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People v. Redd

April 29, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
STEPHEN MORELAND REDD, DEFENDANT AND APPELLANT.



Orange County Super. Ct. No. 94CF1766 Judge: Francisco P. Briseno.

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

A jury convicted Stephen Moreland Redd of the first degree murder of Timothy McVeigh (Pen. Code, §§ 187, subd. (a), 189), the attempted murders of James Shahbakhti and Chris Weidmann (Pen. Code, §§ 187, subd. (a), 664), two counts of second degree robbery (Pen. Code, § 211), and two counts of second degree commercial burglary (Pen. Code, § 459).*fn1 The jury found true the special circumstances that the murder was committed while defendant was engaged in the commission of robbery and of burglary. (§ 190.2, subd. (a)(17)(A), (G).) The jury also found true the allegations that defendant personally used a firearm in the commission of each of the seven crimes (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)), and that defendant, with the specific intent to inflict such injury, personally inflicted great bodily injury upon James Shahbakhti (§ 12022.7). The jury also found that defendant previously had been convicted of five serious or violent felonies. (§ 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 these motions and sentenced defendant to death. The court also sentenced defendant to a term of 111 years to life in prison with respect to the other charges of which he was convicted, and ordered restitution in the amount of $10,000. (§ 1202.4, subd. (b).) This appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow, we affirm the judgment in its entirety.

I. FACTS

A. Guilt Phase Evidence

1. The Prosecution Case

a. Burglary and Robbery at Sav-on Drug Store

On March 13, 1994, Dean Bugbee was working as a supervisor at a Sav-on drug store in the City of Orange. Bugbee testified that he was counting currency in the store's safe at approximately 10:50 p.m., when defendant approached the safe, stated "it's time for a till audit," and held a gun over the door of the safe. Bugbee stood up and faced defendant, with a distance of approximately two feet between them. According to Bugbee, defendant removed between $2,000 and $3,000 from the safe, placed it in his pocket, and exited from the store.

Bugbee confirmed that he described defendant to law enforcement officials as a White male, 32 to 38 years of age, approximately five feet eight inches tall, and approximately 210 pounds in weight, with dark brown hair. Bugbee recalled that defendant was wearing sunglasses, light blue jeans, a dark blue zip-up sweat jacket with a hood, and a baseball cap. The hood was over defendant's head when he entered the store, and Bugbee could not discern whether the hair he saw was natural or a wig. He confirmed at trial that defendant's weapon had a chrome surface, and that he described it at the time of the events as possibly a .45 semiautomatic pistol.

On June 16, 1994, Bugbee met with representatives of the Orange Police Department, who showed him photographs of six individuals. Bugbee confirmed he told the police that "number three looks the closest by the shape of his face. If he was to put dark glasses on I would say it was him." He acknowledged that, unlike the person who robbed him, the individual in the third photograph had a beard and mustache, but confirmed that he "felt this was the person."*fn2

b. Attempted Murders Outside Vons Market

On May 31, 1994, James Shahbakhti was working as a uniformed but unarmed officer for a private security company. He testified that at approximately 10:40 p.m., his dispatcher requested that he respond to a report of a transient harassing customers at a Vons market in the City of Orange. When he arrived at the shopping center in which Vons was located, a person who appeared to be a transient attracted his attention. The individual was approximately 70 or 80 yards from Vons, near a karate studio situated to the right of Vons and the Sav-on drug store. Shahbakhti testified that he drove his marked security vehicle past the individual and circled around, to give himself an opportunity to observe the individual and to request the assistance of another private security officer. He then left his vehicle and approached the individual, who, at this point in time, was in the front of the Vons market. Shahbakhti testified that he asked the man what he was doing there and, when the man did not respond, asked him for identification. The man replied that he did not have any identification, and that he would leave the area. Shahbakhti then asked the man to remain where he was.

Chris Weidmann, who was Shahbakhti's backup private security officer and also unarmed, arrived at the scene in a marked patrol vehicle. Shahbakhti testified that as Weidmann exited from his vehicle, the man removed a gun from his jacket pocket and pointed it at Shahbakhti's face. Shahbakhti estimated that he and the man were standing two to three feet apart, and he testified that he could see the man's face clearly. Shahbakhti next recalled seeing Weidmann running toward Shahbakhti's vehicle, and then seeing the man fire one or two shots at the vehicle, from which Weidmann was attempting to retrieve a cellular telephone. Shahbakhti further testified that as the man fired at Weidmann, Shahbakhti began running away from the man. As he ran, he heard three to five more shots and was struck in the back. Shahbakhti also testified that the bullet entered his shoulder muscle, hit a bone, tore cartilage, collapsed one of his lungs, and hit his clavicle.

