People v. Lucas

Filed 8/21/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S012279

v. )

)

DAVID ALLEN LUCAS, )

) San Diego County

Defendant and Appellant. ) Super. Ct. Nos. CR 73093 &

) CR 75195

____________________________________)

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

1 All further statutory references are to the Penal Code unless otherwise

indicated.

2 Eleven jurors voted to convict defendant of these murders. After

defendant’s sentencing, the trial court granted the prosecution’s motion to dismiss

the Rhonda Strang and Amber Fisher murder counts.

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

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. 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.

3 This 17-year term is comprised of the upper term of nine years on the

attempted murder conviction with an additional three years for the great bodily

injury finding plus a term of five years for defendant’s prior serious felony

conviction. Pursuant to section 654, the court stayed the one-year enhancements

for use of a knife regarding each murder conviction and the 10-year term for each

kidnapping conviction.

2

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, 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.

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

3

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 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.

4 Harris did not immediately identify the car as an MGB. She explained she

came to this conclusion two days later when she and her husband drove around

town to see if she could identify the make and model of the car she had seen in the

Jacobs’s driveway. When they saw an MGB, Harris believed it was the same

make and model as the car she had seen two days earlier.

4

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.

(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

5 Love Insurance was the name of an insurance brokerage firm in San Diego,

and 280-1700 was the firm’s telephone number.

5

the top of a chest of drawers, and items on it had toppled over or 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 a cigarette butt. Around 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

stood 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

(1) 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

6

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 .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.

6 Michael and Mrs. Harris both testified that Suzanne did not ordinarily drink

in the morning.

7

(2) 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, 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 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

8

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 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.

7 The cigarette butt found in the ashtray at the Jacobs residence was not

preserved, but the defense, during closing statements, argued that the butt was

consistent with a Marlboro brand cigarette based on crime scene photographs. At

the time of her death, Suzanne Jacobs had matchbooks and a Winston brand

cigarette in her pants pockets.

9

(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. 41-49) and

after Jodie Santiago Robertson identified him as the assailant who slashed her

throat (see post, at pp. 30-36), defendant was arrested. Therefore, because of the

similarity of these cases to the throat-slashing murders of Suzanne and Colin

Jacobs, local authorities reexamined the evidence collected at the Jacobs

residence.

(1) 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 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 re-raising 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.

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.

10

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.

(2) 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 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.

11

(3) Blood and fingerprint evidence

Bloodstain samples taken from the kitchen floor, kitchen sink, the living

room floor, the bedroom, Suzanne’s nail clippings, 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.

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.

(4) 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 may

12

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

(5) 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 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 larger. The rear of the MG Midget and the MGB were identical during

their respective production years.

8 Simms, however, examined the same hair and was unable to include or

exclude defendant as the source.

13

(6) 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. 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 four-and-one-

half-inch Buck knife. Because the California mine was closed when Smith and

14

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 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.

9 Smith explained that, because Nelson suffered from seizures during the trip,

Massingale did not like Nelson and tried to convince Smith to leave Nelson

behind. At the time of his testimony, Nelson was incarcerated in Texas for the

manslaughter of William Calvin Toups and had been previously convicted of

numerous theft and forgery crimes.

15

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 “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

10 Smith testified that he remembered Massingale mentioning the name

“Anne.” In his 1981 interviews with police, Nelson said Massingale had referred

to the victim by her full name “Suzanne Jacobs.” At trial, Nelson testified that

Massingale referred to the victim as “Sue Ann.” Massingale did not describe the

circumstances of how he met the woman.

11 Smith testified that Massingale told him that the boy was “pestering” him

and his mother about going to the bathroom and that he “shut the kid up” and cut

the mother’s head off.

16

runs consistent with a woman’s fingernails having raked down the left sleeve.

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 Sergeant

Phillips contacted San Diego Police Detective David Ayers and told him of

Nelson’s statements.14

12 These other suspects were Rochelle Coleman and David Ray Woods.

13 At the time of the Jacobs murders, Nelson was in custody for various theft-

related crimes.

14 The San Diego Police Department’s homicide unit had a policy of

withholding details concerning the circumstances of murders the unit is

investigating so as to be able to identify suspects that would have information that

only the actual perpetrator would know. According to Detective Gleason, in the

present case, the unit did not publicly disclose the discovery of the bloody

footprints in the home, the blood in and around the kitchen sink, or the theory that

Colin was killed in the bathroom.

17

The authorities transported Nelson to Texas where Detective Ayers

interviewed him in January 1981.15 Nelson described his encounter with

Massingale 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 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

15 In their first interview, Nelson told Detective Ayers that David Ray Woods

was responsible for the Jacobs murders, but later claimed he said so only because

he was angry that Woods had tried to blame him for the Texas killing. In his

January 27, 1981, interview of Nelson, Detective Ayers seems to suggest that

Woods had a solid alibi at the time of the Jacobs murders. But Woods and his

girlfriend were investigated as possible suspects in the Jacobs killings. (See post,

at p. 135.)

16 Detective Sergeant Phillips later retrieved the bloody silk shirt from

Nelson’s mother’s Alabama residence. It was as Nelson described, with runs and

what appeared to be bloodstains. Phillips believed he had boxed the shirt and

other items collected from the residence and Nelson and had sent the box to

Detective Ayers in San Diego. But upon inspecting the same box before his

testimony, he found it contained the other items but not the bloody silk shirt.

17 The defense also offered Sidney Douglass, a Harlan County attorney and

former judge advocate general, former county circuit judge, and former

prosecutor, who testified that he had worked with Detective Pace in several cases

over the years. He regarded Detective Pace as having a good reputation for

honesty in the community.

18

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 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 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 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

19

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 Inspector 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 had

been 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.

20

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 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 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 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, Inspector 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.

21

(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.

The residence hall in which defendant stayed in May 1979 was also

associated with the Salvation Army. The hall was also 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.

18 In closing statements, the defense theorized that the Love Insurance note

could have come from a piece of clothing that defendant had donated while he

lived at the Salvation Army and that this clothing eventually could have been

given to Massingale who dropped the note at the crime scene. In contrast, the

prosecution theorized that defendant had met Massingale at the Salvation Army,

and defendant had bragged about the killings to Massingale, providing him details

that Massingale later repeated to Nelson and Smith.

19 According to Robertson, Suzanne and her son Colin typically were early

risers and they would spend their weekday mornings outside with Suzanne

(Footnote continued on next page.)

22

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 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

(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.

(Footnote continued from previous page.)

gardening while Colin rode his tricycle nearby. But on the weekday morning of

the murders, she never saw them outside.

20 According to Inspector Green, Harris claimed the car was an MG, but she

later identified a photograph of a 1974 maroon MGB as being the same make and

model of the car she had seen on May 4, 1979.

21 The prosecution provided no evidence of what color the vehicle was in May

1979, but it provided evidence of a December 1986 traffic stop, after Smith had

sold the vehicle, in which the detaining officer described the vehicle as “black

over maroon.”

23

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

24

stored their overalls and boots. According to Jackson, if someone 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 the prosecution but was unable to reach any strong conclusions as 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 not 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

pressure. Oleksow, however, acknowledged that in a report dated late March

25

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 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

26

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 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 may be coming.

Goff arrived at the house at approximately 6:05 p.m., with her brother Chris

and one of her business 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, unlit 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 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.

27

(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 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 go down her street who looked

like William Greene’s brother, Richard, who lived with Greene nearby. Sergeant

28

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.

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, his 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

29

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. At the beginning of June 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. 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.

30

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.

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

31

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’s head had a severe skull fracture extending from behind her

head 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, that he could no longer afford the insurance and

payments on the car. Adler helped defendant remove the personalized license

plate and 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. 41-49), 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.

32

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 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 was 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.

33

(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, glue-like 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 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.

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 0, 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 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

34

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

defendant arrived at the Linker residence about 9:00 p.m., and defendant left

35

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 drive-by 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 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 early as within minutes or as late 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

22 Robertson was abducted between 10:30 and 11:00 p.m. that night.

36

defendant’s house, Robertson looked at it intently. Detective Fullmer made a U-

turn and 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.

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

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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, 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 job site without permission.

Between 9:00 and 9:30 a.m. that morning, Gregory Fisher, a long-time

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.

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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.

(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.

Amber had a cut through the tip of her finger. Like Rhonda, Amber also

had a bruise on her right shoulder.

