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People v. Friend

July 20, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JACK WAYNE FRIEND, DEFENDANT AND APPELLANT.



Alameda County Super. Ct. No. 81254 A. Judge: Alfred A. Delucchi.

The opinion of the court was delivered by: Baxter, J.

On January 12, 1989, an Alameda County jury found defendant Jack Wayne Friend guilty of first degree murder and robbery. (Pen. Code, §§ 187, 189, 211.)*fn1

The jury also found true that he had inflicted great bodily injury in connection with the robbery and that he had personally used a knife in committing both crimes. (§§ 12022.7, subd. (a), 12022, subd. (b).) The jury was unable to reach a verdict on the robbery-murder special-circumstance allegation. (§ 190.2, subd. (A)(17)(i).) After a retrial on the robbery-murder special-circumstance allegation, a new jury found it true on March 20, 1992. After the penalty phase, the jury returned a verdict of death on April 17, 1992. The trial court denied defendant‟s motion for new trial and modification of the penalty (§ 190.4, subd. (e)), and sentenced him to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We will affirm the judgment in full.

INTRODUCTION

Around midnight on Labor Day 1984, Herbert Pierucci, a bartender at the Golden West Bar in downtown Oakland, was fatally stabbed and cash was stolen from the bar. Defendant acknowledged at trial that he and an acquaintance, Gene Hollowhornbear, were the last two people in the bar that night, and the last ones to see the victim before the robbery.

The prosecution‟s main witness was Kevin Kelley, who had been with defendant and Hollowhornbear at the bar earlier in the evening but who left before the crime. Kelley testified that he saw defendant and Hollowhornbear emerge from the bar with defendant holding a knife, and that defendant later admitted to Kelley that he had committed the robbery murder. Another prosecution witness, Thomas Moody, also testified that defendant had admitted he committed the robbery murder.

The defense contested Kelley‟s credibility, especially whether Kelley could have seen defendant from the distance at which he claimed to be standing. Defendant took the stand in his own defense and testified that Hollowhornbear and the victim had gotten into a fight, that defendant had tried to break it up, but Hollowhornbear pulled a knife and fatally stabbed the victim.

I. FACTS

A. First Trial: Guilt Phase

1. The Prosecution's Case

a. Discovery of the Victim and Nature of the Wounds

The victim, Herbert Pierucci, worked as a bartender at the Golden West Bar, which was located at 368 12th Street between Franklin and Webster Streets in downtown Oakland. Around midnight on Labor Day, September 3, 1984, two acquaintances of the victim discovered him alone, lying in a pool of blood at the back of the bar. The front cash register was open, the cash drawer was pulled out, and its contents, later estimated to be approximately $300, were missing. Four bottles of liquor were also gone.

A police officer summoned to the scene found the victim semiconscious with a four-inch gash to his neck and a three-inch gash to his wrist. Asked what had happened, Pierucci answered that he had been stabbed. The officer asked, "how many people were there?" and Pierucci held up two fingers in response.

Pierucci was taken to the hospital, where emergency surgery was performed, but he died four days later from loss of blood. The surgeon who operated on Pierucci testified that, in one of the front wounds, the knife completely severed the sternomastoid muscle in the neck and came to rest on the cervical spine. Three wounds at the back of the neck completely severed the trapezius muscle. The surgeon testified that a fair amount of pressure was required to inflict such wounds. The pathologist testified that there were at least six distinct sharp cutting wounds to the victim‟s neck and defensive wounds to his left arm and right and left hands.

b. Testimony of Kevin Kelley

On September 3, 1984, Kevin Kelley, defendant, and Thomas Moody were among a group of homeless alcoholics who were allowed by owner Dina Mladinich to stay at the Thomas Janitorial Supply Warehouse (the warehouse) on the corner of Ninth and Alice Streets.*fn2 About 10 p.m., Kelley and defendant left the warehouse and headed towards downtown Oakland. Defendant wore a black nylon "security-type" jacket, blue jeans, and black shoes. They went in search of Mladinich‟s van, which Moody had borrowed. On the way, they met Gene Hollowhornbear, who was carrying a black nylon gym bag that was half full of clothes.*fn3 The group discussed getting a six-pack of beer at a nearby convenience store, the Oasis, but defendant did not want to go there because he had gotten into trouble there in the past. Instead, they decided to go to the Golden West Bar, where they initially sat in the front section of the bar and defendant ordered a round of beers.