The next day, Shahbakhti was interviewed by Detective Michael Harper of the Orange Police Department, who showed him the same photographic lineup viewed by Bugbee. (See ante, fn. 2.) Shahbakhti testified that one of the six photographs "looked just pretty much like who the individual was." He confirmed that he told Harper "I can't be one hundred percent, but I'd say number three," and he was "90 to 95 percent sure" that the third photograph was of the man he encountered at the Vons market. Shahbakhti also confirmed that the man wore a dark blue hooded sweatshirt with a front zipper, a black or navy blue watch cap, blue jeans, and what appeared to be a woman's dark-colored shoulder-length wig. Finally, he testified that the man's weapon was a chrome semiautomatic handgun.

Chris Weidmann testified that as he approached Shahbakhti and the man with whom Shahbakhti was speaking, he heard the man state that he was leaving, and Shahbakhti telling the man that he needed some information from him. Weidmann walked around a large pillar in front of the Vons market as he approached them, and encountered the man as the man walked around the pillar. Weidmann could not see Shahbakhti, who was behind the pillar, and did not see the man's gun until the man pointed it at Weidmann's forehead. Weidmann recounted that he raised his hands and said to the man, "you're the boss," and the man then lowered his gun and turned back toward Shahbakhti. Weidmann testified that he then ran to Shahbakhti's vehicle, because it had a cellular telephone inside. After Weidmann entered 911 and pressed the "send" button, he looked up and saw the man standing by the passenger side of the vehicle, pointing his gun at Weidmann's head. Weidmann testified that the man rapidly fired three shots, all of which struck the vehicle occupied by Weidmann. Weidmann explained that when he felt broken glass from the windshield strike his face, he grabbed his face to make it appear that he had been hit by gunfire, rolled out of the vehicle, and pretended to be dead. He testified that he heard four additional shots from the same gun but, until the man fled, he was unaware Shahbakhti had been shot.

Weidmann testified that he was unable to identify in photographs the man who shot at him, but confirmed that the man was wearing a woman's brown shoulder-length wig and a blue or purple hooded sweatshirt. He described the man's gun as a chrome nickel-plated automatic weapon that he thought to be a nine-millimeter firearm.

Joseph Loya testified that on May 31, 1994, at 10:45 p.m., he was parking his vehicle approximately 100 yards from the back parking lot of the Vons market when he saw a man wearing dark clothing and a zippered sweatshirt with a hood jog out of an alley. The man stopped next to what appeared to Loya to be a light blue 1984 Ford Tempo. Loya testified that the man removed a mask, or perhaps a hat and a wig, exposing a white face and clean-shaven head. The man then entered the light blue vehicle and departed, driving in a normal manner. Loya followed the man's vehicle in his own vehicle, and recorded the vehicle's license plate number. Loya followed the vehicle for approximately three minutes, during which time the man began speeding and driving erratically, and then Loya contacted the Orange Police Department and reported what he had witnessed.

Detective Harper testified that the vehicle with the license plate number provided by Loya was a blue Mercury Topaz, which is "basically the same model" as a Ford Tempo, and that the vehicle was registered to defendant. Harper testified that he requested the Fullerton Police Department to look for defendant at an apartment complex in the City of Fullerton.

Linda King, a police officer with the City of Fullerton, testified that at approximately 1:00 a.m. on June 1, 1994, she received a request to travel to an address on Deer Park Avenue in the City of Fullerton with the objective of locating defendant's vehicle. She recalled that as she was driving on Deer Park Avenue, she saw a white male exit from a driveway, cross behind her patrol unit, and walk into the apartment complex across the street. She made eye contact with the individual and kept driving. After approximately five minutes, she saw in a carport a vehicle bearing the license plate number she had been provided. Thereafter, she was shown a photograph of defendant, and recognized him as the person who had crossed the street as she drove on Deer Park Avenue.