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b) Defense Evidence

(i) Domestic Violence in the Strang Household

Several witnesses testified concerning incidents of violence against Rhonda

by her husband Robert.

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

23 Rhonda’s statement was not admitted for the truth of the matter asserted,

but instead to show her state of mind and to explain her conduct.

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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.

Following the murders, Detective Fullmer searched the Strang house but

did not locate Rhonda’s diary, cassette tapes, nor 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 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.

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(ii) The Abduction of Anne Swanke

On the evening of November 19, 1984, 22-year-old Anne Swanke was

visiting her 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 the car as if

pouring gasoline into the filler. 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 silhouette 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.

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(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 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.

(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 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 choke chain, like one used to

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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 wind pipe, 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.

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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.

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, his

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+1+, 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 allotype genetic markers that were consistent with a mix of Swanke’s and

defendant’s blood. KM analysis of the fingernails was inconclusive.

Based on the blood characteristics in the fingernail clippings R4, L1, L2,

and L4, which matched defendant, Wraxall stated that blood from only

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approximately 1 in 69 Caucasians, 1 in 547 Blacks, and 1 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 1 in 4,794 Caucasians, 1 in 5,875 Blacks,

and 1 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 sheath

for a model 112 Buck folding knife with a 4 1/4-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 tool box 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 choke chain that had been around Swanke’s neck. Upon

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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 stain. In

Schmitter’s opinion, Merritt and SERI should have tested the sample twice and

reported only consistent results.

Schmitter challenged SERI’s ABO testing of the fingernails, also believing

that duplicate testing was required to verify the results. Schmitter reviewed the

photos of the gel slabs SERI used to identify the presence of various blood

proteins and genetic markers in this case. He believed there were no reportable

results in the GM and KM genetic marker tests. He disagreed with some of

SERI’s interpretations of the blood protein results for the samples taken from

Swanke, Shannon Lucas, and defendant.

24 Shannon Lucas died unexpectedly before defendant’s trial. The jury heard

this small portion of Shannon’s taped interview with Detective Henderson.

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The parties stipulated that FBI Special Agent William Eubanks would

testify that all FBI serology examiners must have at a minimum a bachelor’s

degree from a four-year college with a major in chemistry or biochemistry.

Eubanks would testify that the FBI required the use of controls and duplicate

testing for the kind of serology testing employed in this case. In addition, the

results must be interpreted by a second examiner, and, if there is disagreement, the

result is deemed inconclusive.

Two criminal defense attorneys who had worked with Brian Wraxall (the

head of SERI) in another capital case testified that they believed Wraxall was not

honest.

Criminalist Charles Merritt found two foreign pubic hairs on Swanke’s

body, one from a pubic combing and one from her left hip. They did not match

her hair or defendant’s hair. John Simms, the San Diego Police

Department criminalist and hair comparison expert, reached similar conclusions,

and he further concluded that the hairs did not match samples from Swanke’s

boyfriend.

None of the latent fingerprints found on the windows of Swanke’s vehicle,

the gas tank flap, or the gas can matched defendant’s. The identifiable latent

prints were made by Swanke or Michael Quinn of the La Mesa Police Department.

(ii) The Dog Chain

James Boyd, general manager for Hartz Mountain pet supplies, examined

the dog chain found around Swanke’s neck. He recognized it as a chain Hartz

would distribute to pet stores and supermarkets. According to his company’s

business records, in 1982, 34,468 chains of similar type were sold in California in

three lengths. In 1983, 36,870 were sold and in 1984, another 33,833 were sold.

Boyd also testified that several other companies sold similar types of dog chains.

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Kevin Chess, a private investigator, went to various stores and

supermarkets in San Diego County. He found several chains similar to the one

found around Swanke’s neck.

(iii) Other Evidence

Vicky and William Johnson lived at defendant’s residence in November

1984. On the morning following Swanke’s disappearance, neither noticed any

scratches on defendant’s face, but the following day, which was the day before

Thanksgiving, they noticed scratches on his face, which defendant claimed were

caused by a fight in a bar.

To contest the prosecution’s evidence regarding Swanke’s time of death,

the defense presented the testimony of Robert Martin, a security guard for the U.S.

Elevator Company plant, which was located at the bottom of the hill near where

Swanke’s body was discovered. On November 22, 1984, three nights after

Swanke’s disappearance, Martin was working his midnight shift at the company.

As he made his rounds, he heard dogs in the neighborhood barking and howling

louder than usual. He also noticed the lights of an automobile at the top of the hill.

B. Penalty Phase

1. Prosecution Case

The prosecution presented the record of defendant’s August 16, 1973

conviction for the crime of forcible rape, in violation of section 261, including the

finding that defendant was armed with a knife in the commission of the offense.

This prior conviction was offered under aggravating factors (b) (prior violent

criminal conduct) and (c) (prior felony conviction) of section 190.3.

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2. Defense Case

a) Defendant’s Family and Friends

Defendant was born in the Philippines, where his father, Clarence Lucas,

was stationed in the Navy at the time. Defendant had problems with bedwetting

and suffered from asthma from an early age. Defendant’s father was described as

a cold man who used to pick on defendant and his siblings when they were young.

Defendant’s father had a temper, which he exhibited in front of defendant and the

other children, at times putting holes in the walls out of anger. Defendant’s father

would hit them not only with his fists, but also sometimes with a belt or telephone

cord. One time, defendant’s father forced his sister Cathy to re-eat the salad she

had just vomited onto her plate. The father was especially hard on defendant, who

often received the worst treatment. The abuse continued until defendant’s parents

separated when he was about 15 years old. Despite the prior abuse, defendant

asked his mother to give his father another chance. The mother agreed but later

divorced him.

Defendant’s younger brother, Don, thought of defendant as a good friend

and a father figure. When Don was unemployed, there were a number of times

when defendant bought groceries for his family. Defendant once took Don and his

family into his home. Defendant often advised Don about preparing for his future.

Don explained that defendant had the most “civil head” of anyone he knew. Don

recounted an incident in which his father was cleaning the garage with gasoline

and the hot water heater ignited the gas. Defendant pulled Don out of the garage

as it was engulfed in flames. Don trusted defendant with his children and asked

that defendant be sentenced to life imprisonment.

Cathy Lucas McEvoy, defendant’s sister, was one year older than him.

Cathy testified that she talked to defendant about everything and that he took care

of her when she was younger. When neighborhood bullies picked on Cathy, he

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defended her. When defendant was arrested in 1984, Cathy visited him in jail,

wrote to him, and talked to him by phone every day. Cathy asked the jury to spare

her brother and testified that his execution would hurt her children and family.

Cathy’s ex-husband, Jim Graves, testified that when he and Cathy got into

arguments, defendant helped Graves “sort out” his feelings. Defendant was a

good friend to Graves and maintained a good relationship with him and his

children even after Graves remarried.

Cathy’s current spouse, Mark McEvoy, first met defendant in about 1981.

Sometimes defendant helped McEvoy with projects, such as working on

McEvoy’s truck. They also went to baseball games together. McEvoy considered

defendant someone with initiative for business. McEvoy felt defendant was a

human being worth saving, that his death would only compound tragedy upon

tragedy, and that defendant’s family would be devastated if he were sentenced to

death.

Defendant’s niece, Trisha McEvoy, and nephew, Timmy Graves, testified

on defendant’s behalf. Trisha told the jury she got along well with defendant, she

listened to his advice, and he was a good influence on her. Defendant paid for her

modeling school and was always available to talk to her about her problems.

Trisha testified that defendant bought food for her and her little brother when her

parents were going through a divorce. Trisha wished her uncle to live. Timmy

testified that defendant is a good uncle who did nice things for him, like taking

him fishing, going on car rides, and playing games and watching television with

him. Timmy thought the appropriate punishment for his uncle would be life in

prison.

Many of defendant’s friends and family testified that defendant was kind,

caring, helpful and generous, and good with children. All of defendant’s friends

and family asked that defendant be given a life imprisonment sentence.

