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People v. Lomax

July 1, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DARREL LEE LOMAX, DEFENDANT AND APPELLANT.



Los Angeles County Super. Ct. No. NA023819. Margaret M. Hay.

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

A jury convicted defendant of two robberies, with a murder in the course of the second.*fn1 It found he had used a firearm in all the offenses and found true a robbery-murder special circumstance.*fn2 Because the jury set the penalty at death, this appeal is automatic. We affirm.

BACKGROUND

I. Guilt Phase

A. Robbery of James Edge

Around 1:30 a.m. on August 25, 1994, James Edge closed his laundromat in Long Beach and walked to his car. A couple drove into the parking lot, and the man asked if the laundromat was open. Edge said it would be at 6:00 a.m. As Edge got in his car, the man pushed a large black automatic handgun into Edge's ribs. The man said, "Give me all your money. Give me everything you got." Edge complied, handing over approximately $200 in cash and other items. As the couple drove off in a green Ford, Edge noted the license plate number, which he reported to the police.

Shortly after the incident, Edge selected defendant's photograph from a photo lineup, saying he "looked like" the robber. He told the police he got a good look at the man and could recognize him if he saw him in person. Several months later, Edge identified defendant at a live lineup. At trial, Edge said he was "certain" defendant was the man who robbed him.

B. Robbery and Murder of Nasser Akbar

Angela Toler, an accomplice in the robbery-murder case, testified against defendant. She told the jury that on August 29, 1994, she went to the apartment of her friend and neighbor Ihesia Sullivan. Sullivan was there with defendant, whom Toler knew as Malik Hasan. In the afternoon, defendant asked Toler to "hook him up with a lick," which meant to show him a place he could rob.

Around 10:30 or 11:00 p.m., Toler and defendant left in a rented Ford Taurus. Sullivan stayed home with her children. Toler had smoked phencyclidine (PCP) about six hours earlier. She testified that she was no longer under the influence of the drug when she and defendant looked for a place to rob.

Toler and defendant drove to a liquor store but left because it was too crowded. They drove next to the P & B Market on Fourth and Cherry Streets, parked around the corner, and walked into the store. Both were armed with semiautomatic handguns. Toler's was chrome plated and pink handled; defendant's was black. They entered the store and announced, "[this is] a robbery." Defendant stood across the counter from the clerk, Nasser Akbar. Akbar handed money to both defendant and Toler. When another employee emerged from the back of the store, Toler pointed her gun at him.

Akbar did not speak, reach for anything, or make any threatening gestures during this exchange. Nevertheless, after the money changed hands, defendant shot Akbar twice. As Akbar lay on the floor, defendant reached over the counter and shot him twice more. Defendant then shot the store's security camera. Toler testified that she did not fire her weapon during the incident. A total of $68 was stolen.

Private security guard Cleavon Knott had known Akbar for about two years. He came to the store regularly to give his friend security at closing time. Shortly after 11:00 p.m., Knott drove into the P & B Market parking lot and saw two people inside pointing semiautomatic handguns at Akbar. The man's gun was black, and the woman's was chrome. Akbar stood behind the counter, between two cash registers. Another clerk was farther back in the store. The woman picked up something from the counter, then "flinched." At the same moment, Knott heard gunfire and saw the man shoot Akbar. The robber fired three rapid shots and, after the clerk fell, reached over the counter and fired another shot toward the ground. Knott saw the shooter rise and fire one more shot toward the back of the store, but he could not tell if anything was hit. Knott testified he was "positive" defendant was the person who repeatedly shot Akbar.

The couple fled the store and came within 16 feet of Knott. Knott recognized Toler because she lived across the street from his sister and Knott had seen her around town. He also recognized defendant as someone he had seen earlier in the day sitting outside Sullivan's apartment. He had seen defendant several times in the week before the murder. The couple ran around the corner. Knott started to follow, but instead entered the store. Inside, he saw a clerk crouching down by the freezer and Akbar lying facedown in a pool of blood. Knott immediately went to him. Akbar looked up and said, "Help me, friend."

