Joint Appendix — Fry v. Pliler
Supreme Court brief2007
Ask Donna
What actually matters in this document.
Text
No. 06-5247
In The
Supreme Court of the Anited States
JOHN F. FRY,
Petitioner,
Vv.
CHERYL K. PLILER, Warden,
Respondent.
¢
On A Writ Of Certiorari To The United States
Court Of Appeals For The Ninth Circuit
¢
JOINT APPENDIX
+
EDMUND G. BROWN, JR.
Attorney General of California
MARY JO GRAVES
Chief Assistant Attorney General
GERALD A. ENGLER
(916) 447-2988 (facsimile) Senior Assistant Attorney General
Counsel for Petitioner | DONALD E. DE NICOLA
Deputy Solicitor General
Pecoy S. RUFFRA
Supervising Deputy Attorney
General
of
455 Golden Gate Ave., Suite 11000
San Francisco, CA 94102
Telephone: (415) 703-1376
Facsimile: (415) 703-1234
Counsel for Respondent
Petition For Certiorari Filed June 20, 2006
Certiorari Granted December 7, 2006
oe -
" rv. t
— «ff oe de oe Py a. x
* > va ary - rT ; * SR eS etme
x > lon aa st
‘
— hla : .
Transcript of Taped Interview of Pamela Maples,
dated March 16, 1995
Opinion of California Court of Appeal, First Dis-
trict, Division Three, Filed March 30, 2000
Judgment of Supreme Court, Filed July 12, 2000
Findings and Recommendations of the U.S. District
Court, Eastern District of California, Filed June
Memorandum of the U.S. Court of Appeals, Ninth
Circuit, Filed February 2, 2006
Order of U.S. Court of Appeals, Ninth Circuit, Filed
Order Granting Leave to Proceed in Forma Pau-
peris, and Motion Granting Petition for Writ of
Certiorari, Dated December 7, 2006
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
A. Superior Court of California for Solano County
February 10, 1993 — Information filed
February 22, 1994 — First jury trial commenced
April 4, 1994 — Mistrial declared in first trial
August 22, 1994 — Second jury trial commenced
October 21, 1994 — Mistrial declared in second trial
February 21, 1995 — Third jury trial commenced
June 8, 1995 — Guilty verdict returned
August 30, 1995 — Notice of appeal filed
B. State Post-Conviction Proceedings
March 30, 2000 — Unpublished Opinion of the California
Court of Appeal, First Appellate District, Division
Three
May 8, 2000 — Petition for review filed
July 12, 2000 — Summary denial by the California Su-
preme Court
C. § 2254 Proceedings in the United States Dis-
trict Court, Eastern District of California
August 15, 2001 — Pro se § 2254 petition filed
June 24, 2002 —- Amended petition filed
June 2, 2004 — Findings and Recommendations of the
Magistrate Judge in the U.S. District Court, Eastern
District of Californi
August 27, 2004 — Order and Judgment of the U.S. Dis-
trict Court, Eastern District of California
& August 31, 2004 — Notice of Appeal
4 September 9, 2004 — Order granting certificate of appeal-
bilit
DD. Appeal to the Ninth Circuit
"February 2, 2006 — Memorandum of the U.S. Court of
a Appeals, Ninth Circuit
April 25, 2006 — Order of the U.S. Court of Appeals, Ninth
Circuit, denying petition for panel rehearing and re-
hearing en banc
. E. Supreme Court of the United States
June 6, 2006 — Petition for certiorari
_ December 7, 2006 — Order granting leave to proceed in
forma pauperis, and granting petition for writ of cer-
aco
IN THE DISTRICT COURT OF APPEAL
IN AND FOR THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
THE PEOPLE OF THE
STATE OF CALIFORNIA,
)
)
Plaintiff and Respondent,
vs. )
JOHN FRANCIS FRY,
)
Defendant and Appellant.
Proceedings of March 15, 1995 ........c....-.ccsssssssssssesesssvees 782
Proceedings of March 16, 1995 ....2............-..cccecccesseceseceeees 911
Proceedings of March 20, 1995 ....0............:cccscceeceereeeeeee 1010
Proceedings of March 21, 1995 ...0.............:ccc:cccceeeceeneeee 1147
Proceedings of March 22, 1995 ............cc:ccsssssesssssseesneeens 1309
Proceedings of March 23, 1995 ................:cc-sseceescesereeee 1422
Proceedings of March 24, 1995 .000...........ccccccsesceseeseeneenee 1577
Proceedings of March 27, 1995 .00..............:cccccceceseeeseeeee 1649
Proceedings of March 28, 1996 2000.0.............0cccccceseeesceesees 1766
Proceedings of March 29, 1995 .................ccccccsscceseeeeeeee 1809
Proceedings of March 30, 1995 .0.............:..:ccccececceseeesenee 1934
Proceedings of March 31, 1995 ....................cccsseeseeeceeeeees 2114
Proceedings of April 3, 1995 ............0..2.:ccccsscesseessesceeeee 2218
Proceedings of April 4, 1995 .2............:.ccccccccccessceeeeee sore 2339
Proceedings of April 5, 1995 .........ccc.cceccvesssucssuessnersseesons 2401
Proceedings of April 7, 1995 ...0..........ccccccccceceeeeeeeseeneeeee 2408
Proceedings of April 11, 1995 .0...0..........0...cccesceeseeeceeseeeee 2422
Proceedings of April 12, 1995 .0.....0.........-.ccc:ceccceeseeseeees 2559
Proceedings of April 13, 1995 .20............ccc:cccceccceeseeeeeeeee 2736
Proceedings of April 14, 1995 ............cccsecssesssesssesssessneee 2852
Proceedings of April 17, 1995 20............2...cccccccseