Solano County Super. Ct. No. F-C42606. R. Michael Smith.
The opinion of the court was delivered by: Kennard, J.
A jury found defendant Robert Allen Bacon guilty of first degree murder (Pen. Code, §§ 187, 189)*fn1 and found true the special circumstance allegation that he intentionally killed the victim by means of lying in wait (§ 190.2, subd. (a)(15)). The jury found him guilty also of forcible rape (§ 261, subd. (a)(2)) and forcible sodomy (§ 286, subd. (c)(2)). Defendant waived his right to a jury trial on the additional special circumstance allegation that he was previously convicted of murder (§ 190.2, subd. (a)(2)), and the trial court found that he was so convicted.
At defendant's penalty trial, the jury returned a verdict of death. The trial court denied defendant's motions for a new trial (§ 1181) and for modification of the penalty (§ 190.4, subd. (e)), and it sentenced him to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)
Deborah Sammons was brutally murdered and her body was placed in the trunk of her car, which defendant tried to conceal by driving the car into a slough. The last persons Deborah Sammons saw on the night of her murder were defendant and her husband, Charles (Charlie) Sammons, from whom she had recently separated, and who, along with defendant, was charged with her murder. Defendant and Charlie Sammons both admitted that Charlie had asked defendant to kill his wife and that each of them had taken part in disposing of the body and concealing evidence of her murder. But their accounts of the murder itself varied widely, with each casting the other as the actual killer. The victim's blood was found on the shoes of both men, but physical evidence further linking defendant to the victim was the presence of his semen in her vagina. Defendant had never met the victim before the night of the murder.
Defendant and Charlie Sammons were tried separately. Defendant was tried first, and, at his trial, Charlie Sammons testified for the prosecution.*fn2 The prosecutor's theory was that both defendant and Charlie committed the murder, and that defendant had also raped and sodomized the victim. The defense theory was that Charlie was the sole killer because he had the stronger motive due to his jealousy and anger towards his estranged wife. The defense contended that defendant's sexual acts with the victim before her murder were consensual.
1. The Prosecution's Case
Around midnight on October 26, 1995, two California Highway Patrol officers discovered the body of Deborah Sammons in the trunk of a white Mercury Sable car that appeared to have been abandoned just off Grizzly Island Road in Solano County. The officers arrived in response to the call of a local man who had driven to Grizzly Island that night to fish. The man had first seen the white car on Grizzly Island Road when it had passed his car at high speed. On reaching the place on the road where a bridge crosses Montezuma Slough, the man found the white car at the edge of the slough with its engine running and its lights on. As recounted below, defendant ultimately confessed to police that he tried to drive the car into the slough to sink it and conceal the body in the trunk, but the car became stuck on the dirt embankment.
By running a check of the license plate, the officers determined that the car was registered to a married couple, Charles and Deborah Sammons. In preparation for towing and impounding the car, the officers conducted an inventory search. Using the keys from the ignition, they opened the trunk and discovered Deborah Sammons's body.
b. Investigation Leading to the Arrests
At the time of her murder, Deborah Sammons had separated from her husband Charlie and was having a romantic relationship with Bill Peunggate. She had begun the affair with Peunggate while she was still living with Charlie. Charlie and Peunggate had come to blows in the summer of 1995 when Charlie learned of the affair. Deborah told Peunggate that she intended to divorce Charlie.
Deborah and Peunggate had planned to go shopping together on the evening of October 26 (the day of the murder). In the afternoon, however, Deborah called Peunggate and told him that, at Charlie's request, she was first going to Charlie's house in Vacaville to take care of some bills. Deborah's timecard from her employer showed that she left work at 5:28 p.m. Around midnight, when Deborah still had not shown up for their planned shopping trip, Peunggate drove to Charlie's house. Charlie answered the door; he appeared to have just taken a shower. Peunggate used the phone, but neither of the men discussed Deborah's whereabouts.
