Judge: William R. Bailey, Jr. Riverside County ) Super. Ct. No. CR 48638
The opinion of the court was delivered by: Corrigan, J.
A jury convicted defendant David Lynn Scott III, of the first degree murder of Brenda Gail Kenny with the personal use of a deadly weapon.*fn1 It concluded, as special circumstances, that the murder was committed in the course of burglary and rape.*fn2 Defendant was also convicted of first degree burglary and assault with a deadly weapon*fn3 on Colleen Cliff, first degree burglary and two rapes of Regina M., first degree burglary and false imprisonment*fn4 of Regenia Griffin, first degree burglary and two rapes of Julia K., first degree robbery of Joseph C.,*fn5 attempted murders of Phillip Courtney and Howard Long,*fn6 and prowling.*fn7 The jury made the following findings supporting weapon enhancements: personal use of a deadly weapon*fn8 in the burglary of Colleen Cliff and the robbery of Joseph C.; use of a deadly weapon*fn9 in the rapes of Regina M. and Julia K.; personal use of a firearm*fn10 in the burglary and false imprisonment of Regenia Griffin, the robbery of Joseph C., and the attempted murders of Phillip Courtney and Howard Long. The jury found that defendant inflicted great bodily injury*fn11 upon Phillip Courtney.
Following a deadlock, the court declared a mistrial on four counts arising from two other incidents: burglary, false imprisonment, and kidnapping of Linda Gonzales; and assault with a deadly weapon on Edward Buhr. Before trial, two counts arising from still other incidents had been dismissed pursuant to section 995.
I. FACTUAL BACKGROUND A. Guilt Phase 1. The Murder of Brenda Gail Kenny
On Thursday, September 10, 1992, Brenda Kenny felt ill. So, instead of going to work at the library, she spent the day visiting her mother. At 10:00 p.m., Kenny drove to her home in Riverside's Canyon Creek apartment complex. The staircase to Kenny's apartment passed the bedroom window of Joseph Masewicz's apartment, which was directly below hers. That evening, after 10:00 p.m., Masewicz heard two people walking up the stairs. During the night he was awakened by a "bang," as if someone had fallen. He then heard a "cry." His alarm clock read 4:10 a.m. Because Masewicz knew that Kenny was prone to seizures, he got up to check on her. However, when he heard footsteps in her apartment, he concluded nothing was amiss and did not pursue the matter.*fn12
Saturday evening Kenny's parents received a phone call from Ruth Hunter. Hunter, a library colleague, was concerned that Kenny had not been at work on Friday and had not called in ill. Mr. and Mrs. Kenny went to her apartment immediately. After knocking and receiving no response, they let themselves into the locked apartment with a key.
The first thing they noticed was "the smell of decomposition." Next they noticed wind billowing the curtain through an unlocked sliding glass door leading to the balcony. They found their daughter lying on the floor of her bedroom between the bed and the dressing table. A blanket covered her face. Although Kenny was a very neat housekeeper, dresser drawers were open, clothes spilled out, and shoes were scattered across the floor.
Christine Keers, a police homicide detective, described the crime scene. A knife found under Ms. Kenny's elbow was similar to knives in her kitchen. The cord to an electric iron had been cut off and placed on the nightstand next to the bed. Sheets stripped from the bed were in a hamper. A leaflet for the New Wine Fellowship Church in nearby Moreno Valley was found by the front door.
Cause of death was "multiple sharp-force injuries." Kenny had been stabbed five times in the neck, once in the chest, and once in the abdomen. Any one of four stab wounds would have been fatal. The knife found under Kenny's elbow could have inflicted them. There were also 16 cuts*fn13 on her hands, likely inflicted as she tried to defend herself. There was a semen stain on the crotch of Kenny's pants.
Defendant's responsibility for the murder was established by, among other things, incriminating statements he made to co-workers before his arrest, incriminating statements he made to investigators, and physical evidence.
Defendant worked at Canyon Springs Cinema in Moreno Valley, along with his girlfriend Stephanie Compton, Terry De la Torre, Ricardo Decker, Kenya Starr, Matthew Shreiner, Yolanda Narez, and Matthew Texera.
According to Decker, Compton related a conversation she had with defendant as they drove past Kenny's apartment complex. Defendant said he dreamt he saw the librarian being murdered. As Compton told this to Decker, defendant was present and Compton asked him for confirmation. "Dave, didn't you have a dream about that librarian being murdered over in the apartments by Canyon Crest?" Defendant nodded in the affirmative. At trial, Compton denied that she told Decker about the dream. She did testify that defendant told her of a recurrent dream in which he looked through a window and saw someone being stabbed. Defendant later admitted to Detective Keers that he dreamt of seeing a man stabbing a woman lying on a bed.
Kenya Starr testified that while he and defendant were cleaning the theater, defendant said: "I shouldn't have done it, she was nice, I shouldn't have killed her." Starr asked defendant what he was talking about. Defendant repeated that she was nice and he shouldn't have killed her. Starr said he did not believe defendant had killed anyone. Defendant responded that he could prove it, and a couple of days later he showed Starr a newspaper clipping of the Kenny murder.
Matthew Texera testified that defendant had assaulted him with a knife about a month before defendant was arrested for Kenny's murder. While Texera stood at the theater snack bar, defendant approached him from behind. Texera turned to see defendant punching him. When Texera tried to parry a blow, defendant slashed Texera's hand with a knife he carried in his other hand. On another occasion, defendant told Mr. Decker that he "had had to stab several people" in the past.
Defendant lived in a house in Moreno Valley with four other young men. In the bedroom defendant shared with one of them, officers found three newspaper clippings concerning the Kenny murder.*fn14
The leaflet for the New Wine Fellowship Church Detective Keers found by Ms. Kenny's front door also linked defendant to her murder. Defendant was a member of the church and, like other congregants, passed out New Wine leaflets to prospective members. A month or two before the Kenny murder, defendant rang the doorbell of Darryl Luntao, who lived in a downstairs apartment directly across from Ms. Kenny. Defendant handed Luntao a New Wine leaflet and spoke to him for several minutes.
Finally, defendant was linked to the murder by serological testing of the semen stain found on the pants Kenny was wearing at the time of her death. Defendant, like 8 percent of the general population, shared the genetic profile revealed by that stain.
2. The Burglary and Assault on Colleen Cliff
On October 1, 1992, Colleen Cliff was sleeping in a guest room at the home of friends in Riverside. Ms. Cliff awoke with a man straddling her and holding a knife to her throat. When she screamed, he told her to shut up or he would kill her. He asked who else was in the house. When she named her host, the intruder apologized and said he had made a terrible mistake. He claimed he was a "hit man" and was in the wrong house. He led Ms. Cliff to the kitchen, where he returned the knife to a drawer. Threatening to come back and kill her if she called police, he ran out the door.
Ms. Cliff testified that her assailant was six feet tall and slender. Defendant was five feet 11 inches tall and weighed 150 pounds.
Although Ms. Cliff's assailant was wearing a ski mask, she could see the skin around his mouth, which she described as that of a Black man with a light skin tone. She testified that defendant's skin tone was "[e]xactly as I remember."
Ms. Cliff's assailant was dressed in "all black," including a turtleneck sweater. According to defendant's co-workers at the movie theater, he sometimes dressed entirely in black. Yolanda Narez testified that once after work defendant changed into a black outfit he had in his backpack. On another occasion Matthew Shreiner saw defendant dressed "in his ninja garb," "all black" with a "ninja mask" revealing only his eyes. Stephanie Compton's car was parked in front of defendant's house. In the trunk the police found a laundry bag containing a black turtleneck and a navy blue knit cap with eye and mouth holes cut into it.
3. The Burglary and Rapes of Regina M.
On November 3, 1992, Regina M. was asleep in her apartment in the Canyon Crest area of Riverside. Awakened by a noise, she saw a man at the foot of her bed. Calling himself a "ninja," the man was dressed entirely in black, with gloves, "sock type" nylon booties, and a mask or hood that revealed only his eyes. He was pointing a silver pistol at her.
The intruder asked Regina whether she was married. Hoping to scare him away, she falsely answered she was. He then claimed to be a "hit man" hired to murder her husband. Later, thinking he heard someone coming into the apartment, he stood inside the bedroom door, holding a dart he had taken from his sleeve.
