Monterey County Super. Ct. No. SS980646
The opinion of the court was delivered by: Werdegar, J.
Ronald Wayne Moore was convicted of and sentenced to death for the 1998 murder of 11-year-old Nicole Carnahan, which occurred during the commission of burglary and robbery. (Pen. Code, §§ 187, 190.2, subd. (a)(17).) On automatic appeal, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Guilt Phase Evidence Prosecution Evidence
Rebecca Carnahan lived with her daughter, Nicole, on Middlefield Road in Salinas. Defendant was their next-door neighbor. Carnahan was not friendly with defendant, had never invited him into her home, and had told Nicole to ignore him.
Carnahan worked during the day; Nicole, 11 years old when she was killed, took the bus to school and back. Nicole typically arrived home shortly after 3:00 p.m., let herself in with a front door key and, after changing her clothes, fed the animals she was raising in the backyard, had a snack, and started her homework. She always relocked the front door and had been told not to let anyone in, but she did not always relock the back door after tending the animals.
On the day of her murder, March 4, 1998, Nicole left for school around 7:00 a.m., and Carnahan went to work an hour later. Before leaving, Carnahan went into the backyard to feed the animals; at that time, she saw no holes in the wood fence between her property and defendant's. At 2:15 p.m., a neighbor noticed two or three boards were missing from the fence. When Carnahan returned from work a little after 5:00 p.m., Nicole did not come out to the car to greet her as usual and did not answer her knock at the front door, which (unusually) was dead bolted.
Carnahan went around to the back door, which she found unlocked and ajar. The house had been ransacked, "turned upside down," with things thrown about and the telephone cords pulled from the walls. She did not see Nicole. After less than a minute, Carnahan returned to the back door. She saw defendant running away from her toward the back pasture, a bundle of some sort tucked under his arm. She yelled after him, but he ran to a hole in the fence and went through it. Through the fence she asked him what was going on and where Nicole was, to which he eventually responded, "I didn't do it."
After calling the police from a neighbor's house, Carnahan returned to her backyard, where she again saw defendant through the fence. Asked if he had seen Nicole, defendant replied that he had seen "two Mexicans" in Carnahan's yard and had tried to chase them away. While Carnahan waited by the road with neighbors for the police to arrive, defendant approached (carrying a can of Budweiser Light beer, the same brand Carnahan had had in her refrigerator) and told Carnahan that he had gone to her house to ask Nicole for a glass of water because he did not have any.
A responding Monterey County deputy sheriff, Larry Robinson, followed a trail in the unmown grass in Carnahan's yard, though the hole in the fence, to a trailer in which he found defendant. Defendant said he had seen Nicole earlier at her back door; she had given him a drink of water and caught him when he started to fall. Robinson noticed a can of beer in defendant's trailer; it was cold to the touch even though there was no electricity in the trailer. In defendant's yard Robinson saw a guitar case, which drew his attention because, unlike the many other objects lying around the yard, it was clean and unweathered.
Some minutes later, Deputy Robinson asked to interview defendant in his patrol car, as defendant's trailer was cold and dark. Defendant agreed to be interviewed. He told Robinson "a couple of guys" had "tried to rob" him; he had heard from one neighbor of someone "crawling around" in her backyard and from another neighbor, Dennis Sullivan, that Sullivan had chased away two "Mexican guys" who had tried to break into his house.*fn1 Defendant then saw the hole in Carnahan's fence and went to warn her about the prowlers and to tell her about the missing boards. Nicole gave him a drink of water and caught his arm when he became dizzy. Later he saw a Mexican man in Carnahan's yard; the man ran off when defendant called to him, and defendant, who could not run because of "Lou Gehrig's disease," was unable to catch him. When Carnahan arrived in her backyard, defendant urged her to call the sheriff's office. After the interview, as defendant was still sitting in Robinson's patrol car, Carnahan began screaming. Defendant first seemed to ignore her, then asked, "Did they find her?"
Defendant agreed to go to the sheriff's station and give a statement. At the station, he repeated much of what he had told Deputy Robinson. He added that he had talked to Nicole at Carnahan's back door and had not entered the house. He gave a more detailed description of the "Mexican" man he claimed to have seen in Carnahan's backyard, specifying his hairstyle and clothing. He also said the stranger had run toward the back of Carnahan's property, not toward the hole in the fence along defendant's property line. Defendant also told the deputy he carried a "butcher's knife" in his waistband as well as a piece of pipe he called his "club," but he did not have the knife when he went to Carnahan's. When the deputy told defendant Nicole had been killed and asked if he was responsible, defendant said he could not have killed her because his degenerative muscular illness made him too weak.*fn2
Nicole's body was found stuffed between her bed and the wall of her bedroom. She had suffered numerous wounds, the gravest of which were a four-inch slash wound to her neck that severed her jugular vein and carotid artery (a broken knife blade remained lodged in this wound), and a blunt force injury to her head (inflicted by one extraordinarily heavy blow or by several strong blows) that severely fractured her skull, resulting in laceration to her brain. Other injuries included a set of lacerations on her face and head that were deep enough to reach the underlying bone, a set of bruises on her face that could have been inflicted by the piece of pipe defendant said he had been carrying earlier in the day of Nicole's death, and a set of apparently defensive wounds on Nicole's hands and wrists.
Nicole's blood was found spattered throughout her bedroom -- on the wall, ceiling, windowsill, furniture, bedclothes, carpet and other objects -- although the greatest concentration of blood was near her body. There was a single bloodstain on the living room floor. Blood was also found in several areas and on objects in defendant's trailer, including still damp blood on a broken cane, smears on a light switch and in the bathroom, and on a poncho and a pair of gloves. DNA analysis identified the blood as virtually certain to be Nicole's.
Carnahan identified numerous items taken from her house and found in defendant's house or trailer, including several pieces of jewelry, an antique pocketknife, food and beer, a lamp, a telephone and answering machine, $2 bills she and Nicole had been saving, collectible coins, bottles of bubble bath, a guitar, and stereo equipment.
On the afternoon of Nicole's murder, a woman visiting her daughter in defendant and Carnahan's neighborhood saw a male "Hispanic teenager" walking in the street.
Analysis of defendant's blood and urine taken after his arrest indicated he had consumed marijuana, cocaine, heroin, methadone and valium within hours or days of the sample being taken. David True, an HIV-prevention educator with the Monterey County AIDS Project, saw defendant about 5:00 p.m. on March 3, 1998, the day before Nicole's murder. Defendant was agitated, under the apparent influence of an opiate, and "a little bit out of control."*fn3
Penalty Phase Evidence Prosecution Evidence
The People presented evidence of three prior incidents involving violence. In 1983, defendant and others burglarized a wholesale nursery business. The evidence suggested defendant shot twice at the owner before being shot by him. In 1997, defendant accosted a man he knew outside a methadone clinic, threatening him with a cane and a switchblade. Finally, in March of 1998, two days before the capital crimes, one of defendant's neighbors heard him arguing loudly with two women, then saw him pull and drag one of the women back to his trailer when she started to leave.
Both Nicole's parents testified regarding Nicole's life, activities and hopes, and the impact her death had had on them. A criminalist who had testified at the guilt phase gave further testimony on the bloodstain and spatter evidence in Nicole's bedroom. He concluded blows had been struck to Nicole's head both near her closet and, possibly, in another corner of the room.
Louise Moore DeMateo, defendant's sister, described their generally happy childhood, ending with defendant's heavy drug use, which began when he was 19 or 20 years old. She remained close to defendant and tried to help him, taking him to methadone treatments and visiting him and his family during the time he lived with his wife and children. After his marriage ended and his wife took custody of the children, defendant lived in a trailer on his mother's Middlefield Road property. He continued to use heroin and marijuana and developed a physical disability that involved difficulty walking and maintaining his balance. Defendant designated DeMateo his payee for disability benefits, but in the autumn of 1997 he revoked that designation at the instigation of a woman named Ladell, who was living with him. On Christmas Eve, 1997, DeMateo and defendant's mother, who was not living on the property at the time, asked DeMateo to bring defendant some food; she tried, but Ladell and others would not let her into the house until she obtained the assistance of the sheriff's office.
