Riverside County Super. Ct. No. RIF72974. Judge: Patrick F. Magers.
The opinion of the court was delivered by: Moreno, J.
On September 4, 1998, a jury convicted Timothy Russell of the murders of Riverside County Sheriff's Deputies Michael Haugen and James Lehmann (Pen. Code,*fn1 § 187). The jury found true a sentencing enhancement allegation that defendant had used a rifle during the commission of the murders (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)); and found true a special circumstance allegation that defendant had intentionally killed Deputies Haugen and Lehmann during the performance of their duties as peace officers (§ 190.2, subd. (a)(7)), and a multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)). The first penalty phase resulted in a mistrial. After a penalty retrial, the jury returned a verdict of death. The trial court denied defendant's motions for a new trial and for modification of the sentence, and sentenced defendant to death on both counts. The court also imposed four-year determinate sentences on both counts for defendant's personal use of a firearm, to run concurrent with the imposition of the death sentences. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
Defendant and his wife, Elaine Russell, had a tumultuous and violent relationship. Early in the couple's relationship, defendant had a particularly violent encounter with his wife in which he threw furniture, ripped the phone cord from the wall, choked his wife, and held a gun to her head. During this incident, defendant told his wife that if she called the police, he would kill both her and the police.
In the early morning hours of Friday, January 3, 1997, following the years-long deterioration of the marriage, Elaine confronted defendant with her suspicion that he was using drugs. Defendant and Elaine had both previously used methamphetamine. Elaine asked defendant to leave the house the couple shared with their two children; defendant acquiesced. Defendant spent the rest of that night in the sign shop where he worked and sought the advice of his old friend, Jeffrey Alleva, later that day. Defendant and Alleva had not been in contact recently, although they had formerly been close friends.
Alleva testified that defendant appeared sad and concerned and indicated to Alleva that he needed to make changes and get his life in order. Defendant returned the next day and they discussed what defendant needed to do to get his life "back on track." Defendant left Alleva's home the evening of January 4, 1997, between 8:00 and 10:00 p.m. A bartender at the Red Barn bar in Palm Desert recalled defendant's arriving around 10:30 or 11:00 p.m. that same night. Defendant was quiet, drank three or four beers, and left the bar a few hours later. At 2:30 a.m. on January 5, 1997, defendant returned to the home he shared with Elaine, waking his sister-in-law, Beverly Brown, who was staying at the house. He asked Brown if he could talk with her; she agreed. Brown noted that defendant was "a little" intoxicated and appeared angry or disturbed, but defendant's affect did not cause Brown concern.
During his 10-minute conversation with Brown, defendant drank from a large bottle of beer. Brown later testified that defendant became more agitated, raised his voice, made large gestures, and made statements about his wife that Brown viewed as inappropriate. Defendant's conversation with Brown eventually woke Elaine and the couple's two children. Elaine emerged from her bedroom and asked defendant to leave, which caused defendant to become more agitated. Elaine left the room briefly; upon her return, defendant kicked her and threw her to the floor. Elaine begged for defendant to leave the house. Defendant finally agreed to leave. He tore the telephone wire out of the wall on his way out, yelling at Elaine and Brown "not to f--k with his job, his life, and not to call the cops."
After defendant left, Elaine quickly went to the house of her neighbors, John and Twilla Gideon, to call the police. Shortly thereafter, defendant returned to his house with an unloaded M-1 rifle, asking Brown where the bullets to the gun were located. Brown initially told defendant that she did not know, but after defendant threatened to kill Brown, she relented and told defendant where to find the bullets. Defendant had a history of recreational gun use and was proficient with the guns he owned, which included a .22-caliber Uzi firearm and the M-1 rifle. Defendant used the guns in target practice, and was described as a "very good shot."
Defendant threatened to hold Brown hostage because he knew Elaine was calling the police. He said that he would kill Brown if necessary. Defendant walked outside and fired his gun four or five times. Brown testified that defendant came back inside, telling her to get out because the police were on their way and he was "going to kill [the police]." Brown testified that defendant told her to take the kids and run. Brown took the children to the Gideons' house.
Brown noticed a police car arriving as she ran across to the Gideons' home. She took the children to the safety of the master bedroom at the rear of the Gideons' home, and shortly she thereafter heard around six shots fired. After the shooting ceased, she and the Gideons crept to the front of the house to see what had happened. They looked through the kitchen window and saw lying in the street the bodies of Riverside County Sheriff's Deputies Michael Haugen and James Lehmann, who had been dispatched to respond to Elaine's call.