King testified that police officers then approached defendant's apartment and observed that the door was open, all the lights were on, and defendant was not present. Thereafter, Detective Harper searched defendant's apartment. Harper testified that he collected various items, including a brown wig and two live rounds of ammunition for a .380-caliber pistol. He confirmed that a .380-caliber weapon had been used to shoot Shahbakhti, and that the ammunition found in defendant's apartment was of the same type and brand as was found at the Vons market. Harper explained that he also was investigating the robbery of Dean Bugbee, and collected evidence that he thought might be related to that crime, including a blue baseball-type cap. He also found two empty boxes, each of which previously had held a laser sight designed to be attached to a firearm, and receipts for two magazines for a .380-caliber handgun. Finally, in the blue Mercury Topaz that King located in a carport at the apartment complex, Harper found a watch cap and a bill of sale for the vehicle, listing defendant as the purchaser.

c. Burglary, Robbery, And Murder At Alpha Beta Market

Brenda Rambo testified that she was working at a cash register in an Alpha Beta market on July 18, 1994, at approximately 10:40 p.m., when she observed a man enter the store wearing a woman's wig. The only other employee on duty at that time was Rambo's supervisor, Timothy McVeigh. Rambo testified that the man looked at her, walked around behind her checkout stand, and then came into her checkout aisle and set down a pack of gum. She related that "[a]fter I rang it up he threw down a dollar and told me that I'd have to break it." She turned to put the dollar in the cash register, and "[t]he next thing I know I had a gun at me." According to Rambo, the man did not say anything, but reached across the conveyor belt, removed a tray of money from the cash register's drawer, and set it on the belt. He began removing money with his left hand, as he held the handgun in his right hand. Rambo testified that the robber did not appear to be nervous.

Rambo testified that during the time defendant was removing money from the cash tray, she said "Tim." She recalled that several seconds passed, and then McVeigh appeared at her checkout stand. She related that McVeigh grabbed the man's left wrist and placed his other hand around the man's shoulder. The man turned toward McVeigh, and the two men struggled for a short period of time. Rambo then heard the gun discharge. The two men let go of each other, and McVeigh stepped back and fell a few feet away from where the struggle occurred. Rambo recalled that the man again pointed the gun at her, and she knelt down and "asked him please don't." She described the man as "calm" after McVeigh was shot, and testified that he turned and left the store with the money he had removed from the tray.

Rambo testified that the robber wore a wig, a baseball hat, clear- framed dark plastic glasses, a purple-pinkish long-sleeved shirt, and jeans. She confirmed that on July 21, 1994, she was asked by Detective Brakebill of the City of Brea Police Department to review a photographic lineup of six individuals. She selected the second photograph, which is identical to the photograph of defendant that appeared in the third position in the lineups shown to Bugbee and Shahbakhti. Rambo testified that the person in the second photograph "appeared to be similar, very similar to the person" who robbed her. She confirmed that the only significant differences between the person in the photograph she chose and the person who robbed her was that the latter did not have a beard or mustache.

Kelly Carpenter, a City of Brea police officer, testified that he received a request for emergency assistance at approximately 10:40 p.m. on July 18, 1994. When he arrived at the Alpha Beta market four minutes later, he saw a man lying on the floor and Brenda Rambo standing beside the man, screaming and crying. At trial, he reviewed his police report setting forth Rambo's description of the events on the evening of the incident, which was substantially similar to Rambo's testimony at trial. Carpenter also testified concerning the crime scene, including the open cash drawer, the money tray and gum on the conveyor belt, a shell casing in the aisle from a .380-caliber semiautomatic handgun, and a pair of glasses Carpenter found in the store parking lot.

Paul Diersing testified that he was the manager of the Alpha Beta market where McVeigh was shot. He conducted an inventory after the incident, and determined that $156 was missing.

Richard Fukumoto, the pathologist who conducted the autopsy upon McVeigh, testified that the cause of death was acute hemorrhaging that resulted from a gunshot wound through the victim's abdominal aorta and stomach. According to Fukumoto, the entry wound reflected that the firearm was discharged within three inches of the victim. He further explained that the bullet entered the front of the victim's body, traveled from the victim's left to right side, front to back, and downward, and was recovered from the victim's right back side. He confirmed that the wound was consistent with testimony indicating that two men were grappling and a gun discharged in close proximity to the victim.

d. The Apprehension Of Defendant And Search Of His Vehicle

Robert Jansing, a police officer with the United States Park Police in San Francisco, testified concerning his arrest of defendant on March 6, 1995. He explained that he noticed the registration tag was affixed poorly to the license plate of a vehicle in which defendant was seated, and he asked his dispatcher to investigate whether the vehicle was registered. When Jansing learned that the vehicle's registration had expired, he requested that defendant produce his vehicle registration and driver's license. After defendant failed to produce either, Jansing asked defendant to step out of the vehicle, which he did, and Jansing placed him in handcuffs. Pursuant to the arrest, Jansing searched defendant and found defendant's driver's license. Jansing informed his dispatcher that the individual's name was Stephen Redd, and learned that defendant was wanted for murder and robbery in Orange County. Jansing testified that he received permission from his supervisors to impound the vehicle, and he then conducted an inventory search. Among the items he found in the trunk of the vehicle were a .380-caliber semiautomatic pistol with a laser sight attached, an AR-15 rifle with a laser sight attached, and wigs.*fn3

