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People v. Lucas

Supreme Court of California

August 21, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
DAVID ALLEN LUCAS, Defendant and Appellant

Rehearing denied by, 11/12/2014

Petition for certiorari filed at, 03/28/2015

Superior Court of San Diego County, Nos. CR73093 and CR75195, Laura Palmer Hammes, Franklin B. Orfield and William H. Kennedy, Judges.

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COUNSEL

Thomas Lundy, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion by Cantil-Sakauye, C. J., with Baxter, Werdegar, Chin, Corrigan, Liu, and Thompson, JJ.,[*] concurring.

OPINION

[177 Cal.Rptr.3d 413] [333 P.3d 617] CANTIL-SAKAUYE, C. J.

A jury found defendant David Allen Lucas guilty of the first degree murders of Suzanne Jacobs, Colin Jacobs, and Anne Swanke (Pen. Code, § § 187, subd. (a), 189), [1] the attempted murder of Jodie Santiago Robertson (§ § 187, 664), and the kidnappings of Swanke and Robertson (§ 207, subd. (a)). The jury also found that he personally used a knife during each crime (§ 12022, subd. (b)) and inflicted great bodily injury upon Swanke and Robertson (§ 12022.7). The jury further found true the special circumstance allegation of multiple murder (§ 190.2, subd. (a)(3)). The jury acquitted defendant of the murder of Gayle Garcia and was unable to reach verdicts on the murders of Rhonda Strang and Amber Fisher. [2] On the allegation that he had a prior serious felony conviction for rape, the jury found the allegation true (§ § 667, subd. (a), 1192.7, subd. (c)(1)). Following the penalty phase of the trial, the jury returned a verdict of death. The trial court denied defendant's motions for new trial (§ 1181) and for modification of the penalty to life imprisonment without the possibility of parole (§ 190.4, subd. (e)) and sentenced him to death. The court also sentenced defendant to a 17-year term for the attempted murder of Robertson. [3]

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This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. Facts and Proceedings

From May 1979 to November 1984, there were six unsolved throat-slashing killings in the San Diego area. A seventh victim, Jodie Santiago Robertson, survived her throat-slashing injuries, and, in December 1984, she identified defendant as her attacker. Following defendant's arrest, police investigated defendant's possible involvement in the other killings, which eventually resulted in these consolidated proceedings charging defendant with six murders and Robertson's attempted murder. [177 Cal.Rptr.3d 414] Because defendant makes extensive arguments contesting the consolidation and joint trial of these crimes and their cross-admissibility, we also include a factual summary of the crimes for which defendant was acquitted or that ended in mistrial.

A. Guilt Phase

1. The Homicides of Suzanne and Colin Jacobs

The 1979 killings of Suzanne and Colin Jacobs were unsolved for approximately five years until the investigation focused on a suspect, John Massingale, who had purportedly confessed to the crimes. At the time of defendant's arrest in late 1984, Massingale was in custody in San Diego awaiting trial for the Jacobs killings. Investigators reevaluated the evidence in the Jacobs killings and linked defendant to those killings, largely because of a handwritten note found at the crime scene that matched defendant's handwriting. After further investigation, detectives developed a case against defendant based on boot print evidence, hair evidence, a vehicle linked to defendant, and his lack of an alibi. Authorities later dropped all charges against Massingale, released him, and instead charged defendant with the Jacobs killings. Eventually, defendant's presentation at trial focused heavily on the evidence that had purportedly linked Massingale to the killings of Suzanne and Colin Jacobs.

(a) Prosecution Evidence

(i) The Events Leading to the Homicides

On May 4, 1979, Michael and Suzanne Jacobs lived in a small white wood-frame house in the eastern end of San Diego, California, [333 P.3d 618] with their three-year-old son, Colin, and their two dogs. That day, Michael and Suzanne were expecting the delivery of a new dinette set.

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Michael awoke that morning and started his normal workday routine by getting ready for work. He left the house at 6:00 a.m. and drove away in the family vehicle. Michael also kept in his driveway a blue off-road Volkswagen Beetle with the top cut off and outfitted with a roll bar.

Margaret Harris, a neighbor and friend who lived across the street from the Jacobs house, testified that she did not see Suzanne outside her house as she usually did every morning. Instead, she had seen a maroon or wine-colored sports car with a black top parked in the Jacobses' driveway between 8:00 and 9:00 a.m. Harris believed the car was an MGB and described it as having sun-damaged paint. [4]

Later that morning, around 11:00 a.m. to 11:30 a.m., Harris telephoned Suzanne, but no one answered. She assumed that Suzanne had been picked up by whoever had arrived in the sports car. About this same time, Michael also telephoned Suzanne but got no answer.

At approximately 12:30 p.m., deliveryman Louis Hoeniger arrived at the Jacobs residence to deliver the shipment of dinette furniture. For approximately 10 minutes waiting for someone to answer the door, Hoeniger heard no response, except for the barking of the Jacobses' dogs in their backyard. Harris observed the delivery truck arrive at the Jacobs residence and saw the deliveryman leave the dinette furniture on the front porch. This surprised [177 Cal.Rptr.3d 415] Harris because she knew Suzanne was expecting the delivery.

Around 5:00 p.m., Michael returned home and was puzzled by the discovery of their new dinette furniture on the front porch because Suzanne was supposed to receive the shipment. Michael entered the house and discovered blood all over the bathroom. As he backed out of the bathroom, he saw Colin lying dead on the bedroom floor.

Michael walked out of the house and called out across the street to Margaret and Ed Harris, who were outside. Michael appeared to be in shock and collapsed on the ground. Michael was unable to talk, so the Harrises went into the Jacobs home to investigate. They discovered Colin's body just inside the entrance of the master bedroom and Suzanne's body further inside the master bedroom. Mrs. Harris called the police.

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(ii) The Scene of the Crime

Emergency units and San Diego police officers arrived at the Jacobs residence and secured the crime scene to examine and collect evidence. There was a significant amount of blood on the bathroom floor and on the floor of the hallway leading to it. There was blood on the front and inside of the bathtub. On the bathroom rug was a folded, torn scrap of paper with handwritten printing that read " Love Insurance" and " 280-1700." [5] The note had a bloodstain on it. Child-sized bloody footprints, consistent with Colin's, led from the bathroom to inside the master bedroom where his body was found.

Colin's throat had been severely slashed. Because of the amount of blood found in the bathroom, the child-sized bloody footprints leading from it, and the amount of blood on the front of Colin's clothing, Detective Gary Gleason believed Colin's throat had been cut in the bathroom but that he had survived long enough to walk down the hallway, where he collapsed inside the master bedroom.

The master bedroom showed signs of a violent struggle. A padded railing had been dislodged from the edge of the waterbed and was lying on the floor. The bedsheets were out of place and had bloodstains. There was a smear of blood on the top of a chest of drawers, and items on it had toppled over or [333 P.3d 619] fallen to the floor. Next to the entrance to the master bedroom, there was a smear of blood on the light switch and the adjacent door and frame.

Suzanne's fully clothed body lay sprawled on the floor between the waterbed and the chest of drawers. In both of her clenched hands were several strands of blond hair. She had bruising across her back near her bra strap and her shirt had been torn in that area. Suzanne's throat had been slashed from ear to ear.

Because of the sheer volume of blood on the floor of the master bedroom, no one could have walked around the bodies without leaving footprints. Adult-sized bloody footprints with a distinctive Vibram-sole pattern were visible in the master bedroom, leading out of the bedroom, through the hallway and toward the kitchen. All the adult-sized footprints appeared to be made by one person because they were all the same size and had a consistent right-left pattern.

In the living room, the television had been left on; on top of it was a wine glass with some wine in it and an ashtray containing [177 Cal.Rptr.3d 416] a cigarette butt. Around

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the television were more bloody footprints with the same Vibram-sole pattern. The footprints led toward the dining room and then into the kitchen.

In front of the kitchen sink, the footprints overlapped as if someone had stepped over them repeatedly. Blood was on the kitchen sink, faucets, and the drain trap. Blood was on a washcloth in the sink, the soap holder, and a green paper towel left on the kitchen counter--all consistent with a bloodied assailant having used the sink to wash.

