California Court of Appeals, Second District, Fourth Division
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA357423 Robert J. Perry, Judge.
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Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Stephanie Ilene Lazarus, a 25-year veteran of the Los Angeles Police Department (LAPD), was charged and convicted of first degree murder in the shooting death of Sheri Rasmussen, the wife of appellant’s former lover, John Ruetten. The 1986 crime was not solved until 2009, when a DNA profile obtained from a bite mark on Rasmussen’s arm was matched to appellant. At trial, the prosecution established that appellant had been in love with Ruetten and was emotionally devastated when she learned of his and Rasmussen’s 1985 engagement. She went to Ruetten in
tears, begging him to reconsider, and later confronted Rasmussen at work. The bullets used to kill Rasmussen were of the type then used by LAPD officers, and were discharged from a gun similar to one owned by appellant, which she declared stolen two weeks after the shooting. The jury found appellant guilty, and she was sentenced to 27 years to life.
Appellant raises the following contentions on appeal: (1) the pre-accusation delay violated her due process rights; (2) the trial court erred in denying a defense motion to quash search warrants used to search appellant’s home and computers; (3) the trial court erred in denying a defense motion to traverse the search warrants; (4) the trial court erred in admitting a tape of appellant’s pre-arrest interview by LAPD detectives; (5) the trial court erred in failing to hold a Kelly hearing before admitting evidence of partial DNA profiles from material found on the victim’s fingernails developed through use of a “MiniFiler” DNA test kit; and (6) the trial court erred by failing to allow the defense to introduce evidence of a burglary that occurred in the area six weeks after the murder, and by preventing the defense from cross-examining the prosecution’s crime scene expert about the burglary. Finding no prejudicial error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
By information dated December 18, 2009, appellant was charged with the willful, deliberate, and premeditated murder of Sheri Rasmussen on February 24, 1986 (Pen. Code, § 187, subd. (a)). It was further alleged that appellant personally used a handgun in the commission of the offense.
B. Evidence at Trial
1. Prosecution Evidence
On February 24, 1986, Rasmussen lived in a condominium on Balboa Street in Van Nuys with her husband John Ruetten and worked as a nurse at a Glendale hospital. Ruetten left for work at 7:20 a.m. that morning. Rasmussen called in sick. Both Ruetten and Rasmussen’s sister tried to call Rasmussen at home several times that day, beginning at approximately 10:00 a.m., but Rasmussen did not answer. At approximately 9:45 a.m., a neighbor, Anastasia Volanitis, noticed the garage to Rasmussen’s condominium was
open with no cars inside. When Ruetten returned home at 6:00 p.m., he noticed the garage door was open and Rasmussen’s BMW was missing. There was broken glass on the driveway from a shattered sliding glass patio door. The door from the condominium to the garage, which Ruetten had closed and locked when he left that morning, was ajar. Rasmussen was lying dead on the living room floor, still wearing her sleep shirt and robe.
The pathologist who examined Rasmussen declared the cause of death to be three gunshots to her chest, all fatal. One was a contact wound and at least one was inflicted while she was lying on the floor or against a similar hard surface. There were abrasions on Rasmussen’s arms, near the wrist, consistent with injury from a rope or cord. There were signs that Rasmussen had struggled with her assailant, including multiple contusions, lacerations and abrasions on her hands, mouth, face, head and neck. Broken pieces of two of Rasmussen’s fingernails were found on the floor near the condominium’s front door. An injury on her face was consistent with a blow from the muzzle of a gun, with a size and configuration matching a.38 caliber Smith & Wesson revolver. There was a blow to her head consistent with a broken vase found near her body. On Rasmussen’s left inner forearm was an apparent bite mark. The pathologist examined it under a microscope. Based on the amount of hemorrhaging and the absence of inflammation, she determined that the injury had been inflicted at or about the time of Rasmussen’s death.
Based on distinct physical characteristics, experts in the field of identifying ammunition testified at trial that bullets recovered in or near Rasmussen’s body were “.38J Plus-P” ammunition, manufactured by Federal Premium Ammunition. In 1986, LAPD officers were required to use Federal.38J Plus-P ammunition, even when off duty and carrying a personal weapon.
