San Joaquin County Super. Ct. No. 31016 S023421. County: San Joaquin Judge: William R. Giffen.
The opinion of the court was delivered by: Moreno, J.
Defendant Jerry Thomas Bunyard was convicted by jury of the first degree murders (Pen. Code, § 187)*fn1 of his wife Elaine Bunyard and of Elaine's full-term, healthy fetus. The jury also found true one special-circumstance allegation: that defendant had committed multiple murders (§ 190.2, subd. (a)(3)). Defendant was sentenced to death.
We affirmed defendant's judgment of guilt for first degree murder and upheld the special circumstance finding, but we reversed the penalty judgment because the trial court had improperly given the so-called Briggs Instruction informing the jury that the Governor is empowered to commute a sentence of life imprisonment without possibility of parole, an error we first identified in People v. Ramos (1984) 37 Cal.3d 136, 150-159. (People v. Bunyard (1988) 45 Cal.3d 1200, 1242-1245 (Bunyard).) The prosecution elected to retry the penalty phase, and the jury again returned a verdict of death. The trial court sentenced defendant to death. This appeal is automatic (§ 1239, subd. (b).) We affirm the judgment.
The facts of the crime, quoted from our previous opinion (Bunyard, supra, 45 Cal.3d at pp. 1200-1203), are as follows: On November 1, 1979, Elaine, a pregnant woman ready to give birth any day, was discovered dead in the garage of her home by her seven-year-old daughter, Tanya. Medical testimony at trial established that Elaine had died from a massive shotgun wound to the head, and that her full-term fetus had suffocated moments later from the resulting lack of oxygen. The evidence was uncontroverted that Elaine was killed by Earlin Popham, a childhood friend of defendant. Popham testified at trial that he was hired by defendant to kill Elaine.*fn2 In summary, Popham's testimony was as follows:
Earlin Popham, also known as Earlin Laudeman, was a drifter, small-time criminal, and frequent drug user who had known defendant since grade school. Around October 1979, two or three weeks before the murders, Popham learned that defendant wanted to see him, and he met with defendant at the Bunyard home. Defendant advised Popham that he had a job for Popham: assisting with a building project in Patterson. Popham accepted the job and began living at the Bunyard residence intermittently.
During this time, Popham and defendant began to discuss defendant's marital situation, and defendant asked Popham if he would kill Elaine for a fee. Defendant gave numerous reasons for his request: Elaine was pregnant by another man; he had offered Elaine $50,000 in settlement for a divorce, but she had refused; in a contested divorce Elaine would take everything defendant had; and that he wanted to be with or marry his new girlfriend, Sarah Pender, who was wealthy or had a wealthy father. Defendant offered to pay Popham $1,000 within a week after the killing, followed by payment of additional money when defendant received the proceeds of an insurance policy. Defendant additionally offered to employ Popham as a caretaker of his ranch after Elaine's murder, and told Popham that he would be welcome to move to Arkansas with defendant, defendant's father, and defendant's girlfriend Sarah Pender.
While at first Popham declined defendant's offer, when defendant persisted Popham, being sympathetic to defendant's situation and in need of money, eventually agreed to kill Elaine, knowing she was pregnant. This agreement was reached about one week before the murders occurred.
Popham testified that defendant's plan was to make the murder look like a suicide. Popham was to knock Elaine out in the kitchen, drag her into the garage where defendant had hidden his pump shotgun, and then stage a "shooting" suicide. Defendant believed this plan would be successful due to Elaine's "mental problems" during her pregnancy. Additionally, defendant told his father Clarence, who lived next door, to go fishing and not be at home during the week when defendant was asking Popham to carry out the murder plan. The date was left up to Popham, but defendant repeatedly asked Popham if today would be the day, including October 31, the day before the murders.
Finally, on the morning of November 1, when defendant asked if Popham would carry out the plan that day, Popham replied "probably." Waiting until after defendant and Tanya left the house, Popham walked up behind Elaine while she was in the kitchen washing dishes and struck her repeatedly on the head with frying pans to knock her out. He then dragged her while unconscious to the garage, placed her in a chair, propped defendant's shotgun under Elaine's chin, and pulled the trigger, blowing off half her head and face. Realizing that a trail of blood from the kitchen to the garage, and signs of a struggle in the kitchen - including two shattered pans - would not look like a suicide, Popham decided to make it appear to be a robbery by knocking over some furniture, and taking $5 from Elaine's purse.
Popham then drove to the construction project where defendant was working, and talked with defendant in hushed tones for a few minutes. He informed defendant that "it was done," and that he would meet him in town at the A & W at noon. That meeting was held at the appointed time and place, with Popham telling defendant that Elaine had been killed but that "it ain't going to look like a suicide." When Popham said he needed some money, defendant withdrew $175 from his bank and gave $125 to Popham. Popham told defendant that he would call defendant within a week regarding further payments. Two days after the murder, Popham tried to contact defendant by calling the house of defendant's father, Clarence Bunyard, who informed Popham that his son was at his (defendant's) home. Popham then reached defendant by phone at his own home. Although defendant asked Popham to call him at his father's house later that night, Popham did not call again. Telephone records at trial confirmed that a short call had been placed from a residence in San Jose, where Popham was staying, to defendant's home two days after the murders.
Other witnesses at trial, including defendant, testified that on the afternoon of November 1 - the date of the murders - defendant went to the Tracton Bar after work and drank heavily. Thereafter, defendant visited Sarah Pender, arriving at her home around 6:40 p.m., in an intoxicated condition. There, he was advised by both his mother and Sarah Pender of the death of his wife.
