Riverside County Super. Ct. No. CR 45541. Judge: Ronald R. Heumann.
The opinion of the court was delivered by: George, C. J.
A jury convicted Michael Bernard Lewis of the first degree murder of Patricia Miller (Pen. Code, §§ 187, subd. (a), 189), and found true the special circumstance that the murder was committed while defendant was engaged in the commission of a rape (Pen. Code, §§ 190.2, subdivision (a)(17)(iii), 261).*fn1 The jury also found true the allegations that defendant personally used a deadly and dangerous weapon (§§ 1192.7, subd. (c)(23), 12002, subd. (b)) and that defendant previously had been convicted of a serious felony (§ 667). Following the penalty phase of the trial, the jury returned a verdict of death. Defendant moved for a new trial (§ 1181), and for modification of 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 an additional year in prison, consecutive to the death sentence, for the deadly weapon enhancement (§ 12022, subd. (b)(1)), added a five-year sentence, to be served concurrently, for the prior felony conviction (§ 667, subd. (a)), and ordered restitution in the amount of $10,000 (§ 1202.4, subd. (b)). This appeal is automatic. (§ 1239, subd. (b).)
In the morning of August 2, 1991, Patricia Miller was found dead on her living room floor, with her pants pulled off, her shirt pushed up, and her throat slashed. Defendant had flirted with Miller early the previous evening, had visited her apartment later that evening, and was the last person seen with her. He gave numerous conflicting accounts of his activities on the evening of August 1, initially denying that he had been in Miller's apartment, and eventually admitting that he had sex with Miller in her apartment that evening. He was unable to provide police detectives with a credible account of his activities and whereabouts during the four-hour period following his last admitted contact with Miller, and his description of the events conflicted with the accounts provided by other individuals. Four years earlier, defendant had assaulted and raped an acquaintance when he visited her at her apartment late in the evening. Details of the prior assault and rape were similar to the murder and rape of Miller.
b. Defendant's Activities on August 1 and 2, 1991
Patricia Miller resided in a two-story apartment building on Republic Street in Moreno Valley with her daughter Danyelle, 13 years of age, and her son Demetreus, five years of age. Directly to the east was a similar apartment building where Brian Jones resided. Directly east of Jones's building was a third apartment building, where Dwayne Mitchell resided. Along the rear of the apartment buildings was an alley running parallel to Republic Street to the north and Alessandro Boulevard to the south. Between the apartment buildings were walkways from Republic Street to the alley. Across the alley from Jones's and Mitchell's buildings, between the alley and Alessandro Boulevard, was a liquor store.
Jones testified that in August 1991, it was his custom to socialize with friends in the carport area behind his apartment building. He testified that frequently persons walked through the walkways and the alley, especially on the first and 15th of any month, because residents of the neighborhood went to the liquor store to cash their checks. In addition, according to Jones, some individuals took these routes to purchase illegal drugs from dealers who frequented the area around the liquor store.
Jones related that sometime after 4:00 p.m. on Thursday, August 1, 1991, his friend, David Hargrove, accompanied by defendant, arrived to visit with Jones in the carport area.*fn2 Defendant was wearing a white T-shirt, white shorts, white socks, and white sneakers. Jones testified that defendant told him he was leaving California that night or the next morning. According to Jones, defendant was "putting the moves on everything that moved." He testified that as women walked through the alleyway, defendant made comments such as, "I am going to fuck me something tonight, before I go," "I kind of like to fuck that bitch," and "I like to get with that hoe." Defendant sometimes yelled comments or whistled at women as they passed.*fn3
According to Jones, at approximately 8:00 that evening, the victim, Patricia Miller, walked through the alley, from the liquor store to her apartment. Miller was acquainted with Jones, and she stopped to socialize briefly with the group in the carport. Jones testified that defendant called Miller aside, whispered in her ear, and conversed with her for approximately 10 minutes. Jones also testified that he and Hargrove "laughed off" defendant's advances toward Miller, because defendant was "wasting his time." According to Jones, defendant commented after his conversation with Miller that he "wouldn't mind getting some of that."*fn4
Hargrove testified that at approximately 8:30 or 9:00 p.m., before it became dark, he gave defendant a ride to visit a friend of defendant's who resided in a nearby neighborhood. Jones testified that 30 or 40 minutes after Hargrove and defendant left the carport, Jones saw defendant walking down the alley. Jones testified that he noticed defendant was exhibiting symptoms consistent with a person who had used rock cocaine, and he described defendant as "all jacked up."*fn5
The testimony of Miller's daughter, Danyelle, established that, after returning to the alley, defendant visited Miller at her apartment. Danyelle testified that her mother called her inside between 9:00 and 9:30 p.m., by which time Danyelle's brother already was asleep in their mother's bed. Danyelle testified that she came inside and went to sleep, but was awakened approximately 30 minutes later by a knock at the door of the apartment. She explained that her bedroom window was above the door to their apartment and overlooked the walkway between their building and the apartment building directly to the west. She testified that, through her window, she inquired who was there, and the person at the door responded, "Mike."*fn6 Danyelle testified that she told her mother, who was in the upstairs bathroom, that "Mike" was at the front door, and her mother responded, "Tell him to hold on." Danyelle relayed the message to the visitor through her window. She testified that before she fell asleep again, she heard her mother and the visitor talking, and saw her mother through her bedroom window, walking outside with the visitor toward the laundry room in the back of the apartment building. Danyelle also testified that some time later, she was awakened again when her mother heard gunshots and called upstairs to Danyelle to close her bedroom window.
