was sent to the excavation to gather a

large stockpile of bentonite, and every month or two, when trucks arrived to haul away

bentonite, a “loader” was sent to the site. According to Mann, in April 1993 one other

actively mined bentonite site was located in the Fort Irwin area.

e. The plastic star

Defendant presented evidence suggesting that the star found in his apartment

might have come from some other child, might have been brought into the apartment by

adhering to something other than the sole of a shoe, or might have been placed in the

carpet after defendant had vacuumed on Saturday. Defendant’s forensic expert, Marc


Taylor, agreed that the star could have come from Tahisha’s card of earrings, but testified

it also could have come from any card of earrings that were produced using the same

mold, which had several small defects. Taylor speculated that the adhesive on the back

of the star was capable of clinging to the side of a shoe or trousers, but he did not analyze

the stick-on star earring.

Both Mabel Pizzo, the mother of Tahisha’s friend Carrie Pizzo, and Carrie

testified they never had seen Tahisha wear earrings and they were certain that other

children residing in the apartment complex wore stick-on earrings.

The carpet in defendant’s living room apparently had been vacuumed before

Lough vacuumed the carpet for evidence. A photograph of the living room taken at the

time the search warrant was served revealed marks from what Franey described as a

“standard vacuum cleaner,” which were different from the marks left by Lough when she


f. Pubic hair found on Tahisha’s dress

Marc Taylor testified that hair may be very important evidence, particularly in

cases involving sexual assault. He agreed that because pubic hair generally is confined in

clothing, such hair usually is not found floating in the air. He testified that finding a

pubic hair on a victim in a mine pit is more significant than finding a pubic hair on a

victim in a motel room or bathroom. Taylor also testified that he would expect to find

hairs in an apartment from a victim who was assaulted, thrown on the floor, and left on

the floor for a few hours.

g. Medical and psychological evidence concerning defendant

Defendant’s two psychological experts testified during 11 days of the trial. Dr.

Edward Fischer testified concerning defendant’s background, the results of various tests

administered to defendant, the nature of defendant’s pornography collection, and the


various types of child molesters. Dr. Veronica Thomas, a clinical and forensic

psychologist, testified concerning pornography, sexual behavior, and pedophilia.

Fischer testified that defendant had fibril convulsions as an infant, but outgrew his

seizure disorder. Fischer also testified that defendant had a history of migraine

headaches, beginning at 24 years of age, after he had been knocked unconscious in

Vietnam.12 Defendant denied all drug use but admitted consuming alcoholic beverages

when he was depressed. Defendant told Fischer that he was exclusively heterosexual,

and until he met Kwang, all of his sexual activity was with prostitutes. Defendant also

told Fischer that all of his sexual relationships had been with adult women.

Fischer administered several tests to defendant to evaluate his brain function. The

Bender Gestalt visual motor test led Fischer to believe that defendant was compensating

for some “marginal sort of brain damage.” Fischer also administered to defendant the

Wechsler Adult Intelligence Test – Revised, on which a person of average intelligence

will have a score of 100. Defendant’s verbal score was 84, his performance score was

93, and his full scale score was 87, which is in the “dull normal” range. Fischer also

administered the Wide Range Achievement Test, which reflected that defendant had

improved his reading and writing abilities over his lifetime beyond the level that would

be expected from one with his native intelligence, but that he had difficulty performing

simple computational problems. The Luria-Nebraska Neuropsychological test generated

similar results.


Defendant reported to Fischer having been rendered unconscious on at least two

occasions as an adult. Fischer acknowledged that defendant had told Dr. Richard Hall, a
Department of Corrections psychologist who had evaluated defendant, that defendant had
not been rendered unconscious, and that the medical records reviewed by Fischer did not
reflect that defendant had been rendered unconscious. Fischer concluded that defendant
was “not a reliable historian from my perspective.” Fischer also expressed uncertainty
concerning whether defendant was dishonest or delusional.


Fischer testified concerning medical tests administered by others. An

electroencephalogram (EEG) and a magnetic resonance imaging (MRI) test were

performed upon defendant in March 1997. Fischer testified that the results of the EEG

were normal. He also testified that the MRI test reflected that defendant had many small

lesions within the deep white matter of both cerebral hemispheres, which was consistent

with his learning disability and other indications of brain dysfunction that Fischer

perceived in defendant. Fischer testified that defendant has an arachnoid cyst in his left

temporal lobe, which may be the cause of his “rather unusual affect.”

Various tests were administered by Fischer and others to evaluate defendant’s

personality and psychological tendencies. Fischer testified that Dr. Fredman at Victor

Valley Community Hospital administered to defendant the Minnesota Multiphasic

Personality Inventory test (MMPI) about three days after Tahisha’s death. The answers

given by defendant when Fredman administered the test indicated that defendant suffered

from depression, which is associated with sadness, pessimism, brooding, being “self-

punitive,” and feeling a lack of self-worth. Defendant’s answers also reflected “mania,”

which Fischer described as “the opposite of depression.” Fischer stated that this

“paradoxical sort of profile” is “found in people who have brain damage . . . . And the

impact of the mania seems to make them a bit more agitated and unable to sit still about

it. In some aspects it energizes the depression and may make it easier for them to act

out.” Fischer testified that defendant’s profile was different from the profile of a person

who would commit a vicious, senseless crime. Fischer also testified that the “pedophilia

score” on the MMPI administered by Fredman indicated that it was “unlikely that

[defendant] has any interest in children as sex objects.”

Fischer administered to defendant the Rorschach “inkblot” test in December 1996.

Fischer testified that defendant’s failure to perceive human movement in any of the

shapes was consistent with a person with brain dysfunction who does not imagine or

fantasize. Fischer also testified that defendant’s responses reflected vulnerability and


depression, and lacked “any indication of a failure of impulse control or any tendency

toward expressing aggression or explosiveness.” A Thematic Apperception Test also

reflected that defendant lacked imagination.

Fischer diagnosed defendant as suffering from major depression, dementia, and a

learning disorder. Fischer identified, among physical conditions that affected defendant’s

mental state, defendant’s high blood pressure, migraine headaches, the temporal lobe

cyst, and the multiple brain lesions. Finally, Fischer identified as “personality disorders”

defendant’s desire to be cared for by others, such as by his wife, and his “obsessive

compulsivity, the need for orderliness of things and need to be in control.” According to

Fischer, there was no indication in defendant’s history or psychological tests that he was

a pedophile or a violent person.

Fischer testified that defendant told him there was no history of child molestation

in defendant’s family, and Fischer confirmed that this information was important to his

evaluation of defendant. The prosecutor asked Fischer, hypothetically, whether Fischer’s

evaluation would be affected if Fischer learned that defendant’s older brother, Kenneth,

had molested Kenneth’s and defendant’s two sisters, Kenneth’s daughter, and Kenneth’s

stepdaughter, and that Kenneth had committed suicide when the molestation of his

stepdaughter was discovered. Fischer responded that “it would increase the probability

that [defendant] was somehow sexually deviant.” Fischer added, however, that

defendant’s “history [is] remarkably different. And it would also appear that his brother

had a much different personality.”

The trial court ruled that police records concerning Kenneth’s sexual molestation

of Kenneth’s daughter and stepdaughter were admissible for purposes of impeachment.

The prosecutor provided the police records to Fischer, and Fischer testified that the

records revealed that Kenneth had used pornographic videos in the course of introducing

his daughter, then four years of age, to sex, and that Kenneth engaged in various sexual

acts with her. The records also revealed that when Kenneth was confronted concerning


his molestation of his stepdaughter, he committed suicide. Fischer also testified that the

defense investigator, Mr. Ron Hawkins, had informed Fischer during a break in the

proceedings that Kenneth had molested Kenneth’s and defendant’s two sisters. Fischer

stated that none of this information caused him to doubt the validity of his opinions

concerning defendant.

The next day, Fischer confirmed he had learned that morning that defendant had

informed Dr. Thomas, defendant’s other psychological expert, that defendant had been

molested by his brother Kenneth when defendant was six or seven years of age. Fischer

rejected the suggestion that this information established it was “very likely” that

defendant was a child molester, and stated that the information did not alter his

conclusions regarding defendant.

When questioned by the prosecutor concerning an MMPI test that Fischer

administered to defendant in November 1996, Fischer testified that defendant’s score on

the “pedophilia scale” was 66, which indicated that defendant had more pedophilic

tendencies than 93 percent of the population, and his score on the “sadomasochistic

scale” was 85, which indicated that defendant had more sadomasochistic tendencies than

98 percent of the population. Fischer testified that the test results did not appear to be

valid, because “so many scales are so incredibly elevated,” and that Fischer had

disregarded the results and had not included them in his report. Fischer attributed the test

results to “an incredible amount of exaggeration” by defendant, which may be

accomplished by giving the least socially desirable answer to each true/false question.

Fischer confirmed that he could not determine whether a test taker was lying or

answering truthfully, and he agreed that if defendant’s answers were truthful, the test

results would indicate that defendant very likely was a child molester and that defendant

had sadomasochistic tendencies in interpersonal relations. Fischer further agreed that if

the test results were valid and reflected defendant’s true personality, defendant was “the

type of person that would do what was done to Tahisha Clay.” Fischer added that the test


results were inconsistent with the apparent absence of violent crimes in defendant’s


When asked how a person with defendant’s psychological profile would react in

the aftermath of bringing a child into his apartment, molesting her, and rendering her

unconscious, Fischer responded that such a person would have fled and attempted to

avoid the situation. Fischer testified that he did not believe that such a person would

have been able to go to Coco’s Restaurant and talk to the police if he had committed

these acts, and that such a person would not have been able to reflect upon the situation

and decide that killing the child was the best option. Fischer expressed the view that if

defendant had committed these crimes, he would have become very depressed, would

have confessed if confronted with the crimes, and then might have attempted to commit

suicide. Fischer testified that defendant’s suicide attempt “might have resulted from his

being the perpetrator but . . . also might have resulted from his being worried about his

job and being the subject of the investigation.”13 Fischer also testified that defendant was

timid, and agreed that if defendant were capable of attacking another person, he would

attack a child rather than an adult.

Fischer also addressed the issue of defendant’s collection of pornographic

materials. To provide some perspective regarding the collection, Fischer prepared a

videotape comprised of random 30-second excerpts (from defendant’s pornographic

video collection), which was shown to the jury. Fischer testified that none of the 30-

second random excerpts and none of defendant’s magazines that the prosecutor had


Fischer learned that defendant had attempted suicide on other occasions prior to

the April 25 attempt, but defendant had concealed those attempts. Fischer testified that
when defendant attempted to commit suicide on April 25, he was worried about losing
his job at DynCorp. It appeared to Fischer that defendant’s being roused out of bed in the
middle of the night by police officers who were looking for Tahisha was one of the
factors that drove him to attempt suicide.


chosen to bring to court included children or portrayed anything illegal, and that he

considered defendant’s pornography to be within the normal range of such materials.

With respect to Bridled magazine, which portrayed women who were bound,

Fischer stated that defendant may have purchased the magazine out of curiosity, and that

it was a normal publication when considered in the context of defendant’s entire

pornography collection. In Fischer’s opinion, Shaved Pussy and Oriental Delight

magazines catered to persons who were interested in or fantasized about adolescent girls,

and Fischer viewed such magazines as “a component of normal sexuality.” With respect

to “little girl” costumes, Fischer testified that pedophiles “are more fixated on the age of

the child than they are on the way the child is dressed.” Fischer noted that some of the

magazines found in defendant’s bedroom were old.14 According to Fischer, the

“Coolidge Principle,” which suggests that something “new” is more stimulating sexually

than something “known,” explains why defendant had such an extensive collection of


Fischer testified concerning two types of child molesters. According to Fischer,

“fixated” child molesters prefer the company of children and have no history of sexual

relations with adults, whereas “regressed” child molesters do not restrict their sexual

activities to children and might enjoy adult pornography. Fischer stated that regressed

child molesters develop psychosexually into maturity, but develop a relationship with a

child and then molest the child. Fischer testified that stress arising from inadequate

gratification in relationships with adults, rather than professional frustration, is a factor

that may prompt a regressed pedophile to molest a child. Fischer stated that to the best of


The copyright dates of Bridled, Oriental Delight, and Shaved Pussy magazines are

December 1985, January 1986, and November 1988, respectively.


his knowledge, defendant was not a regressed child molester, but Fischer acknowledged

nonetheless that this was a possibility.

