Superior Court: San Diego County: SCD173300 John M. Thompson
Judge:
Kathy
R. Moreno, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala
D. Harris and Xavier Becerra, Attorneys General, Dane R.
Gillette and Gerald A. Engler, Chief Assistant Attorneys
General, Julie L. Garland, Assistant Attorney General, Holly
D. Wilkens, Arlene Aquintey Sevidal, Ronald A. Jakob, Stacy
Tyler and Michael T. Murphy, Deputy Attorneys General, for
Plaintiff and Respondent.
OPINION
KRUGER, J.
Defendant
Jeffrey Scott Young was convicted of the first degree murders
of Teresa Perez and Jack Reynolds (Pen. Code, § 187,
subd. (a)), the attempted murder of Daniel Maman
(id., §§ 187, subd. (a), 664), and the
carjacking of Jim Gagarin (id., § 215, subd.
(a)). The jury found true allegations that defendant had
personally used a firearm (all counts; id.,
§§ 12022.5, subd. (a)(1), (a)(2), 12022.53, subd.
(b)); that defendant had personally and intentionally
discharged a firearm (the first degree murders and attempted
murder; id., § 12022.53, subd. (c)); and that
the firearm discharge caused death (the first degree murders;
id., § 12022.53, subd. (d)). The jury also
found true the special circumstance allegations that the
murders were committed during a robbery (id.,
§§ 190.2, subd. (a)(17), 211), and that defendant
had been convicted of multiple murders in the same proceeding
(id., § 190.2, subd. (a)(3)). The jury was
unable to reach a verdict as to penalty, and the trial court
declared a mistrial. After a penalty retrial, the jury fixed
the penalty at death, and the trial court entered a judgment
of death. This appeal is automatic. (Cal. Const., art. VI,
§ 11, subd. (a); Pen. Code, § 1239, subd. (b).)
We
affirm the judgment as to guilt. But we find the trial court
erred at the penalty retrial by permitting the prosecution to
make improper use of inflammatory character evidence for
purposes unrelated to any legitimate issue in the proceeding.
Having carefully reviewed the record, we conclude the error
was prejudicial. We therefore reverse the judgment as to the
sentence of death and remand the matter for a new penalty
determination.
I.
BACKGROUND
A.
Guilt Phase
On July
18, 1999, defendant and two other men robbed a Five Star
Park, Shuttle & Fly (“Five Star”) parking lot
near the San Diego International Airport. The three robbers
were aided by a former Five Star employee, James Torkelson,
who planned the robbery and assisted in it by pretending to
be on duty. During the robbery, the robbers shot and killed
Five Star employees Teresa Perez and Jack Reynolds. Then,
while fleeing the scene, the robbers shot at bystander Daniel
Maman and stole the car of a second bystander, Jim Gagarin,
at gunpoint.
Although
the case initially went cold, subsequent investigation
revealed the identities of the perpetrators. In 2003,
defendant was jointly charged with one of the other robbers,
David Raynoha, but defendant was tried alone. Defendant did
not contest his participation in the robbery or the
carjacking, but argued that he did not fire the shots that
killed Perez and Reynolds.
1.
Prosecution Case
Around
12:30 a.m. on July 18, 1999, Kendrick Bowman began a shift in
the toll booth at the Five Star parking lot, which was
located at the intersection of Sassafras Street and Pacific
Highway. Bowman relieved fellow employee Perez, whom he saw
empty the cash drawer and head to the Five Star temporary
office in a nearby trailer. Shortly after he began his shift,
Bowman encountered Torkelson. Bowman was surprised by
Torkelson's presence; he thought Torkelson, who had
worked as a security guard at the parking lot, had been
fired, and Torkelson was atypically early for his shift.
Bowman also noticed Torkelson heading for a remote side of
the parking lot, which differed from the usual starting point
for Torkelson's rounds.
