Court: Superior County: Orange Super. Ct. No. 93ZF0132 Judge: Robert R. Fitzgerald.
The opinion of the court was delivered by: Moreno, J.
A jury found defendant Jonathan Daniel D'Arcy guilty of the first degree murder (Pen. Code, § 187)*fn1 of Karen Laborde and found true special circumstance allegations that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)) and was committed while defendant was engaged in the commission of mayhem in violation of section 203 (§ 190.2, former subd. (a)(l7)(x), now subd. (a)(17)(J)).
The jury deadlocked at the penalty phase, and the trial court declared a mistrial. After retrial of the penalty phase, a different jury returned a verdict of death. The court denied defendant's motion for new trial (§ 1181) and automatic application to modify the penalty verdict (§ 190.4, subd. (e)) and sentenced him to death. This appeal is automatic. (§ 1239, subd. (b).)
A. Prosecution Guilt Phase Case
In 1992, Quintessence, a company located in Tustin, obtained contracts for providing janitorial services to various businesses and then sold the contracts to janitors who serviced the contracts as independent contractors. Quintessence collected payment from the businesses and then paid its independent contractors after withholding a management fee. The bookkeeper for Quintessence was victim Karen Laborde.
Defendant purchased several accounts from Quintessence, some of which he financed through the company under terms providing that Quintessence would withhold a portion of future payments made by defendant's customers. He performed janitorial services for his accounts with Jeremy Willis (Jeremy).*fn2 By about January 1993, defendant had lost all but two of his accounts due to customer dissatisfaction. Still, he owed Quintessence for the purchase fees he had financed for the lost accounts. Matt Conrod, a sales representative with Quintessence, arranged for Quintessence to forgive defendant's debt and maintain his contracts on the two accounts because they were difficult to reassign.
About two weeks before the murder, and after having lost some accounts, defendant had a conversation with Conrod on a second-story balcony at Quintessence. Visibly angry and using "all kinds of foul language," he told Conrod he was "pissed off" at the accounting department. Conrod thought defendant might throw him off the balcony. Defendant warned that "if anything like this happens again, something's going to happen." As he left, he again threatened, "If you don't correct this you better believe me because I'll do something, I'm not kidding."
2. The murder of Karen Laborde and Defendant's Arrest
On February 1, 1993, the day before the murder, defendant, upset and angry, telephoned Conrod at Quintessence to complain he had not been paid for one account. Conrod checked with Laborde on the status of defendant's payment; she told him the check had been taken care of. Conrod then telephoned defendant and told him what Laborde had said. Defendant seemed satisfied with the response. Later that day, defendant telephoned Quintessence and spoke with Eileen Anderson, Laborde's assistant. He was angry and demanded his paycheck. Defendant mistook Anderson for Laborde and threatened to hurt her if he was not paid. Anderson told him, "I'm not Kari [Laborde]. I'm not Kari." She placed defendant on hold, and after speaking with Laborde, informed him that there was no check. Defendant became angry and asked to speak with Conrod.
Sometime during the same day, defendant spoke with Jeremy about financial problems he faced. He was upset Quintessence had failed to pay him, and told Jeremy that "nobody screws [him]."
On the day of the crime, after defendant and Jeremy had finished the job at defendant's first account, located in Anaheim, defendant told Jeremy, "I quit." With Jeremy in the passenger seat, defendant then drove to Santa Ana, the location of his second account. Defendant, a smoker, had a disposable lighter in his possession that morning.
As they waited for about 10 minutes to be let inside the business, defendant told Jeremy, "No one screws me like that," and said he wanted to get even. Defendant initially said, "I'm not going to kill her. I just want to do it," meaning burn her. Later, he said, "I'm going to kill her." Without servicing the account, defendant left and drove to a gasoline station. At 8:26 a.m., he purchased a dollar's worth of gasoline, filling it into a plastic sport bottle. Jeremy asked, "What's that for?" Defendant did not reply and drove to Quintessence. During the drive, Jeremy asked him, "Are you sure you want to do this?" Defendant replied he was "positive." As defendant drove, he appeared calm and relaxed. By the time defendant and Jeremy arrived at Quintessence, defendant had told Jeremy four times that he was going to light her on fire.