(iii) The Forensic Evidence

The victims' injuries

According to forensic pathologist David Katsuyama, Colin's throat had been slashed by at least two distinct cuts--one that extended from the left side of his neck across the throat, and the other that extended to the right side behind his ear--leaving a gaping wound that nearly extended to the backbone. Because the cuts had severed his jugular vein and carotid artery, he bled to death. Colin also had severe cuts on the tips of two fingers, his right thumb, and the palm of his left hand below the base of the thumb.

According to Dr. Katsuyama, Suzanne's throat had been slashed by at least six distinct cuts that transected the skin, fatty tissue, cartilage, and muscles of the neck leaving a gaping wound that exposed the backbone. Her right jugular vein and right carotid artery were severed. Suzanne also had three stab wounds: a small wound above her left collarbone, a larger wound that severed her pulmonary artery, and a wound to her abdomen that deeply penetrated her liver. Like Colin, Suzanne died of blood loss caused by all of her wounds. Unlike Colin, Suzanne had evidence of petechial hemorrhaging--tiny specks of blood caused by the rupture of capillary blood vessels on her left eyelid. Dr. Katsuyama explained that Suzanne's petechial hemorrhaging could have been caused by the loss of blood flow to that area caused either by strangulation or by her rapidly bleeding wounds. Suzanne, however, died with her tongue clenched between her teeth, which is consistent with strangulation. Her body bore no signs of a sexual assault. Suzanne's blood-alcohol level at her death was 0.04 percent, which would have been consistent with her having consumed two eight-ounce glasses of wine within the hour before she died. [6]

In Dr. Katsuyama's opinion, Colin's and Suzanne's wounds were inflicted by a medium-length sharp-edged knife with a relatively stiff blade.

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The " Love Insurance" note

On May 11, 1979, lab technician Pat Stewart took several photographs of the " Love Insurance" note found in the Jacobses' bathroom, unfolding it to reveal the handwritten printing on it. He then applied ninhydrin, a chemical that detects fingerprints by staining them a color ranging from a light pink to a dark purple. After he applied the ninhydrin, a partial fingerprint appeared. At the time, [333 P.3d 620] Stewart was unaware that fingerprints that appear after ninhydrin is used fade over time, and he did not take a photograph of the fingerprint, believing that the latent print examiners would do so.

Three days later, San Diego Police Department latent print examiner Leigh Emmerson examined the partial fingerprint [177 Cal.Rptr.3d 417] on the Love Insurance note and found five to six identifiable points, which he believed were not sufficient to determine to whom the print belonged but which could be used to eliminate potential suspects. Emmerson informed the lead detectives that the fingerprint should be preserved. But he did not take a photograph of it himself because it was department policy for the investigating officer to photograph such prints. Emmerson returned the note to a locked file in the department's latent print section.

(iv) The Arrest of John Massingale for the Homicides

John Massingale, a drifter and native of Harlan County, Kentucky, eventually became a suspect in the Jacobs murders. On March 18, 1984, San Diego police detectives located Massingale in Kentucky and interrogated him. During the initial interrogation, he admitted he was a drifter in Southern California in 1979 through 1980, but denied that he regularly carried a sheathed fixed-blade knife. He also initially denied any knowledge of the Jacobs murders or that he had later bragged about killing them while hitchhiking with two men. The following day, however, in tape-recorded interviews, Massingale admitted he used to carry a fixed-blade knife and confessed to the murders, providing details matching the crime scene. These details included that the Jacobs home was white and had a blue dune buggy parked outside, the approximate ages of Colin and Suzanne, the location of the living room couch, that Colin had been killed in the bathroom, and that Massingale exited the back door while hearing the sounds of barking dogs. Massingale was arrested and transported to San Diego where he remained in jail through December 1984.

At defendant's trial, Massingale testified that he had made a " phony" confession because the officers, before his tape-recorded confessions, advised him not to speak with an attorney, claimed they had evidence and witnesses against him, and warned that he faced a death sentence unless he cooperated

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with the police. Massingale alleged that a detective had shown him numerous photographs of the crime scene. Massingale said he later used details from those photographs in his recorded confessions. He also admitted that he mostly smoked Marlboro brand cigarettes. [7]

Massingale, who grew up in the Appalachian Mountains of Kentucky, testified that he could read and spell small words but was basically illiterate. In Kentucky, he worked primarily as a painter and coal miner, but spent many years as a drifter and day laborer while staying at various Salvation Army missions.

(v) The Arrest of Defendant in December 1984 and Reexamination of the Evidence

Approximately five years after the Jacobs murders on December 16, 1984, following the throat-slashing murder of Anne Swanke (see post, at pp. 203-208) and after Jodie Santiago Robertson identified him as the assailant who slashed her throat (see post, at pp. 195-199), defendant was arrested. Therefore, because of the similarity of these cases to the throat-slashing murders of Suzanne and Colin Jacobs, local authorities reexamined [177 Cal.Rptr.3d 418] the evidence collected at the Jacobs residence.

Comparison of defendant's handwriting to the Love Insurance note

In December 1980, after the police identified Massingale as a possible suspect in the Jacobs murders, police lab technician Pat Stewart reexamined the Love Insurance note [333 P.3d 621] but discovered that the partial fingerprint, raised by his previous application of ninhydrin, had faded away completely, and he was unable to find any photographs of the partial fingerprint. Stewart applied another application of ninhydrin, but nothing appeared. His lab sought the assistance of the FBI in reraising the fingerprint and sent the note to the FBI. But when the note came back from the FBI, the fingerprint still was not visible, the paper had turned black and dark purple, and the handwriting had become unreadable. Consequently, the investigation had to rely on photographs Stewart had taken of the note before he first applied ninhydrin to it in May 1979.

A few weeks after his arrest, defendant, while in jail, cooperated with police and gave investigators several specimens of his handwriting. John J.

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Harris, a handwriting expert and former president of two national associations for document examiners, examined these specimens, as well as other writings defendant had made in the past. Harris enlarged these specimens and compared them with enlarged photographs of the handwriting on the Love Insurance note. Harris believed, with " reasonable certainty" that defendant wrote the Love Insurance note. Frank Clark, defendant's business partner in their carpet cleaning company, was familiar with defendant's handwriting and also believed defendant wrote the Love Insurance note.

Love Insurance was the name of an insurance brokerage in San Diego, and the numbers on the note matched its business telephone number. According to the brokerage's business records, two months after the Jacobs killings, defendant bought auto insurance for his 1972 Audi through the Love Insurance agency.

Defendant's prior employment and the boot print evidence

Roy Nilson, a retired deputy sheriff who specialized in shoe print examinations, examined a photograph of a single bloody footprint found in the Jacobses' living room and concluded the sole pattern matched that of a size 12 Vibram style No. 100 sole. A Vibram sole was typically fitted to work or hiking boots.

In the spring of 1979 defendant worked at Precision Metal, a metal forging company, which had provided defendant with a new pair of Lehigh work boots, size 10 1/2 D, about one month before the Jacobs murders. Nilson researched this brand and size and learned that the manufacturer often used a size 12 Vibram sole, trimmed to fit a size 10 shoe. He compared an inked footprint from an exemplar pair of size 10 1/2 Lehigh boots with a photograph of a bloody footprint on the Jacobses' living room floor. Although the front portion of the boot sole matched the photograph well, the heel was out of alignment by three-eighths of an inch. Nilson believed this discrepancy could have been the result of minor inconsistencies in the manufacturing process, and that it was possible that the bloody prints could have been left by the same brand and size of boot as the exemplar.

Blood and fingerprint evidence

Bloodstain samples taken from the kitchen floor, kitchen sink, the living room floor, the bedroom, Suzanne's nail clippings, [177 Cal.Rptr.3d 419] the bathroom, and from the Love Insurance note all tested as type O blood, which was consistent with Suzanne's and Colin's blood type, but not with Michael Jacobs, John Massingale, or defendant, who all have type A blood.

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John Torres, a latent print examiner for the San Diego Police Department, found only five prints at the crime scene with clear enough ridge detail to be of value for purposes of attempting a possible identification. Of these, Torres believed two prints lifted from a doorjamb leading from the dining room to the kitchen matched Michael Jacobs. Torres could not identify the three remaining prints, two recovered from the doorjamb between the dining room and the kitchen and a palm print from the bathroom doorjamb, as originating from defendant, Suzanne, Colin, or Michael. Torres, however, did not examine these three prints to ascertain whether Massingale could be excluded as the donor of these prints.

