California Court of Appeals, First District, Second Division
Superior
Court of Solano County, Super. Ct. No. VCR210260, Hon. Peter
B. Foor, Judge
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COUNSEL
Jonathan
Soglin and Tara Mulay, under appointments by the Court of
Appeal, for Defendant and Appellant.
Kamala
D. Harris Attorney General Dane R. Gillette Chief Assistant
Attorney General Gerald A. Engler Senior Assistant Attorney
General Jeffrey M. Laurence Supervising Deputy Attorney
General Aileen Bunney Deputy Attorney General, for Plaintiff
and Respondent.
OPINION
Miller,
J.
Defendant
Adam Wade Disa admitted to police that he killed his
girlfriend by putting her in a choke hold, but denied he
meant to kill her. A jury found him guilty of first degree
murder (Pen. Code, § 187).
Defendant
contends there was insufficient evidence of premeditation and
deliberation, and the trial court erred in admitting evidence
of defendant’s prior act of domestic violence. We
conclude the evidence of premeditation and
deliberation-though far from compelling-was sufficient to
sustain the first degree murder conviction. Absent error, we
would affirm. However, we conclude that it was error to allow
the jury to hear extensive evidence of
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defendant’s past act of domestic violence, which
involved planning, hours of waiting, and a bloody knife
attack on sleeping victims. Given the relative weakness of
the evidence of premeditation and deliberation in the current
case, we conclude there is a reasonable probability the
improper admission of such vivid and inflammatory evidence of
defendant’s past conduct affected the verdict.
Accordingly, we reverse the first degree murder conviction.
We need not reach defendant’s remaining arguments.
FACTUAL
AND PROCEDURAL BACKGROUND
Defendant
and the victim, Katie Gillihan, worked together at Rasputin
Music and began dating in late 2009 or early 2010. In
September 2010, defendant moved in with Gillihan in her
apartment in Benicia.
Michelle
Gonzales also worked at Rasputin and knew defendant and
Gillihan. Shortly before 2:00 p.m. on Friday, February 11,
2011, Gonzales went to check on Gillihan because both
defendant and Gillihan had missed two scheduled work shifts
in a row. Gonzales found the front door of Gillihan’s
apartment unlocked and Gillihan in bed, “like she was
just sleeping.” Gonzales tried to wake her. Gillihan
appeared very still and straight with the sheets pulled up to
her chin. There was dried blood under her nose.
Gillihan’s
mother, Donna Gillihan (Donna), also arrived at
Gillihan’s apartment around this time. Gonzales told
Donna she could not wake Gillihan up. Donna became very upset
and instructed Gonzales to call 911.
Paramedics
arrived at the apartment, and Gillihan was pronounced dead at
2:25 p.m. Her skin had cooled to the temperature of the room,
and there were signs of marbling, lividity, and late-stage
rigor mortis, indications that she had been dead for many
hours.[1]
Defendant
was arrested the same day Gillihan’s body was
discovered. In a videotaped interview with Detectives Rose
and Rouse of the Benicia Police Department, he admitted he
killed Gillihan using a choke hold.
Defendant
was charged with murder (Pen. Code, § 187, subd. (a);
count 1) and corporal injury on a cohabitant (Pen. Code,
§ 273.5, subd. (a); count 2). As to count 2, the
district attorney alleged defendant personally inflicted
great bodily injury under circumstances involving domestic
violence. (Pen. Code, §
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12022.7, subd. (e).) As to both counts, it was alleged
defendant had suffered two prior strike convictions (Pen.
Code, §§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)), which were also serious felony convictions (Pen.
Code, § 667, subd. (a)).
Defendant’s
Interview
At
trial, the prosecution played defendant’s videotaped
interview for the jury. In the interview, which lasted about
two hours, defendant told the officers Gillihan was his
girlfriend and they lived together, but he initially acted as
though he was unaware of her death. He claimed he did not
know where she was because he had not been home.
Defendant
reported there were some trust issues in the relationship. He
said, in the previous three weeks, Gillihan had spent her
days off with a friend, Marty Procaccio.[2] Defendant suspected
Gillihan was cheating on him with Procaccio, but she denied
it. He mentioned an incident involving Procaccio that
occurred three weeks earlier. Defendant came home and found
Procaccio there. Defendant told Gillihan he needed to be
informed if there was going to be a man in the house, and
Gillihan said Procaccio was just a friend. Asked by the
detectives how he felt about this, defendant responded,
“I was seeing green. Jealous. Um, suspicious, I guess
but.”
Defendant
said Gillihan was sleeping when he left their apartment
Thursday morning, February 10, and he had been staying with
his mother since then “to prevent tension”
because Gillihan “wants space.” Defendant texted
Procaccio Thursday night and again that day. He asked
Procaccio, who he knew lived in Santa Clara, to check on
Gillihan in Benicia because Tuesday night she had been
sick.[3]
About
30 or 40 minutes into the interview, Detective Rouse noted
that defendant had not asked why he was being questioned by
the police and told him, “I think it’s cause you
know why you’re here.” At this point, defendant
admitted he killed Gillihan. He said he went home Tuesday
night, February 8, and Gillihan “was adamant about
[defendant] leaving” the apartment, which
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left him “confused.” She “was texting
somebody that whole night, ” and “she was angry
because [defendant] was there.” Defendant did not leave
the apartment, and instead took a shower and went to sleep.