Defendant’s other psychological expert, Dr. Thomas, also addressed the issue of

defendant’s pornography. Thomas described the videotape of excerpts from defendant’s

video collection as “pretty tame compared to the kinds of pornography I have seen,” and

stated that a pedophile would not be interested in the videos. With respect to the

presence of models who had young faces and fully developed secondary sexual

characteristics, Thomas testified that it is typical for heterosexual males to be attracted to

nubile females, and that Shaved Pussy and Oriental Delight magazines were responsive

to the fantasy of having sex with an adolescent female. A pedophile, Thomas testified,

would be disgusted by these types of magazines, because the women depicted have

secondary sexual characteristics and the articles concern adult thoughts and desires.

Thomas described Bridled magazine as involving domination and sadomasochism, and

testified that she would not conclude that a person who possessed one magazine like

Bridled in a substantial collection of pornography was sadomasochistic. She also

testified that the circumstance that a man looks at sexual images does not signify that he

engages in the conduct portrayed.

According to Thomas, most adults who were molested as children do not molest

children, but between 40 and 50 percent of child molesters have a history of being

molested. She also testified that a boy who was molested by a male and who molests as

an adult generally will molest a male victim. Thomas testified it would be unusual for “a

person who functioned within the normal range of sexual behavior over a 20-year period”

to engage in deviant sexual behavior.

Thomas testified that a regressed pedophile has some sexual interest in children,

does not act on that interest, typically gets married, has children, and may possess adult

pornography. During a period of extreme stress or depression, a regressed pedophile may

engage in a sexual relationship with a child for a period of time. The stress may be from


internal depression or anxiety or from external events such as marital problems, loss of

employment, or financial problems. Among the psychological characteristics of

regressed pedophiles identified by Thomas were that the pedophile initially engages in

molestation as an impulsive rather than a premeditated act, and primarily victimizes

females. According to Thomas, a pedophile develops a relationship with a child in order

to be loved by the child and to satisfy the pedophile’s sexual needs, and does not want to

cause the child physical harm.

Thomas testified it is extremely rare for a child molester to kill a child, but agreed

with the statement, “Almost any child molester is capable of violence or even murder to

avoid identification.” She also agreed with the description of a regressed child molester

contained in an article by the Behavioral Science Unit of the FBI, entitled “Child

Molesters: A Behavioral Analysis” — a person who “usually has low self-esteem and

poor coping skills. He turns to children as a sexual substitute for the preferred peer sex

partner. Precipitating stress may play a bigger role in his molesting behavior. His main

victim criterion seems to be availability . . . .” Thomas concurred that this type of

molester typically coerces the child into having sex, and may or may not collect child or

adult pornography.

B. Penalty phase evidence

1. The prosecution case in aggravation

The prosecution relied upon the evidence presented during the guilt phase of the

trial, as well as additional testimony from Tahisha’s mother, Marianne, about the impact

of Tahisha’s death upon the family. Marianne described the joy Tahisha brought to her

large extended family in the United States and Germany. Tahisha and her brother Stefan,

who was three and one-half years older than Tahisha, were very close. Tahisha was the

more outgoing of the two children, and she would make friends for both of them when

the family moved. Stefan blamed himself for Tahisha’s death (his mother always had


told Stefan to take care of his little sister), and Marianne blamed herself both for

Tahisha’s death and for the guilt felt by Stefan. Stefan changed from being a happy child

and good student to a poor student with behavior problems. He ran away from home,

attempted to burn down the house, and asserted that he was worthless.

Marianne testified that she became depressed after losing Tahisha and had

difficulty functioning, and that her depression returns at Christmas, Tahisha’s birthday,

and the date on which Tahisha disappeared. She has difficulty responding when persons

ask how many children she has. She cannot look at videos of Tahisha. She had

Tahisha’s body cremated so she could keep Tahisha with her, and her anger at defendant

returns when the family moves, because all she has of Tahisha is a box of ashes.

Marianne testified that neither Tahisha’s father and nor Tahisha’s stepfather can speak

about Tahisha’s death.

Marianne described Tahisha as a bright child who liked to play “dress-up.”

Marianne had dreams of Tahisha going to college, having a career, getting married, and

having children. Marianne told the jury about Tahisha’s favorite books and her school

projects. She shared family pictures and a booklet that Tahisha’s kindergarten class had

given Marianne of their feelings and how they missed Tahisha. She described learning

that Tahisha’s body had been found, and telling Stefan that his sister was gone.

2. The defense case in mitigation

Defendant relied upon evidence presented by the defense during the guilt phase,

and also called as a witness Dr. Richard Hall, the Department of Corrections psychologist

who had evaluated defendant. Hall testified that his tests indicated defendant has an IQ

of 83, but defendant’s history suggested he functions at a higher level. Defendant suffers

from chronic depression and a generalized anxiety disorder, and has some schizoid traits

that make him a loner with some compulsive behavior. Hall also testified that defendant


has a strong ability to manage his emotions, would adapt well to prison, and would not be

difficult for prison authorities to control.

On cross-examination, Hall concluded defendant does not have brain damage, is

not schizophrenic, apparently does not hallucinate, does not have impairment of memory

or of the ability to concentrate, understands the difference between right and wrong,

knows how to control his own conduct, and has little empathy for others. Hall also

described the amenities available in prison, such as television, a game room, movies,

books, visitors, medical care, a varied menu at meals, a variety of job opportunities, and

educational opportunities.

In response, defendant elicited testimony from Hall agreeing that educational and

vocational opportunities do not benefit a person who has been sentenced to life in prison

without the possibility of parole. Hall also acknowledged that many individuals in prison

are violent and that the prison culture views certain crimes, such as child abuse, as very

distasteful. He agreed that life in prison is a very harsh punishment.

Defendant’s brother, Kevin, who is 13 years younger than defendant, testified that

defendant was protective of him when Kevin was a child. He also testified that defendant

was infrequently present during Kevin’s childhood because defendant was in the military

and could not afford to come home, but the brothers frequently saw each other as adults.

Kevin stated that he was certain defendant did not commit the crime, and asked the jury

to spare defendant’s life because he is an innocent man. Kevin also stated that he loves

his brother. Defendant’s sister, Deborah Page-Andrews asked that the jury spare

defendant’s life, stating that defendant always had been soft-spoken and never had raised

a hand to anyone despite being abused as a child. Defendant was very good with his own

children, Deborah’s children, and his younger brother. She knew in her heart he could

not have committed the present crime. Defendant’s wife, Kwang Page, stated that

defendant is a good person, that such an act is inconsistent with his personality, and that


she had no idea how and why the jurors had convicted him. Kwang was very sorry for

what had happened, and asked the jury not to sentence her husband to death.


A. Claims related to the guilt phase

1. Exclusion of asserted exculpatory evidence

a. Excluded evidence


Reported sighting of Tahisha on the night of her disappearance

Defendant moved in limine to admit a police report prepared on April 24, 1993, by

Detective Andrew Espinoza of the Barstow Police Department stating: “Sergeant Gibson

informed me that he had made contact with a witness who was sure that she, the witness,

had seen the victim at the AM/PM Mini Mart on Montara Road last night around

10:30 p.m. [¶] Sergeant Gibson informed me that he had shown a photograph of the

victim to the witness and that the witness identified the girl in the photograph as the same

girl she had seen at the AM/PM Mini Mart.” Defendant also sought to introduce a

second police report prepared by Detective Griego stating that Sergeant Gibson had

briefed other officers on April 24, 1993, regarding “his contact with a witness who had

reported seeing Tahisha at the Montara Arco AM/PM market on Friday night.”

The hearing on defendant’s offer of proof to admit the evidence took place almost

two years after Tahisha’s disappearance. Sergeant Gibson testified he did not recall the

events described in the reports, and it was possible the information concerning a witness

had been given to him by a third party. He testified that if he personally had shown the

photograph to a witness who identified Tahisha, his practice would have been to write

down that witness’s name, but no name was recorded in this instance. Gibson

acknowledged that the two reports, neither of which was written by him, indicated there

was a witness. Gibson stated he had attempted to determine whether any such witness

existed, but was unsuccessful in identifying the witness.


Detective Espinoza recalled that Sergeant Gibson told him about the witness’s

identification of Tahisha, but stated that Gibson had not given him a name. He testified

that Gibson had sent him to the Mini Mart on Saturday, April 24, 1993, to determine

whether anyone there had seen Tahisha in the store the previous night. According to

Espinoza, he spoke to the manager and clerk who were working that Saturday, as well as

the night manager and everyone else whom Espinoza was able to determine had worked

at the Mini Mart on the evening of April 23, and no one recalled having seen Tahisha.

The store manager provided Espinoza with videotapes from the store’s security cameras,

which recorded views of the interior of the store and the sidewalk area outside the store

directly in front of the door; a person could not enter or leave the store without being

recorded by a camera. When Espinoza reviewed the tapes recorded on April 23, he did

not observe Tahisha (or any person resembling her) in any of the recordings. Espinoza

stated he had no idea who the witness might have been.

Defendant claimed he should be permitted to present, at trial, evidence concerning

the police officers’ investigation to establish the possibility that Tahisha was alive at

10:30 on the evening of April 23. The trial court ruled that Officer Gibson could testify

regarding what he had done, but not what the asserted witness had said, because her

statement was hearsay and was not admissible under any exception.

ii. Other potential suspects

Defendant sought to introduce evidence concerning a Phil P., 40 to 45 years of

age, who resided at the Rimrock Apartments. Steve Pizzo, who lived in the Rimrock

Apartments with his wife Mabel and daughter Carrie, assertedly was prepared to testify

that the day after Tahisha disappeared, Mr. Pizzo told the police that two weeks earlier,

Phil P. had asked Carrie, who then was 11 years of age, to accompany Phil to the desert.

According to defense investigator Ron Hawkins, Carrie would testify concerning Phil’s

invitation and her mother’s refusal to allow her to go with Phil. Carrie would further

testify that Phil rarely was in the company of the adult residents, and instead spent his


time with the children, including Tahisha, in the playground area of the apartment

complex. Phil sometimes attempted to teach the children to play tennis, and when he

taught a child how to swing a tennis racket, he would put his arms around the child from

behind the child. Carrie provided this information to the police the day after Tahisha


Defendant also sought to introduce evidence establishing that two days after

Tahisha disappeared, Brian Z. was arrested by a patrol officer for exposing himself and

masturbating near the Rimrock Apartments. Detective Franey contacted Detective

Griego at approximately 3:30 p.m. on Sunday, April 25, concerning the arrest, and asked

Griego to proceed to an automobile towing company and check the tire pattern on Brian’s

vehicle. At approximately 5:15 p.m., Franey and Griego interviewed Brian and checked

the pattern on the soles of his shoes.

The trial court excluded the proffered evidence, because it did not link either of

these men to the crime and hence was incapable of raising a reasonable doubt as to

defendant’s guilt. (People v. Hall (1986) 41 Cal.3d 826, 833 (Hall).) The court added

that, assuming the evidence regarding Phil and Brian was of some marginal relevance,

pursuant to Evidence Code section 352 the probative value of the evidence was

outweighed by its undue prejudice.

b. Discussion

Defendant contends this evidence was admissible to prove that the police

immediately focused upon him without considering other possible suspects, and

“planted” evidence to implicate him. Although he now disavows the third-party

culpability theory upon which he relied in the trial court, he adds that, “assuming

arguendo that the evidence that the police failed to investigate other suspects was

somehow third-party culpability evidence under People v. Hall, [supra, 41 Cal.3d 826,

833,] it was admissible nonetheless.” He asserts the exclusion of this evidence violated


his due process right to present a defense, and his Fifth, Eighth, and Fourteenth

Amendment rights to a fair and reliable trial. These contentions are without merit.

With respect to the reported sighting of Tahisha on the night of her murder,

defendant claims evidence indicating that the police failed to record a witness’s name

would have helped prove that the police “zeroed in on” defendant and “were going to

make him fit” their predetermined view of the crime. In addition, defendant asserts that

because the witness’s statement assertedly was relevant to prove the character of the

police investigation rather than to prove the truth of the matter stated, it was not hearsay

evidence. Moreover, defendant claims that even if the evidence was hearsay, it came

within the exception of Chambers v. Mississippi (1973) 410 U.S. 284, 302, because it

was reliable and was relevant to the “central issue” of his defense. Similarly, with

respect to the absence of further police investigation of Phil P. and Brian Z., defendant

asserts that the “failure to investigate supported the defense theory that [defendant] was

targeted by a biased and fraudulent investigation.” Therefore, defendant contends,

exclusion of this evidence violated his federal due process right to present a defense.

(Washington v. Texas (1967) 388 U.S. 14, 18-19.)

The flaw in defendant’s theory is that the proffered evidence has no tendency to

establish any relevant fact. The Mini Mart evidence reflects that there may have been a

witness who claimed to have seen Tahisha at 10:30 p.m., the police did not record the

name of the purported witness, and the police thereafter attempted but failed to verify the

purported sighting of Tahisha. The evidence concerning Phil P. and Brian Z. reflects that

the police focused more attention upon defendant than upon other men whose conduct

was brought to their attention, but that circumstance does not suggest anything other than

that defendant, for valid and objective reasons, quickly became the prime suspect and that


the police may have elected not to investigate other potential suspects more thoroughly.15

The proffered evidence does not support the conclusion that the police acted maliciously

or “planted” evidence against defendant. The possibility the police may have chosen not

to follow up more thoroughly on all leads does not impeach the evidence against

defendant. Because the proffered evidence has no tendency to establish any relevant fact,

it properly was excluded by the trial court.16


The record reflects that the police pursued various avenues of investigation on the

Friday night that Tahisha disappeared and during the following two days. In light of the
information obtained those two days — that defendant’s apartment faced the satellite
dishes where Tahisha last was seen; defendant was aware when children were near the
satellite dishes and would come outside his apartment to confront them; defendant’s
apartment was the sole occupied apartment at which there had been no response to the
door-to-door searches; defendant provided inconsistent statements when initially
questioned; defendant displayed a bad attitude when contacted by a search volunteer; and
defendant attempted suicide less than 48 hours after Tahisha disappeared and in close
proximity in time to the request to examine his tire treads, subsequently explaining that
he could not take the pressure of the investigation — it is not surprising that defendant
quickly became the prime suspect.


Defendant asserts the trial court excluded the proffered evidence concerning

Phil P. and Brian Z. on the ground that the DNA evidence made it “practically
impossible” for anyone else to have committed the crime. Defendant contends that the
trial court’s reasoning thereby “entirely begged the question raised by the defense theory
of the case. If that blood evidence was planted on [defendant’s] clothes by the police, as
the defense argued, it certainly could not be considered unimpeachable proof of his guilt;
quite the contrary, it would be compelling evidence that he was framed.”

The trial court’s reference to the DNA evidence related to defendant’s argument

that the proffered evidence should be admitted to show third-party culpability, not to his
theory that the evidence was proof of a malicious and fraudulent police investigation. In
that context, the trial court cited People v. Johnson (1974) 200 Cal.App.3d 1553
(Johnson), in which the evidence that a third party might have committed a burglary was
rebutted by evidence establishing that the third party’s fingerprints did not match the
fingerprints at the crime scene and the defendant’s fingerprints did match those at the
scene. Therefore, in Johnson, “the totality of the evidence did not rise to the level
necessary to create a reasonable doubt about [the defendant’s guilt].” (Id. at p. 1564.)
The trial judge expressed the view that Johnson was similar to the present case, because
the DNA evidence in the present case is strong and uncontroverted.

(footnote continued on following page)


As noted above, defendant alternatively asserts the evidence suggesting that the

police failed to investigate other suspects was admissible as third-party culpability

evidence under Hall, supra, 41 Cal.3d 826. Third-party culpability evidence is admissible

if it is “capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do

not require that any evidence, however remote, must be admitted to show a third party’s

possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in

another person, without more, will not suffice to raise a reasonable doubt about a

defendant’s guilt; there must be direct or circumstantial evidence linking the third person to

the actual perpetration of the crime.” (Hall, supra, 41 Cal.3d at p. 833; see also People v.

Geier (2007) 41 Cal.4th 555, 581; People v. Prince (2007) 40 Cal.4th 1179, 1242 (Prince);

People v. Robinson (2005) 37 Cal.4th 592, 625 (Robinson).)

In arguing that the trial court should have admitted the proffered evidence as third-

party culpability evidence, defendant ignores Hall’s requirement of a link, focusing instead

upon Hall’s rejection of the heightened standard of admissibility of third-party culpability

evidence established by People v. Arline (1970) 13 Cal.App.3d 200, 204 (“There must be

. . . substantial proof of a probability” that some other person committed the offense). Hall

rejected Arline “to the extent that it creates a distinct and elevated standard for admitting

(footnote continued from preceding page)

To the extent Johnson, supra, 200 Cal.App.3d 1553, relied upon the strength of

the prosecution’s evidence against the defendant to exclude third-party culpability
evidence, its reasoning is suspect in light of Holmes v. South Carolina (2006) 547 U.S.
319, which found a federal constitutional violation resulting from a rule of evidence that
precluded the defendant from introducing third-party culpability evidence when there is
strong evidence of the defendant’s guilt. The trial court’s observation that this case is
similar to Johnson, does not compromise the court’s conclusion that the proffered
evidence was inadmissible as third-party culpability evidence, because it did not link any
third person to the actual perpetration of the crime. (See Holmes v. South Carolina,
, 547 U.S. at p. 327 [noting “widely accepted” rule that third-party culpability
evidence that does not sufficiently connect the third party to the crime may be excluded].)


this kind of exculpatory evidence. . . . [C]ourts should simply treat third-party culpability

evidence like any other evidence: if relevant it is admissible ([Evid. Code,] § 350) unless

its probative value is substantially outweighed by the risk of undue delay, prejudice, or

confusion ([Evid. Code,] § 352).” (Hall, supra, 41 Cal.3d at p. 834, fn. omitted.) From

this discussion, defendant concludes that third-party culpability evidence may be excluded

only “if it is excessively prejudicial,” and he further asserts that “the trial court’s discretion

to exclude evidence under [Evidence Code] section 352 ‘must yield to a defendant’s due

process right to a fair trial and to present all relevant evidence of a significant probative

value to his defense.’ (People v. Cunningham [(2001)] 25 Cal.4th [926,] 998-999.)”

Neither the rejection of Arline’s heightened standard of admissibility in Hall, nor the

presentation of significant probative evidence as a matter of right, is inconsistent with the

rule discussed in Hall that third-party culpability evidence is admissible only if it links a

third party to the crime.

2. Admission of certain pornographic magazines

Defendant contends the trial court erred in admitting Shaved Pussy, Oriental

Delight, and Bridled magazines. He urges that the magazines were insufficiently relevant

to the issue of his intent to commit a lewd act upon a child, and that whatever probative

value the magazines had was outweighed by their prejudicial effect. (Evid. Code, § 352.)

He claims that the admission of the magazines in evidence violated his federal and state

rights to a fair trial and to due process of law, as well as the constitutional requirement of

reliability in a capital case. (U.S. Const., Fifth, Sixth, Eighth, and Fourteenth Amends.;

Cal. Const., art. I, §§ 7 & 15.)

In considering the relevance of the proffered evidence, the trial court stated that it

perceived an “absolutely stunning similarity” between the model depicted on the cover of

Oriental Delight magazine and a photograph of Tahisha, and concluded that defendant’s

possession of this magazine was relevant to show an interest in his particular victim. The


court described the models in Shaved Pussy and Oriental Delight magazines as staged to

appear younger than their actual ages, characterized the magazines as “pseudochild

pornography,” and concluded the magazines were relevant to demonstrate that defendant

had an interest in young girls. Finally, the court found that Bridled magazine was

“relevant to show an interest in bondage, infliction of pain, violence and suffering.”

Therefore, the court ruled, the three pornographic magazines were “relevant to show

motive, intent and identity.” Finally, the court concluded that the probative value of the

three magazines outweighed their prejudicial effect under Evidence Code section 352.

In general, “evidence of a person’s character or a trait of his or her character

(whether in the form of an opinion, evidence of reputation, or evidence of specific

instances of his or her conduct) is inadmissible when offered to prove his or her conduct on

a specified occasion.” (Evid. Code, § 1101, subd. (a).) Such evidence is admissible,

however, “when relevant to prove some fact (such as motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake or accident, or whether a

defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did

not reasonably and in good faith believe that the victim consented) other than his or her

disposition to commit such an act.” (Id., subd. (b).)

In certain circumstances, evidence of sexual images possessed by a defendant has

been held admissible to prove his or her intent. In People v. Memro (1995) 11 Cal.4th 786

(Memro), the defendant was charged with first degree felony murder based upon a

violation of section 288, which prohibits the commission of a lewd and lascivious act upon

a child who is under the age of 14 years. The defendant in Memro enjoyed taking

photographs of young boys in the nude, and he had escorted his victim, seven years of age,

to the defendant’s apartment with the intent of taking photographs of the victim in the

nude. When the victim said he wanted to leave, the defendant strangled him and attempted

to sodomize his dead body. The trial court admitted magazines and photographs possessed

by the defendant containing sexually explicit stories, photographs, and drawings of males


ranging in age from prepubescent to young adult. We concluded the trial court did not

abuse its discretion, because “the photographs, presented in the context of defendant’s

possession of them, yielded evidence from which the jury could infer that he had a sexual

attraction to young boys and intended to act on that attraction. (See People v. Bales (1961)

189 Cal.App.2d 694, 701 [(Bales)] [photograph of molestation victim in the nude

admissible to show ‘lewd intent’].) The photographs of young boys were admissible as

probative of defendant’s intent to do a lewd or lascivious act with [the victim].” (Memro,

supra, at p. 865; see also People v. Clark (1992) 3 Cal.4th 41, 129 [the defendant

decapitated a victim and solicited oral copulation from other victims; picture from a

pornographic book depicting a decapitated head orally copulating a severed penis “was

probative of defendant’s interest in that matter”].)

The magazines admitted in this case may have been probative with respect to

defendant’s commission of the crimes, but they had less probative value than the images

considered in prior cases. None of the models whose photographs were staged to make

them look younger than their age appeared to be as young as the victim, and defendant did

not involve children in the production of pornographic images as did the defendant in

Memro, supra, 11 Cal.4th 786. Although the assault upon Tahisha was violent, the acts

committed against her and the acts portrayed in Bridled magazine were not similar; in

particular, there was no evidence Tahisha was bound. Finally, the photograph admitted in

Bales, supra, 189 Cal.App.2d 694, was of the victim herself, and the defendant had ordered

his wife to destroy the photograph. Here, the cover of Oriental Delight featured a model

who merely looked similar to Tahisha; defendant apparently took no steps to conceal or

destroy the image, and the model was only one of perhaps hundreds of models who

appeared in defendant’s extensive pornography collection.17


As indicated, in order to establish that the three magazines introduced by the

prosecution were not representative of defendant's sexual interests, the defense

(footnote continued on following page)


We need not decide whether the trial court abused its discretion under Evidence

Code section 352, because defendant fails to establish that the admission of the

magazines was prejudicial error. In support of his contention that the admission of this

evidence violated his federal and state rights to a fair trial and to due process of law, and

the constitutional requirement of a reliable penalty determination in a capital case,

defendant recites various principles relevant to the procedures involved in the imposition

of capital punishment,18 but he fails to cite any authority supporting the conclusion that

(footnote continued from preceding page)

acquiesced in the prosecution’s introduction into evidence of defendant’s entire collection
of pornographic magazines, and also sought and was permitted to present a videotape of
30-second excerpts from each of defendant’s pornographic movies, as well as expert
testimony concerning the inferences that reasonably could be drawn from the collection.
While the propriety or impropriety of admitting evidence of a defendant’s pornography
will vary from case to case depending upon the facts, we note that such evidence may
threaten to distract jurors from potentially more probative evidence and to consume
undue amounts of time, a risk that has multiplied since the time of Tahisha’s murder in
1993 due to the availability of pornography on the Internet and the ease with which a
defendant may view thousands of pornographic images on a computer. Therefore, we
urge trial courts to exercise caution in weighing the probative value of individual
examples of pornography possessed or accessed by a defendant.


In support of these contentions, defendant cites various cases addressing the

criteria that guide the jurors’ decision at the penalty phase (Espinoza v. Florida (1992)
505 U.S. 1079, 1081-1082 [neither jury nor judge may consider invalid aggravating
circumstance; aggravating factor that murder was especially wicked, evil, atrocious, or
cruel was unconstitutionally vague]; Clemons v. Mississippi (1990) 494 U.S. 738, 752 [an
automatic rule of affirmance whenever there is at least one valid aggravating
circumstance would be invalid]; Maynard v. Cartwright (1988) 486 U.S. 356, 361, 363-
364 [“ ‘especially heinous, atrocious, or cruel’ ” aggravating circumstance was
unconstitutionally vague]; and McClesky v. Kemp (1987) 481 U.S. 279, 305 [“State must
establish rational criteria that narrow the decisionmaker’s judgment as to whether the
circumstances of a particular defendant’s case meet the threshold” for imposition of the
death penalty].)

