Court: Superior County: Los Angeles Judge: James Pierce Super. Ct. No. A018568
The opinion of the court was delivered by: Chin, J.
Defendant Charles Edward Moore twice has been convicted and sentenced to death for robbing and murdering Robert and Marie Crumb in Long Beach, California in 1977. We affirmed his first conviction and sentence in 1988 (People v. Moore (1988) 47 Cal.3d 63 (Moore)), but that judgment was vacated in federal habeas corpus proceedings, when the federal court concluded defendant's right to represent himself at trial had been violated. (Moore v. Calderon (9th Cir. 1997) 108 F.3d 261.) After a second trial in 1998,*fn1 the jury again convicted defendant of two counts of first degree murder (Pen. Code, § 187),*fn2 two counts of robbery (§ 211), and one count of burglary (§ 459). It found true sentencing enhancements as to each count that defendant personally used a deadly and dangerous weapon, a knife (§ 12202, subd. (b)), except with regard to the murder of Marie Crumb. It also found true sentencing enhancements as to each robbery count that defendant personally used a firearm (§ 12022.5). The jury found true the special circumstances that, as to each murder, defendant committed the murder in the course of robbing the victims (former § 190.2, subd. (c)(3)(i)), in the course of committing a burglary (former § 190.2, subd. (c)(3)(v)), and found true the special circumstance that defendant committed multiple murders (former § 190.2, subd. (c)(5)).*fn3 After a penalty trial, the jury returned a verdict of death. The trial court denied the automatic motion to modify the verdict (§ 190.4, subd. (e)), and sentenced defendant to death and to a determinate term, stayed, on the non-capital offenses. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.
The prosecution's case for the most part paralleled the evidence that was presented at defendant's first trial, and, as with that proceeding, relied primarily on the testimony of Terry Avery, an accomplice to the robberies and murders who received immunity from prosecution. (See Moore, supra, 47 Cal.3d at pp. 71-74.)*fn4 Avery testified that in late November 1977, she lived with her parents in Denver, Colorado. She was 19 years old at the time. Avery met defendant through a friend, and then through defendant met Lee Edward Harris. Avery decided to accompany defendant and Harris to Lawrence, Kansas, and left Denver without taking any money or possessions with her. In Lawrence, defendant purchased clothes, a purse, and shoes for Avery. The shoes came in a yellow plastic bag, which Avery kept with her during the trip. The three of them drove from Lawrence to Kansas City, Kansas, and then traveled by bus to Los Angeles, arriving there on November 30, 1977. During the drive from Lawrence to Kansas City, defendant mentioned that he used to live in California; he said the managers of the apartment where he had lived had money and jewelry. During the bus ride to California, defendant and Harris discussed plans to rob the apartment managers.
After spending the first night in Los Angeles, the next day, December 1, 1977, the three took a bus to Long Beach, where they rented two rooms at the Kona Hotel. Defendant and Avery stayed in one room and Harris stayed in an adjoining room; defendant told Avery he registered for the room as Mr. and Mrs. Charles Brown. That afternoon, defendant, Harris and Avery took a short walk to an apartment building where defendant previously had lived and where the apartment managers resided. The three then had dinner and returned to the hotel. Defendant and Harris left for a while, returning a short time later with a drugstore bag containing a roll of thick, white cloth surgical tape. Defendant said he needed to cover his face so he would not be recognized, and used one of Avery's stockings to fashion a mask. Avery testified, however, that defendant was still recognizable when he wore the mask. After it became dark outside, defendant, Harris and Avery left the hotel to carry out the robbery. Defendant and Harris had the tape, defendant's mask, and two pistols with them.
Avery testified that when they arrived at the apartment building, they could not go inside because the front door was locked. Defendant met a man dressed in women's clothing whom he knew, and they talked for a short while. When the man entered the building, defendant grabbed the door and held it open so he, Harris, and Avery could enter. The three then went up several flights of stairs to a door that had a "Manager" sign on it. Avery knocked on the door and a woman (Marie Crumb) inside asked who it was. When Marie opened the door, defendant, wearing his mask, and Harris, both with guns drawn, pushed their way into the apartment. Avery followed them inside and saw defendant push Marie into a chair. Avery also saw a man (Robert Crumb) seated on the couch. Defendant demanded to know where the money was. Avery noticed that Marie Crumb seemed to recognize defendant, and that defendant and Harris appeared to have noticed that Marie had recognized him.