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b) 1973 Rape Case

Attorney George Anthony Gilham represented defendant in the 1973 rape

case. Gilham believed that defendant was not guilty of the rape charge. Gilham

also believed that defendant should be sentenced to life imprisonment. In

Gilham’s opinion, defendant is a hard-working individual who could be a benefit

to society if he were to receive such a sentence.

c) Expert Testimony

Clinical and forensic psychologist Alvin Marks diagnosed appellant as

having “personality disorder.” Dr. Marks indicated defendant’s early life

problems included a severely dysfunctional family. Dr. Marks testified that

defendant picked up his father’s hatred of women. But Dr. Marks believed

defendant also loved women and was in pursuit of the perfect woman. Defendant

had a great fear of men and distrust of authority because of his father, but

defendant was able to get along with men in an institutional setting. Defendant

had difficulty expressing his feelings, but expressed sadness over the death of his

wife, felt bad about the fact that he had difficulty in seeing his family, and

expressed remorse for the family of the victims (without admitting to his guilt).

Craig Haney, professor of psychology at the University of California at

Santa Cruz testified regarding his studies of the prison environment concerning the

sentence of life imprisonment without possibility of parole (LWOP). Haney

described security conditions in California prisons that held LWOP prisoners as

being the highest level of security in the state. He explained that living conditions

for LWOP prisoners were heavily monitored, but that prison society was such that

inmates could find meaningful ways of making contributions to the institution and

people around them. Haney described prison rules and punishment, as well as

factors important to an inmate’s prison adjustment.

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Louis Nelson, a retired San Quentin Prison warden, testified that wardens

prefer life prisoners because they settle down, help mentor new and younger

inmates, and perform valuable work assignments. Nelson described the security at

San Quentin, the cells occupied by inmates, the “lifer’s club,” and the inmate

council — a group that facilitates communication between the inmates and the

administration. He maintained that the best indicator of how an inmate will

perform is past prison conduct.

3. Prosecution Rebuttal

a) Spousal Abuse

Laura Stewart lived next door to defendant and his wife for more than a

year. In Stewart’s opinion, defendant and his wife, Shannon, had a violent,

tumultuous relationship. She observed them constantly fighting outside in the

yard and saw defendant hit Shannon numerous times.

Stewart recalled one instance in which she was awakened by yelling and

screeching tires. Stewart heard defendant say, “Go get the chain.” She heard

defendant and Shannon arguing, with defendant using much profanity.

Eventually, Stewart saw Shannon drive defendant’s truck into a pole, and saw

defendant open the truck door and drag Shannon out by her hair.

b) Conduct in Jail

When in custody in this matter, deputy sheriffs repeatedly found “pruno,” a

homemade alcoholic beverage, in defendant’s jail cell. Deputy Sheriff Barletta

testified defendant’s possession of pruno was a major jail rule violation.

On February 23, 1989, Deputy Sheriff Mark Profeta searched defendant’s

jail cell. When Profeta entered, he found a broomstick with a tapered end leaning

against the bars and the wall. Inmates were not allowed to have sharpened

broomsticks because they posed a security risk for other inmates and the staff.

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4. Defense Surrebuttal

In January 1989, Sonny Lee was housed with defendant in tank 5F in the

central jail. Lee testified that the item Deputy Profeta referred to as a broomstick

was actually an attachment for a scrub brush. Lee also testified that the stick was

used to reach the television from the cell in order to change channels or adjust the

volume because that was the only way the television could be adjusted.

II. PRETRIAL ISSUES

A. Consolidation and Cross-admissibility Issues

Defendant makes numerous arguments related to the consolidation of his

cases. He claims that each incident was not admissible to prove identity for each

of the other killings because they were not so unusual and distinctive, nor so

similar, so as to reflect the “signature” of a single perpetrator. He argues that

because the crimes were not cross-admissible, a joint trial of all the charges

prejudiced his guilt and penalty phase verdicts.

1. Background and Procedural History

Following his arrest in December 1984, defendant was arraigned for the

crimes against Robertson, Strang, Fisher, and Swanke in case No. CR 73093.

Investigators, however, believed defendant was also linked to the Jacobs and

Garcia murders, and, in March 1985, defendant was arraigned for those murders in

case No. CR 75195. In December 1986, the prosecution filed a motion to

consolidate the cases. In the course of pretrial proceedings, the trial court heard

evidence concerning the nature of the homicides, the victims, and the

characteristics of the inflicted wounds. The court also considered evidence of all

known homicide cases in San Diego County from the prior 20 years that involved

cutting injuries to the victim’s throat. For the purpose of its determination of

whether evidence would be cross-admissible for each incident, the court ruled that

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the evidence would be limited to that put forth by the prosecution and denied the

defense request to present its own witnesses to oppose the motion to consolidate.

In June 1988, the trial court granted the motion to consolidate and made

detailed findings in support of consolidation. The court noted that all of the

victims were vulnerable, that the women were all in their 20s or early 30s, pretty,

and had brown hair, that all but one incident involved the victim being attacked

while secluded in a house, that there was no apparent motive for the murders, no

evidence of sex assault or items stolen, and that each victim had an ear-to-ear

throat slashing wound that extended to the backbone — with this injury being the

only major wound in all of the cases, except for Suzanne Jacobs. The court also

noted that the coroner’s office had seen relatively few throat-slashing homicides

and that records for the prior 20 years identified only about three dozen murder

cases involving cuts to the throat. The court further explained that it had reviewed

the coroner’s reports for these other throat-wound homicides and they were all

distinguishable largely because of other wounds to the bodies that did not involve

the neck. The court did note that two other prior cases were similar to the charged

cases in that the neck was the only part wounded, but it noted that both cases

involved slashes to only the right side of the victim’s neck, and not ear to ear, and

that both involved neck injuries that were lower on the neck than in the charged

cases. Finally, the court rejected the defense claim that the probative value of

cross-admissibility was outweighed by any prejudicial effects.

2. Cross-admissibility to Prove Identity

According to section 954: “An accusatory pleading may charge . . . two or

more different offenses of the same class of crimes or offenses, under separate

counts . . . provided, that the court in which a case is triable, in the interests of

55

justice and for good cause shown, may in its discretion order that the different

offenses or counts set forth in the accusatory pleading be tried separately . . . .”

“Because consolidation ordinarily promotes efficiency, the law prefers it.”

(People v. Ochoa (1998) 19 Cal.4th 353, 409; accord, People v. Soper (2009) 45

Cal.4th 759, 772.) Accordingly, if the charged offenses are of the same class, such

as the murders charged here, joinder is proper under section 954. (People v. Kraft

(2000) 23 Cal.4th 978, 1030.) Under such circumstances, it is defendant’s burden

to show error in allowing a joint trial of the charged offenses and relief will obtain

only on a clear showing of prejudice to establish the trial court’s abuse of

discretion. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.)

An abuse of discretion can occur “ ‘ “where: (1) evidence on the crimes to

be jointly tried would not be cross-admissible in separate trials; (2) certain of the

charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’

case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the

‘spillover’ effect of aggregate evidence on several charges might well alter the

outcome of some or all of the charges; and (4) any one of the charges carries the

death penalty or joinder of them turns the matter into a capital case.” ’ ” (People

v. Kraft, supra, 23 Cal.4th at p. 1030, quoting People v. Bradford (1997) 15

Cal.4th 1229, 1315.)

First, we examine whether defendant was prejudiced because of joinder by

determining if each of the joined charges would have been admissible in separate

trials on the others.25 “If so, any inference of prejudice is dispelled.” (People v.

Kraft, supra, 23 Cal.4th at p. 1030.)

25 Section 954.1 states that “where two or more accusatory pleadings charging

offenses of the same class of crimes or offenses have been consolidated, evidence

concerning one offense or offenses need not be admissible as to the other offense

(Footnote continued on next page.)

56

Whether the other crimes would have been admissible in separate trials on

the others is governed by Evidence Code section 1101, subdivision (b), which

permits admission of other uncharged acts when offered as evidence of a

defendant’s motive, common scheme or plan, preparation, intent, knowledge,

identity, or absence of mistake or accident in the charged crimes. In this case, the

prosecutor argued, and the trial court found, that evidence of each incident would

have been cross-admissible in a separate trial of the charge relating to the other

incidents because the incidents disclosed a distinctive modus operandi tending to

establish the killer’s identity. We have held that to prove identity through other

uncharged acts, the similarities between the charged and uncharged offenses must

be so unusual and distinctive as to be akin to a signature. (People v. Ewoldt

(1994) 7 Cal.4th 380, 403.)

In this matter, there were five incidents all involving slim, attractive

Caucasian women with brown hair in their 20s or 30s. To the extent that two of

these incidents also involved the killing of young children, it appears that the

children were not the primary targets, but were instead killed to eliminate potential

witnesses to the adult killings. None of the incidents disclosed any motive for the

killings, with no conclusive evidence of sexual assault, larceny, or obvious motive

for retribution.

(Footnote continued from previous page.)

or offenses before the jointly charged offenses may be tried together before the

same trier of fact.” But because defendant was tried prior to the effective date of

this statute, as adopted by the California voters through Proposition 115 in June

1990 (see Cal. Const., art. I, § 30, subd. (a)), we apply the law predating its

enactment. (People v. Ramirez (2006) 39 Cal.4th 398, 437, fn. 6.)

57

But the most important similarity in all the incidents was the characteristics

of the inflicted throat wounds. All of the victims in this case had severe slashing

throat wounds that spanned nearly ear to ear and cut deeply through the tissues of

the throat either at or above the thyroid cartilage. The wounds themselves were

distinctive based on how they invaded each victim’s throat in terms of depth,

height, and length. The extent and nature of all of these injuries indicated that

they were not the result of stab wounds, but rather a slashing and sawing type of

action that required multiple sawing motions to accomplish the extent of the

injuries. The throat wounds also were the primary cause of death for each victim.

The uniqueness of the throat wounds in the present case becomes starkly

evident when compared to the more than three dozen San Diego County homicide

cases involving throat wounds in the prior two decades before defendant’s trial.

Virtually all of the other cases involved stabbing, not slashing, wounds to the neck

and involved significant slashing or stabbing wounds to other parts of the victim’s

body. As the trial court pointed out, only two of the other killings were similar to

those in the present matter in that each of those female victims had a slashing

throat wound as the sole major wound, but in those cases the wounds did not

extend across the entire neck and involved only the right side. Moreover, one of

those two victims had been strangled to death before her neck was wounded and

items had been stolen from her home. The other victim’s throat wound extended

well below the thyroid cartilage and into the lower neck vertebrae.

Thus, in addition to the targeted victims’ gender, race, age, and appearance

and the lack of apparent motive for the killings, all of the victims’ wounds shared

characteristics that were unlike anything the San Diego coroner had observed in

the more than 20 years preceding defendant’s trial. Several doctors from the

coroner’s office testified concerning the general rarity of throat-slashing

58

homicides. And the neck wounds here were unique in that they were virtually the

only offensive wounds present on each victim.26

Accordingly, we conclude that the trial court did not abuse its discretion

when it ruled that each incident displayed a pattern so unusual and distinctive as to

support an inference that the same person committed all of the killings and that

such evidence, therefore, was relevant on the issue of identity.27 In separate trials,

evidence of the other four incidents would have been admissible in each trial. Any

inference of prejudice is dispelled. (People v. Bradford, supra, 15 Cal.4th at

p. 1316.)

Moreover, none of the other factors relevant to assessing prejudice from

joinder support defendant’s claim that the trial court abused its discretion in

allowing consolidation.

As to whether some of the charges were likely to unusually inflame the jury

against defendant, all of the charges were certainly aggravated by the brutal nature

of the inflicted neck wounds, especially given that two of the incidents involved

26 Although Suzanne Jacobs had three stab wounds that were not associated

with her neck, of the five charged incidents, her crime scene was the only scene

that showed evidence of a prolonged struggle between the victim and her killer.

Moreover, nearly all of the other more than three dozen San Diego County throat-

wound murder cases involved victims who suffered numerous stabbing and/or

slashing wounds on other parts of the body as well as multiple sites of blunt force

trauma. In this respect, the injuries to Suzanne Jacobs were much more similar to

the other four charged incidents than to the other throat-wound murders that had

occurred in the county prior to defendant’s trial.

27 Defendant also claims the trial court abused its discretion by considering

the offenses as a whole rather than determining cross-admissibility on a case-by-

case basis. But nothing in the record suggests that the court blurred together the

facts of each case. Instead, the court’s ruling clearly focused on not only the

factual circumstances of the five charged incidents but also on dozens of other

homicides involving throat injuries.

59

three-year-old children. But considered as a whole, the circumstances of each of

the five incidents were “ ‘similar in nature and equally gruesome.’ ” (People v.

Carter (2005) 36 Cal.4th 1114, 1155.)

Regarding whether a weak case had been joined with a strong case or with

another weak case so that the total evidence unfairly may have altered the outcome

of some or all of the charges, the jury’s verdicts contradict such a contention. The

fact that the jury acquitted defendant of Garcia’s murder and could not reach a

verdict as to the murders of Strang and Fisher strongly suggests that the jury was

capable of weighing the evidence and differentiating among defendant’s various

charges. Concerning the Jacobs murders, there was compelling independent

evidence connecting defendant to those murders. Defendant had no alibi for that

day, a bloodied note with his handwriting was found at the scene, a vehicle

matching his mother’s car was in the Jacobses’ driveway that morning, and bloody

footprints at the scene were consistent with the sole pattern of the boots defendant

wore at work. Defendant has not shown that there was a “ ‘spillover’ ” effect

where evidentiary gaps in an allegedly weak case were filled by joinder with a

stronger case.28 (People v. Ruiz (1988) 44 Cal.3d 589, 606.)

Finally, we consider whether any one of the charged crimes carries the

death penalty or whether joinder of the charged crimes turns the matter into a

capital case. (People v. Kraft, supra, 23 Cal.4th at p. 1030.) Although joinder did

not convert the Jacobs murders or the Strang and Fisher murders into capital cases

28 Defendant also argues that the trial court assumed defendant was guilty of

each murder in deciding cross-admissibility, thereby improperly “bootstrapping”

the cross-admissibility rulings by interdependently relying on the validity of the

other cases without that validity having been independently established. But we

note that the court specifically concluded that “there are independent factors about

each of the crimes which link [defendant] to each crime.”

60

because both alone satisfied the multiple-murder special-circumstance statute,

joinder did have the effect of converting the Garcia and Swanke murders into

capital cases. This raises a concern that joinder could produce a conviction that

would not otherwise be obtainable on the evidence at separate trials because

“joinder should never be a vehicle for bolstering either one or two weak cases

against one defendant, particularly where conviction in both will give rise to a

possible death sentence.” (Williams v. Superior Court (1984) 36 Cal.3d 441, 454.)

The jury, however, acquitted defendant of the Garcia murder and hung on the

Strang and Fisher murders, and the evidence of defendant’s role in the Swanke

murder was particularly strong. Therefore, even if the Jacobs murders and

Swanke murder had been tried separately, defendant still would have been subject

to the multiple-murder special-circumstance statute.

We conclude that defendant has failed in carrying his burden of making a

clear showing of prejudice to establish that the trial court abused its discretion in

granting the prosecution’s motion to consolidate the five charged incidents.

3. Defense Evidence on Cross-admissibility and Consolidation

Defendant claims the trial court violated his constitutional rights to due

process, to present a defense, and against cruel and unusual punishment by

rejecting his offer to present 136 defense witnesses at the hearing on the

prosecution’s motion to consolidate defendant’s cases in order to contest the issue

of cross-admissibility and consolidation of the crimes for trial. Specifically,

defendant argues that he should have been allowed to present evidence

challenging the accuracy and reliability of the state’s forensic evidence, evidence

of Massingale’s confession, evidence of foreign pubic hair found on Swanke, his

alibis for the Robertson and Garcia cases, evidence of third party guilt in the

Strang and Fisher killings, and expert evidence about the ability of jurors to follow

61

limiting instructions concerning evidence of other crimes. Defendant claims that,

without consideration of this defense evidence, the court abused its discretion in

ruling on cross-admissibility and joinder. The court allowed the defense to fully

cross-examine any prosecution witnesses in rebutting the state’s evidence or

raising the question of a defense, but it noted that it would be burdensome for the

court to hear all of the same evidence the jury would hear during trial for purposes

of deciding the motion to consolidate. We conclude there was no error.

Preliminarily, we note that defendant cites no authority for the proposition

that the trial court must essentially preview the defense’s anticipated trial evidence

in order to adequately rule on matters of cross-admissibility and joinder or that the

presentation of such evidence is constitutionally required. Moreover, we conclude

defendant’s claim fails for several reasons.

First, under Evidence Code section 1101, subdivision (b), our courts have

recognized that the existence of defendant’s other criminal conduct “and

defendant’s connection to it are preliminary factual issues which must be decided

before the prior misconduct can be deemed admissible” and that the proponent of

such evidence must establish, by a preponderance, the existence of the prior crime

and the defendant’s connection to it. (People v. Garelick (2008) 161 Cal.App.4th

1107, 1115, citing People v. Simon (1986) 184 Cal.App.3d 125, 129-130; Evid.

