Super. Ct. No. 554289-9 Fresno County Judge: James L. Quaschnick.
The opinion of the court was delivered by: Corrigan, J.
A jury convicted defendant Keith Zon Doolin of the first degree murders*fn1 of Inez Espinoza and Peggy Tucker, and the attempted murders*fn2 of Alice Alva, Debbie Cruz, Marlene Mendibles, and Stephanie Kachman. For each crime, the jury found that defendant personally used a firearm.*fn3 For each attempted murder, the jury found defendant personally inflicted great bodily injury on the victim.*fn4
The jury found true the special circumstance allegation of multiple murder,*fn5 and returned a verdict of death.
The court denied defendant's motions for a new trial*fn6 and penalty modification*fn7 and sentenced defendant to death. The court imposed and stayed a determinate sentence on the non-capital felony counts and enhancements.
This appeal is automatic.*fn8 We affirm the judgment in full.
1. Overview of Prosecution's Case
Between November 2, 1994, and September 19, 1995, defendant murdered two Fresno prostitutes and attempted to murder four others. At trial, each surviving victim identified defendant as her assailant. One decedent's boyfriend saw her enter a car defendant was driving on the night she was murdered. Ballistics evidence established defendant's Firestar .45-caliber handgun was used to kill Espinoza and Tucker. Shell casings found at the Espinoza and Kachman crime scenes were fired from that same weapon. Defendant's sister lived with him during the time the shootings occurred. Her Lorcin .25-caliber pistol "probably" fired the shell casings found at the Alva crime scene. Tire impressions left at the Mendibles and Espinoza crime scenes were similar to the tread on defendant's truck tires.
Incriminating statements and other evidence linked defendant to the crimes. The defense consisted of evidence of alibi, mistaken identification, and third party culpability.
A summary of the evidence adduced at trial follows.
a. The Two Murders and Four Attempted Murders
(1) Attempted murder of Alice Alva
On the night of November 2, 1994, Alice Alva was working as a prostitute. Defendant pulled up next to her in his pickup truck and offered her $30 for sex. Alva got into the truck, and defendant drove to a nearby cul-de-sac. When Alva asked for payment, defendant pointed a silver gun at her and said, "I'm going to fuck you all night." Frightened, Alva told him, "I'll do whatever you want, but before we have sex, I need to use the bathroom." Defendant agreed, but warned Alva, "Don't try anything stupid because you won't be the first girl I shot and killed." Alva left the truck and ran. She heard three or four shots, was shot in the leg, and fell to the pavement. When she saw defendant approach with the gun in his hand, she pretended to be dead. Defendant got in the truck and sped off.
The police recovered three .25-caliber shell casings in the roadway near where Alva had fallen. Dr. Ralph Koo treated Alva, who had a bullet lodged in her fractured right tibia. Because of the risk of complications, including paralysis, Dr. Koo did not remove the bullet.
(2) Attempted murder of Debbie Cruz
Around midnight on December 29, 1994, Debbie Cruz was working as a prostitute when defendant picked her up in his truck and drove to an alley. As Cruz began to undress, defendant said, "I guess you're waiting for money." He then pulled a small silver gun from his pocket and shot her. Cruz opened the passenger door, fell out, and crawled away. She collapsed at a nearby house and a resident called police.
Officer Jack Gordon responded. Based on the size of Cruz's wound, Gordon believed she had been shot by a small caliber gun, possibly a .22. A treating physician determined the bullet entered Cruz's left hip, passed through her abdomen, and perforated her small intestine. The bullet was left in place following emergency surgery.
(3) Attempted murder of Marlene Mendibles
Around 1:00 a.m. on July 29, 1995, Marlene Mendibles was working as a prostitute and accepted defendant's offer of a ride in his truck. Defendant drove for a while, pulled over, and ordered her to disrobe, threatening to shoot her if she did not comply. When defendant pulled out a large silver gun, Mendibles grabbed her bag, opened the passenger door, and told him she would walk. Standing beside the truck, Mendibles told defendant, "I bet you remember me," and he replied, "I bet you remember me, too." She then heard a "pop." Defendant drove away and Mendibles fell to the ground. She was rendered a paraplegic by the shooting.
(4) Murder of Inez Espinoza
At 4:20 a.m., the same morning of the Mendibles shooting, Alice Trippel heard a gunshot. At 4:30 a.m., Carmen Ramos, who lived nearby, heard screaming. Around 11:00 a.m., Ramos's daughter, drove to her mother's home. As she approached the carport, she saw the dead body of prostitute Inez Espinoza in an alley near the home.