Immediately
after Torkelson disappeared from Bowman's line of sight,
someone approached Bowman from behind and said, “Hey,
you.” Bowman turned around and found a man pointing a
gun at him. Although the gunman wore nylon stockings over his
head, Bowman observed that the gunman was a White man in his
twenties with a fair complexion and short, reddish-blonde
hair. The gunman ordered Bowman to lay facedown on the floor
of the toll booth. Bowman used his hand-held radio to send a
covert distress signal to the security guard, but received no
response. Unbeknownst to Bowman, all of the security guards
had left after Torkelson told each guard that he was there to
relieve him or her. Bowman then complied with the
gunman's demand. The gunman stepped down on Bowman's
back, emptied the cash drawer, and expressed disappointment
at its contents. The gunman remained in the toll booth and
Bowman asked him why he did not leave. The gunman responded,
“I can't leave. I'm waiting for my ride.”
Bowman
heard the door to the bathroom near the trailer open, and the
gunman yelled at someone to go into the trailer. Bowman
assumed the gunman was yelling at Perez, since she had been
heading to the trailer. Bowman then heard one gunshot,
followed by a series of shots after a brief pause. The gunman
standing over him then fled toward Pacific Highway. Bowman
stood up and saw the gunman clearly; he also saw two other
men running in the same direction. Bowman then called 911.
Maman,
who had plans to spend the night with Perez, arrived at the
Five Star parking lot a few minutes after 12:30 a.m. to pick
her up. Maman was driving a green van. As Maman was parking
the van near the trailer, he saw two men come out of the
trailer. One of the men aimed a revolver at him and started
firing. Maman immediately drove away. Maman described the
gunman as being approximately five feet seven inches tall,
and wearing a stocking over his head.
Around
the same time, Gagarin was retrieving his car from Park &
Ride, a parking lot across Pacific Highway from the Five Star
parking lot. He stopped at the Park & Ride exit booth,
which was manned by Michael Mackey. Gagarin and Mackey first
heard noises coming from the Five Star parking lot that
Mackey dismissed as firecrackers, followed by noises that
sounded more like gunshots. Gagarin and Mackey then saw a
dark van leave the Five Star parking lot, followed by three
men running towards the Park & Ride parking lot from the
Five Star parking lot. The first man to arrive at the Park
& Ride parking lot was armed and ran past the exit booth.
The second and third men fired shots behind them before
running up to the exit booth. Gagarin and Mackey both
testified that the men were White and wore dark clothing,
dark caps and nylon stockings over their faces. The shorter
of the two men pointed a gun at Mackey and demanded the car,
while the taller man pointed a silver-colored gun at Gagarin.
Both Gagarin and Mackey raised their hands in surrender, and
Gagarin told the assailants to take his car. The assailants
then exited the lot, heading east on Sassafras Street. Just
as they left, the dark van that Gagarin and Mackey had seen
driving away from the Five Star parking lot pulled into the
Park & Ride parking lot. The driver asked if they were
all right and told them that there had been shots fired at
the Five Star parking lot and he believed that the shots were
aimed at him. Mackey then called 911. At the preliminary
hearing, Mackey “felt 75 percent sure” that
defendant was the shorter gunman.[1]
San
Diego Police Department officers arrived within minutes of
Bowman's call. Before they arrived, Bowman had entered
the trailer and discovered the bodies of Perez and Reynolds
facedown on the ground with multiple gunshot wounds to the
back of their heads. Bowman did not touch anything, having
recognized that Perez and Reynolds were dead. When the
officers arrived, they checked both victims for signs of life
but found none.
A
homicide investigation team from the San Diego Police
Department also responded to the scene. Members of the team
discovered that the telephone lines and computer power cord
in the trailer had been cut. They found two bullet casings
fired by a Glock nine-millimeter semiautomatic firearm: one
near Perez's arms and another by Reynolds's head.