Dwayne Mitchell also heard the gunshots in the alley that evening, estimating the time at between 10:00 and 10:30 p.m. Mitchell testified he was walking to a telephone booth at the east end of the alley when he heard the shots and encountered defendant in the alley, walking back from the telephone booth in the direction of Mitchell's apartment building. Defendant was alone at that time. Mitchell testified he next saw defendant at approximately 11:00 that evening, when defendant and Miller walked past Mitchell's bedroom window, along the walkway between Mitchell's and Jones's buildings, in the direction of Republic Street, where cocaine sometimes was sold.*fn7 Mitchell did not see defendant again until approximately 3:00 a.m. on August 2, when defendant returned to Mitchell's apartment to spend the night.
Virginia Turner testified she was employed at a taxicab dispatch office in a commercial building situated on the east side of the liquor store. She was at the dispatch office from 8:00 p.m. on August 1 until 8:00 a.m. the next morning, and from her window, which she faced while she worked, she had a clear view of the alley and the rear of the apartment buildings. According to Turner, sometime between 11:00 p.m. and midnight, she received a telephone call from defendant, who asked whether she knew where he could obtain some cocaine. She responded that she could not obtain any for him at that time. Approximately five minutes later, Turner testified, she saw defendant come out of the walkway by Miller's building and walk down the alley, in the opposite direction from Turner's office. After another five minutes elapsed, she saw defendant return up the alley and into the walkway by Miller's building. She explained it was easy to see defendant because he was dressed in white clothing.*fn8
Turner testified that the next time she saw defendant was when he emerged from the walkway by Miller's apartment at approximately 2:00 a.m. and turned into the alley. She related that he walked quickly to Turner's office and told her he needed a taxicab immediately. Turner responded that her sole driver was "out on a run," and that defendant would have to wait 10 or 15 minutes. According to Turner, defendant said that he could not wait, and that he would go to Mitchell's house to see whether Mitchell was awake. Turner testified that during the time defendant was at the taxicab office, she observed that he exhibited symptoms of having smoked cocaine; he was jittery, nervous, and sweating. She stated that he was wearing white clothing, and that she did not notice any blood or other marks on him.
Mitchell testified that defendant knocked on his door between 2:00 and 2:30 a.m. Mitchell was certain defendant did not appear at his apartment earlier, because the family of Mitchell's girlfriend had visited the apartment from 11:00 or 11:30 p.m. until approximately 2:30 a.m., and defendant was not present at any time while the relatives were at the apartment. Mitchell testified that when he admitted defendant to the apartment, defendant was wearing the same clothes as earlier, and he "crawled over on the floor and went to sleep." Mitchell stated that he and defendant awoke on August 2 between 8:00 and 9:00 a.m., and left Mitchell's apartment approximately 30 minutes later. The two men walked together toward the neighborhood where Mitchell previously had resided. According to Mitchell, defendant seemed concerned only about meeting his brother and departing from California on their trip.
Defendant's brother, Kenya McAllister, testified that he met defendant between 9:00 and 10:00 a.m. near their parents' prior residence, and departed on their trip. According to McAllister, defendant's attitude was normal and he did not appear to be upset. McAllister also testified that defendant did not mention being with a woman or having sex the previous evening.
c. Discovery and Investigation of the Crime Scene
Danyelle awakened at 6:00 a.m. on August 2, when she heard her mother's alarm clock. She walked to her mother's bedroom, but only her brother, Demetreus, was in her mother's bed. She proceeded downstairs to look for her mother, and found her lying on the living room floor with her pants down, her shirt up, and blood surrounding her. Danyelle shook her mother to waken her, but her mother did not move. Danyelle ran to a neighbor's home and reported that there was something wrong with her mother. When Danyelle exited from the front door, she observed that the lock within the doorknob, which could be engaged by a person exiting from the apartment before the door was closed, was locked, but the deadbolt lock, which could not be locked unless the door was closed (and therefore required a key to be locked from the outside), was not locked. The neighbor returned with Danyelle and, after attempting to feel a pulse in her mother's body, informed Danyelle that her mother was dead.
