Superior Court: Shasta County Super. Ct. No. 98F2652, James Ruggiero, Judge.
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Kathy Moreno, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Eric L. Christoffersen and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Paul Gordon Smith, Jr., of the first degree murder of Lora Sinner, with the special circumstance of torture. The jury also found defendant guilty of false imprisonment by violence and conspiracy to commit murder. It determined that he used a deadly weapon and inflicted great bodily injury. The jury decided death was the appropriate penalty, and the court imposed that sentence. This appeal is automatic.
We affirm as to guilt, but reverse the penalty judgment. Defendant’s violent attempt to escape from jail just before his trial began created difficult problems for the court at various phases of the proceedings. We conclude that during the penalty phase, the court improperly excluded expert testimony about prison security measures for those sentenced to life without possibility of parole. The evidence was admissible to rebut the prosecution’s evidence and argument suggesting that defendant would pose a danger in custody. Because we cannot say, beyond a reasonable doubt, that the penalty determination would have been the same had the jury heard from defendant’s expert, we must reverse the penalty judgment.
A. Guilt Phase
In December 1997, defendant was 21 years old and living with his father in Redding. During that month he met his younger half sister, Lori Smith, for
the first time. Lori had been living in Washington State. Defendant’s older brother, Timothy Smith, also arrived from Washington with his fiancée, Lora Sinner.
Defendant married Jessica Smith in January 1998. Shortly thereafter, he began a relationship with Amy S., a 14-year-old runaway. Defendant’s friend Eric Rubio became romantically involved with defendant’s sister Lori. Sinner ended her engagement with Timothy and began to associate with defendant, Amy, Eric, and Lori. Toward the end of February this group, led by defendant, began an extended camping trip on private land in Shasta County.
Of the five, Sinner was the only person without a partner. She flirted with defendant, which angered Amy. Defendant returned Sinner’s attention in order to maintain access to her car, which they used to drive into town from camp. About a week before Sinner’s murder, Lori and Amy discussed beating her up, and defendant told Eric he wanted to “off this bitch, ” referring to Sinner. Lori testified that during a conversation with everyone except Sinner, defendant said Sinner should be killed. Eric remembered the conversation, but not who made the comment.
On the afternoon of the murder, Lori and Amy again spoke about beating Sinner. According to Lori, defendant encouraged them because he wanted Amy and Sinner to fight over him. Eric testified that defendant told him “the girls” wanted to fight Sinner, and he did not know what to do about it. Eric said defendant displayed no signs of intoxication that afternoon. Toward the end of the day, Amy punched Sinner in the face. Sinner punched back, and Lori joined the fight. Defendant and Eric were in a tent about 15 feet away.
Amy testified that Lori knocked Sinner’s head against a tree several times. Amy struck her in the head five or six times with a large can of chili, which she tossed aside after it was dented. Lori slammed Sinner’s head into a large rock. Meanwhile, Amy retrieved two pieces of an automotive dent puller. One piece was a metal bar about an inch and a half thick and a foot long. The other was a weighted metal piece shaped like a barbell. As Sinner sat on the ground, Amy and Lori repeatedly hit her with these implements. Sinner was crying and asking them to stop. Amy admitted taunting Sinner during the assault.
Lori’s account differed somewhat. She did not remember hitting Sinner’s head on a tree or a rock, nor did she remember any taunting. She testified that after punching Sinner with her fists, she retrieved the dent puller bar from the
tent. Defendant and Eric were watching the assault. Lori hit Sinner with the bar as hard as she could two or three times. She also hit her with the chili can after Amy dropped it.
Eric testified that he and defendant were in the tent when the fight started. They could hear but not see the beating. Defendant showed no interest, saying, “just let them fight.” Amy had taken one piece of the dent puller from the tent, and Lori the other. Eventually, defendant intervened.
Amy confirmed that defendant stopped the fight. He told them to take Sinner down to the creek and clean her up. Lori maintained it was her idea to take Sinner to the creek. There, she and Amy scooped water onto Sinner’s head to wash the blood from her hair. Eric and defendant also came to the creek. According to Lori, defendant took her aside, held out an ax, and said, “Just finish her off.” Lori refused. Defendant had no apparent difficulty walking or talking; Lori did not know if he had taken any drugs that day. They all returned to the tent. Lori did not see what defendant did with the ax. The couples sat in the tent; Sinner sat on a mat outside the door.
Defendant produced a bottle of whiskey, which the couples shared. Defendant then gave the bottle to Sinner, telling her it would help with the pain. Sinner took a small drink. Defendant became angry, and asked Eric to help tie her up. After initially refusing, Eric put a noose around Sinner’s neck. Defendant tied her hands and feet. Sinner was crying. Defendant, still angry, told her she was going to kill herself. He said she was in enough pain already and might as well join her mother, who had died recently. Declaring that Sinner’s death was going to look like a suicide, defendant untied her hands, handed her a razor blade, and told her to cut her wrists. Sinner cried and refused at first, then cut her wrist once. Saying the cut was not deep enough, defendant took the blade, slashed her wrist, and handed the blade back to her. Sinner tried to inflict another wound. Defendant, unsatisfied, took the blade back and cut her wrist repeatedly.
Defendant told Sinner to hold her wrists over a fire pit. Lori testified that defendant struck Sinner’s hands several times with the bar when she moved them. He also kicked her in the forehead and poured whiskey over the bleeding cuts, causing Sinner to scream. He forced her to drink more liquor. Then he wrapped a plastic garbage bag around her head, cinching it tightly. Sinner continued crying and pleaded for help. Defendant struck her on the neck and back several times with the bar, then asked if anyone else wanted to hit her, looking at Lori. Lori was scared but wanted to prove she was not afraid to hurt someone. She hit Sinner with the bar twice in the head and neck, and said she was “hard to kill.” Defendant snatched the bar, told Lori she was not doing it right, and hit Sinner several more times. When a blow produced a snapping sound, he stopped.
Eric and defendant buried Sinner. Lori testified that Eric was frightened and shaking. When the men returned, defendant said “she knew too much, ” and he feared she would say something. Lori understood him to mean that Sinner would tell the police he had been stealing purses from cars. Defendant warned the others that anyone who revealed what had happened would be the next to die. They agreed to say they had put Sinner on a Greyhound bus. The next morning, they burned her clothing and belongings at the burial site.
Amy’s testimony about the events following the fight was roughly consistent with Lori’s, though she was hazy on many details, particularly defendant’s statements. She said defendant did not appear to be drunk or under the influence of drugs. She remembered Lori saying, “This bitch won’t die” as she struck Sinner with the bar. Amy did not mention defendant having an ax, or asking Lori to “finish her off.” Amy could hear Sinner breathing against the plastic wrapped around her head just before defendant and Eric carried her away to bury her.
Eric’s account was similar. He said he did not join the others at the creek, but stayed on the bank with a flashlight, watching. He did not see defendant with an ax. Defendant said Sinner would not survive because her skull was cracked and the back of her head was “mushy.” Eric admitted helping bind Sinner. He related that defendant cut Sinner’s wrist, poured alcohol on the wounds, and kicked her in the head when she did not obey his directions. According to Eric, Sinner was still breathing after the final blow. Defendant then cinched the bags around her head and held them for 30 to 60 seconds, saying she would die more quickly that way.
Eric initially refused to help dispose of the body. Defendant told him he had better, “or I would end up just like her.” Frightened, Eric helped defendant bury Sinner. They stripped the body first because, defendant said, it would decompose faster. Afterward, defendant instructed the others to say Sinner had gone back to Washington. He told them “we would all end up like her if we said anything.” In the morning, they burned Sinner’s clothes on top of the grave. Defendant said this would keep animals from digging her up.