The intruder had Regina change from her sleepwear to a business suit, then strip, put the suit back on, and then strip again before raping her. Then he had her change positions and raped her again. Afterwards, pointing to a spot on the sheet he said was his semen, he had her strip the bed and rinse the bottom sheet in the bathtub. He also had her wipe herself off with a towel and then wash the towel. However, a semen stain found on her pajama bottoms was available for serological testing. The testing revealed that defendant was in the 8 percent of the population who could have left that stain, just as he was in the same set of those who could have left the semen stain on Brenda Kenny's pants.
The intruder looked through Regina's mail and took a letter from JCPenney. Police found the letter in defendant's bedroom. In a desk in defendant's garage, the police found a pistol similar in shape, size, and color to the one used by the rapist. Stephanie Compton testified that the pistol belonged to defendant and that she had seen it in the desk. In the garage, the police also found darts, a dart holder, and a Velcro strap for carrying the dart holder on the wrist or ankle.
Defendant's co-workers Ricardo Decker and Matthew Shreiner testified they had seen him at the theater wearing a black "ninja" outfit. According to Shreiner, defendant's outfit included a mask or hood that revealed only his eyes and thin cloth shoes with separations for his big toes. The police found a pair of such split-toed booties in defendant's garage, and Shreiner identified them as the ones he had seen defendant wearing.
In his statement to the police, defendant said that he "trained" in his ninja outfit, including a hood and, occasionally, split-toed booties, at night around the Canyon Crest area and Moreno Valley. He also said he had a .45-caliber pistol in a drawer in his garage.
Regina described the rapist as five feet 10 or 11 inches tall and weighing 140 to 150 pounds. As previously mentioned, defendant was five feet 11 inches tall and weighed 150 pounds. The rapist's skin tone, visible through the mask's eyeholes, was "light black," similar to defendant's. Asked specifically about defendant's eyes, Regina said, "Those are the eyes that I saw."
4. The Burglary and False Imprisonment of Regenia Griffin
The night of November 16, 1992, Regenia Griffin was asleep in the bedroom of her second-story apartment in the Canyon Crest area. Awakened by her dog's barking, she saw a man holding a gun. "He had on all black: black pants, black top, a hood that was black, with the eyes and mouth visible." He had come through an open sliding glass door leading to a balcony. The screen was locked, but had been cut.
When Ms. Griffin screamed, the burglar told her to be quiet and demanded money. Not having any cash, Griffin offered him credit cards or a check. Complaining that he "didn't want that," the burglar pushed Griffin into a bathroom, locked her inside, and left.
Ms. Griffin testified that the burglar's skin color was very similar to defendant's, and that the burglar's "[g]rayish silver" pistol was very similar to the one found in the desk in defendant's garage. She said the burglar had a very slim build. Five feet one inch tall herself, she estimated his height as five feet 7 inches to five feet 9 inches.
5. The Burglary and Rapes of Julia K., and Robbery of Joseph C.
On the evening of December 10, 1992, while Julia K. was alone in her Moreno Valley home, a man suddenly appeared on her staircase. He had apparently gained entry through an upstairs bedroom window that had been left ajar. He was dressed in "[a]ll black, from head to toe;" only his eyes were visible through his black hood. Julia ran for the door, but he caught her, forced her upstairs at gunpoint, and raped her. Afterwards, he gave her a towel and told her to clean herself, which she did.
Later, concerned that he might react violently if surprised, Julia advised the rapist that her fiancee Joseph C. was due home from work. He said he might have to kill Joseph. Later, as Joseph started to enter the house, Julia, dressed only in a sweater, warned him not to move. She said: "We're being robbed, and there's a man in the house. He's dressed like a ninja, and he has a gun and a knife." The rapist put a three-foot sword to Joseph's throat, "hog-tied" him, and put him in an upstairs closet. Telling Julia to put on a teddy, he raped her twice, first with her astride him, and then by entering her from behind.
During Julia and Joseph's five-hour-long ordeal the rapist was oddly chatty. He said that he usually operated in Riverside, but that he liked Moreno Valley and would be back. He gave them advice on home security, saying that they should get a meaner dog and should mount their motion detector lights higher so that a burglar could not unscrew them. Similarly, the rapist of Regina M. had lectured her on home security, saying he had entered through an unlocked window.