Dennis Fuller, a forensic scientist with the Orange County Sheriff's Department's crime laboratory, testified that he analyzed the six bullet casings and the two bullets recovered from the scene of the Vons market assaults, the bullet casing recovered from the Alpha Beta market, and the bullet recovered from Timothy McVeigh's body. His analysis led him to conclude that all of the bullets and casings were fired from the .380-caliber semiautomatic handgun recovered during the arrest of defendant. Fuller also testified that his testing established the weapon operated properly, would not fire when the external safety mechanism was placed in the position to prevent the weapon from firing, would not fire without someone pulling on the trigger, and did not have a "hair trigger."

Jerry Brakebill, an officer with the City of Brea Police Department, was the primary detective assigned to investigate the murder of Timothy McVeigh. He testified concerning the items found in defendant's vehicle at the time of the arrest. These items included: two magazines for .380-caliber ammunition; .380-caliber ammunition; two sights that matched the empty sight boxes found in defendant's apartment and that were attached, respectively, to a .380-caliber weapon and an AR-15 firearm; a blue "beanie" cap; a baseball cap; a purple-hooded sweater with a zipper; sunglasses, and women's wigs, two brown and one blond.*fn4

2. The Defense Case

Defendant presented no evidence at the guilt phase.

B. Penalty Phase Evidence

1. The Prosecution Case In Aggravation

The prosecution presented testimony concerning five armed robberies committed by defendant in 1982. Gay Swanberg testified that defendant robbed her on September 30, 1982, as she worked as a cashier at an Akron store in the City of Orange, and that he "seemed very calm, matter of fact." Dennis Misko and Laura Meraz testified that defendant robbed them on October 2, 1982, as they worked at a Federated store in Santa Ana. Gilbert Quihuiz testified that defendant robbed him and other bank tellers on October 6, 1982, at a Bank of America branch in Santa Ana. According to Quihuiz, as defendant was leaving, he said, "No one should follow me out the door, I shoot people," "My landlord is going to love me," and "You all have a nice day because I'm going to have a great one." Gary Stewart testified that defendant robbed him and other bank tellers on October 27, 1982, at Southern California Bank in the City of Orange. According to Stewart, before defendant left he said: "Unemployment is great. I used to be poor. Now I'm rich. I do this all the time." As he left, he said "Have a good day." Everett Caldwell, a customer who was inside the Southern California Bank during the robbery, testified that defendant was "a very calm person," seemed "jovial," and appeared to be having a good time. According to Caldwell, defendant told the persons in the bank to wait ten minutes before leaving or he would "blow them away." Finally, Michael Canzoneri, Sharon Snowden, and Jacquelyn Coffery testified that defendant robbed them on November 10, 1982, as they worked as tellers at the East La Habra branch of Security Pacific Bank. Canzoneri recalled that defendant was "extremely calm" until Snowden informed him that she was not open and that he should go to another window. Snowden testified that defendant pounded on her counter, demanded that she come to her window, and told her, "You bank tellers are an endangered species." She also recalled that when defendant left, he said, "Have a nice day." Coffery testified that defendant pushed a customer aside to get to Coffery's window, made threatening remarks, and did not seem nervous.

Six police officers testified concerning their pursuit and apprehension of defendant as he fled Security Pacific Bank on November 10, 1982. Officer John Reese arrived at the bank in uniform and pursued defendant on foot. Reese testified that defendant stepped out of a bush where he was hiding and fired "a burst of gunfire" in Reese's direction, hitting Reese in the leg. Defendant then ran down a dead-end alley, and a brown vehicle drove out of the alley. Officers John West and Raymond Breuer testified that as they pursued the brown vehicle in their marked police vehicles, defendant fired shots out of the back window of the vehicle. One bullet hit West's windshield, and bullets hit Breuer's headlight frame and a tire. The pursuit continued onto freeways, at speeds in excess of 100 miles per hour. West estimated that 15 to 20 police vehicles were involved in the pursuit, and Breuer estimated that the pursuit continued for 45 to 50 miles, with sporadic gunfire throughout. Officer Jose Talavera testified that when the brown vehicle turned around and came back toward his marked police vehicle on the freeway, defendant made eye contact with Talavera, waved at Talavera, and appeared to be smiling. Officer Mike Cordua testified that he pursued the brown vehicle in a helicopter, fired a single round, and hit the driver's side mirror. After the helicopter circled around, Cordua saw that the vehicle was parked and the driver was holding both of his arms out the window.