Defendant
described what happened early Wednesday morning, February 9,
as follows: “I think it was probably around 5:30 in the
morning that um, she did, woken me up. And um, she was
telling me you need to get out. You need to leave. And um, I
was like why do I need to leave? And she was like so I can
take, you know, in her words, a fucking shower. And um, I was
like, well I’m not going anywhere. And then
that’s when the insults started to happen. Like
you’re fucking retarded um, what is it? Um,
you’re fucking stupid. Um, what else? She was, it was
just like it wasn’t Katie. Like I’m not used to
Katie talking to me like that. And I guess she swung at me or
something. Oh, before that she said what she was gonna do is
she was gonna give herself a black eye and she was gonna tell
everybody I like, you know, to have done it. And I mean it
was just like one thing after another. It was just like
what’s this coming from? And I guess she swung at me
and I’m half asleep and after that it’s, all I
remember is um, I guess I had her in a choke hold and um. To
be honest, man I thought she was sleeping because while I
went to um, you know, she was laying there and then um, I
went to work. I came back that same night and she, I guess
she wasn’t sleeping.”
Defendant
further stated that he and Gillihan had an argument Tuesday
night and again Wednesday morning. She woke him up between
5:30 and 6:00 a.m. Wednesday by turning up the television and
holding her phone to his face while “it
flashe[d]” or was “buzzing.” After Gillihan
told him she would give herself a black eye and tell
everybody he did it, defendant asked why she would do
something like that. Defendant told the officers, “I
don’t really remember the explanation because after
that, it’s just-we had the-the incident.” He
recalled that Gillihan said something like “ ‘You
sicken me.’ ”
Defendant
continued, “I just remember seeing rings going towards
my face. And I must have blocked it. And after I blocked it,
that’s when the choke hold came.” He held her in
a choke hold “for about a minute or so. Maybe a little
bit longer.” She was trying to scratch his face, and he
said, “I just held on until she-she-stopped trying to,
you know, induce any pain towards me. And then I let
go.” Defendant said he felt Gillihan’s body go
limp, and then he kept her in the hold “[m]aybe 15
seconds” after she stopped moving.
Defendant
described how he was feeling: “I was angry prior to the
incident when she was, you know, saying all these bad things.
That’s what made me angry. But afterwards, it was-I
didn’t really feel anything afterwards.... I remember
looking at her and then I got the cigarettes.... I just felt
a little
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relieved, I guess. Just like everything’s pretty much,
you know, when the fight’s over, you know, it’s
like I’m calming down, relaxing, I guess.” His
“main emotion when she was throwing insults at [him]...
was anger.” It was “still anger” when he
had her in the choke hold, but defendant denied that he
intended to kill her. He told the officers he thought he
could “knock her out” or “put her to
sleep.” However, he knew keeping a person in a choke
hold for more than a minute could eventually cause death.
Defendant
called the hold he used on Gillihan a “figure four or
something” and demonstrated the hold. Detective Rose
recognized the hold defendant demonstrated was a
“carotid restraint hold.” Defendant had been
studying kung fu for over a year, but he did not learn the
hold in kung fu class.[4] He stated, “Actually I learned
this choke hold from a[n] ex of mine. She put me in
it.” He had “never really used it” himself,
but when he was in it, “it was pretty bad.”
Defendant reported that he and Gillihan had never had any
physical confrontation before that day.
After
he released her from the hold, defendant laid Gillihan down.
Then he went into another room, smoked a couple of
cigarettes, and went to sleep. Later Wednesday morning, he
got up, ate some jambalaya that was on the stove from the
night before, and went to work without checking on her. After
work, he went to kung fu class, and returned home around 9:00
p.m. According to defendant, he only then realized Gillihan
was dead when he saw her lying in the same position he had
left her. He did not call the police because he was “on
probation, ”[5] and he did not notify anyone else
because, he thought, “it’s over for me....”
Thursday,
February 10, defendant packed food and clothes in a bag and
went to his sister’s house. He stated, “And then
uh, pretty much, you know, [I] came to terms with it’s
probably time to say goodbye to everybody.” He took
money from his bank account, which he said was “for my
family.”[6] However, he did not talk about the
money with anyone, and he left no note.
Defendant
said he then tried to commit suicide by putting rat poison in
his soda, but it just made him vomit. He also went to a
bridge and thought he would jump “to give [himself] a
watery grave.” He told the officers he had been feeling
depressed for the previous three weeks about his relationship
with Gillihan, and he told her that he was thinking of
committing suicide.
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Other
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