Court: Superior County: Los Angeles Judge: Jacqueline A. Connor Super. Ct. No. BA162295
The opinion of the court was delivered by: Corrigan, J.
A jury convicted defendant Bernard Albert Nelson of the first degree murder, robbery, and attempted carjacking of Richard Dunbar. It concluded, as a special circumstance, that the murder was committed in the course of the other two felonies. It also convicted him of robbing, inflicting great bodily injury upon, and attempting to murder Miguel Cortez. In addition, it found defendant guilty of attempting to murder Giovanni Boccanfuso, Charles Coleman, and "John Doe." It found that Boccanfuso and Coleman were peace officers engaged in the performance of their duties when attacked, and that defendant personally used a firearm during the crimes. Defendant was sentenced to death.
This appeal is automatic. We affirm the judgment.
A. Guilt Phase 1. Murder, Robbery and Attempted Carjacking of Richard Dunbar
On the night of April 5, 1995, Richard Dunbar was murdered in front of the West Palms apartment complex on Alvern Street in Los Angeles. Christie Hervey heard the gunshots and told her son to call 911. From her balcony, she saw a man lying in the street, crying for help. Another man walked swiftly toward Hervey, coming within 40 feet of her.*fn1 He carried a gun and looked over his shoulder at the victim. The area was brightly lit; Hervey's view of the gunman was unobstructed. Two years later police showed Hervey six photographs. She picked defendant's photograph as that of the gunman. She identified defendant at the preliminary hearing and again, positively, at trial.
Lacourier Davis, a security guard, also heard the shots. He saw a man sitting on the ground with his back against a car, and blood flowing from a hole in his chest. The victim was identified as Mr. Dunbar by his sister and his roommate. He died of two fatal gunshot wounds, one passing through his lung and the other puncturing his aorta.
His roommate testified that Dunbar took his car keys when he left their Inglewood Avenue apartment that evening. While his new BMW was found at the crime scene, the keys were missing. Dunbar's other personal effects, including his driver's license, were found at the scene.
Guilt was established by defendant's admissions and by ballistics evidence connecting several events.
On a single night nine months before the murder, defendant and Frank Lewis committed a series of robberies. Lewis was fourteen years old; defendant an adult. Defendant gave Lewis a gun and drove around Hollywood looking for victims. He waited in the car while Lewis accosted the targets. One intended victim sprayed Mace at Lewis, who ran away. Defendant responded by slapping his young confederate. When the pair saw Lisa La Pierre in her parked car, defendant directed Lewis to steal her phone. Wanting to prove himself, Lewis shot La Pierre, then returned the gun to defendant. A .380-caliber cartridge casing was found at the crime scene. Ms. La Pierre survived the shooting.*fn2 When Lewis testified at defendant's trial he was serving a California Youth Authority (now Division of Juvenile Justice) term for the attempted murder.
Seventeen months after the Dunbar murder, Los Angeles police responded to a report of gunshots at 9700 Glasgow Place. They encountered several members of the MoneySide Hustlers gang. One of the men fled, dropping a .380-caliber pistol. A ballistics expert testified that this discarded gun fired the cartridge casings recovered at the Dunbar and La Pierre crime scenes.
Glenn Johnson was one of the gang members at Glasgow Place. When police interviewed him after the incident, Johnson was out of custody, friendly, and cooperative. He told Detective Ronald Cade that defendant said he was "trying to carjack somebody and they wouldn't cooperate so he killed him." Defendant gave the location of the killing as the West Palms apartment complex where Dunbar was murdered. Johnson saw defendant drop a .380-caliber pistol when he ran from Glasgow Place. Sometime before the Glasgow Place incident, defendant had loaned the gun to Johnson and told him to "be careful, there was some murders on the gun."
Detective Cade told Johnson he might receive reward money, and later gave him $100. Cade did not intercede for Johnson on any cases. At trial, Johnson either denied, or said he could not recall, making the statements to Cade. Excerpts of the tape recorded interviews were admitted as prior inconsistent statements.
Dr. Scott Fraser testified as a defense expert witness on eyewitness identification. According to Dr. Fraser, studies have shown that a number of factors affect one's ability to recognize faces. The following were among the factors he addressed.