They also recovered four fired bullets: (1) a.38-caliber
revolver round fired from inside the trailer, leaving a
bullet hole in the trailer wall; (2) a.38-caliber revolver
round near Perez's body, and (3) two Glock rounds near
Reynolds's body. They also found bullet holes in the
carpet under the victims' heads, which indicated that the
victims had been shot while lying facedown. There were no
signs of a struggle, and the safe was open. Perez's car
was found inside the Five Star parking lot. A nine-millimeter
Glock cartridge was found on the ground outside the car, and
a Glock bullet, which was used to shatter the passenger
window, was found lodged in the driver's seat. A bank
deposit bag containing $1, 512 in cash and a deposit slip for
a $2, 457 deposit were recovered in the front seat. A roll of
duct tape was also found. A strand of hair found on the tape
was later tested; testing revealed the DNA belonged to Max
Anderson, who would later be identified as one of the
robbers.
Gagarin's
car was discovered less than a mile from the Five Star
parking lot. A nine-millimeter bullet casing was found on the
ground outside the car, and a Glock containing 12 live
nine-millimeter cartridges was found on the front passenger
seat. Ballistics testing confirmed that all of the
nine-millimeter casings from the trailer matched the magazine
in Gagarin's car. Dr. Christopher Swalwell examined the
bodies at the scene on the night of the robbery and performed
autopsies the next morning. Dr. Swalwell concluded that both
victims died from gunshot wounds to the back of the head.
Perez had two gunshot wounds, one on each side of her head,
caused by a.357 magnum or a.38-caliber revolver. Reynolds had
three gunshot wounds, one in his right arm and two to his
head, caused by a nine-millimeter Glock handgun. Based on the
nature of the wounds and position of the bodies, Dr. Swalwell
concluded that both Perez and Reynolds had been shot in the
back of the head while lying facedown with their arms over
their heads. And based on a distinct star-shaped tearing
around the entry point of each gunshot wound and the presence
of soot within each wound, Dr. Swalwell also concluded that
the gunshot wounds were contact wounds, meaning that the
barrel of the gun was pressed against the victims' skin
at the time of discharge. Steve Simmonds, the operations
manager of the Five Star parking lot, testified that he
initially believed that approximately $3, 400 was taken in
the robbery. But with the bank deposit bag recovered from
Perez's car, Simmonds estimated that the total monetary
loss was approximately $2, 000. Simmonds also testified that
it was company policy that all employees were to comply and
not resist in the event of a robbery.
Detective
Stephen McDonald testified that the case went cold for three
years until he contacted Paula Daleo, Torkelson's
girlfriend at the time of the robbery. Daleo disclosed two
incidents that connected defendant to the robbery. First, the
night before the robbery, Torkelson brought four men back to
their home: a man known to her as “Li'l Jeff,
” Raynoha, and two others. Daleo did not know Li'l
Jeff's last name, but recognized him from frequent
hangouts with Torkelson. Li'l Jeff also had two distinct
tattoos: one on his arm that said “Nigger
Thrasher” and another on his neck that depicted the
hammer of the Norse god Thor. After the robbery, Torkelson
and Li'l Jeff went to Tempe, Arizona to stay with a man
named Jason Getscher. At trial, Daleo identified defendant as
Li'l Jeff.
The
second incident occurred about a year after the robbery, when
Daleo attended a party in Li'l Jeff's home in June
2000. Daleo recalled a general discussion of the robbery, in
which Torkelson was described as the organizer of the
robbery, and Li'l Jeff and Raynoha were described as
participants. Someone said the killings during the robbery
took place because “Jeff got trigger happy.”
Li'l Jeff responded, “No, I did not, ” but
did not deny involvement with the robbery.
Based
on the information obtained from Daleo, Detective McDonald
contacted Getscher. At the time, Getscher was serving a term
in Arizona state prison for forgery. Getscher explained that
he met defendant during an earlier prison term in 1996.
Because he was 10 years defendant's senior, Getscher
sought to protect defendant inside prison and keep him out of
trouble after they were released. Defendant, Anderson, and
Torkelson stayed in Getscher's house immediately before
the robbery. During their stay, defendant, Anderson, and
Torkelson discussed robbing a business where Torkelson worked
as a security guard. Getscher was present when the three men
discussed their plans and left to commit the robbery and when
they all returned to Getscher's home. Torkelson
repeatedly warned defendant not to say anything.