[333 P.3d 622]Hair comparison evidence

John Simms, a criminalist at the San Diego Police Department forensic science laboratory, and James Bailey, a criminalist at the Los Angeles County Sheriff's Department criminalistics laboratory, each microscopically examined the hairs collected at the crime scene from Suzanne Jacobs's clenched right hand. They compared them with hair samples from defendant and John Massingale. Simms excluded Massingale as the source of those hairs calling them " very different from Massingale's." Simms, however, was unable to either include or exclude defendant as the source of the hair found in Suzanne's right hand but described some of the hairs as being very close to defendant's.

Bailey, in contrast, believed most of the hairs from Suzanne's right hand were similar physically and microscopically to defendant's hair and that they might have come from him. According to Bailey, some of the hairs had characteristics closer to that of Colin Jacobs, but he could not eliminate defendant as the source of those hairs.

Bailey also examined additional hairs collected at the morgue from Suzanne's right hand and from her left elbow. Bailey believed many of the hairs collected from Suzanne's right hand at the morgue were consistent with Suzanne or Colin. Four of the hairs, however, were consistent with defendant and another two hairs were consistent with either defendant or Colin. He also believed the hair collected from Suzanne's elbow was similar to defendant's but not to either Suzanne's or Colin's. Finally, Bailey also believed a hair found on a rug underneath Suzanne's body was similar to defendant's hair. [8]

Defendant's mother's MG Midget

Because the Jacobses' neighbor, Margaret Harris, reported seeing what she believed was a maroon or wine-colored MGB sports car parked outside the

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Jacobs residence on the morning of the crimes, the investigation focused on whether defendant ever had access to such a vehicle.

On December 20, 1974, defendant's mother had bought a 1974 MG Midget roadster. On November 11, 1976, defendant was stopped for speeding while driving his mother's MG, and he was involved in an accident in the same vehicle eight days later. An MG Midget and MGB are very similar, with the MGB being slightly [177 Cal.Rptr.3d 420] larger. The rear of the MG Midget and the MGB were identical during their respective production years.

Defendant's whereabouts on the day of the murders

At the time of the Jacobs murders, defendant lived in a residence hall associated with the Salvation Army. When he lived there, defendant's presence was monitored and, due to his employment schedule at Precision Metal, he was not permitted to leave the facility earlier than 9:00 a.m. and had to return by 1:00 a.m. But according to Precision Metal's employee attendance records, defendant was not at work on either Thursday, May 3, or Friday, May 4, 1979.

(b) Defense evidence

(i) The Impeachment of John Massingale

The defense called several witnesses to impeach Massingale's trial testimony that he was not involved in the killing of Suzanne and Colin Jacobs, his habit of carrying a fixed-blade knife, his purported admission to the killings to fellow hitchhikers, and his claim that the police had coerced his confession.

On August 15, 1980, California Highway Patrol Officer Robert McLean stopped and cited John Massingale for hitchhiking near a freeway in San Diego County. Massingale was wearing a sheathed knife with a six- to eight-inch fixed blade. Officer McLean recalled the incident because Massingale had " crazy eyes" and appeared to be " a very scary individual."

In late August 1980, John " Shorty" Smith, also a native of Harlan County, Kentucky, met Massingale at an Arizona gas station. [333 P.3d 623] According to Smith, Massingale " looked like he was from my part of the country," and he offered Massingale a ride to a mine in California for work. But Massingale claimed he was wanted for murder in California. Smith did not take Massingale seriously, and convinced Massingale to go to California, offering to eventually take him back to Harlan County. According to Smith, Massingale wore a

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four-and-one-half-inch Buck knife. Because the California mine was closed when Smith and Massingale arrived, they drove to Los Angeles, and along the way picked up a second hitchhiker, Jimmy Joe Nelson. [9]

According to Smith, during the drive to Los Angeles, Massingale talked a lot and bragged to him and Nelson about having cut someone's head off.

Nelson testified that, during the trip in Smith's van, they discussed failed marriages and Massingale replied that if a woman treated you badly " you just cut their head off and get it over with." Nelson described Massingale as having a dual personality that could shift unpredictably from being a nice person to being " one of the most violent people in the world."

Nelson saw Massingale carrying a knife with an 11- or 12-inch blade that he had strapped around his waist in a leather holster. When riding in Smith's van, Massingale constantly practiced and played with the knife " like a kid with a toy." Massingale repeatedly showed off how he could unholster the knife quickly, flip it through the air with his wrist, and get it to stick in a wood board at the back of the van. Because of Massingale's personality and knife skills, Nelson was afraid of making [177 Cal.Rptr.3d 421] Massingale mad while he played with his knife.

After arriving in Los Angeles, Massingale took Smith and Nelson to a gay bar in Hollywood. According to Smith and Nelson, although Massingale was a handsome, " flashy dresser" and portrayed himself as " a ladies' man," he appeared to prostitute himself with various male patrons of the bar--leaving with each of them briefly and then returning with cash he shared with Smith and Nelson.

At the bar, according to Nelson, Massingale later ingested " windowpane" LSD. After that point, Nelson described Massingale as talking nonstop with the " floodgates open" as he bragged about the things he had done. One of the things Massingale bragged about, according to Smith and Nelson, was killing a mother and her little boy, over a year earlier, in the spring of 1979. According to Smith and Nelson, Massingale claimed he had met a woman named " Sue Ann," " Anne," or " Suzanne" in San Diego and went to her home in East San Diego. [10] Massingale explained to Nelson that they had consumed a couple of drinks at her home and were sitting on the living room couch

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" making out," but her little boy interrupted them, saying he needed to go to the bathroom. [11] When the boy refused to go to the bathroom by himself, the mother got up to help the boy, which " pissed off" Massingale. Massingale said he grabbed " that bitch by the hair," " worked on" slicing her throat, and then " worked on" the little boy so " he would never have to go to the bathroom again." According to Nelson, Massingale claimed he killed the boy in the bathroom.

The next day, Massingale decided to stay behind in Los Angeles and did not leave town with Smith and Nelson. Before they parted, however, Massingale gave Nelson some of his clothes, a pair of boots, and some other items. This included a striped brown-and-white silk shirt that appeared to have blood on it and runs consistent with a woman's fingernails having raked down the left sleeve. [333 P.3d 624] Massingale also gave him a set of his work boots. Nelson told police that Massingale wore engineer-type boots " all the time."

Soon after Nelson left Los Angeles and parted ways with Smith, Nelson became a suspect in a Texas killing. Chickasaw Police Detective Sergeant Harold Phillips arrested Nelson for that death in Alabama on December 6, 1980. Nelson assisted Alabama and Texas authorities in locating the other suspects in that killing, [12] and also told them about the Jacobs killings. [13] According to Detective Sergeant Phillips, Nelson told him that a man named " Johnny" had confessed to knife-slashing the throats of a woman and her child in San Diego in the bedroom of her white wood-frame home. Nelson mentioned a blue vehicle at the home. Nelson said Johnny and the woman had been drinking. At the time, Detective Sergeant Phillips knew nothing about the Jacobs murders. Detective [177 Cal.Rptr.3d 422] Sergeant Phillips contacted San Diego Police Detective David Ayers and told him of Nelson's statements. [14]

The authorities transported Nelson to Texas where Detective Ayers interviewed him in January 1981. [15] Nelson described his encounter with Massingale

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and described his barroom confession. Nelson stated that he still had the items Massingale had given him, including the bloody shirt and the work boots. Nelson gave the officers permission to retrieve those items from his mother's Alabama residence. [16]

After locating Massingale in Harlan County, Kentucky, in mid-March 1984, Detective Ayers and San Diego County District Attorney Investigator William Green (Inspector Green) traveled there to interview him. Ayers and Green met with Kentucky State Police Detective Denny Pace, who was familiar with Massingale, and they interrogated him the next day. According to Detective Pace, Massingale had a reputation for dishonesty in Harlan County. [17]

Over the next five hours, Massingale admitted he had been in San Diego in the early summer of 1979 and that he had met Smith hitchhiking a year later. But he denied any involvement in the Jacobs murders, confessing to the murders, or ever carrying anything other than a small pocket knife. He also denied knowing or ever having met Nelson.

During this first interview, Detective Ayers and Inspector Green showed Massingale four photographs related to the Jacobs murders. Two photographs, full-body shots of each victim as they appeared facedown in the bedroom, did not show their neck wounds. The other two photographs showed the Jacobs residence from the front and the side. Detective Ayers, Inspector Green, and Detective Pace each denied ever showing Massingale [333 P.3d 625] any additional photographs related to the Jacobs murders.