Officer John Rees (not the Officer John Reese previously referred to) testified that he searched defendant's vehicle and home after defendant was apprehended on November 10, 1982. Rees found four weapons in the front passenger compartment that were loaded and capable of being fired - an AR-7 Explorer .22-caliber semiautomatic rifle, a Browning high-power nine-millimeter semiautomatic pistol, a Ruger mini-14, .223- caliber "converted to full automatic," and a .308-caliber rifle. He also found evidence of at least 22 expended casings from a .223-caliber weapon and a nine-millimeter weapon. In defendant's home, Rees found two more firearms - a seven-millimeter mag rifle and a Tager, AP-75, .22-caliber, semiautomatic rifle - as well as abundant amounts of ammunition, including 17 20-round boxes of .223-caliber ammunition, 96 .22-caliber rounds, 85 nine-millimeter rounds, and 39 seven-millimeter rounds. He also found four wigs.

Peter De Bernardi, a California Highway Patrol officer, testified that he issued a speeding citation to defendant on November 8, 1982. Although defendant had been traveling at a speed in excess of 75 miles per hour, De Bernardi's citation stated that defendant had been traveling 60 miles per hour in a 55-mile-per-hour zone. Approximately seven months later, De Bernardi received a letter from defendant, with a return address of the California Men's Colony in San Luis Obispo. The letter informed De Bernardi that defendant had not shot him because De Bernardi was a "pleasant sort of guy."*fn5

Timothy McVeigh's immediate family testified concerning their loss. His sister, Cheryl McVeigh, who was one year younger than the victim, described him as a "great brother" and her "best friend." He enjoyed fishing and building model airplanes. As an adult, he helped Cheryl, who was a single mother, with her three children, and took them on outings. He spoke about having children, and she joked with him that she would spoil his children the way he spoiled hers. She testified that she could speak with him about anything, and missed hugging him and hearing his encouraging words. She described receiving a telephone call informing her that her brother had been shot, and learning from the surgeons that he had died.

The victim's brother, Michael McVeigh, who was four years younger than him, testified that his older brother took him along as a child to his school activities and let him borrow his car for the senior prom. Michael remembered watching his brother caring for Michael's young daughter, and looking forward to the day when Timothy also had a family. Michael testified that his brother cared for his mother and his grandfather, and Michael described the horror of realizing he no longer had a brother.

Timothy's father, James McVeigh, a retired police officer, described Timothy as "a good boy," "a fun kid," and "just a nice guy to be around." He stated there is a hole in his heart that will never be filled, and not a day goes by that he does not think of his son.

The victim's mother, Carol McVeigh, testified that she and her son had been close throughout his life. He had a gift of humor and loved to tease. He was active in drama in high school and represented the school at Boys State in Sacramento. They took trips together, and he frequently called and visited her. He loved to read, and "we could talk and share so many different things." He had taken flying lessons in his spare time, and had earned his certification as a jet pilot. He was a hard worker, and she "couldn't ask for a better [son]." On the night he was shot, he had spoken to her on the telephone at 8:00 p.m., but had been called away. When the telephone rang later that evening, she thought it was he calling back, but instead she learned he had been shot. Upon hearing this, she felt as if she had died inside. She stated she wanted to hold him one more time, and regretted she did not have an opportunity to say goodbye to him.

2. The Defense Case In Mitigation

Defendant's mother, brother, and three children testified concerning their relationships with defendant. His mother, Rosemary Redd, testified that she was a stay-at-home mother , and defendant was her first-born child. The family was "intact" and "close" while defendant was growing up, and defendant had "a regular happy childhood." His grandparents lived nearby and had a close relationship with defendant. Defendant was ambitious and, at 12 years of age, began shining shoes to earn money. He performed well in school and had no significant behavior problems. He graduated from high school in 1963, resided at home while attending junior college, moved out of the family home in 1965 when he married, worked with his father and grandfather in the real estate business, and in 1967 attended the Los Angeles County Sheriff's Department Academy. His mother regularly visited defendant in prison in the 1980's, and had "constant" correspondence with him during his imprisonment. Defendant continued to write to her at the time of the trial proceedings in the present case.