When defendant arrived at Quintessence, he gave Jeremy the keys to his truck and told him to "get the hell out of [there]." After entering the building, defendant walked up stairs to the reception area, approached Lisa Chaput, the receptionist, and asked to see Laborde. When Chaput told him she was busy, defendant became angry, saying, "I want to see her and I want to see her now." Chaput walked to Laborde's office and held the door open a few inches. In the next moment, defendant burst through the door, shoving Chaput out of his way. He headed for Laborde, who was sitting behind her desk, and yanked her seat around so that she was facing him. Defendant splashed Laborde's face, arms, and dress with gasoline from the sport bottle and yelled, "This is what you get when you hold my fucking money." Laborde stood up and, wiping her face, asked, "Oh God. Why are you doing this to me?" Defendant stepped closer to Laborde and answered, "This is what you get when you don't give me my money." He then took the sport bottle, poured the remaining gasoline on Laborde's head, and lit her on fire. When Laborde began screaming and struggled to put out the flames that engulfed her, defendant shoved her.
Chaput ran downstairs to warn the building occupants about the fire and encountered defendant as he exited the building. He asked her, "Do you want to fuck with me next?" Defendant asked another woman to light the cigarette in his hand. She refused.
Two brothers, who were detailing a car nearby, and another man learned of the fire. They rushed upstairs and put out the fire with two extinguishers. They discovered Laborde burned on the floor and tried to move her, but could not do so. Tustin Police arrived around 8:39 a.m. and found Laborde on the floor of the office, charred and crying. Most of her clothing had been burned off, and her face and hair were charred. Her mouth and nose were excreting fluids, and skin was hanging from her face.
Chaput saw defendant walk toward a streetlight near the office parking lot, knock on a car, and reach in to light a cigarette. Defendant returned to the curb outside the office building and sat smoking a cigarette until he was arrested minutes later. In a calm voice, he told the arresting officer, "I'm the one you are here to arrest." Defendant was arrested, handcuffed, and placed in a police car. He asked Officer Nasario Solis, an investigator who observed defendant in the police car, how much time he was looking at for attempted murder. When the officer told defendant that he was under arrest for assault, defendant responded, "I don't want assault, I want attempted murder." The officer noticed defendant smelled of gasoline, his hair was singed, and there was soot in his nose.
3. The Victim's Dying Declaration and Death
Around 9:00 a.m., Laborde was flown to the University of California at Irvine Medical Center. She had suffered third-degree burns on approximately 90 percent of her body. The heat and fumes from the flames had caused severe swelling inside her mouth and the lining of her airways. Laborde's doctor, Daniel Ng, M.D., told her that her injuries were nearly 100 percent likely to be fatal. Laborde declined medical treatment and indicated she wanted only comfort measures including pain medication. She required administration of over 30 milligrams of morphine per hour for over one or two hours to reduce the intensity of her pain and make her comfortable.*fn3 Laborde died at 4:45 p.m. that day. Laborde's doctor opined that if she had survived, she would have been disfigured and might have lost limbs.
While Laborde was in the hospital, Officer Douglas Finney of the Tustin Police Department asked her how she was injured and recorded her answers.*fn4 She said that "[Jon D'Arcy] threw this cup of . . . fluid . . . I guess it was gas . . . he threw it all over me and then he lit me" with a "[c]igarette lighter" that he held "in his hand." Laborde stated that defendant "deliberately went for me." She said that she was unable to escape because she had no room to move. She had a check for defendant on a desk and would have given it to him had he asked for it. The parties stipulated that, before Laborde was taken from the scene by paramedics, a check made out to defendant for the sum of $159, and dated January 31, 1993, was located on a desk in her office.