Defendant then grabbed Robert Crumb and again demanded the money. Defendant struck Robert on the head with the butt of his gun. Marie repeatedly told defendant that they did not have the money because it had been taken to the bank earlier that day. Harris threw the woman onto the floor and told Avery to get him an item from a nearby clothes hamper. After she gave Harris a curtain or long rag from the hamper, Avery was told to go into the apartment's bedroom to look for the jewelry. In the bedroom, Avery found a number of jewelry boxes and display cases. Defendant then came into the bedroom and helped Avery force open the cases so she could get the jewelry out. She then placed a number of rings, necklaces, watches and other items, many of which were made of turquoise, into a pillowcase from the bed. Defendant and Harris told Avery to use rags when picking up items in the apartment so she would not leave any fingerprints.
Avery next testified that when she came out of the bedroom back into the living room, Robert and Marie Crumb were in the same positions, except their arms were behind their backs, with their hands fastened together with the white surgical tape, and they did not appear to be moving or making any noise. Harris had wrapped the curtain or rag Avery gave him around the woman's mouth and neck and was choking her. Harris told Avery to go into the kitchen to get a knife. She went to the kitchen and found several knives, but did not take one to Harris. Harris then came into the kitchen and picked up a large butcher knife and returned to the living room. Avery returned to the bedroom, but then went to the door to the living room, and saw defendant stab Robert in the back. Robert began kicking, so Harris went over to hold his legs while defendant continued to stab him.
Avery returned to the bedroom, but Harris called for her to come back into the living room. When she returned, Harris called her over to Marie Crumb, and told Avery to stab her with a pocketknife that was on a nearby coffee table. Avery did so, but Harris became angry because she did not do it hard enough. Harris told Avery to move, and then yelled at her when she touched the table, telling her to wipe it off so there would be no fingerprints. Avery then returned to the bedroom, and shortly thereafter picked up her purse and the pillowcase full of jewelry and left the apartment. After about 10 minutes, defendant and Harris came out of the apartment. The three of them then returned to the Kona Hotel.
Avery testified that when they arrived back at the hotel, the three of them examined the jewelry that had been taken from the apartment. Avery noticed that some of the items were not items that she had taken from the bedroom. Each of them took several items; defendant took a watch, a belt buckle and two rings. The remaining jewelry was placed in the yellow plastic bag from the shoe store in Lawrence, Kansas. Later, Avery accompanied defendant to the beach where he threw the guns used in the robbery into the ocean. Avery told defendant she felt ill and needed to return to Denver. Defendant took her to the bus station and purchased a ticket for her trip.
A number of days after she returned to Denver, Avery was called to meet with defendant and Harris at an apartment in a Denver suburb. They questioned her about whether she had told anyone about the crimes. After convincing them that she had not, Avery left and, because she was scared that defendant or Harris might harm her, told her parents, who then contacted the Denver police. Avery voluntarily surrendered to the police, and told them where they could find defendant and Harris. Denver area police officers testified that based on information supplied by Avery, the police went to an apartment in a suburb of Denver. Defendant was arrested after he climbed out of the bathroom window during the raid. He was wearing two rings. Harris was arrested in a bedroom in the apartment. On top of a dresser in the bedroom was a yellow plastic bag from a shoe store in Lawrence, Kansas that contained numerous items of jewelry. A number of individuals testified that the jewelry seized during defendant's arrest in Colorado, including the rings defendant was wearing, belonged to the Crumbs, among them Avery, James Jones, a friend of the Crumbs, and the owner of the apartment building the Crumbs managed.
The owner of the apartment building testified that he met with Robert and Marie Crumb on the afternoon of December 1, 1977, and picked up the rent money they had collected so it could be deposited in the bank. He returned to the Crumbs' apartment in the afternoon of December 2 and found their bodies in the residence, which had been ransacked. The owner also gave the police a copy of a rental agreement showing that a Charles Moore had rented an apartment in Long Beach from him in March of 1977.