Code, § 403, subd. (a) [“The proponent of the proffered evidence has the burden

of producing evidence as to the existence of the preliminary fact”].) Accordingly,

in arguing in favor of consolidation, it was the prosecution’s burden to make a

showing of cross-admissibility, including establishing preliminary facts linking

defendant to the killings.

The prosecution met its burden. As discussed above, the prosecution’s

evidence concerning the throat wounds supported the preliminary factual

determination that the wounds were sufficiently similar such that the same person

62

likely inflicted them. This determination alone satisfied the prosecution’s burden.

Defendant’s proffered evidence did not challenge this preliminary factual

determination, but instead challenged some of the other forensic evidence or

offered evidence of alibi or third party culpability.

Second, concerning the admissibility of other crimes evidence under

Evidence Code section 1101, subdivision (b), “[o]rdinarily, determining the

relevance of proffered ‘other act’ evidence presents solely a question of law for

the court because the defendant does not dispute the fact of the prior act but

merely argues its legal inadmissibility.” (People v. Simon, supra, 184 Cal.App.3d

at p. 129.) But if a defendant claims he did not commit the other acts at issue, this

ultimately presents a question of fact “which must be resolved by the jury before it

can draw any inference regarding defendant’s commission of the charged

offense.” (Id. at p. 130.) Here, the trial court properly determined the cross-

admissibility of the murders as a question of law, based on the evidence regarding

the similarity of the killings. As to defendant’s arguments that he did not commit

the other murders, the court properly left those factual questions for the jury to

decide.

Third, although some of defendant’s proffered evidence may have been

relevant to a pretrial determination of whether the prosecution sought to join

relatively weak cases with strong ones, any presumed error at this pretrial stage

could not have harmed defendant. Defendant had the opportunity to renew his

motion to sever after the presentation of evidence at trial, including after the

defense phase. (People v. Ervin (2000) 22 Cal.4th 48, 68 [“If further

developments occur during trial that a defendant believes justify severance, he

must renew his motion to sever”].) Defendant renewed his motion to sever after

the prosecution presented its case-in-chief to the jury, and the trial court denied the

motion. He did not renew this motion after the defense presented its case. Thus,

63

to the extent defendant argues that the court’s pretrial consideration of defense

evidence was relevant to show that a weak case was being joined with a strong one

to his prejudice, that claim is forfeited because defendant passed on the

opportunity to renew such a claim after presenting his evidence at trial.

We also reject defendant’s further claim that the trial court deprived him of

a full and fair hearing on the issue of consolidation because the court excluded

expert evidence about the ability of jurors to follow limiting instructions

concerning evidence of other crimes. The court heard the defense’s extensive

offer of proof on this subject by considering the testimony of defense expert

Dr. Stephen Penrod, an associate professor of psychology at the University of

Wisconsin. Although Dr. Penrod had used mock trials to study the effect of

joinder of unrelated charges on jury decisionmaking, the court properly found his

studies to be irrelevant. None of Dr. Penrod’s studies involved cases in which the

crimes were cross-admissible and none of them involved full trials with 12-

member juries. In particular, the very nature of cross-admissibility dictates that

consolidation is proper because the other crimes are relevant to ascertain guilt in

the charged crime. The studies were, therefore, irrelevant regarding whether

joinder was proper in the present case.

In any event, cross-admissibility ordinarily dispels any inference of

prejudice. (People v. Arias (1996) 13 Cal.4th 92, 126.) Moreover, our review of

the record of trial, including the defense evidence, reveals no “ ‘ “gross

unfairness” ’ ” that deprived defendant of a fair trial. (People v. Ervin, supra, 22

Cal.4th at p. 69.)

4. Denial of a Hearing Regarding a Claim of Vindictive Prosecution

Defendant claims the trial court failed to hold an evidentiary hearing to

explore whether the prosecutor had vindictively moved to consolidate his two

64

cases after defendant had successfully obtained an appellate order for a speedy

trial in the Jacobs and Garcia matters. He argues that the denial of such a hearing

violated his due process rights and his right to present evidence under the state and

federal Constitutions. But the trial court correctly concluded that both sides had

engaged in “very technical use of the law” to assert their respective preferences for

the order in which defendant’s cases would be tried, and that the prosecution’s

motions were not “legally improper” and did not impair any of defendant’s rights.

“Where the defendant shows that the prosecution has increased the charges

in apparent response to the defendant’s exercise of a procedural right, the

defendant has made an initial showing of an appearance of vindictiveness.”

(Twiggs v. Superior Court (1983) 34 Cal.3d 360, 371, italics added.) Here, the

prosecution sought to consolidate two preexisting cases, and the proposed

consolidation did not expose defendant to additional charges or an increased

sentence. Consequently, defendant failed to make an initial showing of

vindictiveness. The trial court correctly denied defendant’s request for a hearing

and his motion to dismiss based on prosecutorial vindictiveness.

65

B. Pretrial Evidentiary Rulings29

1. Failure to Preserve Fingerprint Evidence on the Love Insurance

Note

Defendant contends the destruction of a partial fingerprint on the Love

Insurance note rendered the note inadmissible by violating his due process rights

under California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v.

Youngblood (1988) 488 U.S. 51 (Youngblood). We disagree.

The constitutional due process rights of a defendant may be implicated

when he or she is denied access to favorable evidence in the prosecution’s

possession. (Brady v. Maryland (1963) 373 U.S. 83.) Trombetta outlines how the

state’s failure to preserve evidence may violate those rights. In Trombetta, the

high court limited the state’s affirmative duty to preserve evidence to that which

“might be expected to play a significant role in the suspect’s defense.”

(Trombetta, supra, 467 U.S. at p. 488.) This standard of “constitutional

materiality” imposes two requirements that a defendant must meet in order to

show a due process violation. As an initial matter, the evidence must “possess an

exculpatory value that was apparent before [it] was destroyed.” (Id. at p. 489.)

29 The following claims were the subject of lengthy, heavily litigated pretrial

hearings. Many of the pretrial hearings involved the admissibility of specific

types of evidence. Because the court’s rulings and defendant’s objections were

sufficiently clear and express, we conclude, unless otherwise noted, that

defendant’s in limine motions were sufficient to preserve his objections on appeal.

(People v. Morris (1991) 53 Cal.3d 152, 190 [a contemporaneous objection at trial

is not required if an in limine motion sufficiently preserved an objection for appeal

when “(1) a specific legal ground for exclusion is advanced and subsequently

raised on appeal; (2) the motion is directed to a particular, identifiable body of

evidence; and (3) the motion is made at a time before or during trial when the trial

judge can determine the evidentiary question in its appropriate context”].)

66

Additionally, it must “be of such a nature that the defendant would be unable to

obtain comparable evidence by other reasonably available means.” (Ibid.)

Contrary to defendant’s claim here, the fingerprint on the Love Insurance

note does not meet the “constitutional materiality” standard outlined in Trombetta.

Although the fingerprint in this case was partial, it could have been used to

exclude potential suspects. But there is no indication that the print would have

exculpated defendant, who was not even a suspect when law enforcement

inadvertently failed to preserve the print. Indeed, our conclusion here is consistent

with previous cases, in which we have rejected Trombetta claims based on the

destruction of fingerprints when the state had no reason to know that the prints

might exculpate a particular defendant. (People v. Roybal (1998) 19 Cal.4th 481,

509; People v. Medina (1990) 51 Cal.3d 870, 893.)

Destroyed evidence with only potential, rather than apparent, exculpatory

value is without remedy under Trombetta, but Youngblood provides a limited

remedy when the state has acted in bad faith in failing to preserve the evidence. In

Youngblood, police obtained semen samples from a rape kit and several items of

clothing, but could not definitively establish the identity of the assailant through

their initial tests. (Youngblood, supra, 488 U.S. at pp. 52-54.) The police

subsequently failed to take measures necessary to preserve those samples, such as

refrigerating the clothing. (Id. at p. 54.) Although properly preserved samples

could have exculpated the defendant in that case, that evidence was only

“potentially useful” (id. at p. 58) to the defense and not “ ‘potentially

exculpatory’ ” at the time it was allowed to deteriorate. (Id. at pp. 57-58.) The

court held that “unless a criminal defendant can show bad faith on the part of the

police, failure to preserve potentially useful evidence does not constitute a denial

of due process of law.” (Id. at p. 58.) Although Youngblood was decided after the

commencement of defendant’s initial trial here, its rule applies retroactively.