The officers also intentionally withheld from Massingale various details surrounding the murders during this first interview, including the fact that the victims had nearly been decapitated. In fact, Detective Pace did not know details of the Jacobs murders, except that Colin had been [177 Cal.Rptr.3d 423] killed in the bathroom. At one point, Massingale asked Detective Pace if he should get an attorney, but Detective Pace replied, " Johnny if you didn't do anything

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wrong, I don't feel like you need an attorney." Massingale then voluntarily continued with the interrogation. But he later ended it by indicating that he wanted a lawyer.

After the end of the first interview, Massingale said he wanted to speak with Detective Pace alone. In that discussion, Massingale asked Detective Pace what kind of sentence he faced and what he should do. Detective Pace told Massingale that death was the maximum penalty and that he should not admit to anything he did not do. Detective Pace explained that Detective Ayers and Inspector Green knew details about the crime that they had not disclosed during their five-hour interrogation. Massingale asked Detective Pace what those details were, but Pace said he could not disclose the details without Ayers's and Green's permission. Massingale asked Detective Pace to get their permission to tell him those details.

Detective Pace later spoke with Detective Ayers, who gave him permission to tell Massingale that Colin had been killed in the bathroom and gave Pace a picture of the Jacobses' bathroom to show Massingale. Detective Pace returned to Massingale and confronted him with this evidence and explained that they also knew he was lying about carrying a knife. Detective Pace said that Nelson was in prison at the time of the murders, that Nelson told Pace that Colin had been killed in the bathroom, that the location of Colin's murder had not been made public, and that, therefore, Massingale must have been present at the scene of the crime. According to Detective Pace, Massingale replied, " I am guilty." According to Detective Pace, Massingale appeared relieved by his admission and became more talkative.

Massingale then admitted to Detective Pace that he had been lying during the earlier interrogation. Massingale explained that he met " Sue Ann" in a bar, could not remember how he got to her residence, but recalled that she did not have a car. He had recognized the pictures of the Jacobses' white house that the officers had shown him and remembered that a blue dune buggy was parked beside the home. Massingale told Detective Pace that he recalled sitting on the living room couch of Sue Ann's home and pinching her leg, but that she smacked him in the face. Massingale said he then " went crazy" because he was high on LSD. He got up off the couch, and she told him to get out. The little boy told Massingale, " don't hit my mommy," and he remembered cutting both of them with a knife that he had holstered on his belt. He remembered cutting the little boy in the bathroom, washing up in either the bathroom or kitchen sink, and then leaving through the back door with the sound of dogs barking.

Massingale told Detective Pace he believed Sue Ann was about 27 years old and the boy was around five years of age. He said he went to the

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Salvation Army and got new clothes and then later buried the knife in the Mexican desert. He said he remembered Nelson because he was bothered by Nelson's seizures. He also admitted giving Nelson one of his shirts.

The following day, Massingale gave a tape-recorded confession to Detective Pace in which Massingale agreed with Detective Pace's description of the circumstances of Massingale's confession the night before. Massingale then largely repeated the same details about the murder that he had given Detective Pace the night before. Massingale explained that he was sorry, that he had never killed anyone before and that he [177 Cal.Rptr.3d 424] would never hurt a child, but that the LSD made him nervous and " plum out of [his] mind."

Later that same day, Massingale gave a second tape-recorded confession with Detective Ayers and Inspector Green also present. In this confession, Massingale repeatedly [333 P.3d 626] said he was sorry for what he did. He explained that it was hard for him to remember the details of the crimes because he was high or drunk most of the time and because he suffered from memory problems. In addition to some of the details he had provided in the prior interrogations, he also correctly identified the Jacobses' couch as being on the right side as one entered the front door. He remembered the mother had run from him and believed that he may have cut her in the kitchen. At the end of the interrogation, Detective Ayers asked Massingale if he had anything else to say, and he replied, " I'm guilty."

Inspector Green and Detectives Ayers and Pace each testified that they did not ever threaten or yell at Massingale at any time during the interrogations.

(ii) The Temporary Residences of Massingale and Defendant in 1979

The defense presented evidence in support of its theory that Massingale had left the Love Insurance note at the crime scene because it must have been in clothing that defendant had left for donation to the Salvation Army.

According to a chaplain of the San Diego Salvation Army rescue mission in downtown San Diego, Massingale stayed at the mission a few times in 1979. Massingale seemed out of place because he was more well dressed than the typical transient. In addition to shelter, the mission provided free clothing to its residents.

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The residence hall in which defendant stayed in May 1979 was also associated with the Salvation Army. The hall was in the same building as the Salvation Army rescue mission. [18]

(iii) The MG

The defense presented evidence to rebut the state's theory that defendant's mother's MG was at the Jacobs house on the morning of the killings.

One of the Jacobses' neighbors, Jeanette Robertson, drove by the Jacobs residence around 9:00 a.m. on May 4, 1979, and two more times later that same morning. [19] She did not see any car parked in the driveway on any of those occasions.

Margaret Harris, who had seen a wine-colored or faded maroon sports car in the Jacobses' driveway on the morning of the murders, did not tell police her belief that the car was an MGB until sometime in 1988. [20] She also admitted that she could [177 Cal.Rptr.3d 425] not distinguish amongst the various different models of MG--an MGA, MGB, or a Midget.

In 1974, defendant's mother, Patricia Katzenmaier, bought a used 1974 purple MG Midget that was only a few months old at the time. According to Katzenmaier, from March 1979 until she sold the car in 1981, the Midget was parked in her garage and was not driveable. In late 1979 or early 1980, Curt Andrewson, a family friend of the Lucas family, saw the MG Midget in Katzenmaier's garage. According to Andrewson, the car was purple and was inoperable because the engine was in pieces. Dennis Smith bought the MG Midget from Katzenmaier in 1981. According to Smith, the car was purple and did not run. He fixed the car, painted it red, and sold it in 1986. [21]

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[333 P.3d 627] (iv) Boot Print Evidence

The defense presented evidence challenging the state's theory that defendant had left the bloody boot prints found at the crime scene.

Fire Captain Edward Fairhurst, who was the first emergency responder to walk inside the Jacobs residence on the day of the murders, testified during the prosecution's case-in-chief that he was not wearing Vibram-soled boots that day and denied ever owning any such shoes. He also claimed that the bloody boot prints did not match the soles he was wearing that day.

But Captain Fairhurst's shoemaker, David Daywood, remembered resoling Fairhurst's boots the month before the murders with Vibram soles and heels. Daywood recalled that Captain Fairhurst wore size 10 or 10 1/2 boots and that he applied new size 12 Vibram soles to his boots, which he trimmed down to fit the smaller boot size.

In addition, defense investigator William Pon Cavege spoke with Captain Fairhurst in 1985, and showed him a photograph of a bloody boot print at the crime scene. According to Cavege, Captain Fairhurst admitted that the pattern looked similar to the soles he had been wearing that day and admitted that his shoemaker had put new soles on his boots shortly before the murders. A second defense investigator, Thomas Caldwell, testified that he contacted Captain Fairhurst in 1986, and Fairhurst admitted he was wearing Vibram-soled boots when he entered the Jacobs home. Captain Fairhurst testified that he was unaware of anyone ever checking or comparing his boots with the prints found at the crime scene. Captain Fairhurst had thrown away the boots in question by the time the defense investigators had first approached him about the boots.

George Jackson, who worked alongside defendant in 1979 as a furnace operator at Precision Metal, described the floor conditions at the plant. He said the plant floor was covered in lubricants, steel grit, and steel shot used in the forging process. These materials would heavily soil the operators' clothes and boots, with the materials getting stuck in crevices of the boot soles. Because of these conditions, the furnace operators had a changing room and lockers where they stored their overalls and boots. According to Jackson, if the operators tried to wear their boots outside the plant, they would ruin the carpets in their vehicle or at home.

(v) Hair Evidence

The defendant re-called hair comparison expert John Simms, who had testified for [177 Cal.Rptr.3d 426] the prosecution but was unable to reach any strong conclusions as

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to whether the hairs recovered from the crime scene were consistent with defendant's hairs or excluded him. According to Simms, because blond hairs typically exhibit a limited range of characteristics, they are more likely to appear similar from one blond person to another. Also, defendant's hair could have changed in the five years between the homicides and when the samples were obtained from him.

