San Bernardino County Super. Ct. No.FSB03736
The opinion of the court was delivered by: Corrigan, J.
Demetrius Charles Howard was convicted of first degree murder and attempted second degree robbery.*fn1 The jury found as a special circumstance that the murder was committed while defendant was engaged in the attempted robbery.*fn2 It returned a verdict of death. We affirm the judgment.
The facts are summarized here for background purposes. Further factual and procedural details are provided in the discussion of defendant's claims on appeal.
Cedric Torrence had known defendant for about four years at the time of trial. They lived in the same area of San Bernardino, and Torrence had fathered a child with defendant's sister. Torrence testified that on December 6, 1992, he picked up defendant to play football. Before the game, defendant hid a black .357 handgun under a mattress at Torrence's house. After the game defendant retrieved the gun and put it in his belt. He wore black pants and a large white pullover sweater.
It was then evening. Torrence and defendant went across the street to a friend's house, where a number of people were drinking, talking, and smoking marijuana in the garage. Among those present was Mitchell Funches, who was wearing black clothing. Torrence heard defendant talking with Funches about doing a "jacking," meaning a robbery. Torrence thought they were asking him to go along, and said he didn't want anything to do with it. Defendant told Torrence they weren't talking to him. When Torrence warned that they might be caught, defendant said he wouldn't be, and if he were he would go out shooting. Funches also had a gun, a chrome .380 automatic.
Torrence left the gathering and went to dinner. As he waited in a restaurant for his meal, a number of police cars drove by with sirens on. Torrence returned home and received a phone call from defendant, who said he was stranded in some apartments near an El Pollo Loco franchise, and needed a ride. Defendant sounded a little nervous, and said he had his strap on, meaning he was carrying the gun. Torrence drove to the location, where he saw many police cars and yellow emergency tape. He left, not wanting to get involved. Two days later, defendant called again. He asked Torrence, if the police were to speak with him, to say he had dropped defendant off at the El Pollo Loco around 9:00 p.m.
The murder victim was Sherry Collins, a 29-year-old mother who lived in the Acacia Park Apartments in San Bernardino. Collins had driven home with her five-year-old daughter, Randy, and parked in the garage. Randy was eight years old when she testified at trial. She remembered that it was dark in the garage, but the light in the car had gone on when her mother opened the door. Her mother was "fighting" with a man on the driver's side of the car, as Randy crouched in front of the passenger seat. Something broke the window on the passenger side, and her mother died. Randy climbed over her mother's body and ran to an apartment, where she told a lady what had happened.
Sergeant Dale Blackwell of the San Bernardino Police Department spoke with Randy at her grandmother's house four days after the murder. She was able to show that she knew the difference between a lie and the truth, and understood she should tell the truth. On the witness stand, Blackwell read portions of his report of the interview, which had been taped. Randy had told him that two "bad men" came up to the car as her mother opened the door. One with a white shirt walked up on the driver's side, and one with a black coat walked up on the passenger side. Her mother was kicking at the man on the driver's side and yelling "get out." The man on the passenger side broke the window with something he had in his hand. Randy did not see a gun at that point, but she heard it. Afterward, she noticed the man on her mother's side of the car holding a gun by his stomach.
Around 6:45 on the evening of the murder, Virginia Garduno had just arrived at her Acacia Park apartment when she heard a loud bang. She thought someone had crashed into the garage. A little girl soon knocked on her door, crying and saying, "my mommy got shot and she's bleeding from her nose." Garduno, frightened, turned off the lights and let the girl in. She was covered with flakes of glass, and told Garduno that her mother was dead and something about two Black men. Garduno called 911, and eventually brought Randy out to the police as they were investigating the crime scene.
Although she was very upset and sobbing, Randy was able to tell a policeman that two men had shot her mother, one in dark clothing and the other in a white shirt and dark pants. Randy could not tell the officer the race of the men. Garduno, however, reported that Randy had said the men were Black. A description of the suspects was broadcast.
The police found Sherry Collins lying across the front seats of her car, with her head hanging from the passenger seat. Her left foot was wedged between the driver's seat and the doorpost, and her right foot extended from the open driver's door. She had two gunshot wounds on the left side of her head. The passenger window was shattered. There was an expended casing on the garage floor.