67

(People v. Huston (1989) 210 Cal.App.3d 192, 212-213.) As we have explained,

the partial fingerprint was only potentially useful to defendant’s case and not

apparently exculpatory. But defendant has neither alleged nor shown any bad

faith in law enforcement’s handling of the partial fingerprint on the Love

Insurance note. Consequently, his claim also fails under Youngblood.

Defendant alternatively argues that even if the note was admissible, the jury

should have been given one of several instructions requested by the defense. In

effect, the instructions would have informed the jurors that they could find the

note to be insufficiently authenticated if they found its potentially exculpatory

value was lost and that they were allowed to assume that the lost evidence would

have exonerated defendant. Although a jury instruction may be a viable response

to a due process violation, the trial court is under no obligation to so instruct the

jury when there is no violation. (People v. Cooper (1991) 53 Cal.3d 771, 811.)

We have found no error here and the trial court’s refusal to give defendant’s

proffered instructions was not an abuse of discretion.

Last, we reject defendant’s claim that the requirements of Trombetta and

Youngblood should be relaxed in light of the asserted heightened capital-case

reliability requirements of the Eighth and Fourteenth Amendments to the federal

Constitution. (People v. Alexander (2010) 49 Cal.4th 846, 877-879 [discussing

evidence challenged by a capital defendant under Trombetta without performing a

heightened reliability analysis]; People v. Holt (1997) 15 Cal.4th 619, 664

[denying capital defendant’s request that materials otherwise admissible under

Trombetta and Youngblood be excluded and noting that “the fact that a particular

68

procedure might enhance reliability does not make it one that is constitutionally

mandated”].)30

2. Challenges to Handwriting Comparison Evidence

a) Failure to Hold a Kelly Hearing

Defendant argues the trial court erred and violated his state and federal

rights to due process, right to present a defense, and his right of confrontation in

denying his request for a Kelly hearing concerning the admissibility of the

prosecution’s comparative handwriting analysis. This claim relies on the premise

that handwriting comparison is a new or novel scientific method or process that

requires an analysis under the test established in People v. Kelly (1976) 17 Cal.3d

24 (Kelly). Defendant states that handwriting comparison should be treated as a

scientific method because an analyst’s conclusions carry an aura of certainty that a

jury is unable to critically question. Defendant also claims that recent legal and

30 We also reject defendant’s similar claims regarding the failure to fully

preserve hair evidence found in Suzanne Jacobs’s hand. Defendant claims that the

state impermissibly failed to refrigerate the hairs after collection to preserve their

roots for later serological testing. But at the time of their collection at the crime

scene, electrophoretic analysis of serological evidence was a nascent field and

refrigeration of hair samples was not standard practice. The exculpatory value of

the hairs was not immediately apparent at the time of their collection because

defendant was not yet a suspect, and defendant cannot otherwise show bad faith in

the state’s failure to preserve the hair roots. Moreover, it is questionable whether

the evidence has been “destroyed” for purposes of Trombetta and Youngblood.

Defendant fails to recognize that modern forensic techniques are now available to

determine whether the hairs have exculpatory value despite the absence of

preserved roots. (See Wagner v. State (Md.Ct.Spec. App. 2005) 864 A.2d 1037,

1045, fn. 5 [“mtDNA analysis can be used on material without a nucleus, such as a

bone sample or a piece of hair without a root segment”]; People v. Stevey (2012)

209 Cal.App.4th 1400, 1412 [“Y-STR testing and its female counterpart, mtDNA

(mitochondrial DNA) testing, have been generally accepted by the scientific

community”].)

69

scientific challenges to the accuracy of the method underlying this analysis dictate

that we treat it as we would a novel or unfamiliar theory. Finally, he suggests that

we consider recent studies that express doubts about the reliability of handwriting

comparison. We disagree with defendant’s contention that the handwriting

comparison in this case is sufficiently “scientific” to qualify for a Kelly hearing.

The Kelly standard provides a framework within which courts can analyze

the reliability of expert testimony based on new or novel scientific methods or

techniques.31 As we have acknowledged, there is no clear definition of science

under this test. (People v. Stoll (1989) 49 Cal.3d 1136, 1155.) Accordingly, the

application of that term is guided by resort to the “narrow ‘common sense’

purpose” behind the rule: “to protect the jury from techniques which . . . convey a

‘ “misleading aura of certainty.” ’ ” (Id. at pp. 1155-1156, quoting Kelly, supra,

17 Cal.3d at pp. 30-32.) The danger of a false aura of certainty is acute where the

“technique or procedure appears in both name and description to provide some

definitive truth which the expert need only accurately recognize and relay to the

jury,” such that a lay jury might treat the procedure as “objective and infallible.”

(Stoll, supra, at p. 1156.) The analysis is designed to address “scientific evidence

or technology that is so foreign to everyday experience as to be unusually difficult

for laypersons to evaluate.” (People v. Venegas (1998) 18 Cal.4th 47, 80.)

31 In Kelly, supra, 17 Cal.3d 24, we adopted a three-pronged test to establish

the reliability of scientific testing and its scientific basis to determine its

admissibility in pretrial hearings. “The first prong requires proof that the

technique is generally accepted as reliable in the relevant scientific community.

[Citation.] The second prong requires proof that the witness testifying about the

technique and its application is a properly qualified expert on the subject.

[Citation.] The third prong requires proof that the person performing the test in

the particular case used correct scientific procedures.” (People v. Bolden (2002)

29 Cal.4th 515, 544-545, citing Kelly, supra, at p. 30.)

70

In contrast, when an expert’s methods are based on everyday processes of

observation and analysis, we trust jurors to “rely on their own common sense and

good judgment in evaluating the weight of the evidence presented to them.”

(People v. Venegas, supra, 18 Cal.4th at p. 80; see People v. McDonald (1984) 37

Cal.3d 351, 372 (McDonald) [“[w]hen a witness gives his personal opinion on the

stand — even if he qualifies as an expert — the jurors may temper their

acceptance of his testimony with a healthy skepticism born of their knowledge that

all human beings are fallible”].)

For more than 100 years, we have recognized that expert handwriting

comparisons have evidentiary value and that juries should “form their own

conclusion in reference to such similarity or resemblance.” (People v. Storke

(1900) 128 Cal. 486, 488.) In addition, the Legislature has affirmed the value of

handwriting comparisons to authenticate a writing. (Evid. Code, §§ 1415, 1418.)

The Evidence Code endorses the use of expert testimony in handwriting

comparison and further allows jurors to make their own comparisons of

handwriting. (Evid. Code, §§ 1417, 1418.)

Although our courts, to date, have not directly ruled on the applicability of

Kelly to expert handwriting comparison, they have frequently held that the Kelly

framework does not apply to comparisons that focus on physical evidence “whose

existence, appearance, nature, and meaning are obvious to the senses of a

layperson.” (People v. Webb (1993) 6 Cal.4th 494, 524.) Under these

circumstances, “the reliability of the process in producing that result is equally

apparent and need not be debated under the standards of Kelly, supra, 17 Cal.3d

24.” (Ibid.)

In People v. Webb, we held that the use of a laser to generate a more

accurate photographic image of a latent fingerprint did not implicate the concerns

addressed by Kelly. We explained that, because the technology merely

71

illuminated existing latent fingerprints, it was “unreasonable for defendant to

suggest that the process might somehow have captured a fingerprint which did not

exist, transformed some other image into a fingerprint, or changed the fingerprint

of another person into one which matched defendant’s.” (People v. Webb, supra,

6 Cal.4th at p. 524.) Therefore, no hearing pursuant to Kelly was required.

Similarly, in People v. Ayala (2000) 24 Cal.4th 243, we held that an

expert’s method of comparing readily apparent features of physical evidence was

not sufficiently “scientific” to require a hearing under Kelly. In that case, a

radiologist taped bullets to the victim’s skin and then used an X-ray machine to

compare those bullets to a bullet lodged inside him. (Id. at p. 281.) Quoting our

decision in People v. Webb, supra, 6 Cal.4th 494, 524, we noted that this evidence

could be meaningfully evaluated by the jury because it “ ‘isolate[d] physical

evidence whose existence, appearance, nature and meaning are obvious to the

senses of a layperson.’ ” (People v. Ayala, supra, at p. 281.)