(vi) The Love Insurance Note

The defense called David Oleksow, a handwriting expert for the San Diego County Sheriff's Department crime laboratory. Oleksow examined the handwriting on the Love Insurance note on several occasions, both before and after the note had been rendered unreadable, as part of his normal casework for the laboratory. After defendant's arrest, Oleksow compared defendant's known handwriting samples with photographs of the Love Insurance note. He observed " numerous unexplained variations," but also no " significant differences" between those samples and the note. Accordingly, Oleksow could neither positively identify defendant as the author of the Love Insurance note, nor exclude him. Oleksow explained that the handwriting on the Love Insurance note had a limited amount of writing from which to make useful comparisons. Because he was dealing with a photograph of the note, he was unable to conduct a microscopic examination of the original or examine the fluctuations in embossing created by handwriting [333 P.3d 628] pressure. Oleksow, however, acknowledged that in a report dated late March 1985, he wrote that defendant was " probably responsible" for the handwriting on the Love Insurance note.

(c) Prosecution Rebuttal

According to two close friends of Suzanne Jacobs, Bunnice Jacobs and Deborah Watts-Gaydos, Suzanne was not known to frequent bars alone and meet men.

Inspector William Green, who was assigned to the Jacobs murders, wrote a report explaining that he had examined the boots of Fire Captain Fairhurst and his crew and determined they were different from the pattern on the footprints in the Jacobs house.

2. The Homicide of Gayle Garcia

The jury acquitted defendant of the December 8, 1981 homicide of real estate agent Gayle Garcia, who was killed inside the home she had advertised for sale or lease. We briefly summarize the evidence presented concerning

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this incident for purposes of evaluating defendant's challenges to the consolidation of the crimes for trial and their cross-admissibility.

(a) Prosecution Evidence

(i) Defendant's Activities Before the Homicide

In December of 1981, defendant worked as a manager at M & A Carpet Care, along with Frank Clark, his good friend and business partner. On the afternoon of December 8, 1981, defendant was not at work and Clark filled in for him.

(ii) The Events Leading to the Homicide

In 1981, Annette Goff owned a house in Spring Valley, San Diego County, with William Greene. The relationship between Goff and Greene had deteriorated, creating animosity between them. Goff had obtained a restraining order against Greene that kept him out of the house and had filed a civil suit against him in a property dispute. Due to their estrangement, Goff decided to sell the house and hired her [177 Cal.Rptr.3d 427] friend Gayle Garcia as her real estate agent.

On December 8, 1981, the day she was killed, Garcia was at the house from 4:00 to 6:00 p.m. to show it to prospective clients, having placed a newspaper ad listing the property as " rent to own."

Greene, who still had a key to the house, wanted to show the property to his friends that evening, but Goff refused. Over several telephone calls, Goff and Greene argued about allowing Greene's friends to see the property. Goff eventually hung up on Greene and called Garcia at 5:35 p.m. to let Garcia know that she would be at the house in 20 minutes, and that Greene might be coming.

Goff arrived at the house at approximately 6:05 p.m., with her brother Chris and one of her employees. The front door was open and the phone was ringing as they entered the house. When Chris answered the phone, Greene was on the line asking him if Garcia was still there. Goff took the phone, and Chris began walking around the house looking for Garcia. He discovered Garcia's body lying on the floor of the dark bedroom.

(iii) The Scene of the Crime

Homicide Detective Thomas Streed, called to investigate Garcia's death, found Garcia's body lying on the floor atop vacuum cleaner tubing. A broken fingernail of Garcia's was found in the hallway just outside the bedroom. All

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the blood at the scene was under Garcia's body or in the immediate vicinity. Her pants had two parallel smears running down them that appeared consistent with wipe marks from a bloody knife blade.

(iv) The Forensic Evidence

Dr. Howard S. Robin performed Garcia's autopsy on December 9, 1981, at the San Diego coroner's office. The body had a large, gaping neck wound, extending from the angle of the jaw on the left side all the way across the neck to the angle of the jaw on the right side. The wound went through her carotid arteries and jugular veins on both sides, cut through the neck muscles and the membrane between the hyoid bone and the top of the thyroid cartilage, and nicked the [333 P.3d 629] second cervical vertebrae on her right side. Garcia ultimately bled to death due to laceration of the carotid arteries.

In addition to the neck wound, there were superficial abrasions on the left side of Garcia's forehead, a one-inch abrasion in the mid-forehead region, and one on her nose. There was an abrasion near her left ear and scratches or lacerations under her chin. Small, fine petechial hemorrhages were found over the conjunctiva of her eyes. These hemorrhages could have been caused by choking.

When a 1985 search of defendant's residence resulted in the seizure of a sheath from a model 112 Buck knife, Detective Streed compared photographs of the blood smears from Garcia's pants with an exemplar model 112 Buck knife and concluded that the stains were consistent with that model. Streed did not compare the smears with any other type of knife and admitted that the model 112 was a relatively common knife.

Criminalist Ron Barry examined the 12 usable latent fingerprints lifted from the crime scene, but none matched defendant. He did not examine Garcia's broken fingernail for skin, blood, or other trace evidence.

(b) Defense Evidence

On the night of the homicide, while she was standing outside her home as the police investigated, Goff saw a motorcyclist [177 Cal.Rptr.3d 428] go down her street who looked like William Greene's brother, Richard, who lived with Greene nearby. Sergeant Steven Blackwood of the San Diego County Sheriff's Department noted that the motorcyclist seemed very interested in the scene and almost stopped in front of the house. As Blackwood wrote down the license plate number, the motorcyclist sped off. Blackwood followed, stopped the motorcyclist, and identified him as Richard Greene.

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Richard Greene gave Sergeant Blackwood his address, and at 1:00 a.m. Detective Streed picked William Greene up for questioning at the police station. William Greene owned a Buck knife, but police never seized it for testing.

Later that day, in the afternoon, Greene called Goff, and they discussed the events from the night before. During this call, Greene denied having ever said he was going to their residence while Garcia was there.

Parker Bell, a forensic expert, used eight different kinds of knife blades to wipe human blood on pants, and compared those smears with the smears found on Garcia's pants. He believed that none of the eight knife blades could be eliminated from having made the stains and that any similar type of knife could have left the smears.

Defendant presented the testimony of several relatives and family friends, including his mother, former stepfather, brother, sister, and brother-in-law, who said that defendant was at a family birthday party on the evening of December 8, 1981. They testified that defendant arrived around dusk with his girlfriend and future wife, Shannon, and their children. They stayed two to three hours, leaving after dark. Defendant's departure from the party was memorable because it was sparked by a derogatory comment made by his brother. The trial court took judicial notice that December 8, 1981, was a Tuesday and the sun had set at 4:43 p.m.

Officer Thomas Caldwell drove the route from the house where the family birthday party was held to the house where Garcia was killed. The houses were 11 miles apart. Caldwell made the trip between 4:30 and 4:45 p.m. It took him 42 minutes because the route was congested with traffic.

3. The Attempted Homicide of Jodie Santiago Robertson

(a) Prosecution Evidence

(i) Defendant's Residence and Vehicle at the Time of the Crimes

In early 1983, defendant moved to the Spring Valley area and bought a house on Casa de Oro Boulevard. The home had a semicircular driveway with concrete steps leading to a porch. That same year, defendant bought a black 1983 Datsun 280ZX with a manual transmission. He attached to it a customized license plate that read " CMC INC 2," which referred to the name of his company, Carpet Maintenance Company, Inc. [333 P.3d 630] At the beginning of June

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1984, one of defendant's employees, Richard Adler, moved into a spare bedroom in defendant's house, living out of boxes he kept there.

(ii) The Abduction

On the evening of June 8, 1984, 34-year-old Jodie Santiago Robertson, who was in the San Diego area visiting her brother, left a restaurant in El Cajon sometime between 10:30 and 11:00 p.m. to walk back to her brother's apartment. As Robertson passed the apartment complex's parking lot, a man, whom she eventually identified as defendant, came up behind her, placed a knife at her throat, and told her that if she ran or screamed he would cut her throat. [177 Cal.Rptr.3d 429] Defendant led Robertson to a dark brown sports car, similar to a Datsun 280ZX, with louvers on the back window. The car was already running and the driver's side door was ajar. Robertson noticed the license plate, but could remember only that it was comprised of three numbers and three letters.