Steven Larsen, whose house was near the scene, was working in his garage that evening and listening to a police scanner. He heard a dispatch about a shooting at the apartments, with a description of two Black men heading through an open area behind his house. He looked over the wall at the back of his yard and saw two men meeting the description. They were walking toward him, eight to 10 feet away. One wore all dark clothing, and the other was wearing "something white" with dark pants. Larsen yelled "stop," and the men looked at him. He ducked behind the wall, and heard them running. By the time he looked again, they were gone. Larsen ran to the front of his house. The men were in the street about 50 feet away. Larsen yelled at them to stop again, and they "took off running."
The University Village apartment complex was next to Larsen's neighborhood. On the evening of the murder, Theresa Brown heard helicopters above the complex and looked out her apartment window. She saw a Black man in dark clothing knocking on the door of another apartment. A few minutes later, the helicopters were still there and Brown looked out again. This time, the man was backed up against a wall as if trying to stay out of view. Brown called the police and described the man. At the dispatcher's direction she looked out another window, and saw a second individual walking into the complex wearing a white pullover and dark pants. Brown described this person to the dispatcher as well. When the dispatcher told her the suspects were armed, Brown hid in her bathroom. Shortly thereafter, she heard gunfire, screams, and voices speaking through megaphones.
Brown's downstairs neighbors, Michael and Laurie Manzella, heard helicopters and a knock on their door. When they opened the door, they saw a Black man wearing a white pullover and dark pants talking to the tenant across the hall. They closed the door, and a little later heard gunfire. Mrs. Manzella took note of the pullover, because she had been looking for one like it. She was able to identify defendant in a photographic lineup as the man in the hallway.
Another University Village resident, James Chism, was leaving his apartment the same evening when he encountered defendant sitting on the stairs. Defendant asked for a ride home. When Chism declined, defendant asked to use the telephone to call for a ride. Defendant explained that he had been dropped off at the apartments to visit a girl, who wasn't home. Chism let defendant use his phone, and took the phone to give directions to the person on the other end of the line. He used the nearby El Pollo Loco as a reference point. Defendant did not seem to want to leave after the phone call, and appeared nervous. Chism got his jacket and told defendant he was leaving. Defendant asked if he could "hang out" outside the apartment. Chism said he could do as he liked, at which point Chism's roommates approached and said a police officer had been shot at the El Pollo Loco. Defendant walked out of the apartment complex with Chism and his roommates. Although Chism had given him directions to the El Pollo Loco, defendant went in the opposite direction.
The wounded officer was Edward Block, a California State University policeman. The shooter was defendant's companion, Funches. Block was on duty that night, and heard a broadcast description of the suspects in the Collins shooting. As he drove through a minimall, Block saw Funches and stopped him. During the encounter, Funches fired three shots, one of which struck Block in the abdomen below his bulletproof vest. Funches was soon apprehended by other officers in the area. He had discarded his gun, but it was recovered.
Another California State University policeman, Manuel Castro, was also patrolling in the area. He saw defendant using a public telephone at a 7-Eleven. Defendant matched the description of one of the suspects, and Castro arrested him. Defendant did not have a weapon. He gave Castro a false name. Six days later, a child playing outside the University Village apartments found a loaded .357 revolver, black with a brown handle, hidden in ivy. The gun was turned over to the police. No fingerprints were found on it. At trial, Torrence identified the gun as the one defendant had been carrying.
Funches's fingerprint was found on the passenger side door of Collins's car. The bullet that killed Collins was fired from his gun. The bullet had fragmented as it passed through the car window glass, with the core entering Collins's temple and the jacket lodging in her scalp. Fibers found on the soles of Collins's shoes matched fibers from defendant's clothing. They were deposited on the shoes in a manner indicating that Collins's feet never touched another surface after coming into contact with the clothing.
Defendant testified that in December 1992, he was living with his cousins Patricia and Segonia Washington. He knew Cedric Torrence, but they were not close. He and Torrence had first met after defendant was released from prison in June 1992.*fn3 On December 6, 1992, defendant's girlfriend Roxanne called and said she was coming to see him. Roxanne was delayed, however, and defendant went with Torrence to the football game. He did not have a gun with him, nor had he ever seen the .357 that was found outside the University Village apartments.
Defendant did not play football himself, because he was planning to go out with Roxanne and did not want to get dirty. After the game, he went to Torrence's house, then to a neighbor's where he stood on the sidewalk with some others. Funches was not there; defendant said he had never met Funches. Defendant did not go into the garage. The men talked about women and cars, and someone got some beer. After an hour or so, defendant asked Torrence if he could use his telephone. The phone was unavailable, so defendant walked alone to a nearby market. He called home, and learned that Roxanne had arrived. She came to the market and picked him up. By this time it was dark. Their plan was to go to Compton, but defendant said he needed to visit his aunt and uncle first. Defendant had never been to their apartment before, but he had the address.