The group moved to the rear of the bar and played pool. Kelley and Hollowhornbear drank two more beers, and defendant drank three more. Kelley went to the bathroom and defendant followed him in. Defendant proposed to Kelley that they rob the bar by hitting the bartender with a bottle, stating it would be an easy three-on-one robbery. Defendant also mentioned using one of defendant‟s knives for the robbery. Earlier at the bar, Kelley had noticed that defendant had two knife sheaths on the back of his belt. Kelley recognized one of the knives as a Buck-type knife that Kelley had sold to defendant about three weeks earlier.*fn4 Defendant‟s other knife looked like a Benchmark-type knife and had the word "raccoon" engraved on it.*fn5

Kelley said he did not want to have anything to do with a robbery. He went back to finish his drink, and then headed out of the bar. As Kelley was stepping out the door, defendant again tried to convince him to join in the robbery, but Kelley reiterated that he wanted no part in it. At the time Kelley left the bar, defendant and Hollowhornbear were the only ones there besides the bartender.

After leaving, Kelley walked eastbound on 12th Street towards Webster Street. He crossed this intersection and continued east on the south side of 12th Street towards the next cross-street, which was Harrison. He passed the Cochran and Celli automobile dealership, and was about three-quarters of the way down this block of 12th Street between Webster and Harrison when he stopped to look back. He saw that defendant and Hollowhornbear were on the sidewalk in front of the Golden West Bar. The street was well-lit by several street lights. Defendant was holding a shiny object in his hand, which Kelley thought was a knife. Hollowhornbear was holding his black nylon gym bag. They proceeded to the nearby corner of 12th and Webster. Defendant wiped the knife on his pants and on a bag he took from the gutter.*fn6

Kelley started walking towards them, but then decided he wanted to get away, and turned the corner and began walking down Webster Street toward 13th Street. After turning right on 13th Street, he reached Harrison Street and crossed a parking lot. Defendant and Hollowhornbear followed and caught up with him in the parking lot, where Hollowhornbear handed Kelley a bottle with a pour spout on it, and asked him to hold it for a second. Kelley held it for a while and then threw the bottle into some nearby bushes. Kelley noticed that Hollowhornbear‟s gym bag contained between four and six bottles, some of which had spouts on them and appeared to be bar bottles. After tossing the bottle, Kelley jogged back to the warehouse on his own.

Five to 10 minutes after Kelley returned to the warehouse, defendant arrived. Someone else was using the bathroom sink, so defendant started washing his hands in the toilet bowl. Defendant began changing clothes, and asked where his glove was. Kelley later saw a clear surgical glove lying on the floor near the toilet.*fn7 The lights were on in the warehouse and Kelley noticed some dark splotches on defendant‟s jeans, between his waist and his knees, which had not been there before they went to the Golden West Bar.

Five minutes after defendant, Hollowhornbear also arrived at the warehouse. Kelley did not notice any stains or splotches on Hollowhornbear. Hollowhornbear had his black gym bag, which was still full of bottles. He removed approximately six bottles from the bag, three of which had spouts on them, and began drinking from one. Defendant told Hollowhornbear to change his clothes, but Kelley never saw Hollowhornbear change.

After defendant changed his clothes, he said he wanted to get rid of his old clothes by dumping them in "the deep, deep water." Defendant made a bundle of the clothes by tying the arms of the black security-type jacket around them. With defendant carrying the bundle, defendant and Kelley went outside. Defendant said he wanted to stash his knife, threw the bundle of clothes to Kelley, and then departed for five minutes. Defendant returned and retrieved the bundle, and they went to the estuary. They came to a large restaurant located on the water at Jack London Square.*fn8 Kelley waited at one corner of the building while defendant went around the building the other way carrying the bundle. Kelley could not see where defendant went. Three to five minutes later, defendant returned without the bundle.

They went to another restaurant in Jack London Square, the Jack London Inn, where defendant ordered a round of beers. A man was singing and playing piano at the bar. Defendant went to the restroom, and Kelley followed a few minutes later. Kelley used the urinal and saw that defendant was in the stall. Kelley returned to the bar, but eventually came back to use the restroom a second time. Although the toilet had overflowed, Defendant was still in the stall and was counting his money. Kelley saw bills of different denominations, $1‟s and $5‟s, in the water on the floor. There was also a broken roll of quarters on the floor. Kelley heard defendant say, "I killed him for a measly hundred and something dollars." Defendant said he had left "the big bills" in the black security-type jacket he had thrown in the estuary.

Defendant gave Kelley some quarters from the broken roll (amounting to about $7 or $8), which Kelley used to buy a beer. They then went to the restaurant area to eat, and defendant ordered two steak dinners. Kelley could not eat very much. After they left the restaurant, they returned in a zigzag manner to the warehouse. Kelley recalled looking up and seeing a building clock indicating 1:45. While they were walking back, defendant said he had to kill the bartender because the bartender knew him and defendant didn‟t want any witnesses. When they returned to the warehouse, Hollowhornbear was still there but left shortly thereafter. Kelley slept until about 6:00 a.m., and then took BART to his brother‟s house in Fremont and stayed there. Kelley did not talk again with either defendant or Hollowhornbear.