Long Beach Police Officer Ernest Armond was dispatched to the market. He entered to find Akbar lying behind the counter in a pool of blood. Akbar tried to talk, but Armond could not understand him. Paramedics were called, but Akbar expired before they arrived.

Armond and his partner examined the scene and spoke with witnesses. They saw a nine-millimeter shell casing, bullet fragments, and several broken liquor bottles near the security camera and on the floor near the blood pool. Crime scene investigators recovered four spent nine-millimeter shell casings from inside the store. No casings of any other caliber were found. Investigators also recovered two bullet fragments, one on the floor where the victim had fallen, and one on the countertop. No ballistic evidence was initially found near the security camera, which had apparently been hit by a bullet. Four or five days later, officers discovered a nine-millimeter shell casing in this area.

Security guard Knott reluctantly spoke to police at the scene. He did not see defendant and Toler get into a car, yet he told the officers the robbers had fled in a white Oldsmobile Cutlass. Later that night, police took Knott to a field show-up of defendant and Toler. Knott recognized them as the robbers but did not identify them. Knott testified that he lied because he did not want to be involved. He wanted no problems with defendant and Toler, who lived nearby. Knott knew that Toler was a member of a local gang, the Insane Crips. He feared for his own safety and that of his sister and her children. The next day, Knott came forward and told the police what he had seen. While still afraid, he had decided to cooperate because he knew Akbar and because "it was the right thing to do." Knott did not ask for any assistance in exchange for his testimony, and the police offered none. However, several months later, the police helped Knott secure the dismissal of some outstanding traffic warrants. Knott asked for this help because he feared that, if arrested, he might encounter defendant in jail. Knott identified defendant in a live lineup.

After the shooting, Toler and defendant ran to their car and drove to Toler's house. Defendant went across the street to Sullivan's apartment. Toler joined them minutes later, after leaving her share of the robbery money at home. The three then left Sullivan's apartment and drove around "for no reason at all."

Shortly after midnight, the police pulled them over for making an illegal lane change. Toler was driving, with Sullivan in the front passenger seat and defendant in the back. As Officer Timothy Everts approached the car, he saw that defendant, a black male with cornrow braids, matched the description of a robbery-murder suspect. Defendant's shoulders were moving and his hands were between his legs. The officers ordered the suspects to stand outside and searched them. Defendant was carrying $43.57. When Officer Everts looked inside the empty car, he saw a gun lying inside the map holder directly in front of where defendant had been sitting. The handle protruded so that a person could have grabbed the gun with ease. Defendant and the two women were arrested.

The car was the same one driven by the couple who had robbed James Edge. The gun recovered from the backseat was a Glock nine-millimeter semiautomatic. The police also found a chrome Lorcin.25-caliber semiautomatic wedged into a space next to the driver's seat. The Lorcin's pink grip protruded slightly above the front seats. Both weapons were loaded. The Glock's magazine contained 11 rounds of ammunition with another round in the chamber. Fully loaded, the Glock could hold 18 rounds. The Lorcin had one round in its chamber and five in the magazine, all.25-caliber. Fully loaded, the Lorcin could hold eight rounds. Semiautomatic handguns such as the Lorcin and Glock expel a shell casing every time they are fired. All of the shell casings recovered from the P & B Market were nine-millimeter. No usable fingerprints were detected on the guns, however, and no gunshot residue was found on defendant's or Toler's hands.

Detective William Collette and Detective Logan Wren interviewed Toler at the police station. Although Toler admitted using PCP earlier in the day and showed some signs of recent use, she was lucid and appeared to understand the questioning. The officers concluded she was no longer under the influence of the drug. Toler initially denied involvement in the robbery but changed her story after the detectives said she had been identified as the woman in the store with a chrome handgun. The police made no threats or promises, and Toler asked for none. She confessed that she and defendant "had gone out to do a lick." She drove. They entered a store at Fourth and Cherry with their weapons drawn and told the clerk it was a robbery. After the clerk handed over the money, defendant shot the man and fired more shots at him as he lay on the floor. Toler saw another employee come from the back of the store. She pointed her gun at him but did not fire. Afterward, defendant gave Toler $36, her half of the stolen money.