In this case, the trial court held that the method of handwriting comparison

offered by the prosecution was not sufficiently “scientific” to require a hearing

under Kelly. We agree with the trial court’s determination. The handwriting

comparison utilized here merely isolated, and carefully compared, readily

observable aspects of physical evidence through simple magnification. The

simple visual magnification employed here was less sophisticated than the laser

fingerprint imaging in Webb and the X-ray bullet analysis in Ayala. Jurors could

compare the handwriting on the Love Insurance note directly with the exemplars

provided by defendant and were provided enlarged versions of both that were over

three times their original size. Jurors are equipped to make those evaluations and

draw their own conclusions based on their independent observations of the

evidence. Indeed, as previously explained, a jury’s competence in performing this

very analysis is recognized in Evidence Code section 1417. The magnification

72

employed here was not a highly technical test that would hold undue sway over

jurors.

Additionally, the expert in this case stated that it was his “opinion with

reasonable certainty” that the author of defendant’s exemplars was also the author

of the handwriting on the Love Insurance note, even though he admitted that he

employed no standardized number of similarities or differences in the comparison

before reaching that opinion. The expert further admitted that “there is a lot of

handwriting similarity in the general population” and that “some people write

alike” such that he may “not have the ability to distinguish between them.” This

testimony, therefore, was not presented as a “definitive truth,” but rather as an

informed opinion based on the witness’s transparently subjective techniques.

Because this method of analysis is not sufficiently “scientific” under Kelly, we

need not reach the other Kelly issues raised by defendant.

b) Failure to Consider Pretrial Defense Evidence Regarding the

Reliability of Handwriting Comparison Evidence

Defendant argues that the trial court abused its discretion and violated his

state and federal rights to due process, right to present a defense, right of

confrontation, and compulsory process by refusing (1) to allow proffered defense

expert testimony about handwriting comparison; (2) to take judicial notice of

handwriting comparison proficiency studies; or (3) to allow an in-court test of the

prosecution’s handwriting analysis expert, Dr. Harris. He also challenges these

rulings as erroneous under Evidence Code sections 352 and 1418.32 All of this

32 “The genuiness of writing, or the lack thereof, may be proved by a

comparison made by an expert witness with writing (a) which the court finds was

admitted or treated as genuine by the party against whom the evidence is offered

or (b) otherwise proved to be genuine to the satisfaction of the court.” (Evid.

Code, § 1418.)

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evidence was proffered by defendant during pretrial proceedings in an attempt to

cast doubt upon the accuracy — and, by implication, the probity and relevance —

of the handwriting analysis that linked him to the handwriting on the Love

Insurance note. We find no error in excluding this evidence from the pretrial

proceedings.

“In determining the admissibility of evidence, the trial court has broad

discretion.” (People v. Williams (1997) 16 Cal.4th 153, 196.) In particular, a trial

court’s decision on the admissibility of expert testimony is reviewed for an abuse

of discretion. (People v. Smith (2003) 30 Cal.4th 581, 627.)

It was not an abuse of discretion for the trial court to exclude the expert

testimony and the proficiency studies offered by defendant. Dr. Saks was offered

by the defense as an expert witness in social science, research, and research

methodology. The trial court refused to hear Dr. Saks’s testimony because he was

neither a practitioner nor a researcher of handwriting comparison. Instead,

Dr. Saks was merely prepared to discuss several proficiency studies that he had

read concerning handwriting comparison. The court expressed its concern that,

because Dr. Saks was not a handwriting expert, the studies were inadmissible

hearsay without a showing that they were the kind of studies that handwriting

experts would reasonably rely upon. The court also observed that Dr. Saks had

not personally performed the studies on which he was relying, and, consequently,

he could not adequately account for the base of information underlying his

opinion. Defendant misinterprets this ruling to state that only the direct

practitioner of a technique can testify regarding the reliability of that technique.

On the contrary, the trial court merely held that Dr. Saks’s lack of personal

experience with both handwriting comparison and studies measuring the reliability

of that analysis precluded him from having a sufficient basis for him to opine on

the accuracy or reliability of that analysis generally. (See People v. Watson (2008)

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43 Cal.4th 652, 692 [although the offered witness had educational background in

criminal justice and was experienced in noncapital sentencing alternatives, the trial

court properly concluded he was not qualified to testify about the psychological

impact of defendant’s upbringing on his ability to adjust to life in prison].)

Because the trial court reasonably determined that Dr. Saks’s testimony

lacked the necessary foundation to be relevant regarding the reliability of the

prosecution’s handwriting comparison, defendant’s related claim that the court

abused its discretion under Evidence Code section 352 also fails. (People v.

Minifie (1996) 13 Cal.4th 1055, 1070 [Evid. Code, § 352 rulings are reversible on

appeal only on a clear showing of abuse of discretion].) A trial court may exclude

an expert’s opinion testimony if that expert lacks an adequate basis in formulating

it. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55

Cal.4th 747, 770; People v. Ramos (1997) 15 Cal.4th 1133, 1174-1176.)

Additionally, there is no due process right to present factually unfounded

evidence. (People v. Mincey (1992) 2 Cal.4th 408, 442.) Consequently,

defendant’s due process claim is equally unavailing. Finally, the trial court also

reasonably exercised its discretion by refusing to take judicial notice because such

studies are not matters subject to judicial notice under Evidence Code section 452.

Defendant further argues that the trial court committed prejudicial error by

refusing to allow the defense to “test” Dr. Harris’s handwriting identification

abilities in court during the pretrial hearings concerning the admissibility of the

state’s handwriting comparison evidence. When cross-examining Dr. Harris,

defendant sought to introduce additional writing samples from another individual

and have Dr. Harris analyze them for purposes of undermining the admissibility of

the state’s handwriting comparison evidence. He avers that the court prevented

him from fully confronting and cross-examining a key prosecution witness in

violation of his state and federal constitutional rights. The court held that the

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proposed experiment lacked foundation and was outside the scope of cross-

examination.

Proposing to cross-examine an expert through an in-court experiment

implicates several considerations. Generally, the scope of cross-examination of

expert witnesses can be broad and may include additional facts bearing on the

grounds and reliability of the expert’s opinion. (Evid. Code, § 721; People v.

Loker (2008) 44 Cal.4th 691, 739.) This contemplates significant latitude to test

the accuracy and credibility of tests relied on by an expert. (People v. Smithey

(1999) 20 Cal.4th 936, 967.) The trial court has wide discretion in determining the

appropriate scope of cross-examination. (People v. Lancaster (2007) 41 Cal.4th

50, 102.) On the other hand, experimental evidence is admissible only when the

party offering it proves (1) that it is relevant; (2) that it was conducted under

conditions substantially similar to the original occurrence tested; (3) that

presenting the evidence of the experiment will not consume undue time, confuse

the issues, or mislead the trier of fact; and (4) that the expert testifying about the

experiment is qualified to do so. (People v. Turner (1994) 8 Cal.4th 137, 198.)

The trial court did not abuse its discretion by prohibiting an in-court “test”

of Dr. Harris because, even if it was within the proper scope of cross-examination,

the proposed test did not meet the minimum standards for admitting experimental

evidence. Defendant failed to show that the proposed test was substantially

similar to the prior handwriting comparison performed by Dr. Harris. Harris’s

analysis of defendant’s handwriting involved numerous samples, including both

those created in controlled conditions and his past writings. These samples were

observed under an illuminated magnifier. Defendant’s proposed experiment

would have asked Dr. Harris to identify whether one particular piece of writing

“matched” the handwriting on the Love Insurance note, without the benefit of a

large sample or any magnifying technology. These major differences undermined

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the proposed test’s relevance in terms of challenging the accuracy, credibility, and

admissibility of Harris’s original analysis. Also, the court reasonably determined

that an in-court performance of the testing methods would consume undue time for

purposes of the pretrial hearings. The court correctly noted that these in-court

experiments lacked foundation and that defendant would need to independently

conduct a test with Dr. Harris and then establish a foundation for its relevance at

the pretrial hearings. Defendant did not take these further steps. On this record,

we see no basis for reversing the court’s reasonable resolution of this issue.

c) Admissibility of the Prosecution’s Expert Testimony on

Handwriting

Defendant asserts two additional non-Kelly challenges to the admission of

testimony from the prosecution’s handwriting analysis expert, Dr. Harris.