Law enforcement officers arrived at Miller's apartment at approximately 7:00 a.m. on August 2. After the officers searched the apartment for suspects and cordoned off the crime scene, Deputy John Monarrez of the Riverside County Sheriff's Department interviewed Danyelle concerning the events of the prior evening. Monarrez testified that Danyelle informed him that she knew the visitor only as "Mike," and she disclosed that she had seen Mike speak to her mother and visit their apartment on other occasions. She also told Monarrez that Mike was wearing a white T-shirt and tan pants. Monarrez asked Danyelle to compare the color of Mike's pants to pants worn by people milling in the crowd, and she identified a color that Monarrez described in his report as "beige," which he believed to be lighter than "tan."*fn9 Monarrez also asked Danyelle to compare Mike to other persons in the area and, based upon those comparisons, Monarrez determined that Mike was an African-American man, approximately 30 years of age, six feet in height, and weighing 175 pounds.
Marc Bender, an investigator with the Riverside County Sheriff's Department, inspected the crime scene. He testified that he found no blood trail leading away from Miller's body, and no blood on the doors, walls, or floor, other than underneath the body and within a few inches of it. He also testified that there was a large wound that cut into some of the major arteries in the victim's neck, but the blood was confined to a small area around the victim. Bender explained that the absence of splatter or spray of blood indicated to him that the "automatic thrashing reaction" that, according to Bender, almost always results from such an injury, had not occurred, nor had the victim aspirated blood and exhaled a spray of blood. Photographs of the crime scene reflected that the victim's arms extended upward on the floor, her forearms were bent inward, and her hands lay in close proximity to each other at the top of her head, with the fingers on her right hand touching her left wrist. Bender noted that there was little blood on the victim's hands, indicating to him that she had not reacted by grabbing at the wound as, he explained, victims of such wounds often do in response to pain or to stop the flow of blood. He also noted that the edge of the bloodstain on the floor was almost straight and ended where the victim's back came in contact with the carpet, indicating to him that any movements on her part after her throat was cut were minimal.
Bender noted, and photographs of the crime scene reflected, that the victim's pants had been pulled off, except the bottoms of the pants legs, which apparently caught around the victim's ankles. The pants extended away from her feet, and were inside out. Her left leg was straight, but her right knee was bent sharply, causing her right foot to rest at a point even with her left thigh and knee. Her right foot was some distance from her left leg, and her right knee leaned inward toward her left thigh. Bender noted, and photographs from the crime scene reflected, a smear of blood on her right hip, and Bender surmised that someone had wiped blood from his or her hands onto the victim's hip, leaving a pattern that looked like fingers. He testified that on her arms were similar smears of blood that appeared to have been made by a hand. Finally, he testified that there were smears of blood on the carpet, and that one of the smears was pointed and appeared possibly to have come from the tip of a knife.
Bender testified there was no sign of a struggle having occurred in the apartment. The downstairs window had bars, and a sliding door to a patio area behind the building had a deadbolt lock in place, indicating to Bender that the perpetrator left through the front door. He testified that no murder weapon was found. Bender testified that he suspected the perpetrator had washed his hands before leaving, but no evidence of blood was found in any of the apartment's sinks. He also testified that fingerprints found on objects in the apartment's living room and kitchen, and the laundry room, either matched the victim's or lacked a sufficient number of points of reference to compare to other known prints.
Bender testified that he asked persons in the area about "Mike," and was directed to Brian Jones, who described defendant the same way he described him later at trial - "all jacked up," "very excited," "hitting on everything that moved," and "bound and determined to get between somebody's legs that night." Bender learned defendant's last name from a former neighbor of defendant's, who also disclosed that defendant had moved out of the house one day earlier. Bender conducted a search for defendant's name in a law enforcement computer system, and determined that defendant was on parole. Bender contacted defendant's parole officer and learned that defendant recently had requested permission to leave California and move to North Carolina.