On a
subsequent occasion, defendant told Getscher that the robbery
had not gone well and that defendant had shot someone.
Getscher also saw defendant attempting to lace his boots with
red laces. Getscher explained that he and defendant were
skinheads in prison, and that in skinhead culture “red
laces would indicate that you have drawn the blood of an
enemy.” Defendant insisted that he had earned the
laces, but Getscher disagreed because defendant had
“killed an innocent victim and that he didn't kill
an enemy that was trying to get him.” Getscher also
noticed a cut on defendant's hand, which defendant
explained was a burn from putting his hand over the barrel of
the gun to silence the gunshots.
Getscher
agreed to call defendant from prison and get him to talk
about the robbery while Detective McDonald recorded the
conversation. This arrangement resulted in two recorded
conversations. In the first conversation, which took place on
October 28, 2002, Getscher referred to the “stupid
little stunt” and “escapade” that
defendant, “James, ” and “Max” had
participated in two to three years earlier. Defendant did not
deny his involvement. In the second conversation, which took
place on November 26, 2002, Getscher told defendant that he
was building a small team for a bank heist and would allow
defendant to join so long as defendant told him “what
happened before, ” so he could be sure “it
ain't happenin' again.” Getscher also indicated
that whoever “did it” on the last job would not
be participating in the bank heist. Defendant identified the
participants in the Five Star parking lot robbery as himself,
Torkelson, and Anderson. Defendant described the robbery as
poorly planned by Torkelson, but defendant also admitted that
he had been affected by nerves and adrenaline. Defendant
explained that the three men had “covered up” to
hide their identities, but forgot to bring materials to tie
up the victims. As the robbery got out of hand, “it
happened.” Getscher asked who started the gunfire, and
defendant responded, “I, I was the first one that
fired.” Defendant explained that panic and adrenaline
led him to open fire and he was “thinkin'
they're gonna get away, fuck, I don't want to go
down.” Getscher asked if Anderson had shot the woman
during the robbery. Defendant responded, “Nah, that was
me.” Defendant explained that “everything was
just going wrong [and] the next thing I know I just did it. I
don't know. It just kind of happened.” Anderson
fired his weapon after defendant fired his. As defendant and
Anderson left the trailer, defendant also fired at someone in
a car and at some man in a “box thing” in the
parking lot because he thought one of them had seen him.
Defendant explained that the escape plan fell apart when the
key broke in the ignition of the getaway vehicle, and
everyone scattered. The robbery yielded very little because
“most of the stuff got left behind.” Getscher and
defendant also discussed the red laces: Defendant told
Getscher that he understood why he did not earn the laces
during the robbery and assured Getscher that he would not
overreact in a subsequent heist.
After
these recorded calls, defendant was arrested. While in
custody, Detective McDonald played a portion of the second
recorded call for defendant. When asked if he wanted to tell
his side of the story, defendant responded, “You heard
it all, ” and “I ain't gonna talk about it no
more.”
2.
Defense Case
Defendant
did not call any witnesses and rested on the record. In
closing argument, defense counsel conceded that defendant was
in the trailer during the robbery and participated in
carjacking Gagarin. Defense counsel argued that defendant did
not shoot Perez and that Anderson instead shot both Perez and
Reynolds. Defense counsel acknowledged that defendant had
claimed responsibility for shooting Perez in his second
recorded conversation with Getscher, but argued that
defendant was merely posturing to impress Getscher. Further,
counsel argued, this conversation revealed that defendant
acted out of panic, nerves, and adrenaline, and that he
lacked the intent to kill.
B.
Penalty Phase
At the
first penalty phase trial, the jury had been unable to reach
a verdict and the trial court declared a mistrial on November
10, 2005. The penalty phase retrial began several months
later, on June 19, 2006.
1.
Prosecution's Case in Aggravation
The
prosecution called witnesses from the guilt phase to describe
the robbery, defendant's role in the robbery murders, and
the forensic evidence. The prosecution also presented
evidence of defendant's attitude following the robbery
murders. Getscher testified about defendant's attempt to
put red laces in his boots as a mark of having “dr[awn]
the blood of an enemy.” Getscher took the laces away,
telling defendant that he had not earned them because the
laces were only for killing non-White
“enem[ies].” Defendant responded, “Oh, I
earned them.... It was a Mexican.”
