Super. Ct. No. SCO 19333A Kern County
The opinion of the court was delivered by: Judge: Roger D. Randall
Capital defendant David Leslie Murtishaw comes before this court for the third time. "[In 1978 a] jury convicted [defendant] of three counts of first degree murder . . . . (Pen. Code, § 187; former § 217.)[*fn1 ] The jury also sustained one firearm-use allegation (§ 12022.5) and one multiple-murder special-circumstance allegation. (Former § 190.2, subd. (c)(5).) After a penalty trial, the jury set the penalty at death under the 1977 death penalty law. (See former § 190.1 et seq.; Stats. 1977, ch. 316, §§ 7-13, pp. 1257-1262.) This court affirmed the guilt and special circumstance findings but reversed the penalty judgment. (People v. Murtishaw (1981) 29 Cal.3d 733 [175 Cal.Rptr. 738, 631 P.2d 446] (Murtishaw I).) After a penalty retrial, a jury once again determined that defendant should suffer the ultimate punishment." (People v. Murtishaw (1989) 48 Cal.3d 1001, 1006-1007, fn. omitted (Murtishaw II).) In Murtishaw II, we "reject[ed] defendant's attempt to reopen the validity of the guilt judgment [and found] no error at the second penalty trial which warrant[ed] reversal of the verdict. We therefore affirm[ed] the judgment in full." (Id. at p. 1007.) In 2001, however, the Ninth Circuit Court of Appeals, while affirming the federal district court's denial of defendant's petition for writ of habeas corpus as to the guilt phase, reversed its denial of the writ as to the death sentence and remanded the case for a second penalty retrial. (Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926 (Murtishaw III).) Upon retrial, the jury once again returned a verdict of death. This appeal followed.
I. STATEMENT OF FACTS AND THE CASE A. The Circumstances Surrounding the Murders
On the morning of April 9, 1978, Lance Wyatt, a film student, went into the Mojave Desert to shoot a film for his cinema class with his wife, Marti Soto, and two friends, In-grid Etayo and James Henderson.*fn2 They arrived at their location about noon, unloaded their equipment, and began filming. At some point, defendant and his brother-in-law, Greg Laufenberger, stumbled onto the movie set. The two men carried rifles and a six-pack of beer. Defendant told Wyatt that his car had broken down and asked for a ride into town. Wyatt said he would give the men a ride after he finished filming. The two men left. Later as Soto and Etayo drove into the town to get lunch, they saw defendant and Laufenberger. The two men flagged the women down and asked them for a ride; the women declined and kept driving.
Defendant and Laufenberger then returned to where Wyatt was filming. Wyatt found their presence unsettling and went to speak to them. Defendant smelled strongly of alcohol and was using profanity. At defendant's invitation, Wyatt took a sip of defendant's beer and fired his rifle. Wyatt then returned to his work. He prepared for the next scene, which required the use of a .38-caliber revolver loaded with blanks. Defendant watched as Henderson fired the revolver several times during the scene. A short while later, defendant and Laufenberger again approached Wyatt and asked for a ride into town. He repeated his offer to drive them after he finished filming. The two men decided to try their luck hitchhiking and left.
Soto and Etayo returned with food. The four ate and then resumed filming. When they began to lose the light they stopped for the day. As Wyatt, Henderson and Soto were walking back to Wyatt's car with equipment, shots rang out and Henderson called, "I've been shot." Wyatt dropped the equipment he was carrying and went to Henderson's assistance; the two of them and Etayo managed to make it around to the passenger's side of the car before more shots were fired. A second volley hit Soto in the head as she was scrambling for cover. Wyatt and Henderson got her around to the side of the car. There was a pause in the shooting, and Henderson and Wyatt searched unsuccessfully for the car keys. When the shooting started up again, Henderson sprinted from behind the car in an effort to find help. A volley of bullets struck and killed him.
As Henderson fell to the ground, Wyatt looked beneath the car and saw defendant raise his head up from behind a bush and fire at Wyatt. One of the shots hit Wyatt in the hand. Wyatt and Etayo decided their best chance for survival was to run from defendant. Wyatt ran about 150 feet before he tripped and fell. He looked back and saw defendant approaching Etayo. He ran another 150 feet and stopped again. He saw defendant standing over Etayo who was kneeling beside Soto. Wyatt ran. He heard several more shots -- these shots killed Etayo.
Wyatt reached the highway and flagged down a ride. On the drive into town, he saw defendant and Laufenberger hitchhiking.
Wyatt later attempted to lead police back to the scene but was unfamiliar with the area. Eventually, police came upon defendant's car. Wyatt was taken by paramedics to the hospital, while police continued their search for Wyatt's car. They found the car and the bodies of Henderson and Etayo. Soto was also discovered, wounded but still alive. She was taken to the hospital, where she died. An autopsy revealed that she was killed by a single gunshot to the head. Henderson had sustained six gunshot wounds, three of them fatal. Etayo sustained 10 or 11 gunshot wounds, three of them fatal. The bullets removed from the victims' bodies were consistent with a semiautomatic rifle found near defendant's abandoned car.