Defendant forced Robertson through the driver's side door, and she became seated partially in the center console area and partially in the passenger seat. The seats had sheepskin seat covers. Defendant placed the knife in front of him on the dashboard, behind the steering wheel. Defendant drove the vehicle with his left hand on the steering wheel while keeping his right hand wrapped around Robertson's right shoulder and neck. During the drive, Robertson was also able to note that defendant had a mustache, blond hair, and " bulging" blue eyes. She did not remember if the car had a stick shift and she did not notice defendant shifting gears as he drove.

Defendant drove up to a house with a semicircular driveway. He led Robertson out of the car and up some stairs to the front door. Defendant led her to a bedroom with boxes where he tied her hands behind her. He took Robertson into another bedroom and placed her on a bed. When Robertson tried to lift up her head to cough, defendant began choking her until she lost consciousness. Robertson did not remember anything after that point.

(iii) The Rescue of Robertson

The following morning at approximately 6:40 a.m., two women on a morning walk discovered Robertson lying in the brush and weeds on the side of the road at a residential intersection about a mile from defendant's home. She was naked below the waist and had blood all over her face and down her shirt. Robertson was moaning and making gurgling sounds. She had a severe cut across the front of her neck and deep cuts to her fingers. There was a significant amount of blood on the paved portion of the roadway and on the weeds in the overgrowth at the side of the road, suggesting that her injuries had been inflicted at the scene.

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At the hospital, a vascular and trauma surgeon examined the extent of Robertson's neck wounds. The wound was above her Adam's apple and extended into the larynx above the vocal cords. The wound reached back to the bones of her neck vertebrae. Robertson's left external jugular vein was severed but the carotid artery, the right external jugular vein, and both internal jugular veins remained intact. The wound was consistent with a cutting instrument having been used with a sawing or carving type motion. Below the wound, Robertson's neck had bruising consistent with a smooth ligature having been applied with enough force to constrict her neck.

Robertson had a severe skull fracture on the back of her head extending nearly across to each of her ears. Along the fracture, just behind each ear, portions of the skin on her scalp had split open. The cuts to Robertson's fingers on her right hand went through the tendons to the bone.

Surgeons successfully reconstructed Robertson's neck, and she was released from the hospital 18 days later.

(iv) Defendant's Sale of His 280ZX

Three days after Robertson's abduction, the local newspaper ran an article about Robertson's abduction and her survival. Two days later, defendant traded his Datsun 280ZX for a Toyota pickup truck. Defendant told his friend and employee, Richard Adler, [177 Cal.Rptr.3d 430] that he could no longer afford the insurance [333 P.3d 631] and payments on the car. Adler helped defendant remove the personalized license plate and the sheepskin covers from the 280ZX's seats and transferred them to the pickup.

(v) Robertson's Identification of Defendant, His Residence, and His Vehicle's Make and Model

Following the murder of Anne Swanke (see post, at pp. 203-208), in mid-December 1984, Robertson returned to San Diego at the request of the San Diego Police Department to view a photo lineup. After examining the photo spread, Robertson identified a picture of defendant as that of her attacker.

Robertson had previously told detectives that she would recognize " on sight" the house to which she had been abducted. From memory, she also drew a small diagram of the interior of the house and the circular driveway. Following her identification of defendant's photograph, detectives drove Robertson to the location of her brother's apartment complex, but she was unable to retrace the route of her abduction. The detectives also purposefully drove by defendant's residence, but Robertson did not alert them to the

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house. Later that morning, the detectives asked Robertson to draw a larger sketch of the house from her memory, and she again drew a circular driveway with additional detail of the interior of the house.

In the afternoon, the detectives again took Robertson to defendant's neighborhood. Detective Robert Fullmer slowed the car as they drove by defendant's house. Robertson turned her head and looked at the house while turning slightly in her seat. She asked Detective Fullmer to do a U-turn and drive past the house again. On this last pass, Detective Fullmer again slowed the vehicle, and Robertson turned in her seat again while staring at the house. Detective Gary Fisher asked her if she saw something that she recognized, and Robertson identified defendant's house as the one to which she had been taken.

Robertson identified several photos of a Datsun 280ZX as being the same make and model vehicle in which she had been abducted. She also identified several photos of defendant's actual 280ZX as being consistent with the vehicle used on the night of her assault, except that the rear window louvers were missing. She also identified a sheepskin cover taken from defendant's pickup truck as being consistent with the covers used in the vehicle in which she had been abducted. When taken to see the 280ZX actually owned by defendant at the time of her abduction, however, Robertson could not positively identify it as the vehicle used in her abduction.

(vi) The Datsun 280ZX's Louvers and Manual Transmission

Two of defendant's neighbors testified that they had often seen defendant's 280ZX parked outside and that it had rear window louvers. After defendant traded in the 280ZX, it was subsequently sold to Michael George. According to George, the 280ZX had no rear window louvers when he took possession of it, but he had to clean off a rubbery, gluelike substance adhering to the four corners of the rear window. One type of aftermarket rear window louver for a 280ZX could be installed with a clip and adhesive on the glass. It could be removed without leaving any permanent damage to the car.

In order to explain why Robertson did not recall defendant making any gear changes during her abduction, San Diego County District Attorney Investigator William Green drove the same 280ZX owned [177 Cal.Rptr.3d 431] by George, and previously by defendant, from the site of Robertson's abduction to defendant's home. Green drove the entire route in second gear without use of the gear shifter. He was able to follow the posted speed limits and traffic signals and signs without stalling the vehicle.

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(b) Defense Evidence

(i) The Effects of Trauma on Robertson's Memory

When paramedics brought Robertson to the hospital, her blood pressure was 70 over zero, suggesting that the heart was unable to pump a normal volume of blood and oxygen to the brain. According to Dr. Sheldon Zigelbaum, a physician and psychiatrist, this [333 P.3d 632] loss of oxygen, if significant in duration, can cause damage to brain cells and result in memory impairment. During her recovery in the hospital, Robertson displayed significant signs of psychomotor retardation, meaning that she spoke and moved slowly.

After Robertson's release from the hospital, both a social worker and a physician-psychiatrist diagnosed Robertson as suffering from posttraumatic stress disorder. According to Dr. Zigelbaum, closed-head injuries and diagnoses of posttraumatic stress disorder are related and can increase the possibility of memory loss. Closed-head injuries can impair a person's ability to perceive, remember, and contemplate events and surroundings and to use that information effectively later.

According to her treating physician-psychiatrist, Dr. Wendy Freed, Robertson had expressed depression and suicidal thoughts, but later expressed happiness and relief after she believed that her assailant had been found and arrested.

(ii) Defendant's Datsun 280ZX

Four of defendant's former employees, William Johnson, Mitchell Hoehn, Dennis Adair, and Loren Linker, testified they worked for Carpet Maintenance Company, Inc., in 1984 and were familiar with defendant's 280ZX. They all agreed that the car did not have louvers on the back window. Adair, in particular, testified that he had washed defendant's car a number of times at work and there was nothing on the rear that blocked him from directly washing the rear window.

According to Hoehn, he had been a passenger in defendant's 280ZX on several occasions. The car had a computerized female voice that alerted when the door was opened. Robertson heard no such sounds when the doors opened during her abduction.

According to loan records, after defendant traded the 280ZX for the Toyota pickup truck, his monthly car payment was reduced from $ 412.23 to $ 287.11.

(iii) Defendant's Alibi

Loren Linker and his wife testified that defendant visited them on the night of Robertson's abduction on June 8, 1984. Loren Linker testified that he and

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defendant arrived at the Linker residence about 9:00 p.m., and defendant left around 11:00 p.m. to midnight. [22] The visit was memorable because the Linkers had a new chair delivered that same day, and defendant had commented on how nice it was.

(iv) Other Defense Evidence

According to Detective Fullmer, in the final driveby of defendant's house, just before Robertson identified it as the place to where she had been abducted, he heard someone in the vehicle say " this house" or " what about this house?" Detective Fisher [177 Cal.Rptr.3d 432] had previously stated that it was possible that he had made such statements before Robertson made a positive identification of the house.

At the hospital, a rape kit was performed on Robertson. Vaginal swabs taken from that examination tested presumptively positive for the presence of sperm cells, and criminalist Randall Robinson visually detected the presence of sperm cells. The ABO blood type test results from the vaginal swabs neither included nor excluded defendant as the donor of the sperm cells. In the opinion of Dr. Phillip Miller, an emergency room physician familiar with rape kits, the detection of sperm cells in the vaginal swabs indicated that sexual intercourse could have occurred as recently as within minutes or as long ago as one to two days prior.