First, he contends that the trial court impermissibly shifted the burden to the

defense on its Evidence Code section 352 objection to this testimony at the pretrial

hearings to determine the admissibility of the state’s handwriting comparison

evidence. Defendant quotes the trial judge’s statement that handwriting

comparison is generally considered reliable and the defense would “bear the

burden of showing the court otherwise.”33 Defendant argues that this alleged

33 The trial judge’s exact statement was as follows: “Then you’re attacking

the — probably the most well-received, most oft-received piece of expert

testimony that’s ever, ever been in a courthouse. So it seems to me the burden is

going to be on you to bring your expert in and convince the court otherwise, that

handwriting experts are not the case. I would suggest that you bring your expert

down because you’re going to bear the burden. The reality is — I’ve read the

Points and Authorit[ies], and you’re just attacking something so often received and

so generally accepted that I think the defense is ultimately going to bear the

burden of showing the court otherwise . . . . [¶] I can look back at just case law in

this area on the use of expert witnesses on handwriting. And without even having

an expert testify as to its reliability, it seems to me that it is so well known and so

(Footnote continued on next page.)

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burden shifting prevented the court from properly exercising its discretion when

considering whether — and to what extent — the handwriting comparison

testimony was relevant and admissible. There was no erroneous burden shifting.

Relevant evidence is that which has “any tendency in reason to prove or

disprove any disputed fact that is of consequence to the determination of the

action.” (Evid. Code, § 210.) Relevance is established when the evidence tends

“ ‘ “ ‘logically, naturally, and by reasonable inference’ ” ’ ” to establish material

facts, such as motive, intent, or identity. (People v. Heard (2003) 31 Cal.4th 946,

973.) When the relevance of proffered evidence depends on the existence of a

disputed material fact or facts, the proponent of that evidence bears the burden of

establishing all preliminary facts pertinent to the question of relevance. (Evid.

Code, § 403, subd. (a)(1); People v. Kaurish (1990) 52 Cal.3d 648, 693.) The

disputed evidence is inadmissible unless the court finds evidence sufficient to

sustain a finding that those pertinent preliminary facts exist. (Evid. Code, § 403.)

The trial court is accorded broad discretion in determining the relevance of

evidence. (People v. Jones (2011) 51 Cal.4th 346, 373.)

Here, the handwriting comparison testimony was relevant to prove that

defendant wrote the note found at the crime scene. This evidence relied on the

preliminary fact that, in the absence of new or novel scientific techniques,

handwriting comparison in general is a reliable method of identifying or excluding

the author of a writing. (See Evid. Code, §§ 1417, 1418.) The trial judge’s

statement that defendant cites in support of his challenge merely recognized that

(Footnote continued from previous page.)

often received that it is one of those areas that simply passes to the defense

immediately, without going through these machinations that we all know about.”

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the case law on the issue of handwriting comparison, and its pervasive use in

courts, was sufficient to sustain a finding that it was reliable. This was the judge’s

manner of expressing that the court found the prosecution’s burden was met with

respect to the handwriting comparison offered. This did not relieve the

prosecution of the burden of proving Dr. Harris’s specific credentials and

establishing that he practiced reliable methods, both of which would go to the

question of whether his particular comparison was sufficiently reliable and

relevant to the case. The burden, therefore, was not impermissibly shifted to the

defense on this issue.

Second, defendant claims that the trial court erred by allowing Dr. Harris to

testify at the pretrial hearings that in his opinion, defendant was the author of the

handwriting on the Love Insurance note. He claims this expert opinion improperly

influenced the trial court’s decision to admit the Love Insurance note and the

state’s handwriting comparison evidence. According to defendant, the probative

value of this opinion was low because lay persons could compare the similarities

between handwritings. He also argues that the probity of this opinion testimony

was further undermined by the small sample of handwritten letters on the original

note, the possibility that he may have been handcuffed when providing

handwriting exemplars, the fact that the handwritten letters were not written in

cursive, which is purportedly more distinctive, and the unavailability of the

original document for comparison. Defendant alleges that these factors combine

to make the handwriting evidence so unreliable that it was an abuse of discretion

not to exclude it under sections 352 and 1418 of the Evidence Code and the

federal and state constitutional due process clauses. We conclude that the trial

court did not abuse its discretion in admitting and considering Dr. Harris’s opinion

about the note’s authorship.

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An expert witness may offer an opinion relating to a subject sufficiently

beyond common experience when that opinion would assist the trier of fact.

(Evid. Code, § 801.) Moreover, the Evidence Code specifically codifies the use of

expert testimony in handwriting comparison. (Evid. Code, § 1418.) We have

stated that a fact finder “ ‘need not be wholly ignorant of the subject matter’ ”

(People v. McAlpin (1991) 53 Cal.3d 1289, 1299) covered in an expert’s opinion

and that the opinion should be excluded only “ ‘when it would add nothing at all

to’ ” the fact finder’s common knowledge. (Id. at p. 1300.)

Dr. Harris’s opinion in this case was well within the bounds of acceptable

expert testimony. Dr. Harris described himself as a full-time examiner of

“questioned documents” for 38 years. He was certified by the American Board of

Forensic Document Examiners, which he cofounded and served as its president for

three years. Dr. Harris had qualified as a handwriting expert more than 1,000

times in his career. Clearly, Dr. Harris’s expertise, experience, and opinion in

examining questioned documents was useful to the trial court in assessing the

authorship of the handwriting on the Love Insurance note and the note’s

admissibility.

Defendant also fails to show sufficient prejudice under Evidence Code

section 352 to require the exclusion of Dr. Harris’s opinion. Broadly speaking,

evidence tends to be more prejudicial than probative when it poses an intolerable

risk to the fairness of the proceedings or reliability of the outcome. (People v.

Dement (2011) 53 Cal.4th 1, 36.) Additionally, an expert should not be permitted

to provide an opinion based on assumptions of fact without evidentiary support or

based on mere speculation or conjecture. (Brown v. Ransweiler (2009) 171

Cal.App.4th 516, 530.) Although defendant cites legitimate factors that could

undermine the reliability of the handwriting comparison, such as the small sample

size, those concerns attach to the weight of the evidence, and do not require its

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exclusion. We find no abuse of discretion in the admission of the expert’s

opinion.

d) The Reliability of Handwriting Comparison from a Photograph

Defendant argues that our decision in Spottiswood v. Weir (1885) 66 Cal.

525 forecloses a handwriting comparison based on a photograph of the original

writing. In Spottiswood, decided more than a century ago, we held that a

handwriting expert could not testify to the genuineness of a disputed writing based

on a “press copy” of that writing.34 (Spottiswood, at p. 529.) In that case, no

excuse was provided for the missing original writing and the genuineness of the

“press copy” was disputed. (Ibid.) This court opined that it would be

“ ‘dangerous’ ” to compare genuine samples with a press copy if its authenticity

was in doubt. (Ibid.)

The present case is distinguishable. First, unlike in Spottiswood, there is no

dispute about the genuineness of the copy in this case. Defendant does not contest

that the photograph depicts the original Love Insurance note. Second, the

handwriting comparison in this case was based on a photograph, not a “press

copy.”

We have previously held a photographic negative to be admissible for the

purpose of a handwriting comparison. (People v. McKenna (1938) 11 Cal.2d

34 The United States Supreme Court described a press copy as a copy of the

original made on “ ‘tissue paper’ ”: “after a letter has been written on ordinary

paper, it is placed between the leaves of a book filled with this kind of paper, the

pages upon which the copy is desired being usually dampened somewhat for that

purpose, after which such book is subject to great pressure by means of a hand or

other press. One or more impressions may thus be made of the written matter

upon the leaves of this tissue paper.” (Lawrence v. Merritt (1888) 127 U.S. 113,

114-115.)

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327.) In McKenna, we reasoned that the jury could properly weigh the resulting

handwriting comparison testimony because the expert readily admitted that certain

details could have been lost from the original. (Id. at pp. 337-338.) Similarly, in

this case defendant was free to elicit — through cross-examination or otherwise —

evidence of any inaccuracy or uncertainty generated by comparing a photographic

copy rather than the original note. Under these circumstances, the photograph was

properly admitted as the basis of the handwriting comparison, and Spottiswood

does not apply.

e) Exclusion at Trial of Defense Evidence Concerning the

Unreliability of Handwr

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