B. Defendant's Statement to Police
After defendant surrendered to the police, he gave a tape-recorded statement in which he admitted the shootings. Defendant told police that he, his wife, his sister, Beverly Laufenberger, and his brother-in-law, Greg Laufenberger, were playing cards and drinking the night before the shooting. His brother-in-law suggested that they "go out into the desert." The following morning they left, taking with them a .22-caliber pump rifle and a case of 500 shells. They started out with two six-packs of beer, then stopped and bought another six-pack. Their car had been giving them trouble. After arriving in the desert, defendant drove down a dirt road and had to slam on the brakes to avoid going into a ditch. After that, the car would not start.
Defendant and Laufenberger left the car. They were drinking beers and "were pretty high" when they came upon the victims making their film. They asked for a ride into town. They walked back to their car, and unsuccessfully tried to start it again. They headed back to the filming location. On the way they saw the two women driving away. Defendant asked them for a ride into town and they said "no." Defendant and his brother-in-law went back to where the male victims were filming and sat and watched them. At one point Wyatt came up and spoke to defendant. He drank some of defendant's beer and fired off defendant's rifle before returning to the set.
Defendant and Laufenberger left again and went out into the desert where they shot tin cans and drank beer. As it began to get dark, they returned to the film location. The victims were "lighting this tree on fire and dancing around it or something and . . . this one person I think a girl . . . had this pistol and she was shootin[g] off . . . and this guy was taking pictures." Defendant saw them heading toward their car and he and Laufenberger approached them. About 30 feet from the victims' car, "something went bang" and it came toward defendant. He started firing in the direction of the victims. Defendant fired all his bullets and "was putting some more in" when he heard his brother-in-law shout, "Throw out your gun." Then he saw someone running toward him and he started firing again. After the shooting stopped, Laufenberger told defendant "let's get in their car," but defendant said no because he saw "gas or something leaking" from it. They started running. Defendant said he was "scared and just mixed up." They again tried to start their car but it would not start. Eventually, they hitchhiked back to a gas station where they called their families. Defendant's wife came to pick them up. Later, defendant surrendered to the police.
Throughout the interview, defendant referred to his heavy drinking on the day of the shootings, saying, for example, "I don't think I've ever drank that much before." He denied having told his brother-in-law that they should shoot the victims and take their car. He said, "I remember we were talking about something like that and he was asking me if . . . I thought I could kill anybody. I told him I didn't know." He also indicated that his memory was unclear about the events: "I can remember when I shot or something [but] I don't even know how many times I shot. My brother-in-law said . . . I filled my clip twice or three times but I don't know." He insisted that he had only started shooting in response to hearing shots from the victims because he was afraid that "someone was trying to hurt me or something."
C. Victim Impact Evidence
Over defendant's objection, a number of family members were permitted to testify about how the loss of the three victims had affected them. Wyatt testified that his wife, Marti Soto, had been his high school sweetheart, and described her as "lively" and "full of life." He told the jury he loved her and had dreamed that he saw her on the street, but that she ignored him because he had left her in the desert. He testified that, while he felt he had to escape the shooting, his "heart says [he] should have stayed." Wyatt explained to the jury that he had changed his name from Buflo to Wyatt in 1984 because he "didn't want to give that name [Buflo] to another woman." However, he never remarried.
Soto's mother, Marta Soto, also testified about the impact of her daughter's loss on the Soto family. She told the jury that her son "went almost crazy" after her murder because he felt he had failed to protect his sister. She testified that the family had fallen away from its Catholic faith and had lived "like hermits." She told the jury she would never get over her daughter's death.
Testifying on behalf of In-grid Etayo's family were Etayo's older sister, Haydee Kassai, and her niece, Sybelle Sprague. Kassai testified that, at the time of her death, Etayo had recently graduated from college, was engaged to be married, and was about to embark on a trip to Europe as her college graduation present. Her mother was "never the same" after Etayo's death and her father was so deeply affected that he continued to write letters to her. The impact of her sister's death on Haydee was that she "lived in fear," and became anxious about her own children's well-being.
Sprague was 10 years old when her aunt was murdered. She and her aunt were very close and Sprague described her aunt as being "full of life." After her aunt's murder, Sprague's parents became "very strict, very overprotective," and Sprague herself later became "paranoid" about her own children's safety. She concluded by telling the jury, "There is always a loss. You always feel it. It never really goes away."
Both of James Henderson's parents testified about the impact of his murder on them. His mother, Patricia, testified that, at the time of his death, Henderson was six weeks away from graduating from college and was engaged to be married. He and his fianceee had planned to wed in Paris and then join the Peace Corps together. Henderson's two brothers eventually moved out of California following his murder because "[t]hey couldn't stay here any longer." As for her, she told the jury "It's been hell," and "You never get over something like that." Robert Henderson testified that his son was "loving and ambitious. He had what I thought was a great future ahead." He told the jury that his son was not the only person he lost; he also lost "the possibility of grandchildren and probably great[-]grandchildren." Furthermore, after his son's death, Robert Henderson testified that he gave up his construction business and became a groundskeeper and bus driver for a school district because "I just didn't have it anymore."