(c) Prosecution Rebuttal

Defendant could not be ruled out as contributing the seminal fluid and sperm found on the two deep vaginal swabs from Jodie Robertson because both defendant and the swabs tested as nonsecretor--that is, one whose blood type antigens are not secreted into bodily fluids.

Deputy Nancy Zuniga was present when Robertson identified defendant's house from a police vehicle. She testified that, as Detective Fullmer drove past defendant's house, [333 P.3d 633] Robertson looked at it intently. Detective Fullmer made a U-turn, drove past the house again, and slowed down upon Robertson's request. Robertson then identified defendant's home as the house she had been taken to, and she listed the things about the house that she recognized, including its color, its concrete steps, and its circular driveway with a tree. According to Deputy Zuniga, no one in the vehicle had guided Robertson's attention to the house prior to her identifying it.

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4. The Homicides of Rhonda Strang and Amber Fisher

With 11 of 12 jurors voting in favor of conviction, the jury was unable to reach a verdict concerning whether defendant murdered Rhonda Strang and Amber Fisher on October 23, 1984. The trial court declared a mistrial as to those counts, and the court later granted the prosecutor's motion to dismiss these charges. Again, we briefly summarize the evidence presented regarding this incident for purposes of evaluating defendant's challenges to the consolidation of the crimes for trial and their cross-admissibility.

(a) Prosecution Evidence

(i) Defendant's Relationship to the Strang Family's Narcotics Dealing

At the time of her death, 24-year-old Rhonda Strang was married to Robert Strang, and they had a baby named Jessica. Robert used marijuana, cocaine, and methamphetamine. To Rhonda's dismay, Robert began selling drugs out of their house. Defendant's friend and employee, Richard Adler, was Rhonda's brother and he introduced defendant to the Strang family. Occasionally, defendant would visit the Strang home to purchase drugs.

Rhonda was afraid of Robert's drug activity and of one of his suppliers. Rhonda became very conscious about security at home and would compulsively keep the doors and windows locked, and would check to see who was at the door before opening it. Rhonda considered divorcing Robert and kept a diary of the drug transactions. She believed that the house was being watched.

(ii) The Events Leading to the Killings

Because of a 48-hour jail commitment stemming from a drunk driving conviction, [177 Cal.Rptr.3d 433] defendant was supposed to report to the San Diego County detention facility at Descanso for work credit on October 23, 1984. But defendant asked to reschedule for a later date, claiming that he had a large carpet job on October 23. According to the carpet company's dispatch logs, however, the large carpet cleaning job scheduled for October 23 had been completed three days earlier. On the morning of October 23, 1984, defendant called in sick at his carpet company.

On the morning of October 23, 1984, Robert Strang arrived for work around 8:00 to 8:30 a.m., and remained there until 3:30 p.m. Robert's foreman, William Ralls, regularly took special note of Robert's presence at work because Robert had a reputation for sneaking off the jobsite without permission.

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Between 9:00 and 9:30 a.m. that morning, Gregory Fisher, a longtime friend of Rhonda's, left his three-year-old daughter, Amber, with Rhonda for her to babysit while he was at work. In the early afternoon, Rhonda's five-year-old daughter, April, came home from school and discovered the bodies of her mother and Amber Fisher. April ran to a neighbor's home. Emergency responders arrived around 1:30 p.m.

(iii) The Scene of the Crime

Arriving firefighters found the bodies of Rhonda and Amber. They also found Rhonda's baby daughter, Jessica, inside a playpen in the living room, lethargic, but unharmed.

Detective Robert Fullmer examined the crime scene. He found no signs of forced entry. All of the doors to the house were locked--except the door between the kitchen and the locked garage. Inside the house, Rhonda Strang was lying on her back on the living room floor with her throat cut from ear to ear and with some abrasions on her neck. Amber Fisher was lying on her side next to the doorway leading out the other side of the house. Her throat also had been cut.

[333 P.3d 634] (iv) The Forensic Evidence

Dr. Robert Bucklin performed the autopsies on both Rhonda and Amber.

Rhonda's gaping neck wound extended across the front part of her neck, and it transected through the structures of the neck, including both carotid arteries, all the jugular veins, and the larynx. There were cutting marks penetrating the cervical vertebrae. Based on the borders of the wound, the cuts appeared to have been made from her right to her left. Dr. Bucklin believed that the skin wounds and marks on the cervical vertebrae revealed at least five distinct cutting strokes.

Rhonda's neck had prewound abrasions consistent with her gold necklace having been used to strangle her. The skin on her face and the whites of her eyes had a number of small, superficial hemorrhages consistent with strangulation. Rhonda's head showed suffusion, a dusky color that is consistent with choking. In addition, she had a bruise on her right shoulder.

Amber's gaping neck wound also appeared to have been cut from her right to her left. The wound severed the larynx, the carotid arteries, and the jugular veins. Some of her cervical vertebrae had cutting injuries. The skin on Amber's neck indicated that the wound was cut using more than one stroke.

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Amber had a cut through the tip of her finger. Like Rhonda, Amber also had a bruise on her right shoulder.

(b) Defense Evidence

(i) Domestic Violence in the Strang Household

Several witnesses testified concerning incidents of violence against Rhonda by her husband, Robert.

[177 Cal.Rptr.3d 434] At a party, a family friend saw Robert grab Rhonda by the throat and say, " I am going to kill you, bitch." Later, the friend saw Rhonda with bruises on her shoulder and scratches on her neck, which Rhonda claimed were caused by Robert beating her up. [23]

On July 8, 1984, a neighbor heard a loud argument from the Strang house and eventually heard a woman screaming, " Help me. Help me. He's trying to kill me," followed by the sounds of pounding and breaking glass.

Friends of the Strangs reported seeing Rhonda on occasions with a black eye and bruises on her face and arms. They testified that Robert had an explosive temper and would often threaten her with a gun. On one occasion in August 1984, a roommate saw Robert threaten Rhonda with a gun. The roommate called the police, resulting in Robert's arrest.

According to Rhonda's daughter, April, on the night before her mother's murder, Rhonda and Robert had an argument.

(ii) Rhonda's Fear and Her Documentation of Robert's Narcotics Activities

In the summer of 1984, Rhonda began cooperating with San Diego Police Detective Dale Kitts concerning her husband's drug activities, offering information regarding Robert's supplier. Rhonda told several of her friends that she was covertly tracking Robert's activities by keeping a diary, tapes of phone conversations, and a list of drug dealers and drug deals. Rhonda expressed her fear of Robert and his supplier to several friends and family members. In the weeks before her murder, she repeatedly expressed her belief that she was being followed and was going to be killed because she knew too much about the narcotics activities.

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Following the murders, Detective Fullmer searched the Strang house but did not locate Rhonda's diary, cassette tapes, or any list of names of people involved with Robert's drug activities.

(iii) Other Evidence

Robert collected knives, would frequently sharpen them, would often carry a Buck [333 P.3d 635] knife on his belt, and sometimes concealed knives in his boot.

Dr. Cyril Wecht, a specialist in anatomic, clinical and forensic pathology, testified that the direction of the neck wounds on Rhonda and Amber suggested that the assailant was left handed.

5. The Homicide of Anne Swanke

(a) Prosecution Evidence

(i) Defendant's Activities Before the Homicide

On the evening of November 19, 1984, defendant and his business partner, Frank Clark, left work in defendant's truck and went to a bar, where they drank several beers and consumed crystal methamphetamine. They then drove to Clark's home around 10:00 to 10:30 p.m. where they drank more beer. The night was memorable to Clark and his wife, Cecilia, because she was watching the concluding part of the television miniseries " Fatal Vision." Defendant stayed through the end of the program at 10:58 p.m. and left the Clark residence at approximately midnight or thereafter.

(ii) The Abduction of Anne Swanke

On the evening of November 19, 1984, 22-year-old Anne Swanke was visiting her [177 Cal.Rptr.3d 435] boyfriend, Gregory Oberle, near the San Diego State University campus. Before Swanke left Oberle's apartment between 12:30 a.m. and 1:00 a.m. on November 20, she mentioned to him that her Dodge Colt was low on gasoline.