A littler over a month later, on October 15, 1984, police officers took Kelley from his brother‟s house to the police station for questioning. Kelley agreed to talk to the police and the district attorney. The Alameda County District Attorney‟s Office provided Kelley with a place to stay, some food, and $110 a week in cash for six weeks, from February 14, 1985, to March 31, 1985.

c. Testimony of Thomas Moody

Thomas Moody was a longtime resident of the warehouse, and was living there, along with defendant and Kelley, on the day of the murder. During the early evening, Moody had taken Mladinich‟s van to be serviced at the gas station around the corner. Moody then visited a friend, had something to drink, and returned to the warehouse around 10:30 p.m., in an inebriated condition. Defendant and Mladinich were there when he returned. Mladinich yelled at Moody for taking the van and, about half an hour after that, he went to sleep.

On either the day after the murder, or the day after that, Moody talked to defendant about the knife that Kelley had sold to defendant. Moody asked defendant to sell him the knife (an offer that Moody had first raised a week or two earlier). But defendant now told him that he had gotten rid of the knife.

After the murder, police began coming to the warehouse to investigate. After these police visits, Moody saw defendant talk to Dennis French, another resident of the warehouse, and then saw defendant pack up his clothes and leave. About two weeks later, Moody saw defendant back at the warehouse and Moody asked him what he had done. Defendant said that he had robbed the Golden West Bar, sliced the bartender‟s neck, and stabbed him. Defendant said he used the knife he bought from Kelley, which he then ditched. Defendant said that he took all the money, around $280 from the cash register, and that Hollowhornbear had been with him at the bar. After the crime, they stole a station wagon from downtown Oakland and "partied the money off."*fn9 Asked why he had done it, defendant replied, "You got to do what you got to do."

A few weeks after his conversation with defendant, on October 4, 1984, Moody was taken into custody by police outside the warehouse based on outstanding warrants unrelated to the murder.*fn10 At first, Moody denied any knowledge of the murder, but eventually he told the police about defendant‟s admissions. Moody stated he had not initially told police about defendant because he was afraid of defendant‟s brother, Jerry, who he knew was out of jail and who had stabbed someone before. The day after he talked with police, the district attorney‟s office made arrangements to house Moody at a motel in Hayward. Moody stayed there approximately five months. The district attorney‟s office made weekly payments of $70 for rent and $40 for food for 22 weeks, for a total of $2,420.

d. Testimony of Leonard Ray McCurry

For the first two or three months of 1985, Leonard Ray McCurry was in the protective custody unit of the Oakland North County Jail, in Alameda County, serving a five-year sentence for felony robbery. He was housed in the cell next to defendant, and the two talked. Defendant told McCurry that he had been in a bar with two other individuals and that they had gone into the bathroom and discussed robbing the bar. One of the two said he did not want to participate and left. Defendant and the other one, an "Indian named "Hornblower‟ "[sic], robbed the bartender. Defendant realized the bartender would recognize him, so he cut the victim‟s throat using his left hand, even though he is right-handed. In early April 1985, McCurry talked to the authorities about defendant‟s statements. McCurry sought, but did not receive, a lesser sentence in exchange for this information about defendant.

At the time McCurry testified at defendant‟s trial, he was in custody on a parole violation. The prosecutor had promised McCurry that, if he testified, he would be removed from his current prison (Deuel Vocational Institute in Tracy), put in protective custody in Santa Rita Jail, and allowed to serve the remaining 32 days of his time there. He was also allowed to have a contact visit with his wife and his newborn daughter.

On cross-examination, McCurry stated that defendant gave him information knowing McCurry was going to take it to the authorities in order to seek a better sentence. Defendant and McCurry worked together in figuring out which information might interest the authorities, and defendant wrote a letter to give McCurry something tangible to present. The letter was addressed to fictitious persons asking them to establish an alibi for defendant on the night of the murder. Defendant also shared with McCurry the contents of defendant‟s legal papers, including police reports that may have contained the statements of Kelley and Moody. Defendant came up with the idea of giving McCurry information about defendant‟s case so that McCurry could take it to the authorities.

e. Defendant's Statements to the Police

After defendant was arrested for the murder, he was informed of his Miranda rights, and agreed to talk to police investigators. (Miranda v. Arizona (1966) 384 U.S. 436.) Defendant initially denied any knowledge of or involvement in the robbery murder. But the officers told him a witness had placed him at the bar, and they asked him how he would explain it if his fingerprints were found on the cash register.*fn11 Defendant admitted he had been at the bar and said he had previously denied it because he was afraid of Hollowhornbear and Hollowhornbear‟s brother.

