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The People v. Tony Harvey Mcclung

September 19, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TONY HARVEY MCCLUNG, DEFENDANT AND APPELLANT.



(Super. Ct. No. P07CRF0013)

The opinion of the court was delivered by: Robie ,j.

P. v. McClung

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Tony Harvey McClung pled no contest to voluntary manslaughter in exchange for dismissal of the remaining counts and allegations and a stipulated 11-year state prison sentence. The court sentenced defendant accordingly.

Defendant appeals. He contends the trial court erroneously denied his suppression motion. We reject his contention and affirm.

FACTS

About 2:00 a.m. on September 2, 2006, William Harmon approached Deputy Sheriff Steven Fulton who was in the vicinity of the El Dorado County Jail. Harmon said that he wanted to report a murder, but wanted to remain anonymous for his own safety. According to Deputy Fulton, Harmon stated that on August 30, 2006, he received a phone call from defendant, a longtime friend. Defendant asked Harmon to come to his house located on Bramblewood Lane in Shingle Springs because he (defendant) was discarding some property that Harmon might want, some car parts and an older truck explaining he (defendant) was moving to Oregon and his girlfriend, "Pam," was moving to Burlingame. Harmon said it was Pam's house but that defendant had been living there.

Harmon knew defendant's girlfriend Pam was a certified public accountant and was wealthy. About 5:00 p.m. on August 31, 2006, or September 1, 2006, Harmon met defendant outside the house on Bramblewood. Defendant said he would be packing up a U-haul to move to Oregon. In exchange for the car parts and the truck, defendant asked Harmon to paint the inside of the house and to remove the carpet because the house was "evil" or contained "evil spirits." Defendant told Harmon to get rid of anything he found inside or outside the house that he did not want. Harmon went inside the house and saw several black crosses spray-painted on the kitchen walls. Crying, defendant explained that "his baby was gone" and he "shouldn't have gave [sic] her the hamburger" and then began mumbling. Harmon believed that "something bad had happened" and that Pam had choked on a hamburger. Harmon became afraid.

In the kitchen, defendant handed Harmon a military style M-16 rifle and then said that "basically she is gone." Harmon handed the rifle back to defendant. Defendant gave Harmon a key to use to enter the house to do the work. Harmon gave the key to Deputy Fulton and explained that he thought that defendant planned to take Pam's body with him to Oregon.

At 2:15 a.m., Deputy Fulton reported to Sergeant James Byers that Harmon had reported a possible homicide. Sergeant Byers spoke with Harmon who seemed reluctant to provide more information. Harmon's main focus seemed to be a fear for his own safety and a concern that defendant was a threat to him. Harmon's story was disjointed but he never said he saw a body or the signs of a struggle or violence. Harmon told Sergeant Byers that he should hurry before defendant hid the body. Harmon admitted to Sergeant Byers that he had been drinking with defendant when defendant made his statements about the hamburger.

After Sergeant Byers consulted with Sergeant Tom Hoagland, Byers decided a "welfare check" on Pam at the residence was the best course of action. When dispatch inquired whether he wanted a medical unit, Sergeant Byers declined. Sergeant Byers did not call the residence because he was concerned for officer safety (M-16 rifle) and it might alert a suspect who could flee.

About 3:00 a.m., four deputies went with Deputy Fulton to the house. En route to the house, Deputy Fulton received information from dispatch that there had been past calls for medical aid by a person named Pam Krantz who was located at the address of 6040 Bramblewood Lane. No calls had been made for law enforcement. The deputies parked down the street where no one could see them. Harmon had reported that a U-haul ...


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