Deputy Lehmann had been shot in the head. Deputy Haugen had been shot in the chest and toe. Both men were dead by the time the next responding officer, Deputy Mark Smith, arrived at the scene. Both still had their weapons holstered.
Following the shooting, defendant ran into the desert; in the morning, between 7:00 and 7:30 a.m., he emerged from the desert and was arrested without incident. Defendant admitted firing shots in the air in front of the deputies, but said that he only shot to "scare" them.
Defendant made a number of statements to police concerning the shooting. Defendant first spoke with Senior Detective Eric Spidle the morning of January 5, 1997. Defendant offered to show Detective Spidle where he had dropped his gun, and the two drove into the desert where defendant showed Detective Spidle where he had placed the gun and ammunition. The weapon and other evidence were recovered, and defendant was taken to the Riverside County Sheriff's station, where his clothing was taken, his blood analyzed, and his body tested for gunshot residue. When defendant was taken into custody, he had no methamphetamine, cocaine, opiates, alcohol or lithium in his blood. He had an injury and blood on the right side of his face. An expert presented testimony that the gunshot residue found on defendant's hand and face at that time had a "very similar chemical composition" to the residue on the expended cartridges found at the scene of the crime. The gunshot residue found on defendant's face indicated the gun had been held close to his face when it was being fired.
Defendant initially declined to be interviewed, but later changed his mind and gave a videotaped interview after waiving his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) Defendant spoke at length about his deteriorating relationship with his wife, who had admitted to cheating on defendant and had left the couple's home with their children. About six months prior to the shootings, Elaine called defendant and asked if she and the children could return to the couple's home; defendant agreed. Prior to Elaine's return, defendant had been attending Alcoholics Anonymous meetings and felt like he was "able to handle life"; following Elaine's return home, defendant began drinking again.
Defendant explained that he was intoxicated on the night of the shooting, having consumed about a 12-pack of beer. After fighting with his wife, defendant had left, then returned to his house with his unloaded gun and coerced Brown into giving him the ammunition she and Elaine had hidden. Defendant looked out the window and saw that the police were coming; he thought he was a "dead man" and "just felt it was all over." Defendant turned the lights off and left the house, hoping he could "sneak past" the officers. He was surprised that he could see the silhouettes of the officers, and was concerned that they could also see him. Defendant planned to fire shots in front of the officers to "scare 'em off" so that they would "run back the other way." Defendant fired several shots from a crouched position without sighting through the rifle scope, then ran into the desert. He did not know he had killed the officers until he was told by the interrogating officer.
Officers investigating the scene found defendant's gun in the location he had pointed out, with one live round in it and three magazines lying underneath it. While examining the scene, investigators found two groupings of 30-caliber shell casings around the same location, indicating that four rounds had been discharged at one target and eight rounds had been fired at a second target. Five more shell casings were found in the front yard of defendant's home.
The prosecution presented testimony from a forensic pathologist, who stated that the entrance trajectories of Deputy Lehmann's and Deputy Haugen's wounds were inconsistent with a hypothesis that the injuries resulted from ricocheted bullets. The trajectory of the bullet that killed Deputy Lehmann was slightly front-to-back, left-to-right, and slightly downward. Deputy Haugen's wound was consistent with the bullet's passing through his bulletproof vest before entering his chest, which only high-velocity projectiles are capable of doing.
The defense presented three witnesses during the guilt phase of the trial. Riverside County Sheriff's Sergeant David Wilson, a forensic supervisor who was at the crime scene when defendant reenacted the shootings, testified that he heard defendant state that he had been running southbound on a dirt road, had seen the deputies walk into the intersection and approach his home, and that he pointed his gun at the ground near the deputies and started shooting. Defendant said that he saw sparks, which might have been his shots ricocheting off the asphalt, and that he did not see the deputies after he fired the shots.
Charles Darnell, a retired army officer with 22 years of service, reviewed defendant's military record, and testified that defendant, who had been training to be a medic, had received only the basic level of weapons training that all soldiers receive. Defendant had the qualification of "marksman," the lowest qualification level a soldier could receive, and would have been trained using an M-16 rifle, rather than an M-1, which was used in the shooting. Darnell, who was familiar with the M-1, testified that the M-1 skews to the right when shot by a right-handed person and is not regarded as a sniper weapon, because it lacks the control and accuracy required for sniping. He also stated that the more rapidly shots are fired after the first shot, the less control a shooter has over the M-1. Kneeling or crouching would improve the accuracy of the shooter compared to shooting while standing.