About 6:00 a.m. on October 27, Solano County Sheriff's deputies visited Charlie Sammons at his house to tell him that his wife was dead. Initially he appeared shocked at the news, but, according to one of the officers, his shock "lasted not more than a minute," and he resumed cooking his breakfast. When asked whether or not he had been involved in the death of his wife, he responded, "Not quite." Based on that response, the officers asked for and received Charlie's permission to search his home. On the washing machine in the garage, they discovered a couple of drops of what appeared to be blood, which tested positive with Hemastix, a testing chemical. The officers told Charlie to accompany them to the station for further questioning, and he began to put on a pair of tennis shoes. Noticing bloodstains on the tennis shoes, one of the officers seized them. Subsequent DNA testing revealed that the blood was Deborah Sammons's.
On October 28, the day after Charlie Sammons was arrested, sheriff's deputies obtained a warrant for and searched his house. In the master bedroom, they discovered numerous traces of blood, including a smear on the bed frame, a drop inside the dresser cabinet, a smear on the dresser, and small stains on the closet door. In the living room, they found small bloodstains on the brickwork in front of the fireplace. Inside the fireplace, they discovered burnt fabric and the underwire and clasps of a bra. In the kitchen, they found a single-edged, wood-handled steak knife in the dishwasher.
After Charlie made statements to investigators implicating defendant, sheriff's deputies obtained a warrant for and searched defendant's residence, where they found and seized a tire iron.
c. Autopsy and Sexual Assault Examination
The victim's body was clad in a floral print dress, a short sleeve blouse, and a half-slip, but no other underclothing. It bore three types of injuries: strangulation, blunt force, and sharp force. The strangulation injuries consisted of multiple ligature furrows on the neck and hemorrhaging of the eyes. The blunt force injuries included a broken nose and lacerations on the eyebrow and the bridge of the nose. On the face there was a rectangular bruising pattern that, according to the trial testimony of Dr. Brian Lee Peterson, the pathologist who performed the autopsy, "matched very nicely the general width and shape" of the tire iron that had been found in defendant's apartment.
The sharp-force injuries included two stab wounds to the face and two stab wounds to the left side of the chest, one of which went through the lung and into the abdomen, and the other of which penetrated the heart, injuring the ventricle. According to Dr. Peterson, the steak knife that was found in the dishwasher at Charlie Sammons's house could have been used to inflict all of the stab wounds.
Dr. Peterson took swabs from the mouth, vagina, and rectum for evidence of rape, although he found no evidence of trauma to the victim's vagina or rectum. The swabs were tested by a criminalist, who found evidence of spermatozoa on the vaginal swab. The swabs were also sent to a Department of Justice laboratory in Berkeley for DNA analysis. The laboratory confirmed the presence of spermatozoa and performed two rounds of DNA testing on it. The testing excluded Bill Peunggate (Deborah Sammons's boyfriend at the time of the murder) and Charlie Sammons, but not defendant, as possible sources of the sperm. DNA analysis of the bloodstain on defendant's shoe excluded Charlie Sammons, Peunggate, and defendant as possible sources, but included the victim.
Elizabeth Ann Cassinos, a sexual assault nurse examiner, performed a colposcopic examination of the genital and anal areas of the victim's body. (A colposcope is a microscope that magnifies 15 times normal vision.) Cassinos discovered an abrasion or slight tear at the edge of the vaginal opening. This type of injury could be consistent with consensual sexual relations. The victim's anal cavity exhibited "more trauma" than the vaginal area. Past the sphincter, the anal cavity was purple and bruised looking on the right-hand side, which was consistent with blunt force trauma to the rectum caused by something being forced in from the outside. Cassinos did not offer an opinion as to whether the condition of the victim's genital and anal areas was the result of consensual or nonconsensual sexual relations.
d. Charlie Sammons's Testimony
Charlie Sammons testified for the prosecution. At the time, he was also charged with the murder of Deborah Sammons, and he was in custody awaiting a separate trial. His attorney had approached the prosecution about Charlie's testifying, but Charlie had made no plea agreements or deals with the prosecution. Charlie hoped, however, that the prosecution would show him some consideration after the conclusion of defendant's case.
On the day of the murder, Charlie and Deborah Sammons had been separated for about a month. Charlie was living at the Vacaville house that the couple had formerly shared. Charlie had been suffering from multiple sclerosis (MS) for about 17 years, with varying degrees of impairment over that time. When he testified at defendant's trial, Charlie was using a wheelchair, but at the time of the murder, about three and a half years earlier, he had been able to walk.