A sleeved quilt found near Rasmussen’s body was taken into evidence and examined. The presence of multiple bullet holes and gunshot residue on the
quilt led authorities and experts to conclude that it had been wrapped around the assailant’s weapon to dampen the sound of the gunshots. At trial, a forensic firearms expert testified that based on the location of the bullet holes in relation to linear gunshot residue that appeared to have been discharged from the cylinder, the weapon was a revolver with a two-inch barrel. Any number of guns were capable of firing the bullets found at the crime scene, but less than a dozen had two-inch barrels.
Criminalist Lloyd Mahaney took samples from the bite mark on Rasmussen’s arm at the scene. Investigators and criminalists also collected the two broken fingernails found near the condominium’s front door, clippings from Rasmussen’s remaining fingernails, and samples of tissue and debris from the underside of the fingernails. Additional items and samples were collected at the scene and from the interior of the BMW, including multiple fingerprints, multiple samples of what appeared to be blood, and multiple hairs.
Stereo equipment had been pulled from a cabinet inside the condominium’s living room and stacked by the door to the garage. A drawer in a living room table had been pulled out and the contents dumped on the floor. Although there was no evidence of forced entry, and rooms containing other valuables -- including additional stereo equipment -- were undisturbed, the detectives who initially investigated the crime concluded that the murder was committed in the course of a burglary. Specifically, they theorized that one or
two burglars had came in through an open door, were surprised by Rasmussen’s presence, and shot her during a struggle over a gun.
In December 2004, members of LAPD’s cold case unit re-opened the case, asking the coroner’s office to locate the bite mark tissue sample, which been in a freezer in the coroner’s evidence room since 1986. In 2005, Jennifer Francis, a criminalist with LAPD, examined a piece of one of swabs under a microscope and also performed DNA testing on it. Under microscope, she saw nucleated epithelial cells, which are found in large numbers in saliva and provide a good medium for obtaining a complete DNA profile. The DNA testing indicated the presence of two profiles: a major profile and a minor profile. The minor profile was consistent with Rasmussen’s, although there was insufficient material for a complete match. The major profile was complete. The DNA that comprised the major profile was from a female.
Authorities initially attempted to find a match by uploading the major DNA profile from the bite into a national database system. This unsuccessful. In 2009, the investigation turned toward specific women might have had reason to harm Rasmussen. LAPD officers surreptitiously obtained a sample of appellant’s DNA by taking possession of a drink and straw discarded by appellant. LAPD criminalist Michael Mastrocovo developed a partial DNA profile for the drink cup and straw. Appellant’s DNA profile matched the major profile found on the bite mark.
Appellant was arrested on June 5, 2009. A criminalist swabbed her mouth in order to develop a complete DNA profile. Francis analyzed the DNA on one of those swabs. Appellant’s DNA profile matched the major profile on the bite mark swab at 13 loci.
In 2010, Thomas Fedor, a serologist for an independent forensics laboratory, Serological Research Institute (SERI), was provided the second bite mark swab. Several persons were present when he tested it, including a representative for the defense. Fedor began by placing the swab into a solution and analyzing the resulting liquid. It contained salivary amylase. When he performed DNA testing, he detected, just as Francis had, the presence of two distinct DNA profiles, one major and one minor. The minor profile was consistent with Rasmussen’s. Fedor separately tested the swab obtained from appellant to obtain appellant’s DNA profile. Appellant’s DNA profile matched the major profile Fedor obtained from the bite mark swab at all 15 loci.
Fedor also analyzed tissue samples found on or under Rasmussen’s fingernails using a MiniFiler test kit. Under one fingernail, he found a mixture of DNA and obtained partial profiles for at least three people. One of the partial profiles was consistent with appellant’s. Fedor found low levels of DNA under three other nails with profiles consistent with appellant’s. There were minute amounts of DNA material under six other fingernails contributed by both males and females, some of which was inconsistent with Rasmussen’s. Fedor was able to rule out appellant and Ruetten as possible contributors.