Detective Eric Spidle, the prosecution's investigating officer, testified for the defense that in test-firing the M-1 for speed, he expended 12 rounds in 4.85 seconds and 2.9 seconds in two different tests. In a third test, he deliberately fired more slowly, and expended 12 rounds in 10 seconds. The test measured timing, and not accuracy.
The Riverside County Sheriff's Department tested defendant's M-1 rifle in the condition it was in when received. Twelve shots were fired from a distance of 132 feet, and the rounds hit the target slightly high and to the left.
The prosecution presented victim impact evidence from friends of the deceased officers and members of their families. Deputy Haugen's wife, Elizabeth, described the devastating effect her husband's death had on her and their two children, Katy and Stephen. The Haugens' niece, Jacqueline Mangham, provided more testimony relating to the impact of the death on Elizabeth and Stephen Haugen. Deputy Haugen's father-in-law, Geoffrey Mangham, stated that his wife grew ill after the funeral as a result of stress surrounding the death.
Deputy Lehmann's wife, Valerie, described the effect of his death on her and their children, six-year-old Ashley and 10-year-old Christopher. Deputy Lehmann's brother-in-law, James Odam, gave further testimony as to the death's impact on Christopher, who had become an angry child.
The defense presented several witnesses during the first penalty phase. Gordon Young, a pastor at defendant's church who had provided counseling to defendant and his wife, testified that defendant had made sincere efforts to reform his life and improve his marriage. Melvin Wachs, who employed defendant as a sign painter, testified that defendant had been one of his best employees. Wachs stated that defendant was generally punctual and got along with the other employees. In the period leading up to the homicides, Wachs testified that defendant seemed indecisive, and he appeared to be reaching out for help.
Detective Spidle testified to defendant's actions at the time of the arrest. Spidle stated that when he told defendant that the deputies were dead, defendant "tilted his head back, closed his eyes, became a little teary-eyed [and his] emotion changed a bit." He confirmed that he had described defendant in his report as "visibly emotional."
Defendant's mother, Lucille Williams, gave testimony as to the difficulties defendant faced while growing up. Williams testified that defendant's father was an alcoholic who died when defendant was 10 years old; Williams's subsequent husband abused defendant. Defendant behaved poorly while in school, dropped out, and joined the army at age 17. Williams testified that defendant was "totally changed" and began having mood swings after being the victim of a beating and robbery in which he suffered severe head trauma. Defendant had problems with alcohol after leaving the army. Williams testified that defendant's arrest was difficult for her, and that the arrest impacted his children. She stated that she did not believe defendant would intentionally take a life.
With respect to the circumstances of the crime, most of the evidence presented at the penalty phase retrial was the same as the evidence presented during the original guilt phase. At the retrial, however, defendant's videotaped statements made following the shooting were not played. Instead, Detective Spidle testified about defendant's statements and his demeanor following the shootings. Additional forensic evidence was presented regarding the test-firing of defendant's M-1 rifle. Forensic scientist Richard Whalley testified that the gun fired five inches high and to the left, and if the gun was not lowered between each shot, the recoil caused the gun to elevate, increasing the angle of each subsequent shot. Mr. Whalley also testified that he conducted firing tests from heights of 32 and 42 inches from the ground, and the expended shell casings fell from the weapon in a 20-inch circle and a 17-to 19-inch circle, respectively.
The prosecution again presented evidence regarding the impact of Deputies Haugen's and Lehmann's deaths on their friends and family. Deputy Haugen's wife, Elizabeth, again testified regarding her 15-year relationship with her husband, how hard he had worked to gain acceptance into, and successfully complete, the police academy, and his devotion to his career. Deputy Haugen's niece also testified for a second time, relaying the contents of a letter Deputy Haugen had sent to her shortly before his death about his experience as a police officer.
Elizabeth Haugen learned of her husband's death from her neighbor, whose husband also worked for the sheriff's department. Stephen, Deputy Haugen's 10-year-old son, was very upset following his father's death; his grades slipped, his behavior became problematic, and eventually he decided to attend a boarding school to avoid being at his house. At the time of the penalty retrial, Stephen had been seeing a psychologist, taking antidepressants, and preferred living at a boarding school to living at his former home.