Detective Robert Schiotis examined Espinoza's body and saw a gunshot entry wound in her lower right back with an exit wound several inches below her navel. He removed a large caliber bullet and a piece of the copper casing from Espinoza's clothing. He also recovered a spent .45-caliber shell casing, a condom, and a torn Trojan brand condom wrapper. He also noted tire tracks and "traction marks of a car taking off in a hurry."
The autopsy surgeon observed a gunshot wound above Espinoza's right hip. The presence of powder marks near the entry wound indicated the gun had been pressed against her clothing when fired. The bullet had severed a major artery. She died from internal bleeding.
(5) Attempted murder of Stephanie Kachman
On August 11, 1995, about 3:00 a.m., defendant drove up beside Stephanie Kachman in a small white truck. She agreed to have sex and got in the truck. Defendant drove into an alley and stopped. When Kachman asked to be paid, he pointed a gun at her head and told her to take off her clothes. Kachman told defendant she needed to get out of the truck because a leg injury made undressing difficult. They both left the truck.
While Kachman undressed, defendant put on a condom and placed his gun on the truck seat. They began to have intercourse, but Kachman lost her balance and stumbled. As she ran out of the alley, she heard defendant's truck approaching. She looked back and saw defendant shooting at her through his window. Kachman was hit twice and fell to the ground. A nearby resident summoned the police.
Seven shell casings were recovered near the scene. Kachman sustained two through and through bullet wounds, one in her back and the other in one of her thoracic vertebrae.
(6) Murder of Peggy Tucker
On the night of September 18, 1995, Peggy Tucker and Rick Arreola left their motel and walked to an area in West Fresno. Tucker walked ahead with Arreola trailing at a distance.
Arreola saw a Lincoln Town Car drive up next to Tucker, who spoke to the driver and then got into the front passenger seat. Arreola watched as the car drove into an empty lot and out of his sight.
As Arreola stood on the center divider waiting for Tucker to return, he saw the Lincoln drive by. The car's dome light was turned on and the driver, whom Arreola identified as defendant, appeared be alone.
On the following morning, Tucker's body was found in an alley. When told of Tucker's death, Arreola spoke with police and described the Lincoln Town Car by color and license plate number. Defendant's mother, Donna Doolin Larsen, owned a similar vehicle.
Tire tracks at the Tucker murder scene reflected an "acceleration mark" indicating the vehicle left at high speed. Two packages of condoms were recovered from Tucker's right hand. There was blood on her back, in her mouth, and on the ground nearby.
Tucker's autopsy revealed that she had been shot in the right hip. The gun was probably fired from two to four inches from the body based on stippling and soot marks. The perforation of two major blood vessels and the intestines caused fatal blood loss and shock. Three bullet fragments were recovered from the body.
b. Defendant's Arrest and Statements to Police
(1) First Police Interview
On October 18, 1995, defendant was arrested and read his Miranda*fn9 rights. Defendant said he understood them and was taken to police headquarters. There, Detectives Robert Schiotis and Albert Murrietta again explained defendant's Miranda rights, which he waived.
Defendant told the detectives he was a trucker and recently had been working for a towing company and a recycling center. He reported he had been a civilian employee of the Army, Navy, and Marines.
Defendant admitting owning a 1984 Toyota pickup. He initially denied knowing about the prostitute shootings, but then conceded he had heard that prostitutes were being robbed and shot.
The detectives said they knew defendant owned a gun and that one of the victims had identified him as her assailant. Defendant said he owned a .45-caliber Firestar Compact, which was in his house. It was his "personal gun," which he alone used. He bought the Firestar for protection because it "shoots with both hands," and he was ambidextrous. He had fired the gun about 150 times at an indoor shooting range but did not carry it.
Defendant had previously owned and sold two rifles. In his safe, he occasionally kept guns belonging to friends. Currently his safe contained a .44-caliber automatic and possibly a nine-millimeter Taurus. When asked about a bulletproof vest found in his house, defendant said he bought it for protection because he had been robbed at a Walgreens store two years earlier and while clerking at a 7-Eleven store.
When informed of the charges against him, defendant claimed he was innocent and asked what he could do to vindicate himself. He told the detectives he did not leave the house at night, except to go to the store to get away from "tension at home." He admitted that a friend of his knew prostitutes. He had seen prostitutes near a tavern and near the 7-Eleven store where he had worked. He denied ever having hired a prostitute, although one had approached him once. He felt Fresno was "flooded" with prostitutes and believed prostitution should be legalized.
When told a witness had watched him pick up Peggy Tucker in the Lincoln Town Car the night she was murdered, defendant replied, "I have not picked up a prostitute in the car." Defendant had heard on television that the suspect drove a white truck with red letters on the tailgate and a larger "Cadillac-type vehicle."
Told that the tire track evidence implicated him, defendant responded that he had put new tires on the Lincoln about two weeks earlier and on his truck in May 1995.
He could not explain why the surviving victims identified him from a photo lineup. He denied shooting them, using drugs, or drinking alcohol. Asked when he last had sex, defendant paused a long time, and then replied, "That doesn't count." He explained he had had oral sex with a woman three weeks earlier and paused because he did not know if oral sex "counted for having sex with a girl." Defendant maintained his innocence and again asked what he could do to vindicate himself. The interview was concluded, and defendant agreed to talk with detectives again.
(2) Second Police Interview
Detective Schiotis reinterviewed defendant later that day. Schiotis said a search of defendant's house revealed the box for a second .45-caliber Firestar. This second Firestar would later be proven to have been used in several of the incidents. Asked why he had not disclosed the existence of the second Firestar, defendant said, "it just didn't come up when we were talking," and claimed the second gun "hardly ever had been used." Defendant initially said that the second Firestar was in the headboard of his bed, and then that he had given the gun to his cousin, Bill Moses, about three weeks earlier. Upon further questioning, defendant told the detectives his sister, Shana Doolin, had a .25-caliber handgun.
(3) Third Police Interview
The next day, defendant was questioned after again hearing and waiving his Miranda rights. He reported that he had loaned the second Firestar to Bill Moses three or four weeks earlier, and that no one else had used his gun. When told another victim had identified him as her assailant, defendant looked at the photo lineup and commented that one of the suspects looked "close enough to be his brother." He also said, "We're going in circles here."
c. Search of Defendant's Home and Inspection of Defendant's Truck
Defendant's home was searched on the day of his arrest. Police found a videotape entitled Pro Sniper, which showed firing positions and types of guns used by a sniper. They also found photographs of defendant and others with guns. In defendant's bedroom, they found body armor, a bulletproof vest with FBI stenciled on the back, three ski masks, black military clothing, a camouflage shirt, Soldier of Fortune and Combat Arms magazines, some pornographic magazines, information on mail-order brides, and two boxes of .45-caliber ammunition. A fully loaded .45-caliber Firestar in a black waist holster, a loaded magazine, and a radio scanner were found in the living room.
A gun safe in the garage held a Taurus PT-99 nine-millimeter handgun, three magazines for that weapon, two empty Firestar gun boxes with consecutive serial numbers, and two sets of handcuffs. The safe also contained a metal belt buckle with an opening for a .22-caliber handgun; an Omega taser; paperwork showing purchases of, and repairs to, guns owned by defendant; an unloaded .44-magnum handgun; three plastic starter guns; a variety of rifles and shotguns; and several kinds of ammunition, including over 600 .22-caliber rounds. Three unopened condoms were recovered from the ashtray in defendant's truck.
Detective Frank Rose recovered an unloaded .45-caliber Firestar, two empty magazines, and a nylon holster from Bill Moses. Moses said that he got the gun from defendant two or three weeks earlier, but he had not fired the weapon.
Detective Todd Fraizer retrieved a Lorcin .25-caliber semiautomatic handgun from Shana Doolin at her residence in Stockton.
e. Defendant's Purchase of the Firestar Handguns and Accessories
On March 19, 1995, following the mandatory 15-day waiting period, defendant had picked up the two Firestar .45-caliber handguns he had purchased. The registered serial numbers were the same as the numbers on the boxes found at his home. Defendant also purchased two holsters that could be worn inside pants and two magazines that allowed for one additional bullet in each magazine. The store owner testified the Firestar had only been on the market a few months and "would carry the greatest power - most powerful bullet for its size." He said that handgun was designed to be concealable. He also identified bullets seized from defendant's residence as containing Federal brand .45-automatic hydroshock hollowpoint cartridges, designed to expand upon impact.
f. Testimony of Defendant's Sister, Shana Doolin
Defendant's sister, Shana Doolin, testified that she, her mother, and her stepfather were living with defendant when the shootings occurred. She bought the Lorcin .25-caliber handgun retrieved by police. It jammed occasionally.
Shana gave her gun to defendant in mid-July 1995 because he said "one of our relatives needed it." She claimed at trial that defendant returned the gun to her in mid-August 1995. She admitted that she testified at defendant's preliminary hearing that he returned the gun in early September 1995.
Before defendant was arrested, Criminalist Stephen O'Clair examined a .45-caliber shell casing found near Espinoza's body and seven shell casings found at the Kachman crime scene. He concluded they were all fired from the same gun. O'Clair also concluded these shell casings "most likely" contained Federal brand hydroshock hollowpoint bullets.