Richard Redd, defendant's brother, testified that he and defendant grew up with their parents and maternal grandparents on an acre of land that contained an orchard and a swimming pool. Their paternal grandparents resided nearby, and the family was close. He recalled that defendant was very popular and had many friends. He also testified that defendant was proud when he became a Los Angeles County Sheriff's deputy, and initially enjoyed his occupation. Thereafter his personality changed, and he became "tougher" and "more macho," especially after he was assigned to the Firestone Station. He recalled that defendant separated from his wife shortly before or at the same time that he resigned from his employment with the sheriff's department, and that the breakup of his marriage and the termination of his employment "hit [defendant] pretty hard." He testified that after leaving the sheriff's department, defendant worked hard - sometimes 16 hours a day - constructing homes, apparently with an understanding that he would receive a percentage of the profits upon the sale of the homes. According to Richard, defendant could "build everything," but was "not too good" as a businessman and ended up with little at the conclusion of these construction projects. When defendant had no more funds and could not find employment, he resided with their grandmother in Willits and with Richard in Whittier. While residing with Richard, defendant possessed firearms, read "macho" literature, and talked of "going off to war." Richard testified that he was shocked when he saw defendant on the television news after defendant was pursued by police officers through four counties. Richard also testified that after defendant was released from prison, he resided with Richard and sought employment, but defendant was required to inform potential employers that he had been in prison. Richard stated that defendant had saved Richard's life when the family's house had filled with gas, and defendant opened a window, put Richard's head out the window, and pounded on Richard's back. Richard confirmed that he had "very strong personal feelings" for defendant.

Michael Redd, defendant's older son, testified that his parents divorced when he was approximately six years of age. For most of his life, Michael resided with his mother, but for approximately three years, when he was nine to 12 years of age, he resided with defendant. Defendant taught his two sons construction skills as he worked on the family dwelling. He also taught them to ski and surf, and they played chess and had pillow fights. At 12 years of age, Michael moved with his mother to Willits. Michael testified that defendant visited the family in Willits and resided and worked for a time in that community, but that employment "was pretty scarce." Michael maintained some contact with defendant when defendant went to prison in 1983, but had seen him on only three occasions during the 15 years that preceded the trial in the present case. When asked to describe the value of his relationship with defendant, Michael testified that defendant "taught me how to work. I wouldn't be in charge of a [grocery store's night] crew if it wasn't for [defendant]." He added that "if we ever needed [defendant], he would be there" and "wanted to do good for us," and that defendant "did his best to do what he could." He confirmed that he loved defendant very much.

Sean Redd, defendant's younger son, testified that he learned his work ethic from defendant, and that there was "a lot of love in our family." He recalled the three years during which he and his brother resided with defendant, and helped work on a house, as a time when "money was tight" but defendant "did everything he could for us." Defendant visited and wrote to the family when they were in Willits, and continued to write occasionally. Sean, who had been in the military for 10 years at the time of the trial in 1996, estimated that he had seen defendant on four or five occasions since 1980. He stated that his relationship with defendant has value, that he loves defendant very much, and "it's just hard on the family."

Melissa Redd, defendant's daughter, testified that she resided with defendant for approximately two weeks during her childhood. She recalled that he let her help build his house and took the children to the movies and to the beach. He was nice to her and would not let her brothers pick on her. She recalled that he resided in Willits for a time with her grandmother, but was unable to find work in that community. She stated she had not seen defendant frequently during the preceding 14 years, but he wrote letters to her and drew pictures for her children. She stated she still loved defendant, and "what I did know of him, he was a positive figure in my life."

Two witnesses testified concerning defendant's activities between the time of McVeigh's murder and defendant's arrest. Eugene Lin testified that he met defendant when defendant was picking up cans and bottles from the trash by Lin's hotel. Lin offered defendant (who identified himself by his true name) employment performing maintenance on the hotel. Defendant resided in Lin's hotel and worked for Lin from September 17 to October 3, 1994. Defendant left suddenly, without collecting $80 that was due him. On May 9, 1995, Lin received a letter from defendant, asking that Lin send the money to defendant's mother. Richard Lum, who worked at a recycling center in San Francisco, recalled that during a period of eight months or longer, in late 1994 and early 1995, defendant redeemed cans and bottles at the center at least twice a week. Lum testified that defendant used the name "Redd."

Three former deputies with the Los Angeles County Sheriff's Department testified concerning their experiences working with defendant in the department. Allen Campbell and defendant served together for most of the three years that Campbell was assigned to the Firestone Station, and subsequently for a year or longer at the West Hollywood Station. Campbell described the area served by the Firestone Station as a "war zone," and stated that four deputies were killed there in a period of two or three years. He testified that the violence he encountered as a sheriff's deputy affected his marriage and affected him physically, and that he retired on disability in 1980.