Paul Sham, a criminalist, also examined the crime scene on August 2. He testified that he detected no bloodstains on the front door, the tile floors, the interior walls, the ceiling, or on any objects; blood was found only on the body and immediately surrounding the upper portion of the body. He explained that blood "smears" result from contact with a bloody object, in contrast to blood "splatter," which is caused by the deposit of airborne blood droplets. Sham testified that he observed blood smears on the victim's right calf, right buttocks, right hip, abdomen, upper arms, both hands, forehead, both cheeks, and around the eyebrows. He also testified that he observed blood splatter on the front of the victim's blouse, which appeared to have originated from the area of her throat. Sham also noted blood splatters on her abdomen, extending down to her pubic area. Sham stated that he examined the downstairs bathroom sink and the kitchen sink, and found no evidence of blood. He also stated the windows facing the front of the apartment were barred, the sliding glass door was locked, and the front door was locked from the inside. Sham testified that he found no obvious signs of a forced entry or a struggle.
d. Defendant's Conduct and Statements After Leaving California
Hargrove testified that approximately two days after the commission of the crimes, defendant contacted him by telephone at Hargrove's home. According to Hargrove, defendant told him that he was in El Paso, Texas, and Hargrove told defendant that "he needed to come back to California because word had it that he was involved in a murder." Hargrove testified that defendant responded that he did not know "what was going on," but that he would return to California. Hargrove also testified that defendant contacted him a second time to let him know he had reached Chicago, but the two did not discuss the homicide. Defendant's brother, Kenya McAllister, testified that during the trip to Chicago, defendant did not mention to Kenya that he had spoken to anyone in Moreno Valley, that he was a witness to or a suspect in a murder, or that it would be necessary for him to return to Moreno Valley.
Bender, the investigator, testified that he attempted to locate defendant through the parole system and subsequently was contacted by defendant's father, who informed Bender that defendant would return to California. Bender arranged to interview defendant on September 3, 1991, at a detention center in Riverside. Bender and a second detective, Dan Wilson, were present during this interview, which was recorded, except for several minutes when the first side of the tape ended and the cassette was not turned over promptly. Bender testified that in March 1992, he noticed that Wilson's report concerning the interview did not include all portions of it. At that time, Bender prepared a supplemental report describing the omitted portions of the interview, but he did not learn until January 1998 that a portion of the interview had not been recorded. Transcripts of the recorded portion were provided to the jury, and the recording was played at trial. Bender testified concerning the unrecorded portion of the interview.
The transcript of the Riverside interview reflects that Detective Wilson began by informing defendant of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Defendant confirmed he understood these rights, and that he was willing to speak with the detectives and provide a sample of his blood. The recording was paused while a nurse took a blood sample. When the recording resumed, Detective Wilson asked, "you were saying something about you talked to somebody?" Defendant responded that he had spoken to a friend, who said defendant was "a witness," and that the friend stated he had "tried to catch me the day I left. You know, going to Charlotte, North Carolina." Defendant told the detectives that his parole officer had directed him to return to California, and that when he returned, the parole officer informed him that the detectives wished to speak with him. Wilson asked defendant whether he knew "what this is in reference to," and defendant responded, "I understand a 187," presumably referring to section 187 of the Penal Code, which defines murder. When asked whether he knew who the victim was, defendant responded, "I know a, Patricia. They called Pat . . . ."
Defendant told the detectives that he had spoken to Miller at approximately 8:00 p.m. or 8:30 p.m., asking her, " `how you doin'?' She told me she . . . was just gettin' off a motorcycle with some guy which I do not know, who was sittin' there drinking a beer. [A]bout five minutes later he told me, `Man let her go, get home.' I let her go."*fn10 When asked whether he had been at Miller's house that evening, defendant stated he "passed by" her house and asked her whether her son had told her that "I asked about you that Saturday." Defendant said Miller told him that her son had not delivered this information, and defendant then "went on." He added that he saw Miller later in the evening and spoke to her again. When asked when he last had seen Miller that evening, defendant stated he saw her as she was going to the laundry room, at approximately 10:30 p.m. When Detective Wilson began to ask him about "when [he] was over at Pat's house about 10:00, 10:30," defendant interrupted to say that he "wasn't at her house." Defendant added, "I stopped there, goin' through that way." He stated he helped her carry her clothes, and they conversed at the laundry room. As he was preparing to leave that room, he and Miller heard gunfire, and they both "ducked down." Defendant claimed he then went to Mitchell's home, staying until approximately 2:00 a.m., at which time he went to the taxicab office. When he was unable to arrange for a cab ride, he returned to Mitchell's home, where he stayed until 8:00 a.m. on August 2, when he left to meet his brother to drive to North Carolina.