In 1986, appellant was an LAPD police officer in the Devonshire Division, having entered the police academy in 1983 and graduated in 1984. Brian McCartin, who attended the academy with appellant, described her as “the strongest, most aggressive, most persistent fighter” of the women in the class. Michael Hargreaves, appellant’s friend and former roommate and a former police officer, described her fitness level as “outstanding” and her level of strength with respect to other women as “superior.” Hargreaves also testified that appellant was an “expert” level shooter. Sometime between 1985 and 1987, appellant showed her friend and fellow police officer Jayme Weaver lock picking tools and told Weaver she had learned how to use them.
In 1986, it was common practice for LAPD officers to carry a backup weapon in addition to the weapon issued them by the department. Officers were expected to let the LAPD armorer know when they purchased a backup weapon. They were permitted to carry only guns that could be used with the Federal.38J Plus-P bullets. Records from the armorer’s office indicated on February 29, 1984, appellant purchased a.38 caliber Smith and Wesson Model 49 revolver. It was a five shot model. Its barrel was approximately two inches. On March 9, 1986, less than two weeks after Rasmussen’s death, appellant reported to the Santa Monica Police Department that her Smith & Wesson Model 49 revolver had been stolen from the glove compartment of her car while parked in Santa Monica. Hargreaves, appellant’s former roommate, recalled appellant telling him she had lost her revolver a few days earlier in Santa Monica while carrying it in a bag or fanny pack. She asked him how to go about reporting it. When appellant reported her gun stolen in Santa Monica, she told the officer at the front desk it had been stolen that day. There was no record indicating appellant had reported the theft to the LAPD armorer. She did, however, report to the armorer buying another gun, a different model, on March 19, 1986.
Appellant and Ruetten had met in college and dated casually in the 1970’s. After graduation, between 1981 and 1984, they continued to date were sexually intimate, but Ruetten did not consider her his girlfriend. In June 1984, Ruetten met Rasmussen. In May 1985, Ruetten and Rasmussen became engaged. In June 1985, appellant learned of Ruetten’s engagement and called him, upset and crying. She asked Ruetten to come to her
condominium. When he arrived, appellant, still crying, told Ruetten she was in love with him. She repeatedly asked him to have sex with her, and he did.
Following this encounter, Ruetten continued his relationship with Rasmussen, and several weeks later they moved in together. Sometime after Ruetten and Rasmusssen were living together, appellant went to the hospital where Rasmussen worked and confronted her. That evening, Rasmussen came home upset, and Ruetten confessed to having had sex with appellant after their engagement; it appeared Rasmussen already knew. Ruettan promised not to have any further contact with appellant. Ruetten and Rasmussen were married in November 1985.
Appellant told Hargreaves she was in love with “John.” On one occasion while they were roommates, sometime between late 1984 or early 1985 and February 1986, she woke Hargreaves late at night. She was crying and wanted Hargreaves to console her. She told him that “John” had broken up with her and was going to marry someone else. Appellant became sad and more easily upset after the breakup. Appellant told Hargreaves that she had gone to the hospital where Ruetten’s fiancée worked and had a confrontation with her. When discussing why she did not date for an extended period after the break up, appellant told Hargreaves she was “picky” and preferred men who were “tall” and “athletic, ” “like John.”
Appellant’s home was searched in June 2009. Her journal and daily planners were retrieved, along with some photographs of Ruetten. The journal covered the period between November 1984 and August 1986. An entry for November 1984 discussed a night out that “kept my mind off John for a while anyway.” An entry for April 1985 stated that appellant “saw John Ruetten’s car, ” “put a note on it, ” “watched [it] for one half hour and checked up on it a few times.” An entry for May 1985 mentioned visiting Ruetten and his girlfriend being there. An entry for June 1985 stated that appellant had found out Ruetten was getting married; she described herself as “very depressed” and her concentration as “negative 10.” Another entry for June 1985 stated: “Didn’t feel like working. Too stressed out about John. I’ve had a real hard time concentrating these days so I called up and said I didn’t feel well and could I have a T.O. They gave it to me.” The journal had no entry in March 1986 or at any other time mentioning that her gun had been stolen.