4. The Fire Investigation
Captain Dennis Shearn, a 10-year veteran with the Orange County Fire Department (OCFD) Investigative Section,*fn5 investigated the scene immediately after the crime and concluded that an open flame had ignited the fire. Remnants of a plastic bottle that smelled of gasoline were found on the floor near Laborde's desk, and a cigarette lighter was found on another desk in her office. A cigarette lighter has an open flame and could have ignited the fire. Under debris, in the corner of Laborde's office, Shearn discovered a portable space heater with its fan running.*fn6 He eliminated the space heater and all of the electrical circuit plugs, cords, and appliances in the office as possible sources of the fire.
The autopsy conducted the day after the crime revealed that Laborde had suffered burns on approximately 90 percent of her body. Her hair was singed, and 90 percent of her face, which looked very red, showed loss of skin surface. Her nostrils were blocked by black soot. Her right breast was completely burned off. Laborde's upper respiratory passages, lungs, and stomach were filled with black soot, meaning she had inhaled hot smoke, consistent with a person who was engulfed in flames. The cause of death was asphyxia. The hot smoke Laborde inhaled caused sudden spasms and swelling of her mucosa, causing her to choke to death.
B. Defendant's Guilt Phase Case
Defendant conceded he committed first degree murder and presented evidence that he suffered a mental illness sufficiently severe to create a reasonable doubt regarding the torture and mayhem special circumstances allegations. (§ 190.2, subds. (a)(17)(J), (18).) Supporting testimony came from two forensic psychologists, Edward Fischer, Ph.D., and Veronica Thomas, Ph.D.
Around July 1993, at the request of former appointed counsel Jennifer Keller, Dr. Fischer evaluated defendant's mental health. He interviewed defendant, administered several psychological tests, and reviewed historical information contained in defendant's mental health records and obtained by interviews with family members.
Defendant was born in 1962 and raised in a dysfunctional home by his mother. He was first referred for psychological evaluation in kindergarten and second grade, at ages five and eight, respectively. In 1970, clinical psychologist Joan Glad, Ph.D., interviewed and tested defendant and recommended psychotherapy for him and his mother.*fn7 He received three years of psychotherapy in grammar school. In high school, defendant was placed in special education classes and taught in a building separate from the main high school campus. He received group therapy from a psychiatrist as part of the special education curriculum. When defendant was imprisoned in 1981 for burglary convictions, he was given psychological tests, the results of which were made available to Dr. Fischer. Dr. Fischer also reviewed psychological evaluations of defendant that were performed at Patton State Hospital in approximately September 1993.*fn8
In 1996, Dr. Fischer, at counsel's request, reevaluated defendant's mental health, conducted additional structured interviews of defendant, and consulted with Dr. Thomas, who also had administered psychological tests to defendant and formally interviewed him. Dr. Fischer diagnosed defendant with paranoid schizophrenia and suspected he had organic brain damage, but defendant refused to undergo neurological testing. Dr. Fischer opined that defendant experienced an acute psychotic break on the day of the crime due to financial stressors, a loss of self-esteem, feelings of being a failure, and emotional immaturity.
Around July 1996, Dr. Thomas assessed defendant's mental state by conducting an interview and administering various psychological tests. She reviewed historical information from defendant's early childhood and police reports that included statements of Joan and her sons, Jeremy, and Corey. Additionally, Dr. Thomas personally interviewed defendant's mother and half-sister. She opined that, on the day of the crime, defendant suffered from paranoid disorder that made "it virtually impossible for him to relate to the world around him in a normal fashion." She described defendant's condition as a "delusional disorder of a psychotic nature," meaning defendant had "fixed false beliefs about reality." Dr. Thomas believed there was a possibility defendant had organic brain damage, but her diagnosis was hampered by his refusal to undergo neurological testing. In his paranoid delusion, defendant had strong fixed ideas that the government and his attorney, George Peters, had wronged him. Dr. Thomas did not believe defendant was schizophrenic, however. She acknowledged that defendant's tests showed that he was highly manipulative.
C. Prosecution Penalty Phase Case
During the penalty phase retrial, the prosecution presented evidence of the crime substantially similar to that presented during the guilt phase. In addition, the following aggravating evidence was presented.
The prosecution introduced evidence of defendant's prior conviction for burglary on January 9, 1981. (§ 190.3, factor (c).)
2. Prior Unadjudicated Criminal Activity Involving Force or Violence
The prosecution introduced evidence of the following prior unadjudicated criminal offenses involving force or violence under section 190.3, factor (b).
a. Assault on Nancy D'Arcy
On September 13, 1985, defendant punched his former wife, Nancy D'Arcy, numerous times in the face, held a knife to her throat, and threatened to cut off her hands and knock out her teeth in order to prevent identification of her body. After the attack, police found Nancy hysterical in the street with a swollen eye and a bloody nose that appeared to have been broken.
b. Assaults on Joan Willis
In early 1987, defendant moved in with his girlfriend Joan and her three children, including 18-year-old Jeremy and 20-year-old Corey. He lived with Joan "on and off" for several years. On February 4, 1988, Joan asked defendant to stop yelling during his telephone conversation. He became angry and repeatedly grabbed Joan by her hair and threw her to the floor, pulling out clumps of hair. He punched and kicked holes in two walls in the house.
On August 25, 1988, when defendant told Joan he wanted to use her truck, she was reluctant. He told her, "Get out of my way you f'ing bitch," and then pushed her onto the concrete driveway with such force that she urinated on herself. Joan suffered kidney pain and a scraped elbow.
On September 18, 1989, defendant asked Joan for her bank card in order to purchase alcohol; she refused. He became violent, grabbed and twisted her neck, and tried to choke her. He then pushed her, and she hit her head on a bedpost. Shortly after the incident, she applied for a temporary restraining order, then telephoned defendant from the courthouse to inform him she had filed for the restraining order and to ask him to leave her house. Defendant reacted by spray-painting walls in Joan's house, slashing her furniture and clothing, and breaking her furniture. She and her family thereafter lived in a hotel for three months while the house was repaired. After this incident, defendant moved out of Joan's house.
On October 10, 1990, defendant telephoned her several times and threatened to kill her if she did not let him move back into her house. Joan believed his threats and immediately called the police.
c. Assaults on Corey Willis and Others
In early April 1991, defendant again was living with Joan and her three children and was working with Thomas Thompson at a telemarketing firm. Defendant was fired because he failed to show up for work on two consecutive days. Defendant blamed Thompson and planned to beat him up.
On May 21, 1991, Thompson and Thompson's friend Leonard Godfrey returned with Corey to Joan's house after attending a baseball game. Defendant grabbed an aluminum baseball bat and, standing behind Thompson, hit him on the back of his knees and knocked him into a sofa. Thompson defended himself against defendant's next swing, which glanced off Thompson's hand and forehead. Thompson fled when Joan intervened. Wielding the bat over his head, defendant chased Thompson outside the house and caught up with him when Thompson fell to the ground. Godfrey stepped in front of defendant, who told him to move. Godfrey did not move, and defendant hit him with the bat. After dropping down on one knee, Godfrey stood up. Defendant then hit him with the bat twice in the head and at least 10 times in his sides with sufficient force to knock him off his feet. Godfrey sustained a bloody lip and numerous bruises. During this incident, defendant also threatened to hit Corey with the bat. The victims reported the incident to police, and the investigating officer discovered the bat in a riverbed behind Joan's house.
In mid-1992, defendant choked Terrence Berg with one hand when Berg refused to sell him marijuana.
On January 29, 1993, after an argument with Corey, defendant told Corey to hit him. When Corey refused, he hit Corey across the side of his face. On one occasion before 1990, defendant had put Corey in a headlock.
3. Victim Impact Testimony
Laborde's mother, Lorene Leiter, testified Laborde was a loving daughter and churchgoer and Lorene missed her. Laborde's twin brother, Darrin Leiter, described Laborde as an easygoing person and an important influence in the family. He experienced a great deal of sadness on his birthday because he had always celebrated the occasion with his sister. Laborde was his best friend, and he missed her.