Testimony at trial established that Elaine had been murdered. Suicide was ruled out because Elaine's arms were too short to have put the barrel of the shotgun under her chin and still have pulled the trigger, and Popham's fingerprints were found on the shotgun. The physician who examined Elaine two days before her death stated that the fetus she was carrying had a fetal heartbeat of 140, was due between November 1 and 7, and was normal. The pathologist testified that the fetus was a normal, healthy term infant which weighed eight pounds, two ounces, was in proper position for delivery, and would have been born any day.
On November 2, 1979, one day after the murders, news of Elaine's "suicide" became public. Randy Johnson immediately contacted police authorities. He testified that, although not acquainted with Popham, he (Johnson) had also been asked repeatedly by defendant to kill Elaine. Johnson testified that early in his five-year friendship with defendant, defendant had asked him 5 to 10 times to kill Elaine and Tanya, then later Elaine alone; that defendant made 20 such requests during the first year of their friendship and even raised the offer from $1,000 to $5,000 to $10,000, but Johnson always declined. Later, when Johnson moved in with the Bunyards in the spring of 1979, receiving room and board in return for help with the ranch, the offers continued. Even after Johnson left the Bunyard residence, the offers continued, for a fee as high as $20,000, but Johnson never acquiesced. Although Johnson never apprised Elaine of her danger, he did mention it to the police prior to the actual murders, as well as to both his sister, Deanna Johnson, and his half brother.
Defendant testified on his own behalf at the guilt phase but did not challenge Popham's testimony that he (Popham) had murdered Elaine and her full-term fetus. Defendant presented an alibi defense and denied any involvement in the murders. Although defendant also denied desiring to divorce his wife, he admitted to striking her on occasion and to carrying on an affair with Sarah Pender, who he testified was his mistress. The defense at trial consisted primarily of an attack on the credibility of Johnson and Popham; defense counsel argued that Popham was lying to save himself from receiving the death penalty. Defendant denied ever soliciting either Johnson or Popham to kill anyone. Defendant further testified that he could think of no reason why Popham killed his wife.
At the penalty phase, the prosecution submitted its case on the basis of the guilt phase evidence. The defense presented one witness, Nathan Eli, who had been sentenced to death twice, 20 years earlier, but had been released from prison and was then employed as an office manager in a San Francisco law firm. The thrust of his testimony was that 'lifers' make good prisoners. Defendant was sentenced to death. [End of quotation from prior opinion.]
As noted, we reversed the penalty phase because of Ramos error. (Bunyard, supra, 45 Cal.3d at pp. 1242-1245.) The People elected to retry him. At the penalty phase retrial, Popham testified as to his and defendant's role in the murders, as he had during the guilt phase of the first trial. Randy Johnson was deemed unavailable to testify for reasons explained below, and his testimony from the first trial about defendant's attempt to solicit him to murder Elaine was read to the jury. Other evidence was introduced about the murders. The prosecution also introduced testimony that defendant had engaged in a number of acts of domestic violence against Elaine and against his first wife, Glenna Day.
Defendant's primary defense was to contest his guilt for the murders. Defendant himself testified to deny any involvement and also to describe his military service, which included a tour of duty in Vietnam. Two men who were in San Joaquin County Jail at the time Popham was in jail for the murders testified that Popham had told them he had stolen drugs from a friend and killed his pregnant wife, without mentioning defendant's solicitation of the murders.
On cross-examination of defendant and on rebuttal, the prosecution brought to light that defendant had had a checkered career in the military, including four AWOL's and three summary court martials. Also in rebuttal, the prosecution produced other evidence intended to show defendant had in fact committed the murders of which he had been convicted. Sergeant Harold Johnsen of the San Joaquin County Sheriff's Office testified that defendant had originally denied that he met Popham at the construction site where defendant was working on the day of the murders or that he had withdrawn money from his bank account for Popham. He further testified that defendant admitted to both those things during an interrogation a week later, although he claimed the money was for construction work Popham had done the previous weekend.
A. Excusal for Cause of Prospective Juror C.B.
Defendant contends that Prospective Juror C.B. was improperly excused for cause during voir dire. We disagree.
During voir dire, C.B. made clear her general support for the death penalty. However, she stated that she would have difficulty serving on the penalty phase jury because she had not been part of the jury that had found defendant guilty. In her colloquy with the judge she stated: "what happens if the other 12 people made a mistake and he is innocent. See, that's my problem with this whole situation. If I had listened to him and found the gentleman guilty, then that's a whole different circumstance." After explaining her general support for the death penalty, C.B. reiterated her difficulty with being a juror in this particular case. "I'm going to be honest with you. I could do it, but I don't want to be on this jury. I didn't find this man guilty, and I don't want to be sentencing him to life without parole. What happens if he's innocent . . . . that's what bothers me . . . . I can't sit in judgment of someone that . . . ." At this point, the court interrupted her and solicited from her the statement that she "could perform" her function as a juror.
The court then allowed the prosecutor and defense counsel to question C.B.. In response to defense counsel's inquiry as to whether she could serve on the jury, C.B. stated: "Of course, I'll be able - I may be blond[e], but I'm not that stupid. Yeah, I could be capable of that. But I'm telling you up front it bothers me that I wasn't on the first jury, okay."
The prosecutor moved to challenge for cause, which defense counsel opposed. The trial court granted the motion. In response to defense counsel's argument that C.B. had said "she could function when the Court asked her if she could function," the trial court responded: "I have some real doubts about that. She appears to be very hesitant, very unsure, very positive as a matter of fact that she could not. And, she's trying to ...