Defendant also cites cases acknowledging the greater degree of reliability required

in capital cases and the importance of ensuring a moral decision based upon relevant
evidence. (Saffle v. Parks (1990) 494 U.S. 484, 492-493 [law requires a moral response

(footnote continued on following page)


the erroneous admission of the three magazines violated his federal constitutional rights

at the guilt phase of the trial. In the absence of a violation of federal rights, we evaluate

whether “it is reasonably probable that a result more favorable to [defendant] would have

been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836


We begin by considering the evidence that supports the verdict. The evidence was

undisputed that Tahisha was last seen chasing a ball that rolled down a hill to the satellite

dishes immediately outside defendant’s apartment. The evidence also established that

defendant was home at the time, and that he generally was aware of children who

ventured into the area outside his apartment. Although defendant repeatedly asserted he

did not leave the apartment complex on the evening Tahisha disappeared, other evidence

strongly established that he visited Coco’s Restaurant in downtown Barstow that evening

(footnote continued from preceding page)

rather than an emotional response to the evidence concerning imposition of the death
penalty]; Murray v. Giarratano (1989) 492 U.S. 1, 8-9 [although “[t]he finality of the
death penalty requires ‘a greater degree of reliability,’ ” neither the Eighth Amendment
nor the due process clause requires states to appoint counsel for indigent death row
inmates seeking state postconviction relief]; South Carolina v. Gathers (1989) 490 U.S.
805, 811 [information concerning the victim that was unrelated to the crime should have
been excluded], overruled in Payne v. Tennessee (1991) 501 U.S. 808, 830; Johnson v.
(1988) 486 U.S. 578, 584 [“fundamental respect for humanity underlying the
Eighth Amendment’s prohibition against cruel and unusual punishment gives rise to a
special ‘ “need for reliability in the determination that death is the appropriate
punishment” ’ ”; death sentence based in part upon a reversed conviction cannot be
allowed to stand under the Eighth Amendment]; Hicks v. Oklahoma (1980) 447 U.S. 343,
346 [jury was improperly instructed to impose a 40-year sentence rather than a sentence
of at least 10 years, an error that constituted a constitutional violation]; Gregg v. Georgia
(1976) 428 U.S. 153, 203-204 [“[s]o long as the evidence introduced and the arguments
made at the presentence hearing do not prejudice a defendant, it is preferable not to
impose restrictions” on their presentation]; and Perry v. Rushen (9th Cir. 1983) 713 F.2d
1447, 1450 [Sixth Amendment prevents the state from arbitrarily excluding evidence].)


around 9:30, and that Coco’s is located on the route that defendant took to work — a

route that led to Fort Irwin Road, where Tahisha’s body was dumped in a mine

excavation. Undisputed evidence was presented that the outer vaginal swab from

Tahisha’s body contained saliva that was consistent with defendant’s genetic markers,

and only one in 400,000 individuals has the genetic markers that were foreign to Tahisha.

The evidence also established that the blood on the shirt worn by defendant on the

evening Tahisha disappeared was foreign to defendant and consistent with Tahisha’s

genetic markers. If the gamma and kappa markers in the blood are ignored, as

defendant’s expert recommended, the other seven genetic markers in the bloodstain that

were foreign to defendant are found in only one in every 552,000 individuals. If the

frequency of the gamma and kappa markers also is considered, the figure is one in 400

million. Inside defendant’s apartment, the police recovered a stick-on earring that

matched the “Friday” star earrings Tahisha donned shortly before she disappeared.

Finally, a pair of pants and a pair of boots in defendant’s apartment, and a floormat from

one of defendant’s cars, had white bentonite on them that was consistent with the

bentonite in the mine pit where Tahisha’s body was dumped. No other bentonite mine

site within a 50-mile radius of the site where Tahisha’s body was found contained white

bentonite. In addition to this physical evidence, the jury heard testimony that defendant

was hostile when a search volunteer contacted him concerning the missing child and that

he was unusually edgy when he appeared at Coco’s Restaurant the evening that Tahisha

disappeared. The jury also learned that defendant had attempted suicide one day after

Tahisha’s body was found, and that he had informed medical personnel that the

additional stress placed upon him relating to Tahisha’s disappearance contributed to his

suicide attempt.

Defendant’s DNA expert, Marc Taylor, found no flaws in the testing of the blood

sample or the saliva sample. He criticized Jones’s “overloading” of DNA that occurred

during the testing for the presence of foreign DNA in the rectal and internal vaginal


swabs, but agreed that the test results for these two swabs did not establish the presence

of foreign DNA. The same defense expert agreed that the star earring found in

defendant’s apartment could have come from Tahisha’s package of earrings. Defendant’s

geology expert, Joan Fryxell, testified that the amount of bentonite collected from

defendant’s belongings was too minute to predict the proportions of different crystals in

the clay, but she agreed that the bentonite was similar to the bentonite from the mine pit

where Tahisha’s body was dumped. Although Fryxell also testified that the bentonite on

defendant’s belongings was similar to bentonite in areas other than the site where

Tahisha’s body was found, she further concluded that the bentonite on defendant’s work

boots (which he kept at his workplace) did not match the bentonite on his pants and dress

boots (which were recovered from his residence) or the bentonite from the mine pit

(which was located miles from defendant’s worksite). Fryxell also disclosed that she had

been informed that defendant did not have an explanation concerning the source of the

bentonite on his dress boots.

In the face of overwhelming evidence that defendant molested and killed Tahisha,

defendant asserted there was insufficient time in which he could have disposed of

Tahisha’s body. He also asserted he must have been framed by the police or by the

apartment complex’s maintenance person, Mr. Jannsen. Defendant also argued that the

police focused upon him and failed to pursue other leads, such as the pubic hair found on

Tahisha’s dress which, he suggested, strongly indicated that someone else committed the

crimes. He also emphasized the absence of tire tracks matching his vehicles. Finally, he

presented evidence that he was a “nice guy” who would not commit such crimes.

With respect to the timeline of events, it is clear Tahisha disappeared no later than

7:30 p.m. on April 23. She was alive (but perhaps not conscious) for longer than an hour

but less than four hours after her vaginal injuries were inflicted. No evidence, other than

defendant’s statements to the police that he was home all evening, establishes his

whereabouts between 7:30 p.m. and 9:15 p.m. or 9:30 p.m., when he was seen leaving the


apartment complex. His presence at Coco’s Restaurant between 9:30 p.m. and 9:50 p.m.,

and his return to the apartment complex in time for Beverly Walker to reach him by

telephone sometime before 11:00 or 11:30 p.m. clearly was not inconsistent with his

having driven to Fort Irwin Road during this outing and having dumped Tahisha’s body

at the mine site, which was a nine- to 11-minute drive from his apartment.

Defendant relied upon several circumstances in arguing that the evidence must

have been planted. He presented evidence indicating that he habitually cleaned his

apartment and laundered his clothes on Saturdays. Moreover, he was seen in the

apartment complex’s laundry room on Saturday, April 24, and a photograph of his living

room taken when his apartment was searched on Wednesday, April 28, reflected marks

on the carpet from vacuuming. This evidence does not tend to prove that the blood and

bentonite were deposited upon defendant’s clothing by others or that the earring was

placed in the carpet sometime after defendant’s Saturday cleaning, because (1) the

laundry basket carried by defendant from the laundry room on Saturday contained

bedding, and there is no evidence that he also laundered clothing, (2) the shirt worn by

defendant when he returned from the laundry room was similar to the shirt he was

wearing the previous night, (3) the police were unaware until May 3 that Tahisha was

wearing stick-on earrings when she disappeared, (4) there was no evidence suggesting

that Mr. Jannsen knew Tahisha was wearing stick-on earrings, and (5) the earring was not

visible in the carpet and was recovered through a vacuuming procedure that was more

thorough than the typical manner of vacuuming a carpet.19 Moreover, defendant’s


The Pizzos’s testimony that they did not see Tahisha wearing earrings on April 23

was inconsequential in the face of the testimony of family members and a neighbor that
she was wearing star earrings. Defense witness Marc Taylor’s speculation that a stick-on
earring might stick to a pant leg or the side of a shoe presented the unlikely scenario that
Tahisha’s earring had fallen off her ear, attached itself to the side of defendant’s clothing,
and then fallen off in his apartment and become embedded in his carpet.


theories do not explain the discovery of the saliva on Tahisha’s body before any blood

sample had been taken from defendant. The circumstance that DNA testing could not

determine whether the GYPA marker in the saliva was from a type B or a type AB

foreign donor did not constitute evidence that the saliva came from someone other than


The unidentified pubic hair was a mystery that in no way negated the strong

evidence presented by the prosecution. In addition, the pubic hair was not detected until

April 30, by which time the evidence already gathered by the police strongly implicated

defendant in the crimes, thus explaining the investigators’ focus upon defendant rather

than upon the pubic hair. The absence of defendant’s tire tracks near the crime scene

merely confirmed the circumstance that despite numerous vehicles driving in the area, no

other tire tracks could be identified beside the tracks from the two vehicles that most

recently had driven on the pullout.

Finally, defendant’s evidence suggesting that he was a nice person and was not the

type of individual who would commit such crimes was of minimal consequence in light

of the evidence tending to establish that he committed the crimes. The defense

established only that he was nice to some people; former girlfriend Sylvia Twiford

confirmed that he yelled at children; waitress Holly Robles testified that defendant made

her uncomfortable and was known among the waitresses as a “pervert,” and neighbor

Beverly Walker testified that defendant exhibited a negative attitude in response to her

efforts to help locate Tahisha. The psychological testimony of Drs. Fischer and Thomas,

which apparently was intended to establish that defendant would not molest a child,

described a type of pedophile — a regressed pedophile — whose characteristics were

consistent with defendant’s. In addition, to the extent Fischer’s testimony was intended

to establish that defendant was a passive person whose background provided no

indication that he would molest a child, Fischer’s disclosures that defendant was an

unreliable source of information about his own background and that defendant had failed


to reveal to him any information concerning his brother’s history of molestation deprived

this aspect of Fischer’s testimony of persuasive effect. Fischer’s conclusions also were

undermined by the circumstance that Fischer had chosen to disregard tests indicating that

defendant might be the type of person who would commit such crimes.

In summary, the physical evidence overwhelmingly established that defendant

committed the crimes; the defense evidence was of little weight compared to the

prosecution’s evidence, and the evidence suggesting that some persons thought defendant

was nice and would not commit such crimes failed to raise a reasonable doubt as to

defendant’s guilt. In this context, we consider the impact of the admission of defendant’s

pornographic magazines.

The prosecutor’s opening argument highlighted this evidence. He commenced his

argument by presenting to the jury Bridled magazine and stating that defendant

“fantasized about violent sexual conduct, about the look of fear in a woman’s eyes when

she’s being restrained against her will and being violently attacked for sexual purposes.”

The prosecutor also showed the jury Shaved Pussy magazine, and asserted that defendant

fantasized about sexual conduct with prepubescent girls. The prosecutor argued that

defendant took his fantasy a step further when Tahisha appeared in front of his apartment.

He showed the jury the photograph of Tahisha and the cover of Oriental Delight

magazine and argued that when defendant got Tahisha into his apartment, his fantasies

became reality, and at some point before Tahisha lost consciousness, defendant got to see

the look of terror about which he had fantasized.