The rapist took Joseph's paramedic identification, which the police later found in a briefcase on defendant's bed, along with defendant's driver's license and college transcripts. A wallet found in defendant's living room contained a photograph of Julia and Joseph, as well as defendant's Social Security card, his library card, and a photograph of defendant and Stephanie Compton. The rapist had asked Julia and Joseph whether they "thought this was going to make it into the newspaper." A newspaper clipping regarding a burglary and rape in Moreno Valley was also found in the briefcase on defendant's bed.
The rapist's pistol was a silver automatic, similar in shape, size, and appearance to the pistol found in defendant's garage. The rapist's sword was similar to two swords found in defendant's garage. Defendant's girlfriend Stephanie Compton had given him one of the swords and had seen the other in his house. Defendant told police he "trained" with a "ninja sword." The rapist was wearing black gloves with gray duct tape on the fingers, like gloves found in defendant's bedroom. He was also wearing "ninja slippers" with a separation for the big toe, like the ones found in defendant's garage.
The semen stain on the towel the rapist gave Julia matched the genetic profile that defendant shares with 8 percent of the population, just as in the murder of Brenda Kenny and the rapes of Regina M. The rapist's skin color, visible through the eyeholes of his hood, was described by Julia as "light black" and by Joseph as "light brown." According to Joseph, it was "identical" to defendant's. According to Julia, the rapist was 6 feet tall.
On the evening of December 17, 1992, Scott Clifford was smoking on the balcony of his parent's second-story condo in the Canyon Crest area. He saw a hooded man with a "lace-handled" sword strapped to his back emerge from a dark alley into a well-lit parking area. The prowler spotted Clifford and ran away. As the prowler was running, Clifford, a former martial arts student, could see the soles of the prowler's shoes and recognized them as "tabby-type" slippers with split toes. He testified that one of the swords seized in defendant's garage had the same "pattern of lacing" as the prowler's sword.
7. The Attempted Murders of Phillip Courtney and Howard Long
On January 18, 1993, in the early evening, Beverly Losee heard someone knocking on the door of her apartment on Canyon Crest Drive. Lacking a peephole, Losee asked who it was. The person responded, "It's Eddie." Not knowing an "Eddie," Losee peeked through the curtains. She saw a man dressed "all in black." After continuing to demand admittance for 20 minutes, the man walked away in the direction of the Hidden Springs apartment complex.
About an hour later, as Alison Schulz and Phillip Courtney started to enter their Hidden Springs apartment, Ms. Schulz was grabbed from behind by a man holding a gun. He was dressed in black martial arts clothing and wore a black ski mask. Courtney rushed the man. As they struggled for possession of the gun, the man stabbed Courtney in the back. A neighbor, Howard Long, heard the commotion, got his own pistol and ordered the assailant to "freeze." The man shot at Long and then ran away. Both of his lungs punctured, Courtney was hospitalized for two weeks.
At trial, Ms. Losee identified defendant as the man who knocked on her door that night. A criminalist testified that a bullet removed from Mr. Long's doorframe was fired by the pistol found in defendant's garage. According to Courtney, his assailant was a light-skinned black man, similar in coloration, height, and weight to defendant.*fn15
Defendant rested without presenting any evidence.
B. Penalty Phase 1. Prosecution Evidence
Victim impact evidence was given by Brenda Kenny's father, mother, brother, sister, and brother-in-law. Kenny's family moved almost every year during her youth. As a consequence, the children relied on one another for companionship and grew very close. Later, Kenny and her siblings attended the same college so they could continue to be together. When her sister and brother had children, Kenny was so close to them it was as if "[t]hey were her children." Kenny also remained exceptionally close to her parents, calling her mother almost every night or stopping to visit. The day she was murdered Kenny's journal entry read: "I'm very in tune with Dad. And Mom is my friend."
Having heard the accounts of defendant's other victims, Ms. Kenny's father could not stop thinking about what she went through before she died. For Kenny's mother, it "was like my own life had ended as well." "[F]inding Gail lying on her bedroom floor, seeing the stab wounds and her face in death, will be an image that will haunt me the rest of my life." The most difficult thing for Kenny's sister was the murder's effect on her parents, who became severely depressed and required psychiatric care. "The first three years I thought I lost my parents," she testified. Kenny's brother feared his mother might not "survive." Upon returning to her own home in Texas, after taking care of her parents for two months, Kenny's sister "absolutely could not stay in the house by myself after dark." When her husband traveled for business she had to stay with ...