Laborde's daughter, Rene Granier, testified her mother was murdered shortly before her 16th birthday. She was very close to her mother, shared all of her life experiences with her, and missed her. Rene's life was difficult without her mother's love and support. About eight months after the murder, she moved to Ohio to live with her aunt and attend high school.
Laborde's son, Christopher Granier, testified his mother was a sweet person and he always felt loved and supported by her, even when he misbehaved. After the murder, Christopher joined the Navy. When he served at sea, he often thought about his mother and cried at night.
D. Defendant's Penalty Phase Case
1. Testimony of Joan Willis
In October 1986, Joan met defendant, and a couple of months later, defendant was hospitalized after a motorcycle accident. Around this time, defendant contacted his estranged father, who wanted nothing to do with him. Defendant took this very hard, and shortly thereafter, sought rehabilitation for heroin abuse. In early 1987, he moved in with Joan and her family.
Defendant frequently had random, violent outbursts towards Joan and others. He could be kind and loving, but also verbally abusive and violent. He was paranoid and sometimes said he was going crazy. Defendant held several jobs over the years but lost each one because he argued with fellow employees and did not take direction very well. He had no friends.
During 1991 and 1992, the family experienced financial pressures. Joan feared she would lose her home because the Social Security benefits two of her children received were going to expire. Joan lent defendant several thousand dollars to purchase the janitorial contracts at Quintessence with the expectation that Jeremy would work with defendant. Defendant quit using alcohol and drugs except marijuana. He attended counseling, read self-help books, attended church, and used other techniques, including drinking chamomile tea, to address his stresses and calm himself.
Defendant began losing his janitorial accounts and became frustrated and depressed. He attempted suicide in front of Joan by superficially slitting his writs and cutting the skin on his stomach. The day before the murder, defendant was irate because the accounting department at Quintessence did not have a paycheck ready for him. He told Joan he would quit his accounts the following day. Joan called Quintessence but was unable to resolve the problem with defendant's paycheck.
2. Defense Attorney Jennifer Keller
Jennifer Keller had represented defendant from April 1993 until February 1994 under court appointment, and she testified regarding an episode in which defendant expressed remorse for the murder.*fn9 During a meeting with defendant in March or April 1993, Keller showed him newspaper articles about the victim. He became extremely emotional and upset and stated that the victim seemed to be a good person who was loved by many, although he had thought she was horrible and evil. Defendant seemed to have an overwhelming amount of guilt and empathized with Laborde's family. He repeated, "I can't believe I did this. I can't believe I did this." Defendant became distraught and cried intermittently throughout the one-hour meeting. He told Keller he was having nightmares of seeing the victim in flames and wondered whether God would forgive him. Defendant admitted the murder, and Keller explained to him he needed to consider a mental defense. Keller testified defendant's expression of remorse seemed genuine. When she suggested to defendant that he permit mental health experts to examine him and determine what was wrong with him, he appeared to be grateful and willing to cooperate. Defendant admitted there were times when he could not control himself and, although he did not understand this behavior, he wanted to learn what caused it.
Two weeks after this discussion, defendant insisted that he had been framed for the murder and that the space heater spontaneously ignited the fire. Defendant believed Keller, the prosecutor, and the trial judge, among others, were involved in a conspiracy to convict him for a crime he did not commit. He told Keller he was not mentally ill and refused testing. Keller was convinced defendant genuinely believed the thoughts he expressed about the conspiracy. Defendant never again expressed remorse.
3. Testimony of Psychologists
Dr. Edward Fischer performed psychological evaluations of defendant in 1993 and 1996. In his evaluations, he considered the following information based on his interview of defendant's half sister, Elizabeth Bartel, and his review of numerous documents obtained by defendant's counsel, including defendant's academic records and mental health records. Defendant and Bartel, who was 11 years his senior, were raised in poverty by their mother, Barbara D'Arcy. During defendant's childhood, his mother suffered from "black moods" that would last for days or weeks. She was not approachable and would not speak to defendant or his half-sister while she was in this condition. Defendant's mother often beat him during his childhood, causing bruising on his body. Because she worked the night shift during defendant's early childhood, she ...