Toler eventually pled guilty to robbery with the use of a firearm. In exchange for her agreement to testify against defendant, she was sentenced to 10 years in prison.

A firearms expert examined bullet fragments and shell casings from the market and the Glock pistol seized during the traffic stop. All the fragments had come from a Glock nine-millimeter, but their condition precluded a match to a specific gun. None of the fragments could have come from a.25-caliber weapon. Shell casings found at the scene could be matched, however. Based on their unique markings, they matched the Glock pistol found during the traffic stop.

An autopsy revealed Akbar suffered four entry wounds to his torso and extremities. The two torso wounds were each fatal. Their upward trajectories were consistent with a standing shooter firing down at a prone victim. Two deformed bullet fragments and two intact bullets were removed from Akbar's body. The intact bullets were nine-millimeter caliber.

C. Defense Evidence

Tena Delaguerra was near the corner of Fourth and Cherry when the market was robbed. She heard shots, then saw two Black people running from the store. Delaguerra could not discern their gender. She was too far away and was not wearing her glasses. Delaguerra thought the couple drove off in a dark blue or black vehicle. During this time, she also saw a Black man wearing a security guard shirt pull into the driveway of the store. Delaguerra thought "maybe" the driver pulled into the store's lot after she heard the gunshots, but she was "not really sure," because the events "happened so fast."

Deputy Probation Officer Leo Hurd interviewed Toler for a probation and sentencing report. Toler told him she used PCP, drank alcohol, and took the drug Dilantin for a grand mal seizure condition. She drank about a fifth of bourbon, five days a week.

Terrence McGee, M.D., a specialist in addiction medicine, testified about the typical effects of marijuana, PCP, alcohol and nicotine. He considered a fifth of bourbon five times a week to be "extremely high" consumption. A person under the influence of alcohol has bloodshot, watery eyes, slurred speech, a flushed face, and altered gait and balance. A person under the influence of PCP often smells of ether and has a noticeably rigid walk; a blank stare; and nystagmus, an involuntary bouncing of the eyes. When seeing someone under the influence of PCP, an untrained person would recognize something was wrong. Only in very high doses, however, can PCP deprive users of the ability to perceive and understand their surroundings. In general, long-term users of PCP have a blunt, or flat, affect. The effects of PCP usually last from four to six hours, but the period can vary. Dr. McGee admitted he had never interviewed or examined Toler, nor had he reviewed the recorded portion of her interview with police detectives. He had no idea whether Toler accurately perceived and reported the events she testified about.

II. Penalty Phase

A. Prosecution Evidence

1. Other Crimes

Defendant was convicted of trying to carjack Donna Annas at gunpoint outside a Portland, Oregon restaurant in 1987. Security guard Dennis Bryant followed defendant as he left the crime scene. Bryant confronted defendant and said he would identify him to the police. Defendant replied, "You ain't got shit, motherfucker," and produced a handgun from under his shirt. He fired three shots at Bryant, who took refuge behind a telephone pole. One shot sailed past Bryant's ear, the second hit the pole, and the third struck a nearby building. Both Annas and Bryant attended defendant's sentencing hearing. Defendant apologized but explained he had been upset that night because it was his birthday and no one had given him a party. Defendant was received into the Oregon Department of Corrections on March 1, 1988, and released on parole on October 28, 1993.*fn3

In April 1994, Brian Widmer went to buy marijuana at the Oregon home of his friends Brian Bachelor and Keith Jacobs. Widmer arrived with defendant and two other men Bachelor did not know. During the evening, defendant forced Widmer, Bachelor and Jacobs into the bathroom at gunpoint, while his two companions ransacked the house. After the three victims were bound hand and foot, defendant said to one of his associates, "Get a knife. I am going to kill these guys." About 15 seconds later, the bathroom light was turned off. Defendant said, "good night," and fired four shots into the bathroom. All three men were hit. One bullet entered Jacobs's head. It fractured his jaw, tore out his sinuses, and destroyed his right eye.*fn4