Two of defendant's daughters testified to his care for them as small children and their love for him.
Two experts, neurologist Arthur Kowell and neuropsychologist Dale Watson, examined, tested and interviewed defendant. Kowell found evidence of brain dysfunction in defendant's frontal and temporal lobes, which could cause problems in emotional function, impulse control, memory, and the ability to exercise the will to change. Watson's testing showed mildly impaired brain function with a significant deficit in the ability to maintain attention. Though these deficits did not cause defendant to kill Nicole, they could have influenced his judgment and behavior, and his ability to organize and to make decisions.
In the guilt phase, the jury returned verdicts of guilty on the charges of first degree murder, burglary and robbery (Pen. Code, §§ 187, 189, 212.5, subd. (a), 459)*fn4 and found true the allegations that the murder was committed during the commission of first degree robbery and burglary (§ 190.2, subd. (a)(17)) and that defendant used a deadly weapon in the commission of the murder and robbery (§ 12022, subd. (b)). The court found true the allegation defendant had served two prior prison terms. (§ 667.5, subd. (b).) In the penalty phase, the jury returned a verdict of death. The court sentenced defendant to death for the murder and to a prison term of 11 years four months on the remaining charges and allegations; execution of the prison term was stayed pending execution of sentence on the murder charge.
I. Motion to Suppress Defendant's Statements to Police
Defendant moved to suppress statements he made to police, beginning with those he made to Deputy Robinson in his patrol car and including those made en route to and at the sheriff's station, on grounds he was in police custody but was not advised of his rights before questioning, as required by Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). The trial court, finding defendant was not in custody until he was formally arrested and given Miranda advisements, denied the motion.
An interrogation is custodial, for purposes of requiring advisements under Miranda, when "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda, supra, 384 U.S. at p. 444.) Custody consists of a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. (People v. Leonard (2007) 40 Cal.4th 1370, 1400; People v. Boyer (1989) 48 Cal.3d 247, 271.) When there has been no formal arrest, the question is how a reasonable person in the defendant's position would have understood his situation. (Boyer, at p. 272.) All the circumstances of the interrogation are relevant to this inquiry, including the location, length and form of the interrogation, the degree to which the investigation was focused on the defendant, and whether any indicia of arrest were present. (Ibid.)
"Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial court's determination that a defendant did not undergo custodial interrogation, an appellate court must 'apply a deferential substantial evidence standard' [citation] to the trial court's factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, 'a reasonable person in [the] defendant's position would have felt free to end the questioning and leave' [citation]." (People v. Leonard, supra, 40 Cal.4th at p. 1400.)
We examine in sequence each of the three sets of statements defendant claims should have been excluded -- those made in the patrol car parked at the scene, in the patrol car en route to the sheriff's station, and in an interview room at the sheriff's station.
Sheriff's Deputy Robinson testified that after he talked briefly with defendant at defendant's trailer and searched the trailer, he asked if defendant would talk with him further in the deputy's patrol car. Deputy Robinson chose the patrol car over defendant's residence because night was beginning to fall, it was getting cold and dark, and the trailer had no electricity. Defendant agreed. Robinson was in uniform and carrying a firearm, but he did not draw his weapon or handcuff or patsearch defendant before interviewing him in the patrol car. Defendant was not a suspect; Robinson considered him an important witness because he had said he had seen the victim that afternoon. Though the back doors of the patrol car automatically locked when closed, defendant would have been permitted to leave had he sought to do so.