Defendant‟s initial statements denying any involvement in the murder were not tape-recorded. After he admitted being at the bar and gave his version of the events the night of the murder, the officers questioned him on tape. The tape was played to the jury, and defendant‟s extensive taped interview included the following statements.*fn12 Defendant, Hollowhornbear, and Kelley were the last ones in the Golden West Bar the night of the murder. Kelley left to buy some marijuana and defendant never saw him again that night. The bartender refused to serve Hollowhornbear, who had become drunk and belligerent, and told him and defendant to leave. Hollowhornbear went behind the bar and grabbed a bottle. The bartender went to stop him and the two began scuffling. Defendant tried to pull Hollowhornbear off the bartender, but let go when he saw that Hollowhornbear had a knife in his hand. Defendant panicked and ran out of the bar. When he was out on the street, defendant noticed that there was blood on his pants and shoes. The next day defendant discarded his bloody clothes in a trash can in the park. In the park, he encountered Hollowhornbear, who gave him $16, and expressed anger at defendant for running out on him at the bar.

2. Defense Case

a. Defendant's Testimony

Defendant testified in his own defense. On September 3, 1984, defendant was living at the warehouse. At 7 a.m. that day, defendant was picked up by his employer, and he worked until about 9:00 or 9:30 p.m. that evening doing foundation work on a house. While working that day, he injured his hand, and, as a result, he wore a white gauze pad held on with an Ace bandage and a green rubber glove with the fingers cut off. After finishing work, he was paid his usual daily wage of $25 to $30. His employer dropped him back at the warehouse and defendant went to the liquor store to buy two or three small bottles of mixed drinks, four cans of beer, and cigarettes. He returned to the warehouse and drank.

Around 10:30 p.m. he left the warehouse with Kelley. Kelley asked defendant to lend him some money to buy marijuana, offering to split the bag with him. They met up with Hollowhornbear. Hollowhornbear was about six feet six inches tall and lived on the streets. He had his possessions in a bag he always carried with him. He was drinking from a bottle of wine in a paper bag and appeared to be under the influence.

Kelley went off to buy the marijuana, and defendant talked to Hollowhornbear. Hollowhornbear‟s mother had just died. She had lived on a reservation in South Dakota and Hollowhornbear had been trying to raise money to travel to her funeral. He was angry because no one would give him any money. Defendant was carrying two knives with him that evening; one had his nickname, Raccoon, on it, and the other was the knife he had bought from Kelley. Defendant traded this latter knife to Hollowhornbear for a beaded Indian wristband and a Bic lighter. Kelley returned after about 10 minutes, but had been unable to procure any marijuana.

The three then went to the Golden West Bar to get a drink. Defendant put $20 on the bar and bought several rounds of drinks. Defendant tried to play pool but had problems because he was blind in the left eye, and his other eye was light sensitive, and, as a result, he wore dark glasses. Kelley eventually left the bar, indicating that he was going to look for marijuana. After Kelley left, Hollowhornbear began to act belligerently and tried to order the bartender around. The bartender refused to serve Hollowhornbear any more drinks. Defendant urged the bartender to serve Hollowhornbear another beer because that would "mellow" him out, but the bartender refused and asked Hollowhornbear to leave, threatening to call the police if he did not. The bartender began walking toward a cab phone at the other end of the bar that had a direct line to the police station. Hollowhornbear headed for the door, but then got behind the bar and reached for one of the bottles. The bartender ran toward Hollowhornbear and they started wrestling. Defendant got behind Hollowhornbear and tried to pull him off the bartender. Hollowhornbear‟s arm flew back and knocked defendant to the floor. Defendant got up and once again tried to pull Hollowhornbear away. Hollowhornbear was holding the bartender by the hair and hitting him. As defendant tried to grab Hollowhornbear‟s arm, defendant saw a knife in Hollowhornbear‟s hand, which defendant believed was the one he had traded to him earlier in the evening. Defendant panicked and ran, initially running the wrong way towards the rear of the bar, and then turning around and running out the front door. Defendant grabbed a long-necked beer bottle on the way out, which he took back to the warehouse and remembered seeing the next morning.

After defendant left the bar he began running back to the warehouse. Pausing to catch his breath at one point, he noticed that there were dots of blood on the cuff of his pants and on his boots. When he returned to the warehouse he changed his clothing because it had blood on it, and also because he had urinated in his pants. Defendant had worn a denim jacket to the bar, which he kept (and was wearing when he was arrested about a month later). But he threw away his pants, socks, and boots in a Dumpster in Estuary Park the day after the killing. Defendant did not see either Kelley or Hollowhornbear at the warehouse that night.

The next day, defendant encountered Hollowhornbear at a park near the warehouse. Hollowhornbear gave defendant about $16. As they talked, Hollowhornbear indicated he was angry that defendant had "run out on him" at the bar. Hollowhornbear‟s hand was hurt and he had a bandanna on it. Hollowhornbear threatened that if anything happened to him, he or his brother, Seth, would kill defendant. Following his encounter with Hollowhornbear, defendant stopped staying at the warehouse and lived for four or five days in a hole under the sidewalk that was the remains of the basement of a demolished building. Defendant then went back to staying at the warehouse, where he was arrested on October 5, 1984. At the time of his arrest, defendant was on probation for two second degree burglaries to which he had pleaded guilty the year before.