The
prosecution presented victim impact evidence from family,
friends, and coworkers of Perez and Reynolds, who described
how the victims' deaths affected them. The prosecution
presented evidence of defendant's participation in three
prior crimes: (1) an attempted theft at an Arizona bank in
July 1999; (2) an attack on inmate Robert Harger while
defendant was incarcerated during trial; and (3) an assault
on Lee Alvin committed during a robbery of an Arizona
convenience store in 1992.
2.
Defense's Case in Mitigation
Members
of defendant's family, including his grandmother, aunts,
uncle, and parents, testified about hardships defendant had
encountered growing up. Defendant's parents separated
when he was one year old, and defendant had no contact with
his father until he was around 12 years old. Defendant
struggled with learning and was placed in special education
classes. When defendant was nine years old, he was sexually
abused by his older cousin. Defendant's father began
giving him alcohol as an infant and later introduced him to
drugs as an adolescent. Defendant spent some time in an
adolescent psychiatric hospital and a drug rehabilitation
center. Defendant was a nonviolent person and a loving and
attentive father to his son and stepdaughter. Defendant
accepted responsibility for the crimes he committed in
Arizona. After the trial court ruled that this evidence of
defendant's good character opened the door for the
prosecution to introduce evidence of defendant's racist
tattoos and affiliations in rebuttal, some family members
testified they were “confused” by his racist
tattoos because, to their knowledge, he was “never
really racist.” Defendant obtained a GED while in
prison in Arizona and subsequently learned welding to support
his family. Defendant called two acquaintances who knew him
in a professional capacity; they testified that defendant was
a hard worker who had no problems with coworkers of other
races. The founding director of the Center for Children of
Incarcerated Parents testified about the ability of parents
who are incarcerated to have a meaningful role in their
children's lives.
Aaron
Beek, an inmate who participated in the attack on inmate
Harger when defendant was awaiting trial, attested to being
the only one who physically attacked Harger; defendant, Beek
testified, was not present during the assault. But Beek
acknowledged authoring a letter in which he said he pleaded
guilty to the assault to “take the charges off... [his]
comrade Jeff.” At trial Beek explained, “I
don't feel comfortable letting [defendant] get charged
with something I did.” On cross-examination, the
prosecution presented Beek with another letter confiscated by
jail officials and signed in defendant's name that
bragged about being a member of the “American
Front” and the “shot-caller” for the
Caucasian prisoners in jail. Beek claimed to have authored
this letter as well.
An
officer who investigated the attack on Harger testified that
although Harger identified defendant as being present during
his assault, Harger misidentified defendant's hair color
and name. A family therapist characterized defendant as a
“follower” who is “highly susceptible to
the influence of others.” The therapist noted that the
sexual molestation that defendant suffered, as well as his
early exposure to alcohol, may have affected his development
and led to later alcohol and drug abuse problems. The
therapist testified that defendant became a skinhead for two
reasons: (1) to achieve a sense of belonging as he felt like
an outsider in his family, and (2) as a means of
self-preservation in prison. In response to questioning about
what values might have attracted defendant to “the
skinhead philosophy, ” the therapist testified that the
values “incorporat[e] not only the negative ones that
we associate with it, but also ones that have to do with
honor, respect, loyalty, fidelity to one's group, a sort
of misguided protection of the common man... and a lot of
pride.”
3.