Distance. There was conflicting evidence as to how close Ms. Hervey was to the gunman. She estimated 40 feet. Dr. Fraser's later measurements at the scene suggested 100 feet. Measurements taken by Detective Cade, who testified on rebuttal, suggested 75 feet. Measurements taken by a defense investigator, who testified on surrebuttal, were consistent with those of Dr. Fraser. The distance was significant because, according to Dr. Fraser, the ability to recognize even familiar faces "drops down to essentially nil" beyond 80 feet. For strange faces, "recognition accuracy drops off dramatically" beyond 50 feet.
Kinetic distortions. According to Dr. Fraser, it is difficult to maintain focus on a moving object: "[W]e jerk and jump ahead in order to try to keep up with it. And in those transitions of keeping up with it, there's no fixation. So less information is stored." Hervey testified that defendant walked swiftly toward her while looking back at his victim.
Weapons focus. A weapon tends to distract attention. Hervey testified defendant was carrying a gun.
Time. Memory degrades over time; Hervey was first shown the photo lineup two years after the murder.
2. The Attempted Murder of Miguel Cortez
On the night of August 16, 1995, security guard Miguel Cortez was stationed at a fence enclosing two Hollywood nightclubs. He was grabbed from behind, but managed to get a look at his assailant's face. He identified defendant as the man who shot him four times, in the eye, cheek, stomach, and hand. Multiple surgeries were required to treat those injuries. Defendant took Mr. Cortez's pistol, a nine-millimeter Beretta, and his beeper, saying, "I took your shit." Mr. Cortez identified defendant's photo from a group of six men. He also identified defendant at a preliminary hearing and at trial. A ballistics expert testified that the .380-caliber bullets and cartridge casings found at the scene of the Cortez shooting were fired by the pistol that defendant dropped at Glasgow Place, to the "exclusion of all others."
In addition to being identified by Mr. Cortez, defendant made incriminating statements to Leonard Washington, a convicted bank robber. Defendant said he had shot someone to obtain a nine-millimeter Beretta and commit a bank robbery. Washington testified: "He told me in the exact words he had to gun somebody down to get it." Defendant said he believed he "killed the guy."
Washington told Detective Cade that defendant had loaned him the nine-millimeter, which Washington used in a drive-by shooting. After the shooting, Washington abandoned the car, and the pistol was found by the Inglewood police. When Washington admitted this, defendant replied, "No big deal, I smoked a security guard to get the gun."
3. Attempted Murders of Police Officers and "John Doe"
Shortly after midnight on May 7, 1997, uniformed Los Angeles Police Officers Charles Coleman and Giovanni Boccanfuso were on patrol in a marked police car. They saw a Chevrolet Monte Carlo roll through a stop sign and pick up speed. Stolen cars were common in the vicinity, and Monte Carlos, in particular, were a frequent target. The officers pursued the Monte Carlo to check the license plate and determine whether it had been reported stolen.
As the Monte Carlo and trailing patrol car approached an intersection, a Jeep pulled away from the curb and drove through the intersection with its headlights off. Officer Coleman was concerned because "this was fairly typical behavior of somebody who is about to do a drive-by shooting." However, it was the passenger in the Monte Carlo who did the shooting. He climbed out onto the open window frame, braced his arms on the roof, and aimed a pistol at the driver of the Jeep.*fn3 Then, instead of firing at the Jeep, he pointed the pistol at the patrol car and fired four to six shots at the officers.
The Monte Carlo sped away with the patrol car in pursuit. When the Monte Carlo swerved at an intersection, defendant jumped or fell out, with a pistol in his hand. He tumbled three or four times and the gun slid across the pavement. Officer Boccanfuso chased him on foot, closing to within three feet of him, when defendant turned around. He pointed another pistol at the officer, but dropped it. An expended shell casing stuck in the chamber of this pistol prevented it from being fired. Defendant scaled a 10-foot wall and eluded Boccanfuso. He was caught an hour later at the registered address of the abandoned Monte Carlo. He had fresh abrasions on his elbows and one knee.