After his arrest, defendant initially denied any knowledge of the killing at the Golden West Bar or knowing Hollowhornbear because he did not want to get involved and because he was afraid of Hollowhornbear‟s brother. After the police told him that Hollowhornbear had been arrested, he told the police what had happened.

Defendant denied the substance of Kelley‟s testimony. He denied that he ever suggested to Kelley that the three of them should rob the bar, denied ever robbing the bar, and denied taking any money or liquor bottles from the bar. He denied running with Kelley and Hollowhornbear back to the warehouse, hiding the knife, or going with Kelley to throw his clothes into the water at Jack London Square. He denied having a steak dinner with Kelley at the Jack London Inn the night of the murder. He denied cutting the throat of the victim or telling Kelley that he had done so. He acknowledged owning a black security-type jacked but stated it had been destroyed in a house fire prior to the night of the killing.

Defendant also denied the substance of Moody‟s testimony. Defendant denied telling Moody he had killed the bartender, robbed the Golden West Bar, stolen a car, and spent all the money from the robbery "partying." Defendant said he once told Moody that he had killed someone in Los Angeles in order to frighten Moody, but he had never actually killed anyone. He confirmed that Moody approached him about buying the knife that defendant had obtained from Kelley, but claimed Moody never had enough money to complete the deal.

Defendant acknowledged he had given information about his case to jailhouse informant McCurry, but denied telling McCurry that he robbed the Golden West Bar and cut the bartender‟s throat. Rather, defendant told McCurry those were statements that McCurry could tell the authorities defendant had made in order to obtain a deal from them. Defendant said he wrote a letter to a fictitious person asking for an alibi as part of the scheme to provide McCurry with material to obtain a deal. Defendant said he came up with the story about killing the bartender with his left hand in order to account for the fact that defendant‟s right hand was injured at the time.

b. Physical and Circumstantial Evidence

A police officer testified that the day after the stabbing he searched streets surrounding the bar but did not find any bottles with bar spouts or any other evidence that might have come from the bar.

The hair found in the victim‟s hand matched the victim, not defendant.

The parties stipulated that the victim had a blood-alcohol concentration of .222 at the time of his injury. Dr. Thomas Rogers, a forensic pathologist, gave his opinion as to the effects of alcohol on the human body. He testified that alcohol can impair a person‟s perception, coordination, and memory. Given the victim‟s blood-alcohol concentration, Rogers estimated the victim had drunk at least the equivalent of nine cans of beer. At that concentration, the victim was under the influence of alcohol in both a legal and medical sense, and his intoxication could have affected the reliability of his response to the question of how many people were involved in his stabbing.

Two investigators from the Alameda County Public Defender‟s Office testified that they measured the distances in the area of the Golden West Bar. One investigator stood in front of the bar waving some shiny objects (keys and a metal soda can), while the second walked down 12th Street noting their visibility from various distances. The second investigator testified that she could not see the shiny objects when she got as far as the intersection with Harrison Street.

The parties stipulated that Hollowhornbear‟s mother, Elizabeth Hollowhornbear, died on August 22, 1984 in South Dakota.

c. Impeachment of Prosecution Witnesses

(1) Kelley

To contradict Kelley‟s testimony that he had left Oakland for his brother‟s house in Fremont the morning after the murder, the defense called Sharon McBride, a fellow alcoholic who knew defendant and Kelley. She testified that, a couple of days after Labor Day 1984, she saw Kelley drinking in a park in Oakland. A police officer testified that she had arrested McBride for public drunkenness in the park on September 6, 1984.

Bill Gregg, the general manager of the Jack London Inn, testified that (contrary to Kelley‟s testimony) in September 1984 no musicians or singers were employed at the Jack London Inn. The Inn began to employ musicians in January 1985.

Robert Gannon, an inspector for the Alameda County District Attorney‟s Office, stated that, in February and March 1985, Gannon paid Kelley $110 a week for six weeks. Gannon testified that neither he nor any member of the district attorney‟s office promised Kelley immunity from prosecution in exchange for his testimony. However, Harold Boscovich, director of the victim/witness assistance program, acknowledged that his office‟s application to the state for additional funds indicated that Kelley had been given immunity for conspiracy to kill a bartender in a local bar. Boscovich stated that his office typically would have received the information it used for the application from the district attorney‟s investigator.

(2) Moody

Inspector Gannon stated that from October 1984 to March 1985, the district attorney‟s office paid Moody $110 a week, for a total of a little over $2,400. Gannon paid $70 to Moody‟s landlord and gave the remaining $40 directly to Moody. The district attorney‟s office relocated Moody from the warehouse and paid his rent because Moody feared harm from defendant‟s brother, who was out on parole.