As they were driving, defendant and Roxanne argued, first about her having to wait for him at his house and then about another woman who was pregnant. The argument escalated as they neared his aunt's apartment. Roxanne ordered him out of the car and drove off, leaving him near a 7-Eleven. Defendant walked into an apartment complex, looking for his aunt's unit. He sat on some steps, feeling upset. Chism came out of an apartment, and defendant asked him for a ride. When Chism said that was not possible, defendant asked to use the phone. He called Torrence, who agreed to come get him at the El Pollo Loco across the street.
Defendant left the apartment complex with Chism and two of his friends. When he saw police around the El Pollo Loco, he walked the other way. Because he was in violation of his parole, defendant wanted no contact with the police. He walked back to the 7-Eleven, where he called his cousin for a ride. She could not give him one, so he called his sister. As he was talking to her, police officers arrested him.
The girlfriend, Roxanne Winn, testified that she came to get defendant in San Bernardino on the day in question, arriving around 3:00 in the afternoon. After about an hour, defendant called and she picked him up at a market. They were going to Compton; defendant said nothing about his aunt and uncle. While Roxanne was waiting at the house for defendant, Segonia had told her that she was sleeping with defendant, and was pregnant. Roxanne and defendant had a heated argument about this, and Roxanne told him to get out of her car. She left him near a 7-Eleven.
George Rivera was one of the football players, and it was his house where the group gathered after the game. He did not see defendant with a gun, or hear a conversation about "jacking." Funches was at Rivera's house, drinking with Rivera, Torrence, and defendant. Eventually, Torrence left to go to work. Rivera saw defendant and Funches walk away down the street together.
The parties stipulated that defendant's uncle, Willy Kelly, would testify that on the day defendant was arrested, Kelly was at a family function. He had offered defendant some cash to help him get started after his release from prison. Defendant was to come over around 7:00 p.m., but Kelly was delayed. When he returned to his apartment, he saw police in the area. Kelly would admit to a robbery conviction, a parole violation, a conviction of assault with a deadly weapon, and two petty thefts for which he was currently serving a prison term.
Patricia Washington testified that defendant, the son of her cousin, was living with her in December of 1992. Her daughter Segonia was living there as well. Patricia never saw defendant with a gun. She remembered Roxanne coming to the house, looking for defendant. Segonia testified that she remembered defendant leaving to play football, and telling her that Roxanne would be coming. Roxanne arrived while defendant was gone. Defendant called and spoke to Roxanne, who left to pick him up. Later that night defendant called and said he was stranded after Roxanne kicked him out of the car. Segonia did not remember telling Roxanne that defendant was sleeping with anyone else.
The prosecution introduced evidence of defendant's two prior felony convictions for assault with a deadly weapon.
James Pearsall testified that in September 1989, he was attending a bachelor party in Fontana. He and a group of friends were standing around a parked vehicle, drinking beer. A young African-American rode up on a bicycle and began yelling and cursing at the group. Pearsall tried speaking to the man. As he did so, another African-American walked up. When Pearsall turned to look at this second individual, he was knocked unconscious. He was hospitalized and suffered permanent neurological damage. Defendant was convicted of assaulting Pearsall with brass knuckles.
Laura Carroll testified that in December 1983, she was working at a recreation center in San Diego. Defendant approached her and reported that a girl had been hurt on the playground. As Carroll and her boss were on their way to investigate, the boss's phone rang and he went back to answer it. Carroll went on with defendant. When they couldn't find an injured girl on the playground, Carroll went into a bathroom to look for her. Before she could turn on the light, defendant grabbed her from behind and forced her to the back of the bathroom. Carroll struggled, punching him in the face at one point. As defendant turned to leave, Carroll felt something hot on her neck. When he held up a bloody knife in the doorway, she realized she had been stabbed. Carroll screamed, and defendant said, "shut up, bitch." She suffered a deep neck wound, a painful recovery, and psychological trauma that continued to the time of her testimony.
The parties stipulated that Randy Collins, the daughter of the murder victim, would testify that she thought of her mother sometimes, missed her, and was sad about what happened to her.
The defense presented no evidence at the penalty phase. Counsel argued that defendant did not deserve the death penalty, because he was not the person who shot Sherry Collins.
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