Thereafter, the prosecutor made minimal use of the pornography. He showed the

Bridled and Shaved Pussy magazines to Manuila Cahill when she testified that defendant

was a nice person. Manuila expressed surprise that defendant possessed these magazines,

but she further testified that her ex-husband possessed pornography and that she was not

surprised that a single man would possess such material. The prosecution also mentioned

Shaved Pussy magazine in the course of questioning Mr. Junger about the pubic hair that


was found on Tahisha’s dress. Other than Detective Franey, who described the

magazines as “hard-core” or “triple-X” pornography, no witness testified for the

prosecution concerning the nature or significance of the pornography. The prosecution

did not mention defendant’s pornographic material in closing argument except indirectly

in response to defense counsel’s discussion in his closing argument of the shaved pubic

hair found on Tahisha’s dress.20

Defendant contends that the magazines, considered together with the prosecution’s

assertion that they were proof that defendant fantasized about prepubescent girls and

violent sexual conduct, “provided the one thing the prosecution’s case lacked: a

purported motive for [defendant] to commit a crime so grossly out of character as this

one.” In view of the presence of saliva consistent with defendant’s saliva in the outer

vaginal swab and the injury to Tahisha’s vagina, the absence of the additional evidence of

defendant’s sexual interests would have been of no consequence. In light of the

overwhelming evidence that defendant committed a lewd act upon Tahisha and murdered

her, there is no reasonable probability that defendant would have achieved a more

favorable result but for the admission of the three pornographic magazines. (Watson,

supra, 46 Cal.2d 818, 836).


Defense counsel asserted in his argument that the prosecutor would say the pubic

hair just blew into the desert and happened to land on Tahisha’s dress, and counsel urged
that the pubic hair was very important evidence because it did not come from defendant.
In his response to the defense argument, the prosecutor asserted that the defense expected
the crime scene to be sterile, and argued that a young girl running around an apartment
complex would collect matter, including a stray hair, on her dress. He added, “you kind
of have to wonder who have we heard about that is into this shaved pubic hair fetish to
begin with? Who is likely to have shaved pubic hairs lying around, I don’t know where,
but God knows where he’s got shaved pubic hairs lying around. Mr. Page.”


3. Admission of “off-color” remarks concerning defendant

In response to questioning from defendant’s counsel, Holly Robles, a waitress at

Coco’s Restaurant, stated that when speaking of defendant to others, she occasionally

referred to defendant as a “pervert,” and that she felt uncomfortable around him. Defense

counsel asked, “That’s because he made some off-color[] remarks to you and some of the

other girls?” She responded, “Not to me, to other people.” Defense counsel asked,

“Other than some of the off-color[] remarks that you heard other people say that he had

made did he ever make a statement to you?” She answered, “No.”

On cross-examination, the prosecutor asked, “And you mentioned that he was

basically known as a pervert there in the restaurant among the waitresses?” Robles

responded, “Yeah.” The prosecutor then asked, “why did you guys refer to him as a

pervert? What did he do that got him that name?” She responded, “Some of the things I

guess he said to the other waitresses.” The prosecutor asked, “What things did you hear

about?” Defendant objected that the question called for a hearsay statement. The

prosecutor responded that defense counsel had inquired concerning off-color remarks

made by defendant to other persons, and that the prosecutor would like to clarify the

nature of those remarks. In response, defense counsel asserted that he had inquired only

as to the off-color remarks made by defendant to Robles. After the parties had an

exchange concerning the scope of the direct examination, the trial court overruled

defendant’s hearsay objection.

The prosecutor continued: “It was brought out earlier by . . . defense counsel that

at the restaurant there he was known as a pervert and that he made off-color remarks to

some of the waitresses. . . . What off-color remarks were you aware of?” In response,

Robles said that waitresses were required to ask customers whether they wished to order

dessert, and defendant “would sometimes I guess tell the other waitresses, ‘Yeah, if you

can get on the table.’ ‘Stand on the table.’ ” The prosecutor asked, “Stand on the table

and he would have them for dessert, or that would be his dessert?” She responded,


“Yeah.” Robles remembered only that remark, and confirmed that defendant never made

any such remarks to her.

Defendant contends the testimony was inadmissible under any hearsay exception,

and that its admission violated his rights under the confrontation clause of the Sixth

Amendment, his due process right to a fair trial under the Fifth and Fourteenth

Amendments, and his right to a reliable verdict in a capital case under the Eighth

Amendment and correlative provisions of the state Constitution. He claims the

statements were “highly prejudicial evidence of [defendant’s] ‘bad character’ (Evid.

Code, § 1101) that portrayed him as aggressive, salacious, and disrespectful toward

women. That evidence was particularly damaging because it conflicted with one of the

major themes of [defendant’s] case: that he is not the ‘type’ to commit a crime like this,

and thus could not have done so.”21

The prosecutor’s question called for the admission of hearsay, because the

information was sought to prove the truth of the statements other waitresses made to

Robles — that defendant said if the waitress would get on the table, he would have her

for dessert. Respondent does not identify either a nonhearsay purpose for which the

evidence was offered, or a hearsay exception for its admission. Nonetheless, the

erroneous admission of hearsay evidence alone does not establish a violation of the


The People assert that defendant is barred from challenging the admission of this

hearsay evidence, because defendant elicited Robles’s testimony that she thought
defendant was a pervert based upon off-color remarks he made to others. Defendant’s
election to question Robles concerning her opinion of defendant was not an invitation or
agreement to the admission of inadmissible hearsay evidence, however. The People also
assert that because defendant made only a hearsay objection below, he is barred from
challenging the admission of the evidence on the ground that this testimony was improper
“bad character” evidence. As defendant observes, he does not claim error under
Evidence Code section 1101, and his reference to the hearsay as “bad character” evidence
relates to his argument that its admission was prejudicial.


confrontation clause of the Sixth Amendment. “[N]ot all hearsay implicates the Sixth

Amendment’s core concerns. An off-hand, overheard remark might be unreliable

evidence and thus a good candidate for exclusion under hearsay rules, but it bears little

resemblance to the civil-law abuses the confrontation clause targeted.” (Crawford v.

Washington (2004) 541 U.S. 36, 51.) The confrontation clause “applies to ‘witnesses’

against the accused — in other words, those who ‘bear testimony.’ [Citation.]

‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the

purpose of establishing or proving some fact.’ [Citation.]” (Ibid.) The discussion among

waitresses concerning defendant’s behavior, prior in time to the crimes and the

investigation, was not “testimonial” for purposes of the confrontation clause. Nor does

defendant cite authority supporting his contention that the erroneous admission of this

hearsay evidence violated various other federal constitutional rights.22 Therefore, we

evaluate whether “it is reasonably probable that a result more favorable to [defendant]

would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at

p. 836.)


Defendant cites Ford v. Wainwright (1986) 477 U.S. 399, 414 (holding that

procedure for determining death row inmate’s sanity before execution failed to afford the
defendant a full and fair hearing); Spaziano v. Alabama (1984) 468 U.S. 447, 454-457
(although the failure to give a lesser-included-offense instruction in a capital case is a
constitutional violation, such instruction is not required if conviction of the lesser
included offense is barred by the statute of limitations); Beck v. Alabama (1980) 447 U.S.
625, 637-638 (procedural rule barring instruction on a lesser included offense diminished
the reliability of the guilt determination with respect to the capital offense and thereby
diminished the reliability of the capital sentencing determination); and Hicks v.
, supra, 447 U.S. 343, 346 (jury was improperly instructed to impose a 40-year
sentence rather than a sentence of at least 10 years, an error that constituted a
constitutional violation; “[t]he defendant in such a case has a substantial and legitimate
expectation that he will be deprived of his liberty only to the extent determined by the
jury in the exercise of its statutory discretion [citation], and that liberty interest is one that
the Fourteenth Amendment preserves against arbitrary deprivation by the State.”)


Defendant claims that the error was prejudicial because the hearsay evidence

“conflicted with one of the major themes of [defendant’s] case: that he is not the ‘type’

to commit a crime like this, and thus could not have done so.” Defendant already had

elicited Robles’s testimony that she sometimes referred to defendant as a pervert, that

defendant made off-color remarks to waitresses, and that these remarks made her

uncomfortable. Defendant did not object to Robles’s testimony establishing that

defendant was referred to as a pervert among the waitresses. Although the example of an

off-color comment provided a basis for Robles’s opinion that defendant was a pervert, the

evidence added little to the substance of Robles’s testimony. Therefore, the exclusion of

this evidence would not have made a difference in assessing the evidence that was

presented to support the defense theory that defendant was a nice person who would not

commit such crimes. In addition, the evidence against defendant was overwhelming.

Therefore, there is no reasonable probability that defendant would have achieved a more

favorable result but for the erroneous admission of this evidence.

4. Instruction on consciousness of guilt (CALJIC No. 2.03)

The trial court instructed the jury with CALJIC No. 2.03, a pattern instruction

providing that a defendant’s willfully false or deliberately misleading statement

concerning the crimes may be considered as a circumstance tending to prove

consciousness of guilt but is not sufficient by itself to prove guilt.23 Defendant contends

that this instruction merely reiterates CALJIC No. 2.00, which sets forth general

principles concerning what constitutes “evidence,” and CALJIC No. 2.01, which presents


CALJIC No. 2.03 provides: “If you find that before this trial the defendant made a

willfully false or deliberately misleading statement concerning the crimes for which he is
now being tried, you may consider such statements as a circumstance tending to prove a
consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt,
and its weight and significance, if any, are matters for your determination.”


general limitations upon the adequacy of circumstantial evidence to prove guilt.

Defendant also contends that CALJIC No. 2.03 is argumentative because it singles out

particular evidence and invites the jury to draw inferences favorable to the prosecution.

Finally, he asserts that CALJIC No. 2.03 allows irrational inferences concerning a

defendant’s mental state.

We have noted that “[t]he cautionary nature of [CALJIC No. 2.03] benefits the

defense, admonishing the jury to circumspection regarding evidence that might otherwise

be considered decisively inculpatory. [Citations.]” (People v. Jackson (1996) 13 Cal.4th

1164, 1224 (Jackson).) For example, in the present case the jury learned that before it

was known that a crime had been committed and that Tahisha had been taken from the

apartment complex, defendant falsely claimed he had not left the apartment complex on

the evening she disappeared. A jury might have concluded that defendant’s

prevarications concerning his presence established that he had committed the crimes.

CALJIC No. 2.03 specifically addresses this risk by acknowledging the inference that

may be drawn from a defendant’s willfully false or misleading statement, but precluding

a finding of guilt based solely upon a willfully false or misleading statement. Thus,

CALJIC No. 2.03 is not merely duplicative of CALJIC No. 2.00 and CALJIC No. 2.01,

which address more general principles of evidence.24


Defendant asserts we have abandoned the view that CALJIC No. 2.03 protects a

defendant from an inference of guilt based solely upon dishonest statements, citing
People v. Seaton (2001) 26 Cal.4th 598, 673. In Seaton, the defendant initially told the
police that he had been asleep at the time the burglary, robbery, and murder were
committed. At trial, the defendant admitted the murder but denied the burglary and
robbery charges. On appeal, the defendant contended the trial court should have
instructed the jury concerning evidence of consciousness of guilt. We concluded these
instructions should have been given, but that the error was harmless because “the
instructions would have benefited the prosecution, not the defense.” (Id. at p. 673.)
Clearly, in light of the defendant’s admission that he had murdered the victim, the
defendant would have received no benefit from an instruction that the jury could not infer

(footnote continued on following page)


Defendant cites People v. Mincey (1992) 2 Cal.4th 408 (Mincey) in support of his

contention that CALJIC No. 2.03 is argumentative. In Mincey, the trial court declined to

instruct the jury that particular inferences favorable to the defendant could be drawn from

specified items of evidence. We agreed with the trial court’s ruling, explaining that the

proffered instructions would have invited the jury “to infer the existence of [the

defendant’s] version of the facts, rather than his theory of defense.” (Mincey, at p. 437.)

Defendant contends CALJIC No. 2.03 is structurally similar to the instruction in Mincey,

because CALJIC No. 2.03 instructs jurors that if they find a certain fact — that the

defendant made a willfully false or misleading statement — they may infer a fact

favorable to the prosecution (the defendant’s consciousness of guilt). We rejected this

analogy in People v. Nakahara (2003) 30 Cal.4th 705, 713, and reject it here. As is

implicit in defendant’s contention that CALJIC No. 2.03 simply reiterates more general

instructions concerning evidence, CALJIC No. 2.03 provides guidance concerning the

uses and limitations of circumstantial evidence. That the instruction specifically

addresses evidence indicating that a defendant made false or misleading statements

concerning the crimes does not alter the circumstance that the instruction addresses the

law applicable to the evidence rather than any party’s version of the facts. Moreover, as

noted above, the instruction is favorable to the defense, because it precludes a jury from

convicting a defendant based solely upon his or her dishonest statements relating to the

crimes. Consistent with our prior decisions, we reject the contention that the instruction

is argumentative. (See, e.g., People v. Boyette (2002) 29 Cal.4th 381, 438; People v.