D. Defendant's Mitigation Evidence
Defendant called James Esten, a correctional consultant, to testify about defendant's prison record and the type of confinement that would be imposed upon him were he sentenced to life without the possibility of parole. Defendant was classified as a "grade A" inmate, which is "the most restrictive custody available to inmates." Supervision of inmates so classified is "constant and direct." Defendant was housed at San Quentin in a building called "North Segregation," which is a desirable housing unit. The commission of any infraction by an inmate would lead to his removal from that building. Esten testified that defendant had had no disciplinary actions in his 24 years of imprisonment on death row in San Quentin, and he had remained housed in the North Segregation building that entire time. In Esten's experience, it was "highly unusual" for an inmate to have such a clean record. Esten testified further that, if defendant were sentenced to life without possibility of parole, he would be transferred to a level 4 maximum security prison like Pelican Bay State Prison.
The grade A classification requires a nearly perfect disciplinary record. Inmates who failed to maintain such records would be downgraded to "grade B," a classification that carried far fewer privileges than grade A. Death row inmates are reviewed for reclassification every 120 days. Defendant had maintained his grade A classification during the entire 24 years of his imprisonment. Esten testified it was "very hard" for an inmate to maintain that rating for so long a period. The classification committee had described defendant as cooperative, and noted his involvement in "self-help, improvement academic programs," and Bible studies. The committee had commended defendant for his positive attitude.
One of defendant's projects was described by James Moyers, a psychotherapist holding a degree in religious studies with a focus on early Christianity, who testified as an expert in religious studies, the Bible and psychotherapy. Moyers talked about defendant's 1983 religious conversion after which he embarked on a project to blend the four Gospels into a single narrative, a process called "Gospel harmony." According to Moyers, defendant had, by the time of trial, produced three versions of the document. In order to perform this task, defendant immersed himself in dictionaries and Bible commentaries, and had "to learn[ ] something about phrasing, [and] basic grammar." In addition, defendant was working under the adverse conditions of death row. Although the first version was for his own use, subsequent versions were distributed in the United States and Europe. Moyer described defendant's Gospel harmonies as "very coherent and very easily understood." He testified that defendant's dedication to this project was evidence that his religious conversion was authentic.
Evidence was also presented about defendant's family history of mental illness and his use of the drug phencyclidine, known by its street name as PCP. Defendant's sister-in-law, Susan Murtishaw, who was married to defendant's younger brother, Steven, testified about her observations of the family's mental health issues. In addition to Steven, defendant has two older brothers, Gerald and Ronald, and a younger sister, Beverly. Murtishaw testified that defendant's mother, Carol, and all his siblings had suffered from depression, stress and anxiety, and defendant's mother and his brother Ronald had been hospitalized because of their psychological issues. Both Carol and Steven also took medication for their depression and anxiety. Susan Murtishaw told the jury that defendant had always been kind to her, and that, at the time of his arrest, he was married to a woman who had three children, and he had worked to support his family.
Dr. Terence McGee, a physician specializing in addiction medicine -- "the study and treatment of people who use drugs and alcohol to the point of causing problems for themselves and others" -- also testified on defendant's behalf. Based on his interview with defendant and review of relevant documents from the family and other physicians, Dr. McGee described defendant as someone "who has been abusing drugs since he was seven or eight years old" and who came from "a quintessentially dysfunctional family full of drug abuse, alcohol abuse, and schizophrenia." He testified that defendant had "an enormous appetite for any sort of drug which would seem to remove him from his abjectly miserable situation." According to McGee, defendant also suffers from obsessive-compulsive disorder. He described a number of manifestations of the disorder he had observed in defendant.
McGee testified that "[e]veryone in [defendant's] family has got mental disorders, with the exception of the oldest brother." He noted that defendant's mother had been hospitalized in a state-run psychiatric hospital a number of times, and one of his brothers had also been hospitalized for schizophrenia.
Addressing defendant's drug and alcohol consumption, McGee testified that defendant admitted to using alcohol, barbiturates, cocaine, marijuana and LSD. He told McGee that he had consumed 11 beers on the day of the shooting and had also taken "[p]ills and he thinks PCP." McGee opined that, after talking to defendant about the murders, it was his subjective opinion that defendant did not remember whether or not he committed the crimes. McGee thought that defendant's use of PCP may have affected his ability to remember the events surrounding the shootings because the drug "creates an amnesic effect." He also testified that the combination of alcohol and PCP had a "synergistic effect" that could also explain memory loss and aggressive behavior. Describing defendant as "one of the strangest people I have ever met," McGee ultimately opined that, on the day of the shootings, defendant did not have "any . . . control over what he was doing, particularly given if PCP and alcohol [are] factored in."
Also testifying on defendant's behalf was Dr. Stephen Pittel, a forensic psychologist, academician and director of research at a drug and alcohol abuse treatment facility. Based on his extensive review of declarations from defendant's family members and other experts who had examined defendant, from the transcripts of defendant's earlier trials, and from interviews with defendant and family members, ...