Wiley Newman also worked at the Firestone Station, which he described as a "combat zone." He testified that he was shot while assigned to that location, and did not receive counseling. He and defendant were partners for approximately one week while they served at Firestone. During that week, they responded to a fire at a residence. Newman ran into the burning home to save an occupant, despite being told by the fire department that it was too hot to enter. Defendant remained outside. They both received Medals of Valor for saving the occupant.

Thomas Grant testified that he was employed with defendant at the West Hollywood Station in 1970 or 1971. He recalled that defendant was at the scene of a vehicle fire in which an occupant of the vehicle perished. The next day, at a station meeting, defendant told his colleagues the vehicle door was jammed, and that he had retreated because of the heat and had watched a conscious passenger burn to death. According to Grant, defendant cried while describing the events and told his colleagues it occurred to him later that he could have broken the window with his flashlight or the butt of his gun. According to Grant, defendant "felt this man died because of him because he had panicked." Grant stated he never had seen an officer cry.

Robin Klein, a clinical psychologist, testified that law enforcement officers are exposed to many traumatic events, and that there is peer pressure within that profession to be strong and not to obtain counseling. According to Klein, law enforcement agencies in Southern California, prior to 1975, did not provide meaningful psychological assistance to officers. He stated that officers "have a much higher rate of suicide than the average person," as well as "a significant level of divorce." He stated that he would expect a "horrendous" psychological impact upon a person who witnessed someone die in a fire, particularly if the person is "paid to rescue people," and that it is not unusual for an officer "to resign usually within a couple of years after having been involved in a major traumatic incident."

Michael Mantell, a clinical psychologist, reviewed records concerning defendant, including school records, his application to the Los Angeles County Sheriff's Department, and the department's background investigation. Mantell testified he found nothing indicating any underlying psychological problems. Evaluations of defendant at Firestone Station in 1969, 1970, and 1971 indicated that his performance was "competent." His first evaluation at West Hollywood Station, in October 1971, reflected that his performance was between "outstanding" and "competent." Defendant again was found "competent" in his 1972 evaluation, but the report noted some inadequacies in his compliance with rules, a failing that the report attributed to personal problems. Defendant voluntarily resigned on October 8, 1973, the day after the West Hollywood Station commander recommended that he undergo psychiatric evaluation. Mantell testified that a document dated October 19, 1973, indicated that defendant's conduct had become undependable, and that defendant required "constant and significant supervision." The document also stated that he was "visibly depressed." Mantell perceived a correlation between defendant's having witnessed the vehicle fire and his job performance. Mantell also noted that defendant's divorce proceeding was pending from November 1972 to August 1973, and opined that "a psychological deterioration ha[d] been taking place, . . . through and including the divorce." Mantell testified that he would be surprised if any police department would hire a person with defendant's record at the sheriff's department. Finally, Mantell explained the term "anniversary reaction" as describing psychological symptoms that may develop one year, or many years, after a traumatic event. According to Mantell, it appeared that an incident of indecent exposure committed by defendant occurred approximately one year after he resigned from the sheriff's department and approximately two years after he witnessed the vehicle fire.

Norman Morein, a sentencing consultant, was retained to review documents related to defendant's previous imprisonment, from April 1983 to April 1993, and to evaluate defendant's adjustment to prison. He testified that defendant had "one of the best records I've ever seen," except for an escape attempt in 1986, when defendant cut through the bars of his cell, reached the prison compound, scaled one fence, began to scale a second fence, and was shot in the shoulder by a prison guard after ignoring the guard's command to halt and the guard's warning shot. According to Morein, defendant had no record of any assaultive or disrespectful conduct. In addition, defendant performed well at his work assignments, participated in vocational training in electronics and machine shop, and earned good grades in community college courses. Defendant was elected by inmates to the "Men's Advisory Council", which represented inmates in meetings with prison staff. Morein testified that defendant did not receive any psychiatric or psychological counseling while in prison, but was counseled for anger management beginning in December 1993. Morein confirmed on cross-examination that defendant has an IQ of 123, which he described as "in the superior range."

II. DISCUSSION

A. Pretrial Issues

1. The Detention And Arrest Of Defendant, And The Search Of His Vehicle

Defendant moved in limine to suppress all evidence obtained as a result of the warrantless search and seizure conducted by United States Park Police Officer Robert Jansing on March 6, 1995, in San Francisco. The trial court denied the motion, without making express findings. Defendant contends his detention and arrest, and the subsequent search of his vehicle, violated his rights under the Fourth Amendment to the United States Constitution, and that the evidence seized should have been excluded at trial.*fn6