The murder came to light some weeks later when Lori confessed to acquaintances that she and defendant had “beat and tortured” Sinner to death. While in jail, defendant participated in two videotaped interviews with detectives and two audiotaped interviews with a newspaper reporter. The tapes were played for the jury. In the first interview, defendant was given Miranda warnings and said he understood them. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602].) He denied committing the murder but said he would take the blame because he was the only one of the group who could tolerate prison. Eventually, he began providing details. He
said Sinner could have died from either a head wound or asphyxiation, but “would have died regardless.” He described her injuries, then recounted the following events after she was washed in the creek:
“Went back up to the top of the hill, resumed, she was tied up, laid down, by the fire pit, laughed at. Comments were made towards her, she was kicked, her hand was broken, she was hit in the back with a metal pipe, bar. She was hit in the back of the head, repeatedly in the back of the neck and the back of the head, I remember the blood splattering. And she just didn’t move no more. She wasn’t making no noise. Just kind of like laid there, then... a piece of plastic was put around her face and then another piece of plastic, but she was already dead.” Defendant admitted getting Eric to help him bury the body. He conceded he could have stopped the attack, and had no reason why he did not.
Defendant continued giving details, without identifying his role. He said Sinner “was... given options, suicide.... She was given a razor blade and told to cut her own wrists.... She uh couldn’t cut her own wrists she was kind of too drunk... wrists were cut for her, deeper. A lot of blood. But that wasn’t enough.... She was hit again with the pipe or the bar.... Either in the back of the head or the back of the neck, twenty, thirty, forty, fifty times, I don’t know.... [S]he couldn’t break her neck. Couldn’t kill her.” Defendant said Sinner had cried out in pain, but “it only brought more hits and more and more and more she kept trying, after every hit it got quieter and quieter. Then you heard a crunch. Something breaking, her neck breaking.... There was no more noise. She didn’t move. Just laid there. And then there was a plastic bag or something on her head. We just held it there the whole time. She wasn’t breathing... and then after a few seconds, it was only a few seconds, long enough to choke her, asphyxiate anybody.”
Defendant said he had been “protecting her, but I couldn’t protect her when it really counted.” He admitted that Sinner had “suffered immense pain, ” and that “she was tortured.” He said the others would not have said anything to the authorities because “they were too scared of me.” He denied fearing that Sinner might have reported his crimes, explaining “she liked me way too much” to do that.
The next interview took place the following day. Defendant remembered his Miranda rights, repeating them himself for the detectives. They told him that Amy and Lori had given them a complete account of what had happened, and asked defendant to explain his role. Defendant said the others were trying to protect him, commenting, “The only reason they didn’t say something sooner is because they thought I’d kill them.” Defendant continued to take the blame, because “a brother never rats on his sister.” Told that Lori had
given a written statement, defendant asked if she reported anything Sinner said about trusting him. He said that after the initial beating, he knew she would not survive. Defendant then offered to tell the detectives “a little story, ” if the recorder was turned off.
Evidently believing he was not being recorded, defendant gave a lengthy statement, including an excuse for not intervening to protect Sinner. When the assault began, he was in the tent with Eric. After drinking and smoking marijuana, defendant took four muscle relaxants. He heard screaming, and saw the attack. Lori came to the tent and got the two pieces of the dent puller, which Amy and Lori used to hit Sinner. Defendant claimed he was “mesmerized” and incapacitated by the drugs. He did not usually use medication, because he did not like to lose control. Sinner was calling him for help, but he was unable to move. Amy and Lori kicked and taunted her for a long time. After about an hour defendant was able to get up and make them take Sinner to the creek.