When police brought Moody in for questioning, they were aware there was a warrant for his arrest, but they did not arrest him after they finished questioning him. The officer who checked Moody‟s warrant recalled it as being for a minor traffic violation.

Lothar Eissel testified that between 1985 and 1987 his daughter, Lola Eissel (also known as Lola Powers), lived with Moody. Lothar said Moody told him that he was a witness in a murder trial and that it made him "immuned [sic] to the law." At one point, Moody broke into the apartment he shared with Lola and got into a scuffle with Lothar. Moody was arrested, but then released two hours later.

Patrick Fitzgerald Robello testified that he had worked with Moody at a gas station and, in his opinion, Moody did not tell the truth.

3. Prosecution Rebuttal Case

a. Kelley's Prior Consistent Statements about the Murder

Kim Kelley, Kelley‟s sister-in-law, testified that Kelley came to her house in Fremont around Labor Day, September 3, 1984, or the day after. Kelley told her he had a problem in Oakland where he was living. He said he had been in a bar with a White male and a Native American male, and the White male asked him to help rob the bar. Kelley said he refused to rob the bar and left. He was walking away from the bar when he heard some noise and turned around to see people running out of the bar. The White male came running up to him; his clothes were full of blood and he had some money sticking out of his pockets. Kelley said that he went to the river with the White male, who dumped the money and the clothes into the water. The White male gave Kelley some money and told him to get out of town and not to talk to the police. Kelley rode BART to his sister-in-law‟s house with the money the White male gave him.

b. Kelley's Dealings with the Authorities

Jerry Curtis was a deputy district attorney in October 1984, and filed the complaint against defendant in the case. Curtis advised the investigating officers that he was not going to charge Kelley. Curtis made no promises to Kelley concerning immunity from prosecution.

Retired Justice of the First District Court of Appeal Joanne Parrilli, then an Alameda County Superior Court judge, testified that, on October 15, 1984, when she was a deputy district attorney, she took a statement from Kelley. In her opinion, Kelley was a witness rather than a participant in the robbery murder. She never made any promises of immunity to Kelley.

Albert W. Meloling was assistant district attorney in charge of northern Alameda County, including Berkeley, Oakland, and Alameda. One of his responsibilities was reviewing all capital matters. He had no discussions with anyone regarding immunity from prosecution for Kelley.

Angela Backers was the prosecutor who was assigned to the preliminary hearing of defendant and Hollowhornbear. Kelley and Moody were among the witnesses she called. Backers never discussed immunity with Kelley. The district attorney‟s office never considered charging Kelley with any offense.

Recalled on rebuttal by the prosecutor, Inspector Gannon stated he never told Inspector Boscovich (of the victim/witness program) that Kelley was involved in a conspiracy to rob and murder a bartender at a local bar, nor did he ever tell Boscovich that Kelley had been granted immunity. Gannon reiterated that he had not made any promises or representations to Kelley that he would be given immunity.

c. Moody's Dealings with the Authorities

Richard Humphrey, an attorney who represented Moody in a number of misdemeanors and traffic matters, testified he never made any representations to the court or to the district attorney‟s office that Moody was a witness in a homicide case and was seeking some leniency or consideration by virtue of that fact. Humphrey did not even know that Moody was a witness in a homicide case when he represented him.

Deputy District Attorney Backers testified she was aware that Moody was in custody for misdemeanor driving on a suspended license. She asked that he be released from custody on his own recognizance because his life was endangered due to the testimony he was going to give in defendant‟s case. She asked that his misdemeanor traffic case be continued to a later date so that he could appear as a witness at the preliminary hearing. Backers was also involved in securing Moody‟s release on his own recognizance in another case. She never asked for any leniency for Moody, and he was convicted in the misdemeanor traffic case.

B. Second Trial: Special Circumstance Retrial

After the court declared a mistrial at the first trial on the robbery-murder special-circumstance allegation, a second jury was impaneled to retry it.

1. The Prosecution's Case

The prosecution presented a substantially similar but more compact version of its case at the first trial, calling the same major witnesses to establish the facts surrounding the discovery of the victim at the Golden West Bar and the nature of the fatal injuries. Kevin Kelley was called and gave substantially the same testimony. However, Leonard McCurry was not called to testify.

Thomas Moody could not be located, and the prosecution moved to have him declared an unavailable witness. The court held a hearing in which the prosecutor and his inspector presented evidence of their unsuccessful efforts to locate Moody. The court ruled that the prosecution had exercised due diligence in attempting to locate Moody for trial, and that Moody was unavailable. Over defense objection, his prior testimony was read to the jury.

2. Defense Case

Defendant did not testify at the special circumstance retrial.

The defense called the first police officer who arrived at the Golden West Bar and questioned him about the victim‟s final words and gestures. The defense also called a police officer and an inspector from the District Attorney‟s office who had interviewed Kelley and questioned them about Kelley‟s pretrial statements to them. As in the first trial, the defense called Dr. Rogers to testify about the amount of alcohol the victim had ingested.

C. Second Trial: Penalty Phase

The jury found the robbery-murder special-circumstance allegation to be true, and the trial proceeded to the penalty phase. The prosecutor listed 29 matters in aggravation in his section 190.3 notice, including prior felony convictions and unadjudicated crimes.

1. Prosecution Case in Aggravation

a. Prior Felony Convictions

The prosecutor presented evidence that defendant had suffered five felony convictions from 1976 to 1984: three for second degree burglary, one for attempted first degree burglary, and one for being an inmate in possession of a deadly weapon.

b. Unadjudicated Criminal Activity

(1) Rape of Amanda V. M.; Assault on Patrick Ryan

Amanda V. M. testified that in April 1977, defendant, who lived in the same apartment complex in North Hollywood, approached her in the hallway of the building and forced her into the laundry room by threatening to stab her with a knife. Defendant removed some of her clothing by cutting it away with his knife, and then raped her. Defendant wanted her to come stay at his apartment because he disapproved of her living with a Black man. A week later, defendant threatened to rape her again if she did not leave the Black man‟s apartment. She told two male friends, who confronted defendant in his apartment. Defendant stabbed one of the men, Patrick Ryan, during the confrontation. The police officer who responded to the disturbance testified that Ryan suffered two stab wounds, one to his hand and one to his groin. After his arrest, defendant told the officer he was trying to defend himself when he stabbed Ryan, and that Ryan had accused him of raping a woman. Defendant was not charged in connection with either the Amanda V. M. or Ryan incidents.

(2) Assault on Jose Jacobo

Jose Jacobo testified that in 1976, defendant, part of a group of four or five people, pulled a gun on him and demanded money. Jacobo grabbed the barrel of the gun and pushed it away, and then was hit in the head and beaten with a stick by someone in the group.

(3) May Company Theft

A security guard for the May Company department store in North Hollywood testified that, in 1980, defendant struck him a glancing blow when he attempted to prevent defendant and an accomplice from stealing clothing from the store. Defendant acknowledged to his parole officer at the time that he had participated in the theft and swung at the security guard.

(4) Possession of weapons while an inmate

In 1978, a guard found an inmate-manufactured weapon made out of bedspring material in defendant‟s cell in Chino State Prison. In 1983, defendant was found with a small handmade knife while incarcerated at the Santa Rita Jail.

c. Incidents During Custody

The prosecutor presented evidence of four unadjudicated incidents between 1984 and 1992 that occurred while defendant was incarcerated in the county jail before and during his trials for his capital offense. Defendant threatened to stab an inmate named Mario Holland in the neck with a pair of fingernail clippers. Defendant was involved in a fight with another inmate, George Calderon, and bloodied his nose. After guards responded to a disturbance in which defendant threatened another inmate, Lynch, defendant threatened a guard with a broom.

Finally, the prosecutor presented testimony that defendant had planned to escape. Roger Rosenberg, an inmate incarcerated in the North County Jail in Oakland, testified that on October 25, 1985, he overheard defendant tell another inmate that defendant and his brother were planning defendant‟s escape from Highland Hospital. The plan involved defendant‟s brother being armed with a gun. Defendant also mentioned an alternate plan, by which his brother would bring a gun to court and effect his escape.

2. Defense Case in Mitigation

a. Defendant's Testimony

Defendant testified about his childhood and early adult years. Defendant was born in Portland, Oregon, and his parents settled in the San Fernando Valley area of Southern California when he was 11 or 12 years old. Defendant‟s parents were both heavy drinkers who frequently fought physically and injured each other. Defendant‟s father declared he had never wanted to have defendant and his brother Jerry, and beat them at least once a week. Defendant‟s father was a neglectful parent who never took defendant anywhere except bars, where he and his brother would play in the parking lot. Although defendant‟s mother was also a drinker, she provided some degree of care and support to defendant and his brother.

At age nine or 10, defendant felt he did not fit in at school because of his clothes, and because some of the parents told their children not to play with him. He was ridiculed as being "White trash" by the other kids. By this time, defendant was drinking alcohol, which he stole from a bar. By age 13 or 14, he was drinking heavily. He also sniffed spot remover and smoked marijuana. He was arrested several times for burglary. When he was 14 or 15, he was involved in juvenile court proceedings and was sent to an institution for six months. He attempted suicide around this time. When he was 15 or 16, his mother died. At various times between the ages of 15 and 27 (when he was arrested for the capital crime) defendant was incarcerated at several county jails and state prisons for periods ranging from six months to a year.