a. Facts

As recounted above, defendant was arrested on March 6, 1995, by Officer Jansing of the United States Park Police (Park Police). At the hearing on defendant's motion to suppress evidence, Jansing testified that he was assigned that day to patrol the northern end of the Golden Gate National Recreation Area, which includes Aquatic Park and Fort Mason. When on duty, Jansing drove his marked Park Police vehicle through the parking area of Gashouse Cove, a marina near Fort Mason. He testified that the parking area was owned by the San Francisco Recreation and Park District and was "mainly . . . for the yacht harbor," which was "right next to" the national recreation area. Jansing related that as he drove through the parking area, he noticed that the registration tag on the license plate of a brown Datsun sedan was not flat on the plate, indicating to Jansing that the tag might not belong to the plate to which it was affixed. Jansing estimated that the Datsun was parked approximately 100 yards from property owned by the federal government. As Jansing circled the parking area, he contacted his dispatch office to check the registration of the Datsun's license plate. In response, he was informed that the registration had expired in March 1994.

Jansing testified that he returned to the Datsun and parked his patrol car behind it. He then exited from his vehicle and asked defendant, who was in the driver's seat of the Datsun, for his driver's license and vehicle registration. Jansing testified that he informed defendant his registration was expired, and defendant responded that he recently had purchased the vehicle and did not know the source of the 1995 registration tag. According to Jansing, defendant also stated that he had a valid driver's license but did not have it in his possession. Defendant provided Jansing with what Jansing described as "some type of paperwork for the vehicle . . . - either a bill of sale - might have been an old registration showing that [the Datsun] was still in the name of somebody out of Canoga Park." Jansing testified that defendant told him he did not have any photographic identification with him, but he gave Jansing a birth certificate in the name of "Richard Redd" and said that was his name. Standing next to the driver's door of defendant's vehicle and using his portable police radio, Jansing contacted his dispatch office to determine whether "Richard Redd" had a valid driver's license. Jansing was informed that there was no record of such a license.

Jansing related that he informed defendant he believed defendant was not being truthful with respect to his name and that he wanted defendant's correct name, but defendant continued to claim his name was "Richard Redd." Jansing testified that he then asked defendant to step out of his vehicle and put his hands behind his back. According to Jansing, he then placed handcuffs on defendant and informed him that Jansing would find out who he was. When asked at the hearing his reason for putting handcuffs on defendant at that point, Jansing responded that he was arresting defendant for three violations - providing a false name, having no driver's license, and having an expired vehicle registration. When asked why he took defendant into custody, Jansing testified that the only way to determine defendant's identification to a certainty was to transport him in order to have his fingerprints checked.

Jansing testified that after placing handcuffs on defendant, he searched defendant, discovered a wallet in his back pocket, and found inside the wallet a driver's license in defendant's name. Using his police radio, Jansing informed his dispatch office of the name on the driver's license. Jansing learned from the dispatch office that there were arrest warrants for defendant related to murder, attempted murder, robbery, and a parole violation. Jansing requested and received confirmation of the warrants, and then requested that defendant's vehicle be impounded, which his shift sergeant approved. Jansing testified that he impounded the vehicle because the owner was unknown and could not be contacted, the registration was expired, and Jansing did not know whether the vehicle had been stolen. The officer acknowledged that the circumstance that defendant had been arrested also was a factor in deciding whether to impound the vehicle.

According to Jansing, Park Police General Order No. 2501 required that an inventory of an impounded vehicle be conducted. He stated that General Order No. 2501 was applicable to all federal Park Police officers, "regardless of the property they're on, as long as they're in the course of their official duties, impounding a vehicle pursuant to their arrest authority." Jansing identified the principal reason for the inventory requirement as potential liability for anything that might be in the vehicle. Pursuant to his understanding of what was required by Park Police policy, Jansing conducted a full inventory, including searching any compartments or closed containers, and also inspected the vehicle for damage. Jansing testified that, in the course of searching the vehicle, he found weapons and ammunition, which could not be allowed to remain in the vehicle while it was impounded. He also testified that because one of the arrest warrants had been issued an application of the Federal Bureau of Investigation (FBI) and the FBI had a local presence, the Park Police requested that FBI agents respond to the scene, and the Park Police turned over the weapons and ammunition to the FBI to be stored in a secure facility. Other items were left inside the vehicle, and an FBI agent directed that it be stored in the General Services Administration's secure facility.

After the vehicle, weapons, and ammunition were transferred to the FBI, Jansing transported defendant to the San Francisco County Jail, where defendant was booked on the arrest warrants. Although Jansing had prepared a citation relating to the Vehicle Code violations, he testified that he decided "it wasn't worth it," because he believed officials in San Francisco would not file charges on these less serious matters in ...


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