Charlie had met defendant through Charlie's daughter, who knew defendant's stepmother. On the day of the murder, defendant was helping Charlie paint the house and had been there for three days, working on the project. During the first day of painting, Charlie mentioned that he and his wife were separated because of "sexual problems," namely, she no longer wanted to have sex with him. Charlie told defendant, "I'd like to have her out of the picture." Defendant replied that "he could take care of it for a price." Charlie thought defendant "was joking around" because defendant was laughing when he said it.
Charlie had called Deborah several times that week, asking her to come to the house to pay the bills, something she often did even after their separation. She finally agreed, and Charlie told defendant she was going to come. Defendant replied that, upon her arrival, he would go to the bedroom to wait, and that, if Charlie "wanted her taken care of," he should knock on the door as a signal. Charlie testified that he did not really know what defendant meant and that he thought defendant was still joking.
Deborah arrived about 6:00 p.m. on the day of the murder, and for several hours she and Charlie talked while she paid the bills at the kitchen table. Charlie asked whether she was coming back, and she responded she did not know, which was her usual response to this question. When she finished paying the bills, Deborah went to the bedroom to put away the receipts and the checks. Charlie then heard a scream "like she [had] seen a mouse." Because the scream was not loud, Charlie waited a few minutes, then yelled to ask whether everything was all right. Hearing no response, he went to the bedroom and saw defendant beating Deborah. Defendant held her up with one hand around her neck. She was bleeding from the side of her head and begged Charlie to help her. When Charlie asked defendant what he was doing, defendant pointed a gun at Charlie and told him to go back to the kitchen.
Charlie returned to the kitchen and started to go to the phone, but defendant, who was still in the bedroom, yelled, "I told you not to try to do anything." Charlie testified that "it was like [defendant] knew everything I was doing," and he said he was too scared to leave the house to seek help. After about five minutes, Charlie returned to the bedroom to see what was happening. Defendant was bent over the bed, standing over Deborah, who was bleeding. Charlie did not know whether she was alive. He saw her bra or panties or pantyhose near the end of the bed. Defendant again told Charlie to go back to the kitchen, and again he complied. A few minutes later, defendant called him back to the bedroom. Deborah was on the bed, dressed, apparently dead. Defendant told Charlie to help him wrap the body in a tarp, which Charlie obtained from the backyard. After they had wrapped Deborah's body, defendant told Charlie to help him put it in the trunk of a red car in the garage. Charlie did so, and defendant asked him where they could dump the body. When Charlie had trouble thinking of a place, defendant threatened to shoot him. Charlie then thought of Grizzly Island, because he had previously towed cars from there.
Defendant told Charlie to lead the way. Charlie drove the red car, with Deborah's body in the trunk, and defendant followed in Deborah's car, the white Mercury. When they reached Grizzly Island Road, defendant flashed his lights for Charlie to stop. Defendant told Charlie to help him put the body in the white car. They removed the body from the tarp and threw the tarp over the side of a hill. Defendant then drove the white car, now containing Deborah's body, off the side of a bridge towards the water. Defendant rejoined Charlie, who was waiting in the red car, and told him, "Let's go back and I'll clean up the mess."
On cross-examination, Charlie acknowledged that, around the time of the murder, he was not confined to a wheelchair. Although Charlie had been receiving Social Security disability payments, he was doing construction jobs, such as installing sprinkler systems. He had also constructed a patio cover in his backyard, a task requiring hammering and sawing.
Charlie also acknowledged that he was jealous and upset about Deborah's affair with Peunggate, and that he had asked people to watch her house and her place of work to keep track of her activities. During the last period in which Charlie and Deborah lived in the house, she had refused to have sex with him, and they slept in different bedrooms. Deborah moved out of the house because she was tired of refusing his demands for sex, and her refusals had angered him.
e. Defendant's Statements to Investigators
Defendant's videotaped custodial interview, which occurred around 11:00 a.m. on October 28, 1995, was introduced through the testimony of Solano County Sheriff's Detective Patrick Grate, the interrogating officer. The videotape was played to the jurors, who were given transcripts that the parties stipulated were true and accurate, and which contained a few statements that had been inadvertently deleted from the videotape.