O'Clair later compared bullets test-fired from the .45-caliber Firestar retrieved from Bill Moses (the second Firestar) with rounds recovered from the Espinoza crime scene and Tucker's body. Both bullets were fired from the second Firestar that defendant initially failed to mention to the detectives. O'Clair determined these bullets were "probably" Federal brand hydroshock hollowpoint bullets.
O'Clair also test-fired Shana Doolin's .25-caliber Lorcin and compared the characteristics of the spent shell casings with the shell casings found at the Alva crime scene. He concluded the casings recovered from the Alva scene were "probably" fired from that gun. O'Clair explained that a defect in the Lorcin left "gross types of marks" rather than "finer striated marks" on spent casings. This defect precluded a positive match of the shell casings.
Criminalist Charles Morton also examined Shana Doolin's Lorcin and the second Firestar. He test-fired each and compared bullets and shell casings from those weapons with those found at the Espinoza, Kachman, and Alva scenes and the bullet recovered from Tucker's body. Morton concluded the shell casings found at the Espinoza and Kachman scenes were fired by the second Firestar. The Espinoza and Tucker bullets were also fired from that gun.
Morton agreed with O'Clair that a .25-caliber weapon like Shana Doolin's was used in the Alva shooting. He explained that the number of guns that could have been used in this shooting "probably"could be reduced based on irregularities he observed on the Alva scene shell casings that were caused by imperfections on the breech face of the gun that fired those casings.
O'Clair examined, made impressions, and created photographic transparencies of the tires on defendant's truck. He compared these transparencies with actual-size photographs of the tire tracks found at the Mendibles and Espinoza crime scenes. Except for differences in tread wear that could have resulted from the passage of time, the tire impressions from both crime scenes were similar to the tread on both front tires and the right rear tire on defendant's truck. The left rear tire of defendant's truck had a different tread design and appeared to be newer than the other three tires.
O'Clair examined what he described as "fairly new tires" on the Lincoln belonging to defendant's mother. The tread on these tires did not match the tire impressions found at the Tucker murder scene.
Defendant testified he did not know the two decedents and first saw the surviving victims when they appeared in court. He claimed that when the Alva and Cruz assaults occurred, he was in Watsonville and Wasco, respectively.
On he night of the Mendibles and Espinoza shootings, defendant helped his family pack for an upcoming move. Around 2:45 or 3:00 a.m., he drove to David Daggs's house to unload two motorcycles. He left around 4:30 a.m. and returned home about an hour later after stopping at a gas station. Daggs began his newspaper delivery route around 4:30 a.m. Defendant could not explain why his mother wrote in her journal that he left the house that morning around 2:00 a.m.
On the night of August 10, 1995, through the early morning hours of August 11, 1995, when Kachman was shot, defendant was at home with his mother and cleaned the house in anticipation of listing it for sale.
During the night of the Tucker murder, he was at his mother's house. He did not "remember ever going out or doing anything special." He confirmed his mother's Lincoln was at that residence.
He described himself as a gun collector who used ammunition of different types, including hollowpoints. He described the latter as "made to expand, double its size" upon impact and more accurate than "a full metal projectile" at short ranges.
Defendant denied watching the Pro Sniper video found at his home. He bought matching .45-caliber Firestar handguns because he is ambidextrous. He could not explain what had happened to 18 hydroshock hollowpoint bullets missing from a box of Federal brand bullets found at his home. He suggested his cousin Bill Moses might be responsible for the shootings but acknowledged that there are "still a lot of unanswered questions, of course, . . . some that are positive and some that are negative" about Moses' possible involvement.
b. Defense Psychiatrist Dr. Howard Terrell
Dr. Howard Terrell, a psychiatrist, testified that defense counsel initially had asked him to evaluate defendant and review the police reports. Dr. Terrell concluded, "I found a man who showed no evidence that I could see of mental disorder, either in my examination of him or my review of the [police reports] that I have available." The psychiatrist found no evidence of psychosis, manic depression, drug addiction, personality disorders, or sadism. Dr. Terrell had evaluated over 100 murderers and probably a dozen serial killers during his career. In his opinion, defendant did not match any of the "typical profiles"*fn10 he would expect to see in a murderer, "let alone a serial killer."
James Bacon testified that he had known defendant since 1985 or 1986. On November 2, 1994, the night of the Alva assault, defendant was visiting him in Freedom, California. Bacon was not certain but thought defendant left for Fresno on Friday, November 5, 1994. Defendant also stayed with Bacon in late July 1995, and returned to Fresno on the afternoon of July 28, 1995, with two motorcycles in his truck.