In August 1985, appellant wrote Ruetten’s mother, telling her she was “‘truly in love with John’” and that the past year had “‘really torn me up.’” The letter further stated: “‘I wish it hadn’t ended the way it did and I don’t think I’ll ever understand John’s decision.’” In December 1985, appellant received a letter from Ruetten’s mother that she said in her journal made her “‘very, very, very sad.’”
Appellant was off duty on Monday February 24, 1986, the day Rasmussen was killed. She was also off duty the three preceding days. She returned to work on February 25. An officer who shared a locker room with appellant, Jayme Weaver, did not recall observing any injuries on her on that day or on any other occasion.
Appellant did not attempt to contact Ruetten after Rasmussen’s death. Ruetten next saw appellant in 1989 when both were in Hawaii on vacation with other people. He saw her two or three times afterward and they had sexual relations, but they never became involved in a relationship. Appellant’s home computers were analyzed by a computer expert who determined that she had performed searches of Ruetten’s name in April 1998, May 1999 and December 1999.
Appellant was interviewed by LAPD Detectives Gregory Stearns and Dan Jaramillo on June 5, 2009. When asked about Ruetten, appellant repeated his name twice as if trying to recall who he was before saying “Oh yeah. I went to school with him.” She first described him as a “close friend, ” and then said they dated while they were in college and “probably after college.” She was evasive when asked how long they dated or when she spoke with him last, talking instead about his age, his family, when he graduated and when she met her husband. When asked what ended her relationship with Ruetten, she said she did not consider him her boyfriend and had gone out with others when they were dating. She denied their breakup was unfriendly. When asked if she had ever met Rasmussen, she initially said, “God, I don’t know” and “I may have.” She initially claimed not to know what Rasmussen did for a living or where she worked, but later said “now that you’re bringing it up, I think she worked at a hospital somewhere. And, yeah, I may have met her at a hospital. I may have talked to her once or twice.” She later stated: “I may have gone to her and said, hey, you know what? You know what? Is he dating you? He’s... bothering me. And so[, ] I’m thinking that we had a conversation about that, one or two maybe.” She claimed to be uncertain of Rasmussen’s first name and of how she learned of her death.
The detectives asked appellant multiple times if she knew where Ruetten and Rasmussen lived after their marriage and if she had ever been to their condominium or confronted Rasmussen there. She initially claimed not to know where they lived and not to remember if she had ever been there. She subsequently said she “may have known.” When asked if she had ever gotten into a physical fight with Rasmussen, she said “[i]f it happened I
honestly don’t remember it. That’s all I can tell you” and “this is just not ringing a bell.” Toward the end of the interview, she said she was “shocked” that “somebody would be... saying that I did this. I mean, we had a fight and so I went and killed her? I mean, come on.”
2. Defense Evidence
Sometime in the morning or early afternoon of February 24, 1986, Evangelina Flores, a cleaning lady working in a nearby condominium, heard loud sounds, like two people fighting, and a slamming sound, as if something had fallen. She then heard a car drive off. She told officers at the time that these sounds occurred at approximately 12:30 p.m.
Andrea Dillon, a fingerprint examiner, reviewed the latent fingerprints collected from the condominium after the homicide by LAPD criminalists. She found multiple identifiable fingerprints that could not be attributed to appellant, Ruetten or Rasmussen, including fingerprints on the stereo equipment stacked by the door to the garage.
Patricia Fant, a forensics firearms examiner, testified that Smith & Wesson had manufactured over 600,000 Model 49 revolvers. In addition, a company in Brazil manufactured a cheaper copycat version. Fant expressed the opinion that the recovered bullets could not be identified as having been made by a particular manufacturer or as being.38 Special Plus-P ammunition. She further opined that the barrel length of the gun could not be determined by measuring the distance between a hole in a blanket and the position of the barrel gap discharge because that distance would vary depending on how the blanket was folded.