The Prosecution's Rebuttal
On
rebuttal, the prosecution presented evidence in accordance
with the trial court's ruling that testimony by
defendant's grandmother supporting his good character
could be rebutted with evidence of defendant's racist
tattoos and affiliations. Deputies investigating the assault
on Harger testified that the day after the assault they found
a Celtic rune above defendant's cell door and a swastika
outside his cell, both apparently drawn in blood. Police
officers who had interacted with defendant in 1999 testified
about defendant's tattoos, which included the phrase
“Nigger Thrasher, ” a swastika, and the number
“88.” Joanna Mendelson, the director of
investigative research at the Southern California branch of
the Anti-Defamation League, testified about the origins and
ideology of skinheads generally and the American Front and
Aryan Nations groups specifically. Mendelson explained that
skinheads adhere to a religion known as Odinism, which
provides skinheads in prison the “opportunity to
congregate” in order to “conduct criminal
activity and violence.” Mendelson reviewed
defendant's tattoos and symbols on letters he had written
and explained their meaning within skinhead culture,
identifying several as “inherently racist
symbol[s].”
4.
The Defense's Surrebuttal
Two
Hispanic inmates housed in the same jail as defendant
testified that defendant never expressed any support for
racial violence and got along with inmates of other races. A
sheriff's department sergeant who investigated the
assault on Harger testified that an informant identified Beek
and an inmate named Britain as the
“shot-caller[s]” for the Caucasian inmates. The
informant witnessed Britain sharpening the shanks later
recovered from the attack on Harger, Beek looking nervous
outside his own jail cell when the attack occurred, and Beek
washing his hands after the attack.
II.
DISCUSSION
A.
Guilt Phase Claims
1.
Admission of Statement Given in Response to Police
Questioning
After
defendant was arrested, he was interviewed by Detective
McDonald. Deferring defendant's repeated requests for
“his rights, ” Detective McDonald instead began
the interrogation by playing the tape of defendant's
conversation with Getscher, in which defendant described the
circumstances of the robbery and admitted to fatally shooting
Perez. Then, after reading defendant his rights under
Miranda v. Arizona (1966) 384 U.S. 436
(Miranda), Detective McDonald asked if defendant
wished to tell his side of the story. Defendant responded,
“You heard it all, ” before asking for an
attorney and terminating the interrogation. Defendant argues
this statement should have been excluded under the Fifth and
Fourteenth Amendments to the federal Constitution, as well as
under state evidence law, and that the failure to exclude the
statement calls for reversal. We find no reversible error.
a.
Background
Detective
McDonald interviewed defendant on March 20, 2003. After
confirming defendant's name and address, Detective
McDonald explained that defendant was in custody
“regarding a 1999 murder case we revisited” and
asked if defendant knew “James Torkelson.”
Defendant expressed uncertainty, and Detective McDonald
responded that “[Torkelson]'s up in prison right
now. He's looking at thirty years and he's looking
for deals and he gave us some information regarding a murder
case in 1999. It happened at [a] Park and Ride, Airport Park
and Ride.” Defendant confirmed he knew Torkelson as
“Woody.”
Detective
McDonald explained that Torkelson and another individual had
given law enforcement “some information, ” and so
“things are starting to fall apart on this whole
operation you guys were... involved in.” Detective
McDonald further explained that Torkelson was “doing
thirty years” and “wants a deal, ” but that
“[w]e're not sure we want to deal with him.”
The conversation then continued as follows:
“MCDONALD:...
But we want to hear, this would be your opportunity to tell
us your side of the story. We do have other evidence too. We
have a tape here that I could play for you if you want to
hear that. But I just want to know would you like to tell us
your side of the story what happened at this lot?
“YOUNG:
After I get my rights.
“MCDONALD:
But only if this, yeah, I'm just letting you know if you,
I can read your rights.
“YOUNG:
(Unintelligible), that's, one step at a time.
“MCDONALD:
Okay. Like to go that route?
“YOUNG:
It's getting kind of weird. Cause, yeah, I know about
that. Woody told me about it, you know, cause he's
working security there.
“MCDONALD:
Okay.
“YOUNG:
Yeah, I'd like my rights.
“MCDONALD:
Okay. Let me uh
“YOUNG:
If you don't mind. I don't want to be, make like a
dick or anything or make anything
“MCDONALD:
No, but would you like to listen to a tape first?
“YOUNG:
Uh
“MCDONALD:
I won't say nothing. I won't ask you any questions.
...