# People v. Lucas

> California Supreme Court · August 21, 2014 · 60 Cal. 4th 153

URL: https://www.frixlaw.com/law-library/cases/2719838

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. DAVID ALLEN LUCAS, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 21, 2014
- **Citations:** 60 Cal. 4th 153; 177 Cal. Rptr. 3d 378; 333 P.3d 587; 2014 Cal. LEXIS 5748
- **Precedential status:** Published
- **Opinion:** Opinion by Cantil-Sakauye
- **Judges:** Cantil-Sakauye
- **Cited by:** 251 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved on other grounds by People v. Romero and Self, 62 Cal. 4th 1 (2015).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2719838

## Opinion text

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

37
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.

38
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.

39
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.

40
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

43
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.

44
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

45
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

46
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

50
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

54
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.

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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
suffic

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2719838. Public record. Not legal advice.