(footnote continued from preceding page)

guilt solely from the defendant’s lie that he had been asleep during the events at issue.
Seaton’s conclusion does not reflect any modification of our view that the instruction in
question benefits a defendant who has made dishonest statements concerning the crime.


Medina (1995) 11 Cal.4th 694, 762 (Medina); People v. Kelly (1992) 1 Cal.4th 495, 531-


Finally, we disagree that the instruction informed the jury that it could infer from

defendant’s willfully false statements not only that he committed the crimes, but

additionally that he harbored the mental states required for a finding of first degree

murder, intent to commit a lewd act upon a child, and the related felony-murder special

circumstance. As defendant acknowledges, we rejected this contention in People v.

Crandell (1988) 46 Cal.3d 833 (Crandell), in which we observed that “[a] reasonable

juror would understand ‘consciousness of guilt’ to mean ‘consciousness of some

wrongdoing’ rather than ‘consciousness of having committed the specific offense

charged.’ The instructions advise the jury to determine what significance, if any, should

be given to evidence of consciousness of guilt, and caution that such evidence is not

sufficient to establish guilt, thereby clearly implying that the evidence is not the

equivalent of a confession and is to be evaluated with reason and common sense. The

instructions do not address the defendant’s mental state at the time of the offense and do

not direct or compel the drawing of impermissible inferences in regard thereto.” (Id. at

p. 871.)

Defendant disagrees with Crandell’s view that a reasonable juror would

understand the reference to “consciousness of guilt” to mean “consciousness of some

wrongdoing,” and asserts that a reasonable juror would interpret “guilt” to mean “guilty

of the crimes charged.” But only if the phrase “consciousness of guilt” is considered

without reference to the rest of the instructions can there be any confusion concerning the

word “guilt.” A jury is instructed regarding the mental state that must be found to have

existed at the time of the commission of the crimes in order to convict a defendant of

each offense and special circumstance alleged. No reasonable juror would conclude that

CALJIC No. 2.03’s guidance concerning an inference that may be drawn from a

defendant’s dishonest statements made after the commission of a crime establishes what


the defendant was thinking at the time of the commission of the crime. Therefore, it is

unnecessary for a court to instruct further that dishonest statements made by the

defendant after the commission of the crime are not evidence of his or her state of mind

at the time of the commission of the crimes. (See Jackson, supra, 13 Cal.4th 1164, 1224

[CALJIC No. 2.03 does not address the defendant’s mental state at the time of the

offense, and no instruction that consciousness of guilt is not probative of the defendant’s

state of mind at the time of the crime is required]; People v. Arias (1996) 13 Cal.4th 92,

142 [CALJIC No. 2.03 does not address the defendant’s mental state at the time of the

offense and does not direct the drawing of impermissible inferences].)

5. Cumulative error and prejudice

We have declined to decide whether the probative value of the three pornographic

magazines outweighed their undue prejudice, because any error in their admission was

harmless. We have concluded that the error in admitting the hearsay statements to which

Holly Robles testified was harmless. Both of these items of evidence were adverse to the

defense theory that defendant was a nice person who would not commit such crimes. As

we have explained, this defense theory was not persuasive in light of the extensive and

overwhelming evidence of defendant’s guilt as well as evidence demonstrating that

defendant did not conduct himself in a friendly or kindly manner. We conclude the

errors, considered together, did not undermine the evidence establishing defendant’s

guilt, and there is no reasonable probability that defendant would have achieved a more

favorable result absent these errors. (People v. Hinton (2006) 37 Cal.4th 839, 872;

Watson, supra, 46 Cal.2d at p. 836.)

B. Claims related to the penalty phase

1. Admission of pornographic magazines

Defendant contends that the admission of the pornographic magazines in evidence

violated his federal and state rights to a fair trial and to due process of law, as well as the


constitutional requirement of reliability in a capital case. (U.S. Const., Fifth, Sixth,

Eighth, and Fourteenth Amends.; Cal. Const., art. I, §§ 7 & 15.) He urges that we apply

the “harmless beyond a reasonable doubt” standard required by Chapman v. California

(1967) 386 U.S. 18, 24, to the asserted violations of his federal rights. We need not

decide whether any error in admitting this evidence would constitute a violation of

defendant’s federal rights. The standard of review of state law error established in

People v. Brown (1988) 46 Cal.3d 432, 447 (Brown) — whether there is a “reasonable

possibility” that the error affected the penalty phase determination — is the same “in

substance and effect” as the Chapman standard. (People v. Abilez (2007) 41 Cal.4th 472,

526, quoting People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11.) Therefore, we

evaluate whether there is any reasonable possibility the jury would have sentenced

defendant to life imprisonment without the possibility of parole rather than death if the

pornographic evidence had been excluded. If there was no reasonable possibility of a

different outcome, absent this evidence, any error in admitting the evidence was harmless

beyond a reasonable doubt.

At the penalty phase, neither side referred to defendant’s pornography. The

prosecution emphasized the brutality of the crimes against a young child, the fear and

pain Tahisha must have suffered, and the impact of the crimes upon Tahisha’s family.

Defendant reviewed his troubled background, presented the testimony of his family

members, asserted that a sentence of life imprisonment without the possibility of parole

was in some ways worse than a death sentence, and urged the jury to consider any

lingering doubt concerning defendant’s guilt. In addition, the trial court instructed the

jury: “Evidence has been presented of defendant’s lifestyle or background. You cannot

consider this evidence as an aggravating factor but may consider it as a mitigating


Defendant identifies two ways in which, he claims, the pornographic evidence was

prejudicial. First, he notes the prosecutor’s arguments at the beginning of the guilt phase


of the trial — that the magazines were evidence that defendant fantasized about sexual

violence against prepubescent girls — and asserts that “the only use the jury could have

made of [the magazines] was as ‘proof’ that [defendant] is a despicable monster.”

Second, he asserts this evidence was devastating to his lingering-doubt defense.

As explained in our analysis of the impact of the pornographic magazines at the

guilt phase of the trial (see ante, pt. II.A.2), the evidence of defendant’s guilt was

overwhelming, and no reasonable juror could have concluded that defendant was

innocent of the crimes of which he was convicted. For the same reasons that the

admission of this evidence was not prejudicial at the guilt phase of the trial, its admission

was not prejudicial to defendant’s lingering-doubt defense at the penalty phase. In

addition, the brutality of the attack on such a vulnerable victim as Tahisha, only six years

of age, the sexual violation of an innocent child, the struggle she apparently put up

against defendant (as evidenced by various injuries to her body), the fear and pain she

must have suffered, and the manner of her death — strangulation for two and one half to

three minutes — overwhelmed any mitigating evidence that defendant was a “nice guy”

who did not deserve the ultimate penalty. Adding insult to the horrible injury inflicted,

on the same evening defendant molested and murdered Tahisha, he blamed Tahisha’s

mother for her disappearance. Within hours of committing these horrible crimes,

defendant was able to interact calmly with detectives who were investigating Tahisha’s

disappearance, and it apparently was the fear of being discovered as the perpetrator, and

not the enormity of his crimes, that led defendant to attempt to commit suicide. The

chilling circumstances of Tahisha’s disappearance — a young child who was supervised

by family and friends running down a hill within a secure apartment complex to retrieve a

ball and vanishing — and the discovery of her body, dumped like trash in a mine pit after

a brutal sexual assault, further contributed to the portrait of defendant as someone without

substantial redeeming attributes. Finally, Tahisha’s mother’s testimony concerning the

impact of the crimes upon the entire family, was devastating to the defense. We find no


reasonable possibility that the jury would have chosen to sentence defendant to life

imprisonment without the possibility of parole rather than death, but for defendant’s

possession of pornographic magazines. Therefore, the admission of this evidence was

harmless beyond a reasonable doubt.

2. Admission of off-color remarks concerning defendant

Defendant contends that Holly Robles’s testimony concerning specific off-color

remarks made by defendant to other waitresses was prejudicial at the penalty phase of the

trial, because it was harmful to defendant’s lingering-doubt argument, which was based

upon his theory that “someone so passive and mild-mannered as he could not have

committed these crimes, no matter how strong the physical evidence of his guilt

appeared.” For the same reasons that admission of this hearsay evidence was harmless at

the guilt phase of the trial, it was harmless to defendant’s lingering-doubt argument at the

penalty phase. Moreover, evidence concerning Tahisha’s injuries and death, and the

devastating impact upon her family, was so aggravating that exclusion of the evidence

concerning defendant’s statements to waitresses clearly would have made no difference

in this case. We find no reasonable possibility that the jury would have chosen to

sentence defendant to life imprisonment without the possibility of parole rather than

death, but for the hearsay statements related by Holly Robles. Therefore, the admission

of this evidence was harmless beyond a reasonable doubt.

3. Failure to instruct on consideration of lingering doubt as to guilt

The trial court declined to instruct the jury to consider any lingering doubt

concerning defendant’s guilt in deciding the appropriate penalty, but permitted the

defense to argue to the jury that it should consider lingering doubt in reaching its penalty

verdict. The trial court explained: “[I]t’s the Court’s view that the only doubt that might

be present as far as the verdict [is concerned] would be some sort of an imaginary or


some possible doubt, some unreasonable doubt. There’s really no lingering doubt based

on the evidence in this case to support the giving of this instruction.”

As we have observed: “It is true . . . that the jury’s consideration of residual doubt

is proper; defendant may assert his possible innocence to the jury as a factor in mitigation

under section 190.3, factors (a) and (k). [Citations.] But there is no requirement, under

either state or federal law, that the court specifically instruct the jury to consider any

residual doubt of defendant’s guilt. [Citations.]” (People v. Sanchez (1995) 12 Cal.4th 1,

77.) In the present case, the trial court permitted defendant to assert he was not guilty,

and defense counsel informed the jury that the concept of lingering doubt came within

section 190.3, factor (k). “Instructions to consider the circumstances of the crime

(§ 190.3, factor (a)) and any other circumstance extenuating the gravity of the crime (id.,

factor (k)), together with defense argument highlighting the question of lingering or

residual doubt, suffice to properly put the question before the penalty jury. ([People v.]

Earp [(1999) 20 Cal.4th 826,] 904.)” (People v. Demetrulias (2006) 39 Cal.4th 1, 42


4. Challenges concerning instruction relating to the jury’s discretion and

deliberative process (CALJIC No. 8.88)

Defendant raises various challenges to CALJIC No. 8.88, which instructs the jury

concerning the process by which to weigh the aggravating and mitigating circumstances

in determining whether the penalty should be death or life in prison without the

possibility of parole. All of defendant’s challenges have been rejected in prior cases.

a. Asserted vagueness

Defendant contends the instruction is impermissibly vague and ambiguous

because of the phrase “so substantial” in the final sentence: “To return a judgment of

death each of you must be persuaded that the aggravating circumstances are so

substantial in comparison with the mitigating circumstances that it warrants death instead

of life.” Defendant notes that the Georgia Supreme Court found that the word


“substantial” rendered an instruction impermissibly vague in a capital case. (Arnold v.

State (Ga. 1976) 224 S.E.2d 386 (Arnold).) Georgia’s statutory scheme described an

aggravating circumstance that would support the imposition of a sentence of death as

follows: “ ‘The offense of murder . . . was committed by a person . . . who has a

substantial history of serious assaultive criminal convictions.’ ” (Id. at p. 391.) The

Georgia court concluded that “[w]hether the defendant’s prior history of convictions

meets this legislative criterion is highly subjective.” (Id. at p. 392.)