The transcript reflects that defendant then changed his narrative. He stated that after he left Miller, he went to a service station and purchased some cigarettes, and then spent some time in the alley with a man named Reese. When he left Reese, he went to the taxicab office and then to Mitchell's apartment. When Wilson asked defendant whether Reese could vouch for defendant's time that evening, defendant stated he was with Reese "maybe ten or fifteen minutes. Maybe less than that." Wilson then observed "there's about a four hour period of time . . . from the time you last saw [Miller] to the time you was with - " Defendant interjected, "I went back to [Mitchell's] house, when I left [Miller's], I left [Miller] right after the shootin' and shit, I left [Miller]. I went back to [Mitchell's] house. Then I left again. I left again. Then, I messed around, like I said, I went to the gas station. Four hour period? Where does the four hour period come in?" Wilson explained that defendant last saw Miller at approximately 10:00 or 10:30 p.m., and appeared at the taxicab office at approximately 2:00 or 2:30 a.m. Defendant responded, "I was probably gettin' high or somethin'."
When Wilson asked whether defendant had seen anyone else at or around Miller's apartment that night, he responded that there were "some guys standin' out front that I don't know." Wilson inquired whether defendant had gone to Miller's apartment immediately before helping her on her way to the laundry room, and had walked back to her apartment from the laundry room. Defendant responded, "When I was comin' through, she was comin' out." Wilson asked whether defendant knocked on Miller's door and asked to see her. Defendant responded that he had knocked "earlier that evening," and Miller's son had answered the door. Defendant also stated he did not know where Miller went after he left her at the laundry room.
Wilson asked defendant whether he ever had been inside Miller's apartment. Defendant responded he had been there approximately one month before her murder, when he went there to see whether she cared to come outside to drink beer. According to defendant, she had declined, but he had visited inside her apartment for 10 or 15 minutes. When Wilson returned to the subject of the time defendant had spent with Reese, defendant stated that Reese had been looking for drugs, but that defendant had not, adding, "I don't mess with cocaine." When Wilson inquired whether defendant had "ask[ed] anyone about anything," defendant stated, "I asked one guy for my friend Mike." (It is not clear who "Mike" was.) Defendant also stated he did not know how his name came up in this matter, because he did not like Black women.
When defendant asked the detectives how Miller was killed, they declined to respond. Returning to the subject of the four-hour period, defendant stated he had smoked some marijuana, spent some time with Reese, and went to Mitchell's apartment at 11:00 p.m. Then, "I left, went to the cab company. I then went and got me some cigarettes. I went to the cab company." He urged the detectives to "[a]sk Jenny [Turner]. `Jenny, I ain't got no money. I need a ride out JFK and Kitching.' I said `I'm gonna see can I spend the night at my partner's house first.' " Defendant then stated that Mitchell agreed to allow defendant to stay at his apartment, and defendant stayed there until 8:00 a.m. the next day.
Defendant told the detectives that when he called David Hargrove while traveling to Chicago, he asked Hargrove what crime defendant was suspected of committing, and Hargrove informed him that Miller had been killed. Defendant stated he was cooperating to clear his name, and "[b]ecause I'm tryin' to get off this parole." When Bender commented that defendant had "been through the drill a couple of times," defendant disagreed, stating: "Last time when I caught this rape case, I took a deal for somethin' I didn't do because my lousy friend wouldn't come to court to testify for me." Bender stated that "one problem is that when I talked to [Mitchell] - " and defendant interjected, "I already found out. I heard. That he said I didn't spend the night at his house." Defendant claimed Mitchell was lying, because Mitchell had been "jumped on" the day that Miller's body was discovered, "just 'cause I knew him."*fn11 Returning to his telephone conversation with Hargrove, defendant told the detectives that he asked Hargrove what time Miller had been killed, and Hargrove stated, "Sometime that night." According to defendant, he responded to Hargrove, "That night? I'm at [Mitchell's] house." Defendant then told the detectives, "11:00, I'm at [Mitchell's] house, for a while. And after while I get some cigarettes 'cause uh, he was in there basing cocaine." Defendant asserted that "a person on cocaine will say anything to save his ass, keep his name out of it." At this point in the interview, the first side of the recording tape ended.
After the jury heard the first side of the recording, Bender testified concerning the unrecorded portion. He testified that he falsely told defendant his fingerprints had been found inside Miller's apartment, and defendant attributed the fingerprints to his visit to the apartment one month prior to the crimes. Bender testified that he then falsely asserted that fingerprints would not survive for that period of time. According to Bender, defendant then told him that when he had knocked on Miller's door earlier on August 1 and had spoken to her son, he had gone into the kitchen to get a glass of water, but that was the only time he had been in the apartment. Bender further testified that later in the unrecorded portion of the interview, defendant stated he also had been inside the apartment at approximately 8:30 that evening and drank a beer with Miller.