Deputy Lehmann's wife, Valerie, also testified again about her over-20-year relationship with her husband and the devastating impact of his death on her and their two children. Upon learning of her husband's death, Valerie became hysterical, called her family for help, and ran to a neighbor's house seeking assistance. When she returned to her home a short while later, she found her children hysterical after they had been told that their father was dead. Christopher, Deputy Lehmann's 10-year-old son, became an angry and agitated child following his father's death, and began having seizures shortly after his father's death. Ashley, Deputy Lehmann's six-year-old daughter, also became a very emotional child following her father's death and would not mention his name.
The defense presented evidence from Edward Verde, M.D., of the Veterans Administration medical center, who had no recollection of defendant but testified regarding his medical records. Dr. Verde testified that defendant was diagnosed with drug and alcohol dependence in 1984, and was treated, off and on, for a period of five months. Defendant failed to complete an addiction treatment program during that time. He returned to the hospital for treatment in August 1984, but was not admitted. For a three-month period between November 1986 and January 1987, defendant again attempted to, but did not, complete an addiction treatment program at the hospital.
In March and April 1996, defendant returned to the Veterans Administration medical center, where he was diagnosed with amphetamine, alcohol, and marijuana dependency. Defendant complained of "feeling agitated" and having mood swings. Defendant was prescribed a low dose of lithium to control his mood swings, but failure to take the lithium would not have caused any adverse effects in light of the low dosage and brief duration of use. Defendant's chart indicated that he had had "homicidal ideations towards people who had betrayed him, but displayed no definite [plans]. He also displayed impulsivity -- a lack of planning."
Jeffrey Alleva, who originally testified for the prosecution, testified for defendant at the penalty phase retrial. Alleva's testimony, concerning defendant's demeanor in the days leading up to the shootings, did not deviate from his previous testimony.
Defendant's previous employer, David Wakefield, testified that defendant was a normal, trustworthy employee. Wakefield testified that Elaine Russell had a verbal altercation with defendant while he was at work, and defendant called shortly thereafter and quit. Defendant's employer at the time of the shooting, Melvin Wachs, testified again on defendant's behalf, providing much the same testimony as he did at the first penalty phase trial. On the Friday before the shootings, while discussing his marital problems, defendant mentioned that he felt as though his wife had been putting "speed" in his coffee.
Defendant's mother testified on defendant's behalf at the second penalty phase trial; her testimony was consistent with her earlier statements. Pastor Gordon Young again testified on defendant's behalf, largely reiterating his earlier testimony, and adding that once defendant gave Pastor Young an army rifle for safekeeping. Pastor Young also stated that he felt defendant made himself look better during counseling sessions by "fudging" the truth.
Detective Spidle offered testimony regarding defendant's statements to police following the shootings. Detective Spidle testified that defendant became "a little teary eyed" upon learning that Deputies Lehmann and Haugen were dead. Detective Spidle testified concerning the extent of defendant's cooperation with police -- that defendant showed police the location where he had dropped the rifle, and agreed to be interviewed at the scene and at the police station. Detective Spidle stated that defendant was cooperative, and appeared regretful.
1. Alleged Instructional Error on Lying in Wait as Theory of Murder
Defendant alleges that the trial court erroneously instructed the jury on the lying-in-wait theory of murder. He further alleges that the prosecutor improperly suggested that the jury could convict defendant of first degree murder based upon a lying-in-wait theory even if the jury believed defendant's account of the facts, which showed that no substantial period of watching and waiting occurred prior to the shooting. Defendant claims the prosecutor's suggestion, coupled with instructional error, violated defendant's rights to due process and a fair trial under the state and federal Constitutions. Defendant suggests his conviction is based potentially upon an erroneous theory of murder and must be reversed because it cannot be determined whether the jury relied on a legally adequate or inadequate theory to convict him of first degree murder.
During his interviews with Detective Spidle following the shootings, defendant explained that he saw the officers approaching, "saw the silhouette of them, and I thought well if I shoot in front of [them] . . . they'll run back the other way." Defendant then claims he "took off" running. When pressed later in the interview regarding the circumstances surrounding the shooting, defendant explained that his initial plan was to sneak past the officers. Defendant revised his plan when he realized he could see the officers and became concerned that they could also see him. Acknowledging that his initial plan of running past the officers would not help him evade detection, defendant explained that he crafted a new plan to run away from the officers and "put a line of fire down in front of [the ...