Detective Grate began the interview by informing defendant of his rights under Miranda v. Arizona (1966) 384 U.S. 436, and defendant agreed to talk. Grate asked defendant about his schedule during the last week, and defendant said he had taken Wednesday and Thursday off from work to help Charlie Sammons paint his patio. Grate told defendant, "We think Charlie offed his wife," and asked defendant whether he knew her. Defendant initially denied ever meeting her. Grate then told defendant that Charlie had said defendant had helped Charlie move the body. Grate said that DNA testing was being done, and he urged defendant to tell his version of what had happened that night. Defendant eventually acknowledged that Deborah had come to Charlie's house on Thursday night at about 6:00 p.m., and he said, "You're gonna find my semen samples in her.... Cause I fucked her."
Detective Grate told defendant that Charlie had said that defendant had committed the murder all on his own, for reasons unknown to Charlie. In response, defendant told this story: Defendant saw Deborah arrive and was immediately attracted to her. He overheard Deborah and Charlie in the kitchen discussing their separation. Deborah told Charlie she did not want the house, but she also did not want other women living there because they would take things that belonged to her. Charlie then went to the garage, which defendant took as his "opportunity to check her out." After some conversation lasting "five minutes at the most," inexplicably ("I don't know how it happened or why it happened") and quickly ("next thing I know"), defendant and Deborah began to have sex. Charlie did not interrupt them, and, after they had finished engaging in sex (which took about 10 or 15 minutes), defendant went back outside to continue painting the house.
About 15 minutes later, Charlie yelled for defendant to come inside. Charlie had blood on his hands and shirt, and defendant "knew" what had happened. Defendant went to the bedroom and saw Deborah's dead body on the bed. When asked to describe the condition of the body, defendant said, "I didn't want to fuck her" and "there was blood everywhere." Based on his prior conversations with Charlie, defendant assumed Charlie had killed her because they were separating and "she was gonna take everything."
Charlie told defendant that if he did not help him move the body, Charlie would call defendant's father and tell him that defendant had just killed Deborah. Defendant and Charlie then moved the body onto a tarp. Defendant got Deborah's blood on his shoes when he stepped on the tarp. Charlie tossed something in the fireplace, which might have been rags or a blanket or a sheet. Defendant eventually admitted that he helped Charlie to burn Deborah's underwear and to clean the bloody sheets.
They put the body in the trunk of the red car, which Charlie drove. Defendant followed in the white car. At some point, they stopped; Charlie switched the body into the white car; and defendant tried to drive the car into the slough, but it got stuck on a big dirt hump. Charlie drove defendant home. At some point, defendant washed his bloody clothes at Charlie's house, which was how the blood got on the washing machine.
At this point in the interview, Detective Grate left defendant alone in the room with the videocamera still recording. Defendant engaged in an obscenity-filled soliloquy in which he cursed Charlie for getting him involved and for pinning the crime on him. He also wondered aloud why Charlie had killed Deborah. Detective Grate returned to the interview room and announced that the district attorney was going to charge defendant with "rape/murder." Grate explained that the rape charge was based on the improbability of defendant's story that Deborah had engaged in consensual sex five minutes after meeting him for the first time. Grate urged defendant to tell him anything more that might clarify what had happened that night.
Defendant then said that Charlie had asked him to kill Deborah. Defendant maintained that he never said he would kill her but acknowledged that he believed Charlie assumed he would. After Deborah arrived, Charlie left the house to go to the store, saying, on his way out the door, that defendant "knew what had to be done." Defendant claimed that he did not realize the significance of Charlie's comment, despite his earlier conversation with Charlie about killing Deborah. After Charlie left, defendant talked to Deborah for about five minutes. The "next thing [he] knew," he was kissing her, and "she didn't struggle." They ended up in the bedroom, where defendant performed oral sex on her. They engaged in vaginal intercourse and then in anal intercourse, when she said she did not mind it. Defendant adhered to the rest of his earlier story that Charlie killed Deborah all on his own and that defendant played no role beyond helping to dispose of the body and clean up the evidence.
f. Testimony of Jailhouse Informant
Martin L'Esperance testified about statements defendant had made to him about the murder while they were both prisoners in the Solano County jail. L'Esperance had many theft-related convictions and was then serving a sentence for either petty theft or robbery. Defendant told L'Esperance he had "stabbed a lady to death" in "the back room" of her house in Vacaville, had "fucked the bitch in the ass," and had made her husband help him get rid of the body. Defendant also said that murder produced a better "high" than shooting methamphetamine and that "sex after death" was "better than regular sex." Defendant did not say whether his sex acts with the victim occurred before or after her death.