A Santa Monica Police Department records manager reviewed records and determined that on March 9, 1986, the day appellant reported the theft of her revolver from her car, there had been two other burglaries from automobiles in parking structures in the same area.
The defense introduced entries from appellant’s journal, one from July 1986 in which she complained about not having her keys to get into her house and one from March 1986 that mentioned taking her car in for repair.
The defense called Suzanne Mendoza, who had known appellant virtually all her life, as a character witness. Mendoza had never observed appellant to be violent toward anybody. Michael Alexander who worked with appellant at the Devonshire Division in 1985 and 1986 and observed her interacting with many people, including arrestees, testified he did not consider her to be a violent person. Kim Dittbern, who attended an LAPD program with appellant for six months, never saw any violent behavior. Sheri Huff, who had known appellant since their college days, had been friends with appellant when Ruetten dated one of Huff’s roommates. She had never observed appellant jealous or angry. She had never seen appellant act violently.
C. Verdict and Sentence
The jury found appellant guilty of first degree murder, and found true that she had personally used a handgun. The court imposed a sentence of 25-years to life for the murder and two years for the weapons enhancement.
A. Pre-accusation Delay
Appellant contends the trial court erred in denying her motion to dismiss the charges due to pre-accusation delay, in view of the time that passed between the crime and her arrest and trial, and the alleged negligence of the original investigators. For the reasons discussed, we disagree.
The information filed on December 18, 2009 accused appellant of committing murder on February 24, 1986, over 23 years earlier. On October 20, 2009, appellant moved to dismiss on the ground that the delay in filing criminal charges prejudiced her ability to conduct her defense, and constituted a violation of her due process rights under the state and federal Constitutions. Appellant contended that LAPD investigators were negligent or reckless in failing to investigate her possible involvement in the crime in 1986. She presented evidence that within days or weeks of Rasmussen’s death, (1) Ruetten informed the investigators that appellant was his former girlfriend, (2) Rasmussen’s father told the investigators that Rasmussen had been threatened by her husband’s former girlfriend, and (3) Rasmussen’s
parents advised them to investigate appellant. Appellant also presented evidence that the investigators failed to promptly interview the woman who until June 1985 had been Rasmussen’s roommate, and who knew that appellant had confronted Rasmussen at her workplace. Appellant submitted a declaration from Adalberto Luper, a former LAPD detective, who expressed the opinion that by ignoring leads provided to them by persons close to Rasmussen and focusing on the possibility that the crime had been committed by anonymous burglars with no connection to Rasmussen, the investigators “adopted a ‘tunnel vision’ approach to the investigation, rather than exploring the possibility that an LAPD officer was involved.” According to Luper, this was “at least negligent.”
With respect to prejudice arising from the delay, appellant asserted that her ability to prepare her defense had been compromised because: (1) the officers who saw or worked with appellant in the days after the homicide were unable to specifically recall whether appellant showed signs of having engaged in a physical struggle; (2) Rasmussen’s secretary, who witnessed the confrontation between Rasmussen and appellant, had died; (3) documents supporting the chain of custody of certain items of physical evidence had been lost; (4) the GSR (gun shot residue) tests taken of Rasmussen’s hands and the records of 911 calls about the crime had been destroyed; and (5) records indicating precisely when LAPD officers began using the type of ammunition the prosecution claimed had been used to shoot Rasmussen were no longer available.
Respondent contended that to prevail, appellant was required to prove not only that she was prejudiced by the pre-accusation delay but that the delay occurred as the result of deliberate action by the prosecution or LAPD investigators designed to gain a tactical advantage. With respect to justification for the delay, respondent represented that the LAPD cold case unit requested DNA testing in September 2003, that the testing was accomplished in February 2005, and that periodic attempts to match the DNA (and fingerprints) from the crime scene to criminals whose profiles were stored in national data bases occurred thereafter. The case was assigned to a detective in February 2009. ...