2. Defendant's Behavior During Trial

Deputy Sheriff Joseph McCaleb escorted defendant from a court hearing to a secure area. Defendant was wearing a waist chain, and his hands were cuffed. When they reached the holding cell, Deputy McCaleb opened the door and removed defendant's restraints. The deputy was armed with only pepper spray. Defendant refused to step into the cell, protesting that he had left some belongings in a different cell. McCaleb again told defendant to enter the cell, and he again refused. McCaleb explained that he did not have a key to the other cell but would get one and take defendant to retrieve his belongings. Defendant cursed at McCaleb, asking why he hadn't explained the problem before. Deputy McCaleb again directed defendant into the cell. This time he placed his hand on defendant's shoulder to guide him inside. Defendant spun around and punched the deputy in the head four to six times. Another deputy responded to McCaleb's call for help, and defendant was ultimately subdued. Deputy McCaleb suffered a concussion and was off work for three weeks.

During the penalty phase, after Donna Annas and Dennis Bryant testified about the 1987 crimes in Portland, defendant remained seated at counsel table when the jury was excused. After the jury and the judge had left the courtroom, defendant stood, turned to face a group of spectators, and displayed a sign he had written on a legal pad. It said, in large letters, "I will be out." Defendant then turned to Bryant and mouthed the word "motherfucker," which Bryant understood as a threat. Officer Ernest Armond, who was in the courtroom waiting to testify, saw the sign and walked to the counsel table. Defendant tore the paper into small pieces. Officer Armond retrieved the pieces, which were shown to the jury.

3. Victim Impact

Officer Armond was introduced to Akbar in 1993 and considered him a good friend. Akbar was always kind, with a welcoming smile. When he arrived at the murder scene, Officer Armond found Akbar lying in a pool of blood, trying to speak. Armond stayed with Akbar until he stopped breathing. Armond suffered a personal loss in Akbar's death and still vividly recalled the events that night.

Hilda Kelly operated an antiques store near the P & B Market. She visited the market often and had frequent conversations with Akbar. Akbar talked about his family and life in America. They discussed the increasing drug activity and panhandling in the neighborhood. Kelly described Akbar as "the loveliest person [she] had ever met." Always happy and even-tempered, he often expressed pride in America and in his children's accomplishments. Akbar was helpful and concerned about others. Business owners in the area were shocked to learn of Akbar's death. Kelly closed her shop for a couple of days and became afraid to return to the area. She eventually moved her business to a new location.

Razieh Mardemomen and Akbar were married for 17 years and had two teenage daughters. The family moved to America from Iran in 1977. Akbar was a good husband and father and a hard worker. He "meant everything" to Mardemomen because she knew no one in this country. Life was more difficult emotionally and financially after Akbar's death because Mardemomen had to support the girls alone.

B. Defense Evidence

State prison inmate Roman Cooper saw the September 27, 1995 altercation between defendant and Deputy McCaleb. As they talked, McCaleb put his hand on defendant's shoulder. Defendant, who was not handcuffed, objected and grabbed the deputy's hand. Then, according to Cooper, "they started fighting," with both men throwing punches.

Defendant's stepfather, Alvin Carney, had known defendant since he was seven years old and helped raise him. They used to play sports together and had a warm relationship. Defendant was a "good kid," who was well-behaved and never got into trouble. He was nice to others, especially small children. Defendant once had a job caring for youngsters. Defendant grew up in a "good home" and was never abused or mistreated. Carney could not envision defendant committing violence. He had never seen defendant curse or show disrespect to anyone. Carney did not believe in the death penalty. He thought defendant could do something productive with his life and help others, even from inside the penitentiary.