Although genetic testing had not yet been performed, Bender told defendant, during the unrecorded portion of the interview, that defendant's sperm had been found in Miller's vagina. Bender testified that defendant "looked down at the floor for what seemed like a long gap at the time, probably, 10 or 15 seconds, and then he looked up at me, and then he started to tell me another story." Bender testified that defendant stated he had not disclosed some facts to Bender earlier, because he did not want to be found in violation of his parole. Bender testified that defendant "then admitted he had gone into the apartment, that he had smoked rock cocaine with the victim, and that he and the victim had had sex." According to defendant, Miller became aroused, took her clothes off, pulled defendant's pants down, got on top of him, violently copulated with him, got off him as soon as he ejaculated, put her clothes back on, and left to do laundry. Defendant told Bender that he remained slouched on the couch and passive throughout their encounter, which occurred at approximately 8:30 p.m., soon after Miller had returned from the liquor store. At this point in the interview, it was discovered that the cassette had reached the end and no longer was recording.
The transcript reflects that when the recording resumed, Wilson stated that "you were sayin' a while ago that . . . somebody in the area told you that . . . her throat had been cut?" Defendant responded, "Yeah." Wilson inquired, in light of defendant's statement, why defendant had asked how Miller was killed. Defendant responded, "That's what I'm tryin' to find out, was it really true. Like you say, you didn't wanna give me no answers, I didn't wanna know, I didn't wanna know if it was true or not. 'Cause like I say, at first when the first thing jumped up, I'm a witness." Bender responded, "Yeah." Defendant added, "Me and [Hargrove]. So I figure the mother-fucker was lying." Bender responded, "Yeah." Defendant continued, "You said her throat was cut. See what I'm sayin'? [J]ust like, [Hargrove] didn't know what was really goin' on." Bender responded, "Uh-huh." Defendant completed his explanation, stating, "You know what I'm sayin'? He was tellin' me man, yeah, uh, then [Mitchell] come in and kept sayin' about how your name got twisted all up into this here. It's [Jones]." Bender responded, "Yeah."
The interview returned to the subject of defendant's sexual encounter with Miller, and defendant reiterated that the sex occurred prior to the conversation in the laundry room. Bender expressed the view that the sexual encounter occurred after they met in the laundry room, and defendant asked, "what did I tell you?" Bender responded, "You told me that it was . . . definitely before -" Defendant interjected, "Was it before? It was before then." Bender stated, "No, it's after," and defendant responded, "It was after." Bender then explained that it did not make sense that the sexual encounter occurred earlier, when Miller's children were awake. Defendant then stated that "I made love right, what, around 9:00, 10:00," and that the gunshots occurred later, "[a] little after 10:00." Defendant estimated that approximately 20 minutes elapsed between the time he left after having sex with Miller, and when he returned and went to the laundry room with her. He stated that when the shooting began, he left her; he met Reese and spent 10 to 15 minutes with Reese; he arrived at Mitchell's home "way before 10:30 [p.m.]" and stayed at Mitchell's home "for a few hours," and then left. When Bender inquired whether Mitchell or anyone else knew that defendant and Miller had sex, defendant responded that his sex life was nobody's business. Defendant added, "I understand what you're sayin', but what was you tryin' to get at? No. I did not rape [Miller]."
Defendant then volunteered that Miller's daughter had not seen him, but her son had come downstairs complaining that his stomach hurt, and defendant had gone to an automobile service station to buy the boy a soda. Bender asked defendant when it was that he had gone to the service station, and defendant stated, "right after we had sex. That's when I left, matter of fact, that's when I left." Bender asked defendant again to estimate when he went to Mitchell's home, and defendant stated he had arrived at Mitchell's "about ten somethin'. Something, 11:00. I ain't quite sure." Bender then asked defendant why, when Bender asked whether defendant had made love to Miller, defendant "came up with this rape thing." Defendant stated that Hargrove had told him that Miller's throat had been cut and she had been raped. Bender responded that "I spent all day in that apartment and I didn't know she was raped." At the conclusion of the interview, Detective Wilson explained to defendant that he would not be held, and that defendant's parole officer would determine whether he would be allowed to return to Charlotte, North Carolina.
Eight months later, on May 1, 1992, Bender interviewed defendant a second time, at the office of his parole officer in North Carolina. Bender explained in court that the interview was recorded, but the recorder was in a drawer while the first side of the tape recorded, and that part of the recording was unintelligible. Therefore, Bender testified concerning the contents of the unintelligible portion of the interview. He testified that defendant was not under arrest at the time of the interview. He also testified that he informed defendant of his rights under Miranda, supra, 384 U.S. 436, and that defendant said he understood those rights and would speak to Bender.