At the beginning of the taped interview, defendant said that he "would invite you guys in if I had, uh, had power." He seated himself in the vehicle's backseat and asked for the windows to be rolled up. Before he was even asked a question, defendant volunteered that a neighbor, Ms. Hooper, had "seen somebody . . . crawling around in the back" at night. Deputy Robinson then questioned defendant about when he noticed the fence boards were missing, what Dennis Sullivan had told him about "two Mexican guys" on Sullivan's property, defendant's contact with Nicole when he went to warn Carnahan about the prowlers and the missing boards, and the man he had seen in Carnahan's backyard. None of Robinson's questioning contained express or implied accusations against defendant.
At the conclusion of the interview, which lasted less than 15 minutes, Robinson told defendant he appreciated his cooperation and asked him to "hang tight" for a short time. Robinson left the car. When he returned a few minutes later, defendant was still sitting in the backseat, but the door was open. Defendant's feet were outside the car, and he was smoking a cigarette.
That the patrol car interview was not custodial is clear. Defendant's participation was requested and readily given. The location was chosen because the alternative, defendant's residence, was cold and dark; defendant himself agreed it was not suitable. No indicia of arrest were present. Defendant was neither searched nor handcuffed. No evidence indicated he knew the car doors were locked, and the windows were closed only at his request; later a back door was opened, and defendant partly exited to smoke a cigarette. The interview itself was short, and the questions focused on information defendant had indicated he possessed rather than on defendant's potential responsibility for the crimes. Nothing in the interview or its circumstances, in short, would have led a reasonable person to think he was not free to end the questioning and leave. (People v. Leonard, supra, 40 Cal.4th at p. 1400.)
B. Conversation en Route to Sheriff's Station
After defendant, sitting in the patrol car's backseat with the door open, had smoked a cigarette, sheriff's investigator John Hanson approached to speak with him. Hanson confirmed that defendant had seen the victim earlier that day and asked: "[W]ould you volunteer to come down to the station and talk to me? I need to take a real detailed statement about it." Defendant asked, "Right now?" and, when Hanson answered affirmatively, further asked, "[C]an we do it in the morning?" Hanson responded, "No, we have to do [it] now." Hanson twice assured defendant he would be given a ride back home, and defendant said, "Okay" and "Very good."
Sheriff's Deputy Michael Shapiro then drove defendant to the station, using the same patrol car in which defendant had been interviewed. He did not handcuff or patdown defendant before they both got into the vehicle. Shapiro did not attempt to interview defendant while transporting him, but the two did engage in conversation. Just as they left the scene, defendant asked why Carnahan was screaming, to which Shapiro answered he did not know. Defendant observed Carnahan had been upset at the length of time the sheriff's department had taken in responding to her call, and Shapiro noted that "she really gave me a hard time" on a previous occasion, when he had responded to a call on a domestic matter. Defendant said he had been getting along "pretty good" with Carnahan, but that she had a temper, which he had heard displayed in arguments with her boyfriend, Mike. The arguments, defendant suggested, were prompted by a "Black guy" renting a unit in the back of Carnahan's property. Without being questioned, defendant also mentioned that Dennis Sullivan had said two men had tried to rob him, that there were "a couple of guys going around doing burglaries," that he, defendant, always tried to get along with his neighbors and was unable to run and lift heavy objects because of Lou Gehrig's disease, and that Nicole "seemed all right" when he saw her earlier that day.
Beyond that, the conversation ranged over several topics, including Sullivan's business and back problems, defendant's previous burglary sentence and the shooting injury he had sustained during the burglary (a topic defendant raised), the prognosis for defendant's illness, an AIDS test defendant had just had, and how defendant kept food fresh without electricity (in a small ice chest). At one point, defendant asked Shapiro for an assurance he would not have to walk back from the sheriff's station; Shapiro answered, "Oh, no. No-no-no-no-no. We'll give you a ride back." On arriving at the station, defendant asked, "You guys just want a statement?" Shapiro answered, "Yeah," and "They're just going to talk to you, that's all." Defendant said, "Okay."
