San Diego County Super. Ct. No. SCE171425
The opinion of the court was delivered by: Corrigan, J.
Defendant Correll Lamont Thomas was convicted of the first degree murder of Creed Grote and the attempted murder of Troy Ortiz. He was also convicted of the second degree murder of Ricky McDonald.*fn1 As special circumstances of the Grote murder, the jury found that defendant lay in wait,*fn2 discharged a firearm from a vehicle with intent to inflict death,*fn3 and committed multiple murders.*fn4 It also found that defendant personally used a firearm*fn5 in the Grote/Ortiz crimes, and that he thereby intended to inflict great bodily injury or death upon Grote.*fn6 Finally, the jury found that defendant had two prior serious felony convictions within the meaning of the "Three Strikes" law.*fn7 Defendant was sentenced to death.
This appeal is automatic. We affirm the judgment.
1. The Murder of Ricky McDonald
Nicole Halstead, defendant's girlfriend,*fn8 was a principal prosecution witness. Before relating the facts surrounding the Ricky McDonald murder, Halstead testified about a violent encounter that defendant and Kazi Cooksey had with Darrell Milton an hour earlier. Neither defendant nor Cooksey were charged with crimes against Milton. The evidence relating to this assault was, nonetheless, admitted "for the limited purpose of determining if it tends to show the intent and/or mental state" that was a necessary element of the McDonald murder.
According to Halstead, around midnight on May 17, 1996, she, defendant, and Cooksey went to a liquor store where they encountered Darrell Milton. Milton was drunk and verbally harassing everyone going in or out of the store. As they left the store, two other men rushed Milton and hit him in the face. Defendant and Cooksey joined in the attack. Defendant kicked Milton "real hard ... over and over." Cooksey knelt over Milton and punched him.
Milton was hospitalized for three days. He and his companion Kevin Collins both testified the attack was unprovoked. Neither man could identify defendant or Cooksey.*fn9
Defendant, Cooksey, and Halstead then drove four or five miles back to an apartment complex where Cesar Harris lived. Before going to the liquor store, the three had been socializing with Harris and Carolyn Lanham*fn10 at a picnic table in front of Harris's apartment. Thirty to 45 minutes after they returned, Harris's neighbor, Ricky McDonald, drove up and crashed his truck into a wall.
Drunk and belligerent, McDonald yelled: "Why in the hell you over here making all this fucking noise . . . . by my house." Cooksey confronted McDonald, asking, "What, you got a problem?" The men argued and Cooksey punched McDonald in the jaw. McDonald said it didn't hurt and that Cooksey had better not do it again. Cooksey did it again. As McDonald staggered from the blow, defendant punched him and McDonald fell into some bushes. Defendant was "six foot four, well over 200 pounds," while Cooksey was disabled on his left side.
Defendant then kicked McDonald several times in the chest and head, but stopped at Harris's request. As McDonald lay in the bushes, breathing but unconscious, the others resumed drinking. After 20 minutes, Cooksey returned to McDonald's prone body and started punching him again, ultimately hitting McDonald in the head with a liquor bottle. He repeatedly hit McDonald so hard that Harris was surprised the bottle did not break. Harris again intervened. While Cooksey stopped, defendant then "stomped" on McDonald's head several times. Stripping him, defendant slapped McDonald's buttocks. He also took McDonald's baseball cap and shoes. Harris gave Lanham McDonald's sack of takeout food.
At defendant's direction the others got into Halstead's car, but defendant lingered at the scene for almost 10 minutes. Finally, he "jumped in the car real fast." Halstead asked him what he had been doing that had taken so long. Defendant replied that McDonald was reviving, but that he "took care of that." As they drove away defendant and Cooksey were laughing about defendant's "getting his stripes." They used the slang term "M 1," which Halstead understood to mean "Murder One."
Dr. Brian Blackbourne, the medical examiner of San Diego County, assisted at McDonald's autopsy. He testified that McDonald died from multiple injuries to his head and neck.
The defense theory was that McDonald died because Cooksey hit him on the head with the bottle, not because of any injuries defendant inflicted. According to Dr. John Eisele, the defense forensic pathologist, McDonald did not die as a result of injuries to his neck, but rather from blood loss and blunt force trauma to his head.
Four defense witnesses testified to Cooksey's violent character. According to one of them, Cooksey had considerable strength in his "good hand."
Finally, a former cellmate testified that Halstead told her she had kicked an unidentified man who was being beaten.
2. The Murder of Creed Grote
A few weeks after the McDonald killing, defendant murdered Creed Grote for flirting with Halstead. Halstead and Grote's companion, Troy Ortiz, were the principal witnesses against defendant.
Halstead provided background concerning defendant's actions before the murder. She had frequently complained to him that Jesse Russell, the father of her children, abused her. On June 5, after an especially violent argument between them, Halstead phoned defendant and asked him to kill Russell. Defendant agreed. Halstead drove him to a house where he obtained a firearm. At trial Halstead was shown a TEC 9 handgun and said it was similar to the one defendant acquired that night.