The back of Sinner’s head was “mushy, ” the side of her neck was blue, and her face was bloody. She said she could not see. Her hands were swollen. Defendant brought her back to the tent and gave her whiskey. He pulled Eric aside and asked what they should do. Sinner would not survive, and defendant did not want to see her suffer. Eric tied her up, but defendant released her and started talking “into her ear.” He asked about her mother, and Sinner said she loved her and wished she had not died. Defendant told her she was “probably going to go see [her] mom tonight, you’re gonna die.” He felt sorry and responsible, and offered to “kill her for her, and end the pain quickly, as fast as I could.” He gave her more whiskey, and obtained a razor. Sinner “didn’t really want to die but she accepted the fact.” After she tried to cut her wrist, defendant took the razor blade and attempted to do it himself, but was hampered by his drug ingestion and the flimsiness of the blade.
Frustrated, defendant “kept making her drink more whiskey, ” then sat down. Lori began beating Sinner again. Sinner was screaming by the time defendant was able to take the bar from Lori. He hit Sinner twice, and realized her neck was broken. Because she was still gasping for air, he wrapped the plastic bags around her face until she stopped breathing. Defendant told the detectives, “If I would have had a gun I would have just killed her faster, but I had no way to kill her faster.... First time in my life I haven’t had a gun when I needed one, when it really counted. She didn’t want to die. I had to convince her. It’s not even right, but I still feel I was in the right for, I mean, do I kill her or let her suffer through the whole night.”
Defendant’s interviews with the newspaper reporter took place in jail several days later. In the first, he said he had been under the influence of
alcohol, marijuana, and medication. He had killed Sinner “out of mercy and with her permission.” He heard the attack as it occurred but was unable to move because of the drugs. He planned to plead guilty if the district attorney dropped charges against the others. In the second interview, defendant was upset about the details that had appeared in the paper.
The forensic testimony established blood-alcohol levels of 0.78 and 0.88 percent in blood extracted from Sinner’s heart. There were at least nine incisions on her left wrist, all superficial. While not life threatening, they would have been painful. Pouring alcohol over them would have exacerbated the pain. The cause of death was blunt force head injuries, with asphyxiation a possible contributing cause. The exceptionally high blood-alcohol level could have been an additional fatal factor, but the level detected may have been influenced by postmortem migration of alcohol from the stomach to the heart.
The defense presented numerous witnesses to impeach the truthfulness and reliability of Lori Smith. An investigating detective recounted inconsistent statements made by Lori and Eric Rubio. Forensic testimony challenged the reliability of the blood-alcohol levels found in Sinner’s blood samples. A psychiatrist testified about the effects of the muscle relaxant and other drugs defendant claimed to have ingested.
B. Penalty Phase
The victim’s father, aunt, and brother testified about her life and the impact of her death. Similar testimony was given by her minister, her supervisor at a program where she worked assisting developmentally disabled adults, and a high school counselor.
Prosecution witnesses related numerous acts of violence defendant committed while housed in group homes or juvenile hall. In March 1990, at the age of 12, defendant ran away from a work project and swung a broken glass bottle at a supervisor. When restrained, he continued to resist. Defendant told the deputy who took him to a mental health facility that he wanted to kill himself. Several months later defendant was suspected of helping to force one boy to orally copulate another resident at a group home. Later, defendant kicked that boy in the head, and was expelled from the program.
In 1991, defendant stabbed a group home staff member with a pen and bit him. Five adults restrained defendant while he flailed violently. He was
subsequently admitted to a mental health facility. In 1992, defendant punched a group home resident in the jaw without warning. The victim required surgery and his jaw was wired shut for weeks. Defendant was arrested. In 1995, he was housed in a high-security unit at juvenile hall. He tapped on his cell door to get the attention of a counselor, then slid a knife fashioned from a flattened Pepsi can under the door. Shortly thereafter, he struck another resident in the mouth and used a racial epithet.
The prosecution also presented evidence about an assault defendant committed shortly before Sinner’s murder. Michael Murchinson testified that in February 1998, he was with defendant and others as they drove back from Reno. They were running out of money. Murchinson and defendant first considered robbing a convenience store, then decided to target a prostitute. They picked up a woman and drove to an industrial area. After having intercourse with her, defendant confronted her with a gun. She screamed and ran away. Defendant fired a shot. He and Murchinson drove away with the woman’s purse. However, defendant discovered he had dropped his wallet. They went back to look for it and were arrested.