As with the patrol car interview, Deputy Shapiro's conversation with defendant en route to the station was plainly not a custodial interrogation. There were, as before, no indicia of arrest. Defendant had told several people, including Deputy Robinson and investigator Hanson, that he had seen the victim in the afternoon, not long before she was killed. Obviously an important witness, defendant was asked to go to the station voluntarily to give a statement. Though he apparently would have preferred doing so later, he acceded to Hanson's reasonable explanation that time was of the essence. His only other reservation -- the need for assurance he would be given transportation home when finished -- having been satisfied, he agreed. Deputy Shapiro did not interrogate defendant during the ride; defendant was at the least an equal partner in initiating and maintaining the conversation, which ranged widely in subject matter. On arriving at the station, defendant sought confirmation that the officers only wanted a statement and would drive him home afterward. Receiving that confirmation, he again agreed to give the statement. Nothing indicates defendant thought he was not free to leave during the ride to the station, and no reasonable person would have thought so in these circumstances.
C. Sheriff's Station Interview
On arriving at the station, Deputy Shapiro escorted defendant to the investigations section. Defendant was taken to an interview room, where he was interviewed by investigator Hanson, later joined by investigator Ed Lorenzano. The interview was audio- and videotaped. Hanson testified defendant was not handcuffed or otherwise restrained and he, Hanson, was not wearing a gun. The interview room door locked automatically when closed, but Hanson recalled investigator Lorenzano, who came and went during the interview, either left his keys in the door or placed a wedge to keep it from closing and locking.
After getting some background information about defendant, Hanson opened the interview by reiterating that defendant was "not under arrest or anything" and was there only to make a statement because he was the last person known to have seen the victim. Defendant said he understood he was not under arrest, and Hanson repeated that defendant had been brought to the station only for a statement and was "free to go or whatever."
Hanson questioned defendant about Carnahan and Nicole, defendant's earlier meeting with Dennis Sullivan, his visit to the Carnahan residence, and his interaction with Nicole. As in the patrol car interview with Deputy Robinson, defendant said Sullivan had told him of an attempted burglary, he noticed the missing fence boards, and at 2:00 or 2:30 p.m. he went to Carnahan's to warn her. Nicole answered the door, defendant asked for a drink of water, which Nicole gave him, he stumbled and she "caught" him. Defendant told her he needed to talk to her mother when she came home, then went back to his trailer. About a half hour later, he saw a man running in Carnahan's backyard and gave chase unsuccessfully; at that point Carnahan came home.
When investigator Lorenzano joined the interview, the questioning went over much the same ground again, with defendant giving more detail about the "Mexican" man he had seen in Carnahan's backyard. The detectives asked about events after Carnahan returned and before the first officers arrived, including a fall defendant took in which he claimed he sustained a visible injury to his elbow.
Eventually, Hanson asked defendant about his drug use and any past arrests. Defendant admitted some arrests and related, as he had to Deputy Shapiro, the circumstances of his 1983 shooting injury during an attempted commercial burglary. Hanson asked, "Now, how do I know that -- that you didn't burglarize this house next door?" Defendant said his disability physically prevented him from doing so, and when Hanson asked directly, "Did you burglarize the house?" defendant denied it. The detectives then suggested he might have needed money for heroin and asked if he had any money. Hanson urged him to tell them the truth, to which defendant replied he was doing so and he would never burglarize a person's house.
After some discussion of Carnahan's personal life, defendant's relationship with her (defendant said they had had a talk about a week earlier about "boyfriends and girlfriends") and defendant's encounter with a man in Carnahan's backyard, Hanson asked a series of questions suggesting defendant might have been in the Carnahan house that day and might know what happened to Nicole. On defendant's denial, Hanson seemed to back off, but soon began questioning defendant about any weapon he might have had with him when he went to the Carnahan house; defendant admitted having a "stout stick" that he always carried.
Hanson told defendant Nicole had been killed and that "this is the time for you to be honest with me." When defendant denied knowing anything about Nicole's death, the detectives asked him about the knife he was wearing when he saw Dennis Sullivan that afternoon. Defendant said he left it at his trailer after that; Hanson asked for permission to search the trailer, but defendant said he would get it for them instead. When Lorenzano suggested defendant must still have ...