Halstead then had second thoughts and tried to dissuade defendant. Defendant finally agreed but was angry with Halstead for changing her mind. Defendant drove to Don Juan Thompson's house. For several hours he drank with Thompson and quarreled with Halstead. Shortly before midnight, defendant told Halstead to drive him to the apartment of another of his girlfriends, Keisha Thomas.*fn11 The front passenger's seat, where defendant sat, was broken in a reclining position, so that he was not visible to the occupants of other cars.
At an intersection Halstead stopped next to a car driven by Creed Grote. Grote and his passenger Troy Ortiz flirted with Halstead, smiling and nodding at her. Halstead smiled back. Defendant said to Halstead, "Are they looking over here at you?" In a "smart mouth way," Halstead replied, "No, they're looking at you." Defendant sat up in his seat and glared at Grote and Ortiz. When Ortiz saw defendant, he said, "Oh, fuck. We're in trouble now."*fn12 Grote responded, "Don't worry about it. We're not stopping to fight anyone."
When the light changed Grote sped away. Demanding that Halstead catch up with him, defendant pulled a gun from his jacket and inserted a clip of ammunition. As Halstead pulled even, defendant leaned out the window and aimed at Grote. He fired two or three shots, saying, "Fuck you." Grote's window shattered. The car veered off the road and rolled over. Ortiz pulled Grote out of the car, but he was unresponsive.
Defendant had Halstead drop him off at Keisha Thomas's home. He took his gun in with him and disassembled it there, hiding the parts around the apartment. That night Halstead told Don Juan Thompson and Carolyn Lanham what had happened. Within a few days she also told Jody Deere. Deere told Halstead she should turn herself in. When Halstead failed to do so, Deere called authorities.
The San Diego County Sheriff's Department conducted the investigation. At the scene, four 9-millimeter cartridge casings were found along the street. They all came from the same weapon. A TEC 9 is one of several types of firearms that might have expelled the cartridges. The trajectory of the bullets that hit Grote's car indicated they were fired from a position parallel to it.
An autopsy conducted by the San Diego County Medical Examiner's Office revealed that Grote was killed by three gunshot wounds to his head, neck, and torso.
The defense theory was that defendant could not have formed the intent to kill Grote because he was under the influence of prescription sedatives and alcohol.
It was stipulated that defendant had received an initial supply of Mellaril (thioridazine) and Desyrel (trazadone) from a physician three months earlier. The prescription authorized one refill. The record was silent as to whether it had been refilled.
Defense psychiatrist Dr. Clark Smith testified that Mellaril is a "major tranquilizer." Users report that their thought processes are slowed down so much that they have trouble keeping up with the world around them. Desyrel is such a powerful sedative that it is not commonly prescribed any longer as an anti-depressant, but only as a sleep aid. Alcohol is also a tranquilizer. Ordinarily, it would have an additive effect when ingested with Mellaril or Desyrel. However, the combination might also result in agitation.
Arlene Thomas, defendant's wife, testified that he became angry when he took Mellaril and/or Desyrel with alcohol. She saw him take Mellaril and Desyrel with water on June 5th or June 6th, 1996. According to Don Juan Thompson and his girlfriend Vilma Gold, defendant drank a great deal on the night of June 5, 1996, and was quite intoxicated. On cross-examination, Thompson admitted he had lied on another unrelated occasion to protect defendant.
Over defendant's objection the charges against defendant and Cooksey in the McDonald case were tried in a single proceeding. However, the court empaneled two juries, one for each defendant, because defendant faced the death penalty in the Grote case and Cooksey was not charged in that matter. Cooksey's jury was excused during evidence pertaining to the Grote/Ortiz charges. As noted, both defendant and Cooksey were convicted of second degree murder in the McDonald case, and defendant was convicted of the first degree murder of Grote and the attempted murder of Ortiz. Defendant's jury then considered the question of penalty. That jury was unable to reach a decision and was discharged. A second penalty jury was empaneled. We discuss the evidence as it was received by the second penalty jury.
a. Victim impact evidence
Jennifer Jones, Mr. McDonald's fianceee, testified he was like a father to her two children, aged seven and 15. According to Troy Ortiz, Mr. Grote's fianceee was pregnant with his son at the time of Grote's death.
b. Evidence of defendant's other violent crimes
The prosecution presented evidence of several crimes defendant had committed before the charged offenses.
i. The Stockton robbery and murder
In January of 1995, William Bird drove defendant to Stockton to visit Bird's sister Teresa, who had a child by defendant. On January 11, 1995, defendant and others were in Teresa's apartment. Because of financial difficulties, Teresa had put defendant's child up for adoption. Defendant consoled Teresa, saying that they would soon have money. He and the other men left the apartment and drove to a social ...