Defendant's uncle, Abdul Hasan, described defendant as a joyful, compassionate and fun-loving child. Hasan never saw defendant steal anything or act violently. Defendant grew up in a good home and was never abused or neglected. As a young man, defendant expressed a fear of government and society. He came to Hasan for religious guidance. Hasan, a practicing Muslim since the 1960s, counseled defendant to turn to God. Two or three years before the trial, defendant took the name Malik Hasan. His uncle did not believe defendant had committed any of the crimes of which he had been accused or convicted. All accusations and evidence against him were false.

Angela McCall met defendant in 1994, and they had a child together. Their relationship lasted about three or four months but they never lived together. McCall knew defendant had recently been released from jail but never learned what crimes he had committed. McCall never saw defendant use drugs or alcohol, possess a weapon, or commit a crime. He did not curse and was never abusive toward her or her other children. McCall thought defendant should not be sentenced to death because he was "not a vicious person" and had a son to help raise.

Saundra Carney, defendant's mother, separated from his father while she was pregnant with defendant. She raised defendant and two older children alone until she married Alvin Carney. She did not work until defendant turned five and started attending school. Defendant was a slow learner at first. He sometimes got in trouble "like the other kids in the neighborhood" for childish behavior, but never for criminal activity. He got along well with others, was mild mannered and respectful. When defendant was 12 or 13, he spent a year with his biological father. When he returned home, he seemed to have changed. Carney noticed he was staying out late and spending time with a different group of friends. However, Carney was shocked to learn of defendant's convictions. They were not consistent with his personality and the way he was raised. She thought defendant should not be executed because he was not a "bad person." She could not imagine defendant ever taking someone's life. At 25, defendant had been in jail for most of his adulthood. Carney thought defendant could live a productive life in prison by "help[ing] other people his age get their lives together."

DISCUSSION

I. Pretrial Issues

A. Speedy Trial

1. Procedural Background

Defendant's first claim, that he was denied his constitutional and statutory speedy trial rights, requires a somewhat lengthy summary of the pretrial proceedings. On September 1, 1994, three days after Akbar's murder, the district attorney filed charges against defendant, Toler and Sullivan. The court appointed one attorney to represent all three defendants and continued the matter for a week. On September 8, 1994, the public defender declared a conflict as to Toler and Sullivan. Defendant asked to represent himself but refused to answer the court's questions. His request was denied and Deputy Public Defender Marvin Isaacson was appointed. Defendant refused to enter a plea, stating he pled "to no one but Allah." The court took this as a denial of guilt, and entered a plea of not guilty. Defendant's attorney asked for a motion date before the preliminary hearing because defendant was refusing to waive time. The matter was continued, with a preliminary hearing set for September 21, 1994.

At the next hearing, the court granted defendant's request to represent himself. Defendant told the court he was not ready to proceed with a preliminary hearing on September 21, and he waived time under section 859b.*fn5 At the next court date, defendant appeared in propria persona and agreed to a preliminary hearing date of September 28, 1994, but he observed, "it's going to take me a while to prepare." On September 28, defendant told the court he needed a continuance to gather more information. The court appointed a defense investigator, and defendant agreed to a preliminary hearing date of October 26, 1994.

Defendant filed a discovery motion seeking names, addresses and telephone numbers of all witnesses. Although he had the relevant police reports, this information had been "blacked out." The prosecutor was willing to give unredacted copies of the reports to defendant's investigator, but he explained that the witness-identifying information could not be shared directly with defendant. The prosecutor also told defendant his investigator could obtain physical evidence, tape recordings and photographs from the police department. The court found that the district attorney's office was in substantial compliance with its discovery obligations.

On October 26, 1994, the prosecutor and defendant were ready to proceed with the preliminary hearing, but Toler's counsel requested a continuance. Finding good cause, the court continued the matter over defendant's objection. (See § 1050.1.) At a preliminary hearing held on November 18, 1994, defendant was held to answer. Toler testified against defendant at the hearing, identifying him as the shooter. On December 2, 1994, defendant asked the court to appoint "co-counsel." When the request was denied, defendant invoked his right to counsel. He asked the court not to reappoint Deputy Public Defender Isaacson because they did not "see eye to eye." Defendant said he wanted to represent himself "until something else [came] along." The court denied this request and appointed the public defender's office.