The testimony of James Jones from defendant's first trial was read into the record.*fn5 In 1977, Jones lived in the apartment building managed by the Crumbs, was friends with them, and helped them with various chores. Jones had met defendant four or five times when defendant lived in Long Beach. On the night of December 1, 1977, Jones went to a nearby bar, dressed in "drag." After drinking several beers and becoming intoxicated, Jones returned to the apartment building. He testified, however, that he did not talk with anyone outside the building and did not recall seeing defendant, whom he would have recognized.
The police detective assigned to the Long Beach murder case testified that the victims, whose apartment was on the fourth floor of the building, had been stabbed multiple times. Their hands were fastened together behind their backs with white tape. Robert Crumb had a pillowcase over his head, while Marie had a cloth curtain twisted around her mouth and head. A butcher knife and a folding pocketknife with a dried red substance on them were found in the apartment. Numerous empty jewelry boxes and display cases were found in the apartment's bedroom. One of the pillowcases from the bed was missing.
A medical examiner from the Los Angeles County Coroner's Office testified from the victims' autopsy reports that Robert Crumb had been stabbed 10 times in the chest (not in his back, as Avery testified). The wounds were consistent with the butcher knife. There were also two lacerations on the back of his head, consistent with his having been hit on the head with an object such as a pistol. Marie Crumb had been stabbed six times; one of the stab wounds was only one-eighth of an inch deep and another was just under half an inch deep, while the remaining wounds were several inches deep. The three deepest wounds, including the two fatal wounds, were consistent with the butcher knife; the pocket knife could not have made those wounds. Marie also had a black eye and bruising on her forehead consistent with blunt force injury.
The detective also testified that he obtained registration cards from the Kona Hotel, which showed that "Sam Harris" and "Charles Moore and Wife" stayed there on December 1, 1977. A handwriting expert testified that, in his opinion, the handwriting on the cards matched exemplars defendant and Harris had provided.
After the prosecution rested, defendant reasserted his right to represent himself, and his attorney was then reappointed as standby counsel. Defendant conducted the remainder of the trial himself. In so doing, he re-called the investigating detective and attempted to establish inconsistencies between Avery's descriptions of how many jewelry cases were located in the bedroom and how many the police found. By stipulation of the parties, portions of Avery's testimony at prior proceedings were read into the record; she had testified that defendant stabbed the man in the back, and Harris stabbed the woman twice, but defendant did not stab her. Her prior testimony concerning descriptions of some of the jewelry was also read into the record.
B. Penalty Phase 1. Prosecution Evidence a. Other Criminal Activity i. Armed Robbery
The prosecution presented evidence that defendant was convicted in 1978 of armed robbery of a jewelry store in the Denver, Colorado area. Defendant committed the robbery on November 22, 1977, slightly over one week before the Long Beach murders.
Avery testified that when she, defendant, and Harris traveled to Lawrence, Kansas from Denver, Colorado, in late November 1977, defendant and Harris kidnapped and murdered Sam Norwood, the manager of the local Woolworth's store, in an attempt to obtain money from the store. Defendant was the one who suggested robbing the store because he had previously worked there. Avery, defendant and Harris arrived at the store around 9:00 p.m. or 10:00 p.m., and Avery went inside to see who was there. When she returned to their car, Harris was returning with Norwood, held at gunpoint. After Norwood was placed in the car, defendant demanded the money from the store, but Norwood said the money had already been deposited in the bank. Defendant at one point hit Norwood in the head with a pistol. When Norwood said that he wanted to go home because his son was having a birthday party, defendant threatened that they could go get his son, too. Harris, following defendant's instructions, drove to a dark area about 10 minutes away from the store. Defendant pulled Norwood out of the car, and then Harris got out. Avery heard two guns firing and then defendant and Harris returned to the car. Harris asked defendant why he shot the victim "so many times," and defendant laughed, saying "to make sure he was dead." The prosecutor who tried the case arising from these incidents testified that the victim's hands were taped behind his back with athletic tape, and he had been shot four times in the back of the head. Defendant ultimately was convicted of kidnapping, aggravated robbery, and first degree murder.