We rejected defendant’s contention in People v. Breaux (1991) 1 Cal.4th 281

(Breaux), which evaluated basically identical language in former CALJIC No. 8.84.2

(1986 rev.). We explained in Breaux that the instructions as a whole adequately

conveyed to the jury the appropriate manner of performing its task, and that the

instruction concerning the weighing of aggravating and mitigating circumstances

essentially informed the jury that it may “return a death verdict only if aggravating

circumstances predominate[] and death is the appropriate verdict.” (Breaux, supra, at

p. 316.) We added that the differences between the use of “substantial” in the Georgia

instruction in Arnold, supra, 224 S.E.2d 386, and the use of “substantial” in CALJIC

No. 8.84.2 in Breaux were “obvious.” (Breaux, supra, at p. 316, fn. 14.) Defendant

complains that our decision in Breaux did not specify the differences between Arnold and

Breaux. Defendant’s assertion that the two cases are analogous is based upon the

presence of the word “substantial” in both of the challenged jury instructions, and does

not take into account the context of the use of “substantial” in each case. The jurors in

Arnold were called upon to decide, in isolation and without further guidance, whether a

defendant’s prior criminal record was “substantial,” whereas the jurors in the present case

were instructed extensively with respect to the manner of performing their task and were

called upon to compare the totality of the aggravating circumstances with the totality of

the mitigating circumstances. The instructions adequately explained that the jurors


“could return a death verdict only if aggravating circumstances predominated and death is

the appropriate verdict.” (Breaux, supra, at p. 316.)

b. Instruction concerning the appropriateness of a sentence of death

Defendant contends that CALJIC No. 8.88 fails to convey that the death penalty

must be “appropriate,” not merely “warranted.” Again, defendant has focused upon

specific terms and ignores the instructions as a whole. This instruction informs the jury

that “[t]he weighing of aggravating and mitigating circumstances does not mean a mere

mechanical counting of factors on each side of an imaginary scale, or the arbitrary

assignment of weights to any of them. You are free to assign whatever moral or

sympathetic value you deem appropriate to each and all of the various factors you are

permitted to consider. In weighing the various circumstances you determine under the

relevant evidence which penalty is justified and appropriate by considering the totality of

the aggravating circumstances with the totality of the mitigating circumstances.”

(CALJIC No. 8.88.) “As we have explained, CALJIC 8.88 properly describes the

weighing process as ‘ “merely a metaphor for the juror’s personal determination that

death is the appropriate penalty under all of the circumstances.” ’ (People v. Jackson,

supra, 13 Cal.4th at p. 1244, quoting People v. Johnson (1992) 3 Cal.4th 1183, 1250.)”

(People v. Gutierrez (2002) 28 Cal.4th 1083, 1161.)

c. Instruction concerning the circumstances in which a sentence of death

may be imposed

Defendant contends that the instruction given pursuant to CALJIC No. 8.88 fails

to convey that the jury must return a sentence of life imprisonment without the possibility

of parole if it finds that death is not an appropriate punishment, and that a life sentence is

mandatory if the aggravating factors do not outweigh the mitigating factors. CALJIC

No. 8.88 explains that “[t]o return a judgment of death, each of you must be persuaded

that the aggravating circumstances are so substantial in comparison with the mitigating


circumstances that it warrants death instead of life without parole.” Defendant

acknowledges that we repeatedly have rejected the contention that substantially identical

language in former CALJIC No. 8.84.2 (1986 rev.) failed to explain the circumstances in

which a verdict of death may be returned (People v. Rogers (2006) 39 Cal.4th, 826, 900

(Rogers); People v. Kipp (1998) 18 Cal.4th 349, 381; People v. Medina, supra, 11

Cal.4th 694, 781-782; People v. Duncan (1991) 53 Cal.3d 955, 978 (Duncan)), but asks

that we reconsider our holdings.

In particular, defendant challenges Duncan’s conclusion that substantially

identical language “clearly stated that the death penalty could be imposed only if the jury

found that the aggravating circumstances outweighed mitigating. There was no need to

additionally advise the jury of the converse (i.e., that if mitigating circumstances

outweighed aggravating, then life without parole was the appropriate penalty).”

(Duncan, supra, 53 Cal.3d at p. 978.) Defendant complains that the instruction does not

“explicitly” state that aggravating circumstances must outweigh mitigating

circumstances, but he is unpersuasive in urging that the phrase “so substantial in

comparison” does not convey this requirement. Defendant also challenges Duncan’s

conclusion that it is unnecessary to advise the jury of the converse — if mitigating

circumstances outweigh aggravating, then life imprisonment without parole is the

appropriate penalty. Asserting that Duncan cites no authority for this conclusion, he

argues that the absence of the converse instruction causes CALJIC No. 8.88 to emphasize

the prosecution’s theory of the case. Contrary to defendant’s characterization of the

instruction, CALJIC 8.88 highlights the significant burden that must be satisfied before a

verdict of death may be returned, and thereby conveys that life in prison without the

possibility of parole is the appropriate punishment if this burden is not met.


d. Failure to instruct that jurors could return a verdict of life in prison if the

aggravating circumstances outweigh the mitigating

Finally, defendant complains that CALJIC No. 8.88 fails to inform the jurors that

they may return a verdict of life in prison without the possibility of parole even when the

aggravating circumstances outweigh the mitigating circumstances, and fails to explain

that neither party has the burden of persuading the jury of the appropriateness or

inappropriateness of the death penalty. As we repeatedly have held, defendant was not

entitled to such an instruction. (E.g., Rogers, supra, 39 Cal.4th at p. 893; Medina, supra,

11 Cal.4th at p. 782.)

5. Asserted juror misconduct — the cartoon in the jury room

On the third day of penalty phase deliberations, a juror told the bailiff during a

break that a cartoon was circulating in the jury deliberation room and others were

laughing, causing the juror some dismay. The bailiff told the juror he would search for

the cartoon in the jury room. The bailiff found the cartoon and gave it to the court. The

court directed the bailiff to relate these events to counsel. In addition, counsel viewed the

cartoon, and the court described it for the record. The cartoon portrays two individuals in

a jail cell, and its caption depicts one saying to the other, “Hey, I got off easy — it was

the jury who had to deliberate for 36 months.” Defense counsel moved for a mistrial,

stating that humor did not belong in the jury room and that the cartoon “shows me that

this jury is being contaminated by outside influences.” The prosecutor responded that the

cartoon had nothing to do with the case at hand.

The court stated that it could ask the jurors, either individually or collectively,

which jurors had seen the cartoon and “whether or not viewing that cartoon would in any

way affect their deliberations during this penalty phase of the trial,” further observing:

“The Court is really concerned about exerting any kind of pressure whatsoever either

individually or as a group on these jurors during this particular phase of the trial. And the

Court would prefer not to make an inquiry of the jury. As far as the cartoon, it’s — it is


humorous. The Court does not believe that it . . . represents a lack of seriousness on the

part of the jurors. They are under what the Court would believe is tremendous pressure

and stress. It’s a very, very serious kind of decision that they’re making. And this

cartoon does not in any way favor one side or the other, it just brings to mind the shared

sense that in the sense they’re a captive group back there in the jury deliberation room

trying to achieve justice. And the Court, although it’s concerned about this cartoon, does

not believe that the cartoon in any way affects the integrity of whatever verdict they may

return. It’s the Court’s preference not to inquire of the jurors.” The prosecutor was

agreeable, but defense counsel stood by his motion for a mistrial and stated, “I’ll stand

[mute] as to what procedure should be followed.” The trial court denied the motion for

mistrial, stating that the grounds were insufficient, and reiterating its view that the

cartoon would not affect the jury’s decision.

Defendant observes that an accused has a right to an impartial jury that reaches its

decision based upon the evidence rather than out-of-court sources. He relies upon Turner

v. Louisiana (1965) 379 U.S. 466, 472 (deputy sheriffs who were in close and continuous

contact with the sequestered jury also were witnesses at the trial) and Mincey, supra,

2 Cal.4th 408, 467 (juror read aloud to other jurors Bible verses concerning punishment

of murderers and equating resistance to governing authorities with resistance to God). In

contrast to the out-of-court sources at issue in the cited cases, the out-of-court “source” in

this case was unrelated to any issue to be decided. Although the cartoon was concerned

with the jury process, it did not in and of itself suggest that the jurors should rush their

consideration of the appropriate penalty or otherwise conduct themselves inappropriately.

As defendant observes, when juror misconduct is established, a presumption of

prejudice arises that must be rebutted by the state. He relies upon People v. Marshall

(1990) 50 Cal.3d 907, 949 (a juror claiming to have a law enforcement background

asserted that the defendant’s apparent lack of a criminal background might be due to the

sealing of juvenile records), People v. Pierce (1979) 24 Cal.3d 199, 207 (a juror


discussed the trial with his neighbor, a police officer who was first to arrive at the scene

of the crime and who was a witness at trial), and In re Stankewitz (1985) 40 Cal.3d 391,

402 (a juror claimed to know the law and misstated the law to the other jurors). Unlike

the situation in the cited cases, no showing of juror misconduct was made in the present

case. The jurors shared a cartoon reflecting the reality that jurors sometimes spend a

lengthy period of time in jury service. The cartoon did not suggest that the jurors should

rush their deliberations or favor one side over the other. A juror’s concern at the

presence of such humor in this setting is not a “problem which, if unattended, might later

require the granting of a mistrial or new trial motion . . . .” (People v. Keenan (1988)

46 Cal.3d 478, 532.) Because neither the presence of the cartoon in the jury room nor the

information provided by the bailiff suggested juror misconduct had occurred, the trial

court was not required to conduct further inquiry into the cartoon’s possible effect on the


6. General challenges to California’s death penalty scheme

Defendant raises various constitutional challenges that have been rejected in prior


Section 190.3, factor (a) directs the jury, in determining the appropriate penalty, to

take into account the circumstances of the crime and any special circumstances found to


In arguing that the failure to investigate further was prejudicial, defendant asserts

that “one plausible scenario” was that some “jurors were holding out for a life sentence,
and that jurors from the majority faction used the cartoon, and its explicit message that
jurors caught up in protracted deliberations suffer privations similar to, or worse than,
incarceration, to pressure the holdouts into submitting to the majority view.” He claims
this theory is supported by the circumstance that the jury reached an impasse the next

Nothing in the information provided to the court suggested that the complaining

juror was troubled by anything other than the presence of humor in the jury room, and
defendant did not suggest to the trial court that the cartoon was being used for any
purpose other than humor.


be true. Defendant asserts that this statute directs that such circumstances be considered

as aggravation, but the provision does not include any reference to aggravation. He also

complains that factor (a) permits almost any circumstance to be considered in

aggravation, but as we have observed previously, that is the nature of the fact-specific

inquiry required in evaluating the appropriate penalty. As the United States Supreme

Court noted in upholding factor (a) against an Eighth Amendment challenge, “our capital

jurisprudence has established that the sentencer should consider the circumstances of the

crime in deciding whether to impose the death penalty. (See, e.g., Woodson [v. North

Carolina (1976)] 428 U.S. [280,] 304 (‘consideration of . . . the circumstances of the

particular offense [is] a constitutionally indispensable part of the process of inflicting the

penalty of death’).” (Tuilaepa v. California (1994) 512 U.S. 967, 976.) Finally, contrary

to defendant’s contention, California’s death penalty scheme adequately narrows the

class of persons eligible to receive the death penalty. (Prince, supra, 40 Cal.4th at

p. 1298; People v. Gray (2005) 37 Cal.4th 168, 237 (Gray).)

Defendant contends California’s scheme violates the Fifth, Sixth, Eighth, and

Fourteenth Amendments because it fails to impose a burden of proof at the penalty phase.

“We adhere to the principle that the assessment of aggravating and mitigating

circumstances required of California penalty jurors is inherently ‘ “normative, not

factual” [citation] and, hence, not susceptible to a burden of proof quantification.’

(People v. Hawthorne (1992) 4 Cal.4th 43, 79.)” (Demetrulias, supra, 39 Cal.4th at

p. 40.)

We similarly reject the contentions that the death penalty statute is

unconstitutional in failing to require juror unanimity or written findings with respect to

the factors in aggravation. (Prince, supra, 40 Cal.4th at p. 1297; Demetrulias, supra,

39 Cal.4th at pp. 41, 43; People v. Morrison (2004) 34 Cal.4th 698, 731.) In addition,

“[w]e have repeatedly held that the high court’s decisions [in Apprendi v. New Jersey

(2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, and Blakely v. Washington


(2004) 542 U.S. 296] do not compel a different answer. [Citations.]” (People v.

Mendoza (2007) 42 Cal.4th 686, 707.)

We likewise reject defendant’s claims that (1) the death penalty statute’s inclusion

in the list of mitigating factors of adjectives such as “extreme” and “substantial”

improperly limits consideration of mitigation in violation of the Fifth, Sixth, Eighth, and

Fourteenth Amendments (Prince, supra, 40 Cal.4th at p. 1298); (2) the phrase “whether

or not” in section 190.3, factors (d) through (h) and (j) allows the absence of a mitigating

factor to be considered as an aggravating circumstance; and (3) the failure to instruct that

statutory mitigating factors may be considered solely as mitigating precludes a reliable,

individualized sentencing determination as required by the Eighth and Fourteenth

Amendments. (Gray, supra, 37 Cal.4th at p. 236.)