Once reappointed, Isaacson filed motions for a lineup and discovery. The prosecutor agreed to the lineup request and advised the court that "Mr. Isaacson is going to be sitting down with detectives and essentially getting everything [he's] asking for." The district attorney's office would also arrange for counsel to meet with one witness who did not want his address disclosed. However, the prosecutor had recently learned that "one of the witnesses may have returned to Cambodia."

On December 20, 1994, defendant moved to dismiss on the ground that he was denied a speedy preliminary hearing when the case was continued at Toler's request but over his objection. (§§ 859b, 995.) The motion was denied, and defendant sought writ review. The Court of Appeal issued an alternative writ of mandate, and the case was dismissed on March 13, 1995. A new complaint was filed the same day. After a second preliminary hearing, defendant was again held to answer.

At his arraignment on May 30, 1995, defendant successfully moved to represent himself. However, when the parties returned to court on June 5, 1995, defendant again requested counsel, and the court reappointed the public defender. At a trial-setting conference on June 21, 1995, Deputy Public Defender Isaacson told the court he was "obviously" not ready for trial. The defense had encountered problems in locating guilt phase witnesses and in investigating the penalty phase. The district attorney's office had not yet decided whether to seek the death penalty. The parties agreed to continue the matter to July 14, 1995, although defense counsel told the court he would not be ready to proceed on that date.

At the next hearing, defendant personally waived his speedy trial rights, and the parties agreed to continue the case until August 10, 1995. When the court expressed dismay that the case was not ready for trial, defense counsel said he had not been able to obtain addresses for some witnesses. The police refused to disclose the information to him without a court order. Counsel also reported that it was difficult to confer with his client, who was on high-security status at the jail. Defendant had "a lot of animosity" toward the public defender's office because of his security status, and defendant was "very reluctant to discuss his case." At the August 10 hearing, defendant again waived time and agreed to continue the case until August 28, 1995. Defense counsel noted that the prosecution still had not determined whether to seek the death penalty. He predicted the defense would not be ready for trial until "several months" after this decision was made.

On August 28, 1995, Deputy Public Defender Isaacson asked for the addresses of all witnesses, including penalty phase witnesses in Oregon. These addresses had been redacted from the police reports given to the defense. The prosecutor responded that the civilian witnesses were reluctant to be contacted because they were "terrified" of defendant. Isaacson explained that the defense had the names of the witnesses and most of their statements, and the private investigator initially appointed for defendant had also found some of the addresses. However, Cleavon Knott became upset when defendant's investigator contacted him, and the police refused to divulge any more addresses. Isaacson did not object to interviewing Knott at the district attorney's office, but he argued that other witnesses' addresses should be disclosed. In addition to the witnesses listed in his motion, defense counsel requested contact information for the market's owner, Somphop Mannil, so that Mannil could help him locate the other clerk working on the night of the robbery-murder. The police believed the clerk had left the country. The prosecutor agreed to contact all the witnesses and turn over the phone numbers and addresses of all who consented to the disclosure. For any witness who objected, the prosecutor would arrange an in-person meeting between defense counsel and the witness. Except for the witness addresses, defense counsel noted that the police had been "very cooperative in showing me all the physical evidence, showing me the clothes and going through records and documents that they have." Most of the discovery defendant sought had been provided.

Defendant interrupted this hearing with a Marsden*fn6 motion. When this motion was denied, defendant made his third request to represent himself. The court granted the request and appointed an investigator. Deputy Public Defender Isaacson reported that he had two boxes of discovery material in his possession, which he would deliver to defendant later in the week. The court ordered Isaacson to redact all witness addresses from the documents. Defendant agreed to this procedure.