iii. Escape and Aggravated Robbery
In 1979, after defendant was apprehended, prosecuted, and convicted of the jewelry store robbery in Colorado and was being transported to the Colorado trial court for a hearing concerning his request for a sentence reduction, he overpowered the deputy escorting him, took the deputy's firearm, and escaped. During his escape, defendant committed a carjacking using the deputy's weapon, but he was captured later that day. Defendant was convicted of escape, aggravated robbery, and being a habitual criminal as a result of this incident.
b. Prison and Jail Incidents
Three correctional officers from San Quentin State Prison testified that they each observed an incident in which defendant fought with another inmate. In two of the instances, the officers believed that defendant was the aggressor; the third officer did not see exactly how the fight began. A fourth correctional officer testified that when she was passing a food tray into defendant's cell, defendant threw the tray at her and the food "splattered all over [her]."
Two Los Angeles County sheriff's deputies who worked at the jail where defendant was housed during the trial testified that they found prisoner-made knives, or "shanks," in defendant's possession. One weapon was found on top of a conduit running at the top, and just outside, of the bars to defendant's cell. The shank was readily accessible only from inside the cell. Although it was possible that someone outside the cell could have climbed up on the bars to place the shank in that location, anyone doing so would have been clearly visible to the cameras monitoring the area. The second shank was found inside a folder of legal materials defendant was taking with him to a meeting with his attorney. The shank was a rod, sharpened to a point at one end, that had been removed from the typewriter defendant used in the jail's law library. Defendant admitted at a disciplinary hearing that he possessed this shank "for protection." Another deputy testified that when searching defendant before escorting him to the jail law library, the deputy found a plastic baggie filled with a yellow liquid that smelled like urine. The deputy testified that such items are known as "piss bombs," and inmates throw them at other inmates and jail staff.
Several of defendant's siblings testified about the difficult and abusive family circumstances in which they and defendant were raised. Their father was physically abusive towards the children. He forced them to work hauling trash and even to steal property to provide money for the family and for his gambling and alcohol consumption, often keeping them out of school to do so. He beat the children when they were disobedient and sexually abused one of defendant's sisters when she was nine years old. Defendant's mother was not a good parent either; she was afraid of her husband and therefore did little to stop his abuse of the children. Defendant's parents eventually separated, and most of the children, including defendant, stayed with their father, who continued to abuse them. Because defendant's father was African-American and his mother was Caucasian, defendant and his siblings had difficulties with other children in the neighborhood.
Ruth Tiger testified that she knew defendant through a Christian prison organization. She had corresponded and met with him for over 18 years, and defendant had frequently told her that he regretted his past and felt remorse for what he had done. Defendant had offered her and her family support when they had personal difficulties. Tiger's interactions with defendant had always been positive, loving and supportive.
Dr. Marshall Cherkas, a psychiatrist, reviewed defendant's background and offered opinions concerning the effect of his family history on his development and his current mental state. In Cherkas's opinion, the bad parenting defendant received during his childhood resulted in him having a "predilection towards antisocial behavior" and excessive narcissism. Defendant also was a "pseudo-independent man" who had tried to make his own way, but was also a "passive person" who did not express his feelings or trust others. Cherkas believed defendant felt vulnerable and endangered, and therefore had possessed the shanks in jail, but overall was not particularly violent, given the conditions he faced while in custody. Cherkas testified that people with personality disorders or maladaptive behaviors are not necessarily static, but can change based on their situation.
II. Discussion A. Denial of Defendant's Requests for the Appointment of Co-counsel
Defendant represented himself during the pretrial stages of the proceedings, but eventually chose to have an attorney represent him for part of the guilt phase of the trial. During the time defendant was representing himself before the trial, he repeatedly asked the trial court to appoint an attorney to serve as his "co-counsel," who would help defendant prepare the defense case and assist in presenting the case to the jury. The trial court (four different judges) rejected the requests for co-counsel; however, the court did appoint advisory counsel to help defendant prepare the case and give him advice upon request, but not to actively participate in the trial itself. Defendant contends the denial of his requests for the appointment of co-counsel was an abuse of discretion under state law that also violated his federal constitutional rights to due ...