Almost a year after hearing defendant's statements, L'Esperance decided to go to the authorities with the information because Charlie Sammons was still in custody and L'Esperance thought Charlie was being imprisoned for a crime he had not committed. At the time, L'Esperance had a case pending, but he had already entered into a plea agreement for it. He said he neither asked for nor received any consideration for his pending case when he reported defendant's statements.
Through the testimony of Charlie Sammons's relatives and neighbors, the defense sought to establish that he had been physically capable of killing his wife and that he was motivated to do so because of his anger over their separation.
Several witnesses testified that although Charlie had MS, he was a healthy and active person around the time of the murder. Charlotte and David Hedrick had been neighbors of Charlie and Deborah Sammons for 12 years. They were upset that Charlie was defrauding the government by drawing Social Security disability payments for his MS while doing construction jobs. Intending to reveal this fraud, David Hedrick had taken photographs of Charlie cutting wood with a power saw and nailing boards while standing on a ladder. Deborah's sister, Lynette Holsey, testified that she saw Charlie digging trenches two feet deep and 20 feet long to install sprinkler systems.
Several witnesses testified about Charlie Sammons's jealousy and anger toward Deborah. Charlotte Hedrick testified that Charlie was jealous and suspicious of his wife. Lynette Holsey and Sheila Shelley, a family friend, testified that Charlie had people checking to see whether Deborah was really at work. Holsey said Charlie told her that, if he could not have Deborah, no one could. Family friends Cletus June Wilkerson and her husband, Howard Wilkerson, each testified they heard Charlie arguing with Deborah, and he was so angry he twice said, "I'm gonna kill her."
To counter Dr. Petersen's testimony that Deborah's facial bruises matched the tire iron found in defendant's dwelling, pathologist Dr. Paul Hermann testified that, based on Deborah's autopsy reports and photographs, her blunt force injuries could have been inflicted by blows with the barrel of a handgun that belonged to Charlie Sammons and that had been found in a cabinet under a bathroom sink in the Sammons's house. Dr. Hermann acknowledged that since the handle of the tire iron was about the same size as the slide on the gun, he could not rule out the tire iron as the source of the injuries. But he thought it more likely that the gun had caused the injuries because he would have expected to see more damage to the bones of the face if the tire iron had been used. Deborah's nose was broken, but the bones of the nose are more fragile than the other bones of the face. As to the prosecution's medical testimony that there were microabrasions to Deborah's vagina, Dr. Hermann stated that these could have been caused by the rubbing of underwear or sanitary pads.
Charles Morton, a forensic scientist and criminologist, examined Charlie Sammons's handgun for signs of blood. Inside the barrel was a small reddish stain about two millimeters long. A test by Morton indicated that the stain could be blood but did not exclude mold or bacteria. Later DNA testing failed to detect any quantity of human DNA.
DNA analyst Lisa Calandro determined that the DNA of the blood found under Deborah's fingernails matched Deborah's DNA but not defendant's DNA or Charlie's DNA.
Kathy Allison, one of Charlie Sammons's neighbors, testified that on the evening of the murder, while driving by his house, she saw Charlie out front talking to an elderly man while Deborah Sammons's white car was in the driveway. This defense was presented to corroborate defendant's statement during the custodial interview that Charlie had left the house at one point, which, according to defendant, had given defendant and Deborah an opportunity to engage in consensual sex.
B. Trial on Prior-Murder Special-Circumstance Allegation
Defendant waived his right to a jury trial on the prior-murder special-circumstance allegation, which had been bifurcated from the guilt phase. Based on the prosecution's documentary evidence, the trial court found that on June 17, 1983, defendant had been convicted in Arizona of second degree murder, and that the prior-murder special-circumstance allegation was therefore true.
a. Defendant's Prior Murder ...