At the next hearing, on September 27, 1995, defendant was given a letter from the district attorney's office indicating that a committee would meet on October 5, 1995, to decide whether to seek the death penalty. The committee wanted all mitigating evidence to be submitted for its consideration by October 3. Defendant complained that he had not yet received all the discovery from Deputy Public Defender Isaacson. Although Isaacson had come to the jail, he did not bring everything defendant wanted, and defendant left their meeting abruptly because it was mealtime. The court directed that discovery be provided to defendant. Defendant asked the court to appoint co-counsel or advisory counsel. The court denied this motion and defendant's request for $400 in telephone funds. Defendant protested that he was being "hindered," accused the court of bias, and asked for an attorney to be appointed again. The court reappointed the public defender's office over defendant's strenuous objection.

On October 4, 1995, Deputy Public Defender Isaacson told the court that the prosecutor had promised to disclose all of the missing witness addresses after he obtained them from the authorities in Portland, Oregon, but had not done so. Isaacson complained that his efforts to prepare for a penalty phase had been stalled by his inability to contact the Oregon witnesses. Expressing displeasure at the district attorney's delay in providing witness information, the court set a final discovery compliance date of November 6, 1995, and warned that sanctions would be imposed if compliance was not made, or excused, by that date. Defendant personally waived time until the November 6 hearing. The matter was continued twice more at defense counsel's request.

When the parties returned to court on November 30, 1995, the district attorney's office had decided to seek the death penalty. Defense counsel reported that he had received copies of police reports from the Oregon crimes along with all witness-identifying information. However, his investigator was still having difficulty locating the witnesses. Counsel learned there had been further developments in the Oregon cases. He was trying to gather more information from attorneys representing the other suspects in these cases, but these attorneys were not cooperating. The prosecutor responded that he had turned over addresses for all witnesses except James Edge and Cleavon Knott. These two men, who had objected to the disclosure, would be available for interviews at the district attorney's office. The prosecution had also turned over all the information it had concerning the Oregon incidents. The prosecutor agreed to give the defense any new addresses or information his office discovered, but he refused to investigate the case on defense counsel's timeline. Defense counsel's main concern was finding the other store clerk and some witnesses who had told the police defendant was not the shooter. He argued it was the prosecution's responsibility to locate these witnesses because the addresses had become stale.

Defense counsel also told the court that witness Cleavon Knott may have received assistance from the police. Knott was scheduled to appear for trial in a misdemeanor case of driving on a suspended license, but the case was advanced and dismissed. The court ordered the prosecutor to check on any assistance given to Knott. Defense counsel noted that, depending on the reasons for the dismissal, the public defender's office might have a conflict of interest because the office had represented Knott. Defendant waived his speedy trial rights, and the matter was continued.

At the next hearing, on December 18, 1995, the prosecutor reported that Detective Wren had indeed helped Cleavon Knott secure a dismissal of his traffic case. Defense counsel reported that the public defender's office did not believe a conflict of interest prevented it from representing defendant, but defendant disagreed. According to counsel, defendant believed there was a conspiracy against him in the office. The court appointed an independent attorney to investigate whether the public defender's representation of Knott created a conflict.

At the same December 18, 1995 hearing, the prosecutor gave written notice of the witnesses he intended to call in both phases of trial. Although defense counsel complained he could not prepare for the penalty phase without more discovery about the Oregon cases, the prosecutor stated he had turned over all the information he had and would continue to share any information he received. Defense counsel explained that some of the problems arose because information was given to an investigator when defendant was representing himself. Counsel had never been able to obtain these materials from the investigator, and attempts to contact the investigator had been futile. In addition, the defense had difficulty conducting a penalty phase investigation because the attorneys and detectives in the Oregon cases were not cooperating.

The defense sought dismissal because of delay yet maintained it would need "a lot more time" to prepare for trial. Counsel asked that the case be continued to February 5, 1996, but defendant refused to waive time. Counsel stated there was "absolutely no way" he could present the case for trial within the statutory time. Nevertheless, defendant insisted on proceeding with the trial date that had been set. He argued that if defense counsel could not prepare the case by that time, the "only remedy" was for the court to dismiss the case. Defendant refused to waive time and also refused to invoke his right of ...


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