Bender testified he informed defendant that Mitchell and Mitchell's girlfriend were certain defendant had not arrived at their home until approximately 3:00 a.m. on August 2. Bender related that defendant initially was adamant that he had been at their home at 11:00 p.m. on August 1, but after Bender explained that Mitchell and his girlfriend had had company that evening and were certain defendant had not been present when the company visited, defendant stated he may have been out wandering in the neighborhood between 11:00 p.m. and 3:00 a.m. Bender also testified that during this second interview, defendant said it was "closer to about 11 o'clock in the evening," after the laundry was completed and gunshots were heard in the alley, that he and Miller had returned to her apartment, smoked cocaine, and had sex.
Bender testified that when he confronted defendant with inconsistencies in his statements, defendant "got kind of agitated and said that I was trying to screw him up, that I was trying to trip him up . . . ." Bender testified that "[a]bout that time, [defendant] remembered or brought up something that he hadn't talked to me about before." Defendant told Bender that just as he was leaving Miller's apartment at approximately 11:00 p.m., another man entered the apartment. Bender testified that defendant said the other man resembled Bender but was taller, thinner, and African-American.*fn12 The intelligible portion of the recording began when defendant was describing the other man. The recording was played for the jury. The transcript reflects that defendant told Bender that Miller seemed to know the man, but that she did not state his name. Defendant also said that the man stumbled into Miller's apartment, was "all drunk," and sat on the bottom step of the interior staircase. Part of defendant's description was unintelligible, but Bender testified that defendant stated the intoxicated individual could not stand without leaning against the banister or the wall, and had difficulty sitting up. The transcript reflects that defendant also told Bender he previously had seen the man in the neighborhood, but the man always was by himself, and defendant did not know anyone with whom the man associated.
The transcript reflects that defendant agreed with Bender that it would have been logical to mention this other person when defendant first was questioned about Miller's death, and defendant stated that he thought he had mentioned the other person to Bender during the first interview. At trial, Bender was certain defendant had not mentioned the other person earlier. Bender also noted at trial that in the earlier interview, defendant had denied that anyone else was at the apartment, and when Detective Wilson had commented in the earlier interview, "apparently somebody else after you saw her alive," defendant had responded, "I guess." Defendant also stated in the earlier interview, "I don't know whoever, whatever, whoever was there when I left, I don't know what happened." Bender testified that he did not investigate the existence of the intoxicated individual, because he was certain defendant was not being truthful. At the conclusion of the interview, Bender arrested defendant for the rape and murder of Miller.
Robert DiTraglia, a medical doctor and forensic pathologist, performed the autopsy. He testified that Miller was five feet, two and one-half inches in height and weighed 111 pounds. He described the cut to her throat as "a very large wound that covered pretty much the entire front portion of her neck." He testified that when he first viewed the wound, it had "this huge gaping appearance that measured, approximately, 10 centimeters from one end to the other." He stated that the wound appeared to have been inflicted by two cuts, one on each side of the neck, with one overlapping the other. One cut was 7.4 centimeters in length, and the other was 6 centimeters in length. He added that, alternatively, the wound may have been caused by a single cutting motion across the throat, in which the knife was raised and pivoted midway through the cut. DiTraglia explained that the cut severed the right external jugular vein, and injured muscle, cartilage, bone, and the airway in the victim's neck. He testified that Miller's heart was beating when the wound was inflicted, which caused hemorrhaging into the tissues, and that this wound was fatal. He explained that because the major blood vessel that was severed was a vein rather than an artery, the blood would not spray out of the cut, but blood might spray from the airway if the victim was breathing strongly.
Dr. DiTraglia testified that he also found evidence of strangulation, including hemorrhaging on the superior portion of the thyroid gland and fractures of the laryngeal cartilages. He noted that petechial hemorrhages on Miller's eyes and eyelids were further evidence of strangulation. He testified that "severe compressive force" is required to cause such fractures, and agreed that such injuries could be caused by strangling a victim with fingers behind the neck and thumbs in the front on the center of the neck. He stated that a victim of strangulation will lose consciousness within six to 15 seconds if the vascular structures are occluded. He opined that a victim will suffer irreversible brain damage after 60 seconds of vascular occlusion, but noted that the heart may continue beating and the lungs may continue functioning. DiTraglia viewed Miller's injuries from strangulation as fatal and believed the strangulation rendered her unconscious, but he could not determine whether her breathing continued after the strangulation. He testified the circumstances - namely, the absence of large quantities of blood in her lungs and stomach, the absence of defensive wounds, and the absence of blood on her hands - tended to establish that Miller was not breathing vigorously when her throat was cut. The only wound that may have been defensive was a superficial cut on Miller's right index finger.*fn13
During the autopsy, DiTraglia collected vaginal, rectal, and oral swabs, as well as blood from the victim's heart. He testified that the blood-alcohol level was 0.04 percent, and that the blood also contained 3.440 nanograms per million (or 3.4 micrograms per million) of cocaine and 1,320 nanograms per million (or 1.3 micrograms per million) of benzoylecgonine, a byproduct of cocaine.*fn14 These results were consistent with the use of cocaine near the time of death, but were not related to the cause of death.