On cross-examination, defendant admitted that he possessed books on Satanism, and that, at one point, he had been a member of the Ku Klux Klan. He admitted that when he was 13 years old, he and his brother laid chains on a railroad track, but he denied trying to derail the train. He admitted that, when he was 21 years old, he had broken into a sporting goods store, stolen between 30 and 40 guns, and been sent to state prison for this crime.

b. Other Testimony on Defendant's Social History

The owner of the apartment that defendant lived in when he was around 14 years old testified that defendant‟s father "just wasn‟t much of a parent," and that he could smell alcohol in the apartment. A neighbor, Deborah Thielen, testified that every time she saw defendant‟s father he was intoxicated. Defendant fought with his father, and sometimes ran away for periods of weeks or a month.

Dr. Karen Gudiksen, a psychiatrist, interviewed defendant for approximately 10 hours over five sessions, interviewed defendant‟s brother for one and a half hours, and reviewed medical, school, and probation records provided by defense counsel. She concluded that defendant suffered from chronic alcoholism with some mild organic brain impairment. His organic brain impairment was probably caused by his excessive consumption of alcohol, his many head injuries, and his use of inhalants, such as sniffing gasoline.

Dr. Gudiksen‟s social history of defendant paralleled defendant‟s testimony. Defendant‟s father was an abusive alcoholic who fought frequently with defendant‟s mother and beat the children. Defendant‟s mother was also a drinker. The family was transient, sometimes with no permanent place to stay. Defendant and his brother raised themselves from a very early age, scrounging and shoplifting to obtain clothes. School records indicated that by the fourth grade defendant was working below grade level. A junior high school evaluation stated he was getting little or no help at home, and that he needed a lot of help because he was heading for "real problems" otherwise.

Defendant was drinking and using marijuana by the time he was 12 or 13. He went on to use barbiturates and a wide variety of inhalants. At 16, he was placed in a juvenile facility for some months, but eventually was returned to his home environment, which remained neglectful and abusive. Around this time, he contemplated suicide after a girlfriend broke up with him. Defendant was not religious as a youth, but as a young adult he converted to Catholicism in custody after taking counseling from a priest.

c. Expert Witnesses

Dr. Richard L. Basford, a physician whose practice included the treatment of alcoholism, treated defendant for about three years, beginning in 1980. Dr. Basford made a diagnosis of chronic alcoholism and chronic brain syndrome, which is nerve loss in the brain as a result of chronic alcoholism. Basford reexamined defendant in 1992 in the county jail, and diagnosed him with chronic brain syndrome, secondary to multiple head traumas and alcoholism.

Dr. Joseph Izzo, a licensed neurosurgeon, testified that he performed a neurological examination of defendant in 1992 that revealed no evidence of organic brain injury. Defendant‟s electroencephalogram (EEG) was minimally abnormal and was consistent with, but not diagnostic of, a possible seizure disorder, and provided minimal evidence of a possible left temporal abnormality. A minimal abnormality is one that is not readily evident when the patient is awake.

d. Character Witnesses

Ronald Paul Harton, the pastor of the Pacifica Baptist Church, allowed defendant to live in his home on two occasions in 1980 when defendant was between incarcerations. The first time was for a few days, the second time for about two months. Harton and his family never had any problems with defendant; according to Harton, defendant tried hard to change his way of life, particularly his alcoholism.

David Ferguson, director of Open Door Mission, a support center for the homeless, knew defendant before his incarceration for the capital crime, when defendant came to his mission for meals. Ferguson found defendant to be "one of the nicest persons you ever want to meet" when he was sober, but an aggressive "idiot" when he was drunk.

Sue Ochs was an attorney appointed by the federal District Court for the Northern District of California to take over a civil lawsuit originally filed by defendant on behalf of himself and two other inmates in the North County Jail concerning the confiscation of religious objects and the lack of religious services for Catholic inmates. The case was ultimately settled, resulting in the availability of Catholic religious services at the jail. In her interactions with defendant in the course of the lawsuit, she found defendant to be very focused, sincere, and helpful.

Jessie Pettingill corresponded with defendant for seven years as part of her church‟s prison ministry program. She testified that she and defendant had become very close, and that defendant had helped her through difficult times in her life, such as the death of her granddaughter.

Carol Johnson, a social worker at Catholic Charities in Oakland, served as a visiting chaplain at the North County Jail, where defendant was incarcerated. She had discussions with defendant on various spiritual and secular topics and considered him a very gentle person who was reaching out for help.

Eugene Stelly was a deacon at a Roman Catholic church in Oakland who performed a Catholic religious service at the North County Jail on Sunday mornings. Over a five-year period, he ministered to defendant on a one-to-one basis and found him to be a serious student with whom he had good rapport.

Susan Sawyer, an Assistant Public Defender for Alameda County and defendant‟s lawyer for his first trial, testified that defendant was polite and hard working. She never felt ...


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