On that night, Gale Graham was an employee of a gas station on Jackson Drive, near the intersection with Fletcher Parkway, in La Mesa. Sometime after midnight, Graham encountered Swanke, who walked in with a gas can and purchased gasoline. Swanke then left on foot.

Soon thereafter, Richard Leyva, while driving home, was stopped at a traffic light at the intersection of Jackson Drive and Fletcher Parkway. Leyva saw a car parked at a nearby curb and saw someone bent over at the rear of

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the car as if pouring gasoline into the gas tank. Leyva looked away momentarily and when he looked back, he saw another vehicle had parked behind the first one, and it had a license plate with an unusual combination of letters, " TNCCNC," " CNCTNC," or possibly " CNCINC," plus a number. As Leyva made his turn and passed the vehicles, he noticed the silhouettes of two people who appeared to be in an embrace, although he briefly considered that it might be a kidnapping.

In the early morning hours of November 20, 1984, Officer Charles Drake of the La Mesa Police Department learned from the California Highway Patrol that a Dodge Colt had been abandoned at the intersection of Jackson Drive and Fletcher Parkway. When he arrived at the car, Officer Drake opened the car door and retrieved Anne Swanke's wallet from the passenger seat. On the driver's side rear corner of the trunk lid were Swanke's car keys, a flashlight, and the gas tank cap. The gas tank flap was open, and a gas can was on the ground.

(iii) Defendant's Facial Scratches and the Discovery of Anne Swanke's Body

On the morning of November 20, 1984, defendant called Frank Clark and said that he needed to take a week off work because he had gone to a bar after leaving Clark's home and someone there had hit him with a beer mug. Defendant's roommate, Richard Adler, saw defendant that morning and observed fresh scratches on his forehead and both sides of his face and cheeks. The scratches were still bleeding, and Adler commented to defendant that he looked like he had been run over by a truck. Defendant told Adler that he had been in a bar fight the night before and was hit in the face by a beer mug or pitcher. Another roommate, Vicky Johnson, also noticed the scratches on defendant that morning.

Defendant appeared at work on Friday, November 23, 1984, and Frank Clark noticed that defendant had deep scratches on the left side of his face that had begun to heal. They were about four inches long and started from his eyelid and went down his cheek and off his chin. Two advertising representatives who visited the carpet cleaning business that day also noticed the scratches, and defendant [333 P.3d 636] told them that he received them during a bar fight.

The following day, on the morning of November 24, 1984, James McNelly was walking in the hills near his Spring Valley home and discovered Swanke's body in a rough, rocky, steep, remote area about two miles away from defendant's home. McNelly returned home and called the police.

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(iv) The Scene of the Crime

San Diego County Sheriff's Detectives Robert Fullmer and Craig Henderson arrived at the scene. Swanke's body was [177 Cal.Rptr.3d 436] lying facedown in the mud near the bottom of a steep, rocky hill. Except for socks, Swanke's body was nude from the waist down. Around her neck was a silver chokechain, like one used to leash a dog. After rolling the body over, Detective Henderson observed a severe cut to Swanke's throat.

Swanke's shirt, bra, and sweater vest had been sliced through the middle, exposing her upper torso. Her pants were a few feet away and were still zipped and buttoned but had been sliced through along the zipper to the crotch area. Her shoes were scattered further up the hill. Her underpants were also found further up the hill. Based on Detective Henderson's experience, it appeared the body had been there several days.

(v) The Forensic Evidence

Dr. Katsuyama performed the Swanke autopsy. Swanke's neck wound was large and gaping, extending from behind the right ear downward to the upper portion of the neck and to the left side. The wound cut through the neck muscles around the larynx, the larynx itself, the esophagus, the windpipe, and the carotid vessels and jugular veins on both sides of the neck. Cutting marks penetrated the cervical vertebrae and the connective tissue holding the backbone together. Based on the status of the skin around the wound, there appeared to be at least seven distinct and separate sawing-type cuts on the left side, and at least four separate cuts on the right side of Swanke's neck.

Discolorations and marks on Swanke's neck were consistent with the dog chain having been pulled tightly in an upward direction around her neck. Swanke had an injury to her tongue suggesting that she had bitten it while being choked with the dog chain before her death. Her body also had scrapes, primarily on her buttocks and thighs, as if she had been dragged across the ground or had fallen over rough terrain. Dr. Katsuyama believed that the scratch injuries occurred shortly before or after her death.

Based on the presence of small insect larvae on the trachea, the partial dehydration of the eyes, and the cool weather of the preceding days, Dr. Katsuyama estimated that Swanke had been dead for at least 48 hours and probably longer. However, Dr. Katsuyama could not determine the exact date and time of Swanke's death.

Dr. Katsuyama also took genital swabs for analysis, but tests were unable to confirm the presence of semen.

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According to Deputy Frederick Freiberg, Swanke's fingernails had foreign debris consistent with blood and possibly skin, so he clipped the nails and collected them for further analysis. The fingernails were sent to Serological Research Institute (SERI) for testing. Brian Wraxall, a forensic serologist with SERI, analyzed the fingernails, as well as blood samples taken from defendant, defendant's wife, Shannon, Jodie Robertson, and Swanke.

Upon examination, Wraxall noticed blood present on most of the nails clipped from Swanke's left hand. One fingernail, labeled L2, held tissue-like material that stretched out like an accordion from a half-inch to three-quarters of an inch. Blood from that fingernail clipping, and from another, labeled L4, tested as type A blood with enzyme protein PGM subtype 2, which was inconsistent with Swanke but consistent with the blood type of defendant.

Wraxall also tested for two genetic markers found in blood--GM and KM (gamma marker and kappa marker) antibodies. Two other fingernail clippings from Anne Swanke, one from each hand, labeled L1 and R4, tested positive for GM [177 Cal.Rptr.3d 437] allotype genetic markers that were consistent with a mix of Swanke's and defendant's blood. KM analysis of the fingernails was inconclusive.

[333 P.3d 637] Based on the blood characteristics in the fingernail clippings R4, L1, L2, and L4, which matched defendant, Wraxall stated that blood from only approximately one in 69 Caucasians, one in 547 Blacks, and one in 197 Hispanic/Native Americans would share the same characteristics.

After a search and seizure of items from defendant's truck, criminalist Charles Merritt tested a bloodstain found on the passenger side of a sheepskin seat cover. The stain tested as type O blood, which was the same blood type as Swanke, but different from defendant and his wife, who were both type A.

Marilyn Fink of the San Diego County Sheriff's Department ran further tests on the sheepskin bloodstain searching for certain blood proteins. Tests done at SERI verified Fink's results and tested for additional proteins and genetic markers. The blood proteins and genetic markers in Swanke's blood were consistent with the tests of the sheepskin bloodstain. Those results were inconsistent with the blood of defendant, his wife, and Jodie Robertson. According to Wraxall, the blood characteristics derived from the bloodstained sheepskin occur in only approximately one in 4,794 Caucasians, one in 5,875 Blacks, and one in 444 Hispanic/Native Americans.

(vi) Other Evidence

Pursuant to a search warrant, sheriffs searched defendant's house and recovered several items related to hunting knives. One of the items was a

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sheath for a model 112 Buck folding knife with a four-and-one-quarter-inch blade, and the sheath had significant signs of wear. Sheriffs also located a box labeled " Buck Knife, Special Model 119." In addition, they recovered a Buck fixed-blade knife and sheath. From a toolbox found in defendant's truck bed, they also recovered a fillet knife used to skin fish. None of those items had evidence of blood.

In December 1984, San Diego County Sheriff's Detective Craig Henderson interviewed defendant's wife, Shannon Lucas. Deputy Henderson showed Shannon Lucas the dog chokechain that had been around Swanke's neck. Upon seeing the dog collar, Shannon Lucas appeared visibly shaken and said that it belonged to the couple's recently deceased dog. [24]

At the time of defendant's arrest on December 16, 1984, nearly a month after Swanke's abduction, Detective Henderson noticed healed scratches on defendant's face. He had a photograph taken of defendant's face to document the injuries.

(b) Defense Evidence

(i) The Forensic Evidence

Hermann Schmitter, an expert in forensic serology from the Bundeskriminalamt (the German equivalent of the FBI), challenged the state's serological evidence concerning the sheepskin bloodstain and the victim's fingernails. According to Schmitter, criminalist Charles Merritt's and SERI's ABO testing of the sheepskin stain was unreliable. He criticized Merritt for failing to document what technical procedures, if any, Merritt used to test the ...


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