DiTraglia testified that he examined the victim's genitalia by direct observation with a bright light, and found no signs of trauma, such as bruises, abrasions, lacerations, and tears. He explained that he did not have available a colposcope - a microscope used by clinical gynecologists to examine living rape victims - and therefore would not have been able to observe more subtle injuries that could be detected with such an instrument. He also testified that a study of 451 rape victims revealed that only 18 percent exhibited signs of physical trauma.
DiTraglia further testified that a person could inflict the wounds found on the victim's body without blood transferring to the attacker: "If Patricia Miller is unconscious, she's already been strangled, she's unconscious, she's lying supine on the ground, her neck is exposed, she's not moving, she's breathing shallowly, and someone would come up to her and stand over the body, or kneel over the body, and take a knife, your hand is now however long the blade is away from that. One slash, two slashes. You may or may not get blood on the knife; but in that scenario, you stand up, you walk away, you don't have any blood on you."
f. Blood and DNA Evidence
Criminalist Marianne Stam testified that she detected a small amount of sperm on both the vaginal and rectal swabs collected during the autopsy, but found no evidence of the presence of an ABO blood type or PGM subtype that was different from the victim's blood type and subtype. Therefore, she explained, she could not determine the source of the semen, and could not exclude defendant as the semen donor. Stam also testified that a tissue found in the victim's kitchen trash can was spotted with blood consistent with the victim's blood type. She stated that the spots of blood appeared to have been caused by the tissue coming in contact with a wound or a bloody nose, and were not similar to marks that would be left if someone had wiped his or her hands or a knife on the tissue. She also testified that four cigarette butts found in the apartment tested positive for the presence of an enzyme found in saliva, but only two exhibited an ABO blood type, and that type was consistent with the victim's type.
DNA testing was performed by criminalists Daniel Gregonis and Martin Buoncristiani. Gregonis testified that he extracted sperm cells from the vaginal swab and performed restriction fragment-length polymorphism (RFLP) testing, but was unable to determine DNA fragment lengths. He attributed the failure to the small amount of DNA and to degradation that may take place due to the unchecked growth of bacteria in a body after death. Buoncristiani testified that he conducted polymerase chain reaction (PCR) testing on samples of sperm from the vaginal and rectal swabs, by which he examined the HLADQL locus, or region, of the DNA, which varies among individuals. He testified that the testing yielded results consistent with defendant's DNA. He also testified that the particular genotype identified through the PCR testing appears in approximately 7.9 percent of African-Americans, and in approximately 1 to 8 percent of the population comprised of African- Americans, Caucasians, and Hispanics. He confirmed that if a second individual had engaged in sexual relations with the victim, and had left an equal amount of sperm or not much less sperm, the PCR testing also would have reflected a different genotype, unless the two donors had the same genotype for the particular locus.
g. Defendant's Previous Rape of Christa B.
Christa B. testified that defendant raped her four years prior to the charged crimes. She testified that she was introduced to defendant by her boyfriend in 1987, and defendant had visited her at her apartment once before the night that he raped her. She related that shortly after midnight on September 2, 1987, approximately two weeks after his first visit, defendant rang the bell to her apartment and spoke to her through her building's security system. He identified himself, asked whether he could come in, and said he "just want[ed] to chitchat." She let him in and they spoke for approximately one hour in the living room, while they watched television, drank beer, and smoked marijuana. Christa testified that defendant asked her, "What would you do if I came on to you?" She told him she would not like it, because she was in love with her boyfriend.
Christa testified that after conversing with her for an hour or longer, defendant walked into her bedroom, looked out a large window, and asked Christa to come into the bedroom because he wanted to show her something. When she entered the bedroom, he pushed her onto her back on the bed, got on top of her, and held her hands tightly above her head. Christa testified that her knees were up to her chest. She stated that defendant told her he had a knife, and that if she did not cooperate, he would slice her throat. She stated that she initially refused to disrobe, but complied after he again threatened to slice her throat. He freed one of her hands to allow her to disrobe, and he removed his pants. Christa testified that defendant was able to hold both of her hands with one of his hands. She noted that she was five feet four inches in height and weighed 105 pounds at the time of the rape. She testified that "he's very strong," and "I feel I was over-powered, ...