We repeatedly have rejected challenges made under the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the absence of intercase proportionality review. (Prince,

supra, 40 Cal.App.4th at p. 1298; Demetrulias, supra, 39 Cal.4th at p. 44; People v. Snow

(2003) 30 Cal.4th 43, 126.) And, as defendant acknowledges, in People v. Allen (1986)

42 Cal.3d 1222, 1286-1288, we rejected an equal protection challenge to the death

penalty scheme. Finally, we have declined to accept the view that international law

compels the elimination of the death penalty in California. (Prince, supra, 40 Cal.4th at

p. 1299; Demetrulias, supra, 39 Cal.4th at pp. 43-44; Snow, supra, 30 Cal.4th at p. 127.)

We are not persuaded that we should reconsider these determinations.

7. Cumulative error and prejudice

As we have explained, any error in admitting the pornographic magazines was

harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s

guilt, the brutality of his attack upon Tahisha, his cold and callous manner in the hours

after he committed the crimes, and the devastating impact of the crimes upon Tahisha’s

family. In addition, the error in admitting the off-color remarks was harmless at the


penalty phase, because no lingering doubt could exist that might be eliminated by this

hearsay evidence. Considering these two items of evidence together, we find there is no

reasonable possibility that the jury would have chosen to set defendant’s punishment at

life imprisonment without the possibility of parole rather than death, but for the

admission of the three pornographic magazines and the hearsay statements. Therefore,

the admission of the evidence in question was harmless beyond a reasonable doubt.

(Chapman v. California, supra, 386 U.S. at p. 24; Robinson, supra, 37 Cal.4th at p. 655;

Brown, supra, 46 Cal.3d at p. 447.)


For the foregoing reasons, the judgment is affirmed in its entirety.





See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Page

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: June 26, 2008

County: San Bernardino
Judge: Rufus L. Yent


Attorneys for Appellant:

Barry Helft, Interim State Public Defender, and Michael J. Hersek, State Public Defender, under appointment by the
Supreme Court, and William Hassler, Deputy State Public Defender, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorney General, Robert R. Anderson, Chief Assistant Attorney General,
Gary W. Schons, Assistant Attorney General, William M. Wood, Raquel M. Gonzalez and Holly D. Wilkens,
Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

William Hassler
Deputy State Public Defender
221 Main Street, Tenth Floor
San Francisco, CA 94105
(415) 904-5600

Holly D. Wilkens
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2281

Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 06/26/200844 Cal.4th 1 original opinion 44 Cal. 4th 1031 a modificationS065707Automatic Appealclosed; remittitur issued


1The People (Respondent)
Represented by Attorney General - San Diego Office
Raquel M. Gonzalez, Deputy Attorney General
P.O. Box 85266
San Diego, CA

2The People (Respondent)
Represented by Holly D. Wilkens
Office of the Attorney General
P.O. Box 85266
San Diego, CA

3Page, Terrance Charles (Appellant)
San Quentin State Prison
Represented by William Hassler
Attorney at Law
P.O. Box 2807
McKinleyville, CA

Jun 26 2008Opinion: Affirmed

Oct 31 1997Judgment of death
Nov 12 1997Filed certified copy of Judgment of Death Rendered
Nov 12 1997Penal Code sections 190.6 et seq. apply to this case
Jan 29 1999Record certified for completeness
  (Note: the Trial Court had Originally certified the Record for Completeness on 7-28-98.)
Oct 30 2001Filed:
  applt's application for appointment of counsel (IFP form).
Nov 1 2001Order appointing State Public Defender filed
  Upon request of appellant for appointment of counsel, the State Public Defender is hereby appointed to represent appellant Terrance Charles Page for the direct appeal in the above automatic appeal now pending in this court.
Nov 9 2001Date trial court delivered record to appellant's counsel
  13,743 pp. record
Dec 6 2001Received:
  notice from superior court regarding length of record: 13,743 pp.
Dec 6 2001Appellant's opening brief letter sent, due:
Dec 28 2001Counsel's status report received (confidential)
  from State P.D.
Feb 26 2002Received:
  copy of superior court order granting applt's request for ext. of time to request correction, augmentation and/or settlement of the record to 5-12-2002.
Feb 27 2002Counsel's status report received (confidential)
  from State P.D.
Apr 29 2002Counsel's status report received (confidential)
  from State P.D.
Jun 28 2002Counsel's status report received (confidential)
  from State P.D.
Jul 30 2002Request for extension of time filed
  To file AOB. (1st request)
Aug 1 2002Extension of time granted
  To 9/20/2002 to file AOB. The court anticipates that after that date, only five further extensions totaling 300 additioanl days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any seprate counsel of record, of this schedule, and to take all steps necessary to meet it.
Aug 26 2002Counsel's status report received (confidential)
  from State P.D.
Sep 24 2002Request for extension of time filed
  To file appellant's opening brief. (2nd request)
Sep 27 2002Extension of time granted
  To 11/19/2002 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assiting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Oct 25 2002Counsel's status report received (confidential)
  from State P.D.
Nov 15 2002Request for extension of time filed
  to file AOB. (3rd request)
Nov 19 2002Extension of time granted
  to 1-21-2003 to file AOB. The court anticipates that after that date, only 3 three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet this schedule.
Nov 22 2002Received copy of appellant's record correction motion
  Motion to Correct and Complete the Record on Appeal. (24 pp.)
Dec 23 2002Counsel's status report received (confidential)
  from State P.D.
Jan 14 2003Request for extension of time filed
  to file appellant's opening brief. (4th request)
Jan 21 2003Extension of time granted
  to 3/24/2003 to file appellant's opening brief. The court anticiptes that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Feb 24 2003Counsel's status report received (confidential)
  from State P.D.
Mar 19 2003Request for extension of time filed
  to file appellant's opening brief. (5th request)
Mar 24 2003Extension of time granted
  to 5/23/2003 to file appellant's opening brief. The court anticipates that after date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Apr 22 2003Counsel's status report received (confidential)
  from State P.D.
May 15 2003Request for extension of time filed
  to file appellant's opening brief. (6th request)
May 20 2003Extension of time granted
  to 7/22/2003 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separte counsel of record, of this schedule, and to take all steps necessary to meet it.
May 29 2003Counsel's status report received (confidential)
  (supplemental) from State P.D.
Jun 12 2003Record certified for accuracy
Jun 23 2003Counsel's status report received (confidential)
  from State P.D.
Jul 18 2003Request for extension of time filed
  to file AOB. (7th request)
Jul 23 2003Extension of time granted
  to 9-22-2003 to file AOB. After that date, only two further extensions totaling about 100 additional days will be granted. Extension granted based upon Deputy State P.D. William Hassler's representation that he anticipates filing the brief by 12-30-2003.
Aug 22 2003Counsel's status report received (confidential)
  from State P.D.
Sep 17 2003Request for extension of time filed
  to file appellant's opening brief. (8th request)
Sep 23 2003Extension of time granted
  to 11/21/2003 to file appellant's opening brief. After that date, only one further extension totaling 40 additional days will be granted. Extension is granted based upon Deputy State Public Defender William Hassler's representation that he anticipates filing that brief by 12/31/2003.
Sep 25 2003Record on appeal filed
  Clerk's transcript 37 volumes (8346 pp.) and reporter's transcript 50 volumes (6004 pp.), including material under seal; CD of reporter's transcript and ASCII disk.
Sep 25 2003Letter sent to:
  Counsel advising that record on appeal, certified for accuracy, was filed on 9/25/2003.
Oct 20 2003Counsel's status report received (confidential)
  from State P.D.
Nov 17 2003Request for extension of time filed
  to file appellant's opening brief. (9th request)
Nov 21 2003Extension of time granted
  to 1/20/2004 to fiel appellant's opening brief. After that date, only one further extension totaling 70 additional days will be granted. Extension is granted based upon Deputy State Public Defender William M. Hassler's representation that he antcipates filing that brief by 3/31/2004.
Dec 22 2003Counsel's status report received (confidential)
  from State P.D.
Jan 12 2004Request for extension of time filed
  to file appellant's opening brief. (10th request)
Jan 14 2004Extension of time granted
  to 4/1/1004 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon Deputy State Public Defender William Hassler's representation that he anticipates filing that brief by 3/31/2004.
Feb 19 2004Counsel's status report received (confidential)
  from State P.D.
Apr 1 2004Appellant's opening brief filed
  (44,904 words - 150 pp.)
Apr 5 2004Respondent's brief letter sent; due:
  September 28, 2004.
Sep 28 2004Respondent's brief filed
  (30,377 words; 102 pp.)
Nov 18 2004Appellant's reply brief filed
  (9306 words; 36 pp.)
Dec 12 2006Exhibit(s) lodged
  People's, nos. 8, 9, 10 and 11.
Aug 8 2007Exhibit(s) lodged
  Defendant's nos. 22-29.
Jan 25 2008Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the March 2008 calendar, to be held the week of March 3, 2008, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Mar 4 2008Case ordered on calendar
  to be argued on Wednesday, April 2, 2008, at 1:30 p.m., in Los Angeles
Mar 10 2008Received:
  appearance sheet from William Hassler, Deputy State Public Defender, indicating 30 minutes for oral argument for appellant.
Mar 14 2008Filed:
  appellant's focus issue letter, dated March 13, 2008.
Mar 14 2008Received:
  letter from appellant, dated March 13, 2008, with additional authority.
Mar 17 2008Filed:
  proof of service of appellant's oral argument focus issue letter upon appellant.
Mar 18 2008Received:
  appearance sheet from Raquel M. Gonzalez, Deputy Attorney General, indicating 30 minutes for oral argument for respondent.
Mar 20 2008Filed:
  respondent's focus issues letter, dated March 20, 2008.
Mar 20 2008Filed:
  declaration of service of appellant's letter re: additional authorities (received on March 14, 2008) upon appellant.
Mar 26 2008Received:
  letter from Deputy Attorney General Holly D. Wilkens, dated March 24, 2008, advising that she will be representing respondent at oral argument.
Apr 2 2008Cause argued and submitted
Jun 25 2008Notice of forthcoming opinion posted
Jun 26 2008Opinion filed: Judgment affirmed in full
  opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ
Jul 11 2008Motion to withdraw as counsel filed
  by the State Public Defender.
Jul 11 2008Rehearing petition filed
  by appellant, (784 words; 5 pp.)
Jul 14 2008Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including September 24, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
Aug 1 2008Motion for appointment of counsel filed
  by William Hassler, Attorney at Law.
Aug 13 2008Withdrawal of counsel allowed by order
  Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for appellant Terrance Charles Page, filed July 11, 2008, is granted. The order appointing the State Public Defender as appellate counsel of record for appellant Terrance Charles Page, filed November 1, 2001, is hereby vacated. William Hassler is hereby appointed as counsel of record to represent appellant Terrance Charles Page for the direct appeal in the above automatic appeal now pending in this court.
Aug 20 2008Rehearing denied
  On the Court's own motion, the opinion is modified. The petition for rehearing is denied.
Aug 20 2008Opinion modified - no change in judgment
Aug 20 2008Remittitur issued (AA)
Aug 22 2008Received:
  from appellant, copy of motion for leave to proceed in forma pauperis on petition for writ of certiorari. (15 pp. excluding appendices)
Aug 25 2008Received:
  acknowledgment for receipt of remittitur.
Aug 25 2008Exhibit(s) returned
  to superior court.
Aug 29 2008Received:
  Letter from U.S.S.C. dated August 27, 2008. Petition for Writ of Certiorari was filed on August 21, 2008, no. 08-5989.
Sep 10 2008Received:
  exhibits sent to trial court, returned to this court in error.
Sep 10 2008Exhibit(s) returned
  to superior court.
Sep 17 2008Received:
  acknowlegment of receipt of exhibits.
Sep 29 2008Received:
  from respondent "brief in opposition to the petition for writ of certiorari"
Nov 3 2008Certiorari denied by U.S. Supreme Court
Nov 7 2008Related habeas corpus petition filed (post-judgment)
  no. S168134.
Dec 5 2008Appellant deceased (AA)
  Page died at San Quentin this date.
Dec 9 2008Note:
  received telephonic notification from Senior Asst. Attorney General Ronald Matthias of Terrance Page's death.
Dec 18 2008Compensation awarded counsel
  Atty Hassler
Jan 14 2009Compensation awarded counsel
  Atty Hassler

Apr 1 2004Appellant's opening brief filed
Sep 28 2004Respondent's brief filed
Nov 18 2004Appellant's reply brief filed
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