On cross-examination, Bacon admitted he attended the preliminary hearing, listened to witnesses testify, and took notes. Bacon had compared these notes with those taken by defendant's sister, Shana Doolin. He had also looked at notes taken by defendant's mother.
David Daggs testified that from December 1994 to September 1995, he dated Shana Doolin. Around 3:30 a.m. on July 29, 1995,*fn11 the morning of the Mendibles and Espinoza shootings, defendant came to his residence and unloaded motorcycles from his truck. Defendant finished before Daggs began his newspaper route at 5:00 a.m. According to Daggs, Shana told him that defendant had purchased the Lorcin for her.
Defendant's mother, Donna Doolin Larsen, testified that defendant watched television in his bedroom the night of the Kachman shooting, and did not leave the house. On cross-examination, when pressed on whether she actually remembered him being at home that evening, Larsen said, "I know he was. I will go to my death saying that he was at home on that date."
Regarding the night of the Tucker murder, Larsen testified defendant was home and left once from about 11:00 p.m. to 11:30 p.m. to buy her ice cream, cleaning supplies, and gasoline. She and defendant cleaned her house "for hours" that night, to prepare for a real estate showing.
On cross-examination, Larsen invoked her Fifth Amendment privilege against self-incrimination when asked several questions about her character for honesty and whether she had ever falsely represented herself as a registered nurse or submitted false documents at her place of employment.
Bill Moses testified he received the second Firestar from defendant on September 1, 1995. He remembered the date because it was his father's birthday and he helped pack Shana Doolin's moving truck that evening. Moses stated he was mistaken when he told Detective Rose that he had gotten the gun during the last week of September or the first week of October 1995. He explained he had been suffering from the side effects of a chemotherapy drug that can cause amnesia.
Defendant unloaded hollowpoint bullets from the gun before giving it to Moses, who owned three handguns himself. He acknowledged that Tucker was murdered on September 19, 1995, and understood the implications of his claim that he had defendant's gun on that date.
Moses further testified that he and defendant once took Shana Doolin's Lorcin without her knowledge. He had borrowed this handgun from defendant from the end of July 1995 until August 18, 1995.*fn12
3. Prosecution's Rebuttal Witnesses
The prosecution presented numerous rebuttal witnesses whose testimony is discussed in part II.C.2, below.
Dana Peterson, a registered nurse, assisted in a sexual assault examination of D. on November 3, 1992. D. had a fresh bruise on her right lower leg, which she claimed she had sustained in a struggle with defendant.*fn13
Criminalist John Hamman testified as a ballistics expert. Hamman stated a hollowpoint bullet is designed to "mushroom or expand" upon impact and make almost twice as large a "wound track" through the body, causing more damage.
Angel C., the 16-year-old daughter of murder victim Inez Espinoza, testified she and her two half brothers (ages nine and six) and a half sister (age three) all missed their mother. She testified that in losing her mother, she lost "a big part of my life."
Nina Mandrell, the sister of murder victim Peggy Tucker, testified Tucker was survived by her mother, two sisters, a brother, a husband, and two children ages five and three. She and Tucker were very close. Tucker's murder had been devastating to her.
Allan Hedberg, a clinical psychologist, interviewed and tested defendant for eight and a half hours the week before the penalty phase began. Dr. Hedberg found defendant did not fit the profile of a person who is psychotic, mentally ill, psychopathic, or sociopathic. He described defendant as a "little paranoid" and having "some unresolved resentment from his childhood that he has not worked out," causing him feelings of sadness, mild depression, anxiety, or hostility. Dr. Hedberg also found defendant to be a person "who has difficulty dealing with conflict, dealing with threat, dealing with anger, dealing with feelings of resentment and wants to be seen as favorable by other people, wants to be accepted by other people. . . ."
Dr. Hedberg stated that defendant's mother had been married four times and that defendant, who suffered from a learning disability, had been verbally and emotionally abused by two of his stepfathers.
Based on his observations, Dr. Hedberg said defendant appeared to have "adjusted quite well" to the jail environment, interacting positively with guards and inmates.
A. Alleged Conflict of Interest Based on Counsel's Compensation Agreement
"Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest." (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland.) Fundamental to counsel's role is "a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (Id. at p. 691.)
In this case, defendant contends Fresno County Superior Court's compensation agreement created an inherent and irreconcilable conflict of interest because both counsel's compensation and the costs for investigative and expert services were covered by a lump sum fee. Defendant asserts this circumstance created a financial disincentive for counsel to adequately investigate and prepare his case. Any such agreement, he argues, creates a ...