At trial, the officers identified defendant as the gunman. According to Officer Boccanfuso, they were no more than a car's length from defendant when he shot at them, nothing obscured his face, and the intersection was well lit by street lights. Officer Coleman testified, "I got a good look at him [when] he shot at us." Moreover, as Officer Boccanfuso chased defendant on foot, he saw his face again several times, for a total of perhaps 10 seconds, as defendant looked back during the pursuit. Boccanfuso also "star[ed] right at his face" when defendant stopped within three feet and pointed the gun at him.
a. Victim impact evidence
Victim impact evidence was given by Richard Dunbar's mother, father, sister, two brothers, and sister-in-law. Their testimony was brief and relatively subdued. Together they described Dunbar as an attractive young man on the cusp of a successful acting and modeling career, a son and brother to whom they were close and whom they sorely missed. His murder changed their lives "tremendously" and "dramatically."
b. Evidence of defendant's other violent crimes
i. Attempted murder of Lisa La Pierre
Frank Lewis essentially repeated his guilt phase testimony regarding defendant's responsibility for the shooting of Ms. La Pierre. (See ante, pt. I.A.1.a.)
Ms. La Pierre testified that she was sitting in her parked car, talking on her cell phone. The next thing she knew she woke up in a hospital. A gunshot to her neck left her permanently paralyzed from the shoulders down, unable to breathe on her own, and unable to live without the assistance of others.
As he did with Frank Lewis, defendant used a juvenile, Leonard Washington, to commit a series of armed robberies, this time of banks. Each time defendant waited in the car. According to Washington, on December 17, 1996, defendant, Washington, and a third man robbed Topa Savings Bank and Great Western Bank. The total taken in the two robberies was approximately $9,000. A teller from the Topa Savings Bank testified that $2,500 to $3,000 was taken from him at gunpoint.
When he testified, Washington was incarcerated for these crimes, having been apprehended during a third bank robbery. He was bitter at defendant for abandoning him at the scene as the police closed in, and for failing to get him a lawyer.*fn4
Defendant's mother, Barbara Nelson, testified that defendant's father physically abused him. She also admitted neglecting him emotionally. Mrs. Nelson married at seventeen. When defendant was an infant, the family lived in a trailer next to her parents in Batesville, Mississippi. Her husband often slapped, choked, and kicked her. To keep defendant from crying, Mr. Nelson stuffed cotton into his mouth and taped his lips shut. He also pushed defendant's head underwater when Mrs. Nelson was bathing him. If Mrs. Nelson's family responded to her screams, Mr. Nelson would hold defendant up by his feet and threaten to drop him if they came closer. When defendant was two years old, the family moved to Mr. Nelson's home, British Honduras. There, according to Mrs. Nelson, "the abuse got ten times worse."
Next, the family moved to Roswell, New Mexico. There Mrs. Nelson was hospitalized for an appendix that ruptured when Mr. Nelson beat her. When Mr. Nelson brought defendant and his two-year-old brother James to visit her, Mrs. Nelson could see that James had been slapped so hard he had a handprint on his face. James died from a blood clot in his brain, but Mrs. Nelson did not inform the police of the abuse. After his death, Mrs. Nelson became so depressed that she was mute for months at a time. Because she was too depressed to talk to him, defendant "had to try to deal with life [himself]."
Although Mrs. Nelson left her husband and moved to Milwaukee, they eventually reunited and had another son, Brian. When Mr. Nelson stuffed cotton into Brian's mouth, a babysitter called the police. Mrs. Nelson obtained a restraining order against her husband and moved in with her sister's family. That Christmas Mr. Nelson sat outside the sister's house with a gun, threatening to kill all of them. The next month he killed himself. Mrs. Nelson had another abusive marriage that ended in divorce.
Because defendant was bullied in Los Angeles, Mrs. Nelson sent him home to Mississippi to complete high school. Mrs. Nelson, a hospital secretary, encouraged defendant to become a phlebotomist, which he did. Defendant had a daughter, Ania, for whom he cared while her mother worked.
Mrs. Nelson loved defendant and regretted that her chronic depression had prevented her from ...