The jury heard about a number of incidents in the county jail after defendant’s arrest for Sinner’s murder. In April 1999, he wrote his wife about escaping, and asked her to take photographs of the jail’s exterior. He told her he would not die in jail, but would “go out in a blaze of glory.” She contacted law enforcement. The jury heard a recording of a phone call between defendant and an agent who pretended to be his wife’s friend. They discussed the photographs and how to get them to defendant.
In August 1999, a six-inch steel shank and a corner section of a metal tray were found in defendant’s cell. He admitted these items were his and said he was going to use them on a fellow inmate.
In February 2001, guards noticed water coming from defendant’s cell. He had blocked the window in the cell door. When the water supply to his cell was cut off, defendant began yelling and kicking, and threatened a guard. Attempting to move defendant to a more secure cell, the guards opened the cell door and sprayed him with pepper spray, but he had wrapped a T-shirt around his head and covered his eyes with a plastic bag. A cell extraction response team was summoned. A videotape of the extraction showed four guards, wearing protective gear, removing defendant from his cell after rolling in a “flash bang” grenade that scattered hard rubber pellets. Defendant was strapped into a restraint chair and examined by a nurse.
A 28-inch baton, made of tightly rolled newspaper secured with elastic, was found in the cell. Hard and dense, the baton did not bend or break when
struck against a concrete table. A few days later, defendant told a guard that one of his ears was still ringing, and that the grenade had surprised him. He had expected them to use a beanbag shotgun, which he had planned to take away from them.
In May 2002, defendant planned an escape with fellow inmate Ben Williams. Defendant approached Aaron Cozart, a newly incarcerated inmate, and asked him to create a distraction by taking a hostage and forcing a cell extraction. Meanwhile, defendant and Williams would knock out a window and use a rope made of bedsheets to retrieve weapons and tools brought by a recently released inmate named Tim. Tim would place some money in defendant’s jail account when everything was ready. The target date was May 17th or 18th. Cozart made some phone calls and spoke to Tim, who failed to appear on the appointed dates. Defendant said they would go ahead the following week, but Cozart changed his mind and reported the plot. A deputy confirmed that a Timothy Yakiatis had deposited funds in defendant’s account on May 15th. The conspirators were moved to different cells.
In June 2002, defendant became angry with guard Timothy Renault over a scheduling issue. Renault overheard defendant tell another guard that if he ever got out “there would be a fight, and he would get me.” The next night inmate Harold Seems saw defendant walking toward the shower next to Seems’s cell. He heard defendant ask, “Do you have it?” A voice that Seems recognized as Ben Williams’s answered, “Yes.” Defendant said, “We’re going to have to kill him.” Williams replied, “Real fast.” Seems assumed they were planning to assault a guard, and wrote a note of warning. Some time later, Renault appeared on his rounds. Seems held up the note and made a warning gesture. Renault ran toward a nearby door. Williams and defendant emerged from the shower, grabbed Renault, and dragged him toward the shower.
Renault testified that he entered defendant’s cell pod around 3:50 a.m. He noticed Seems at the window of his cell door, with a scared look on his face. Seems whispered, “Get out of here.” Renault headed for the door and radioed the control room. As he reached for the door, he heard a shower curtain open. He turned to see Williams crouching, and a second figure in the shower stall. The two men attacked, forcing Renault into a corner and hitting him repeatedly. It felt like he was being held and hit by more than one person. The first deputy to respond heard screaming and saw defendant walking away from the shower. Williams was striking Renault’s face. Deputies tackled and handcuffed Williams. Renault, covered with blood, told them that defendant and Williams had attacked him.
Nearby, deputies found a metal drain grate backed by a bar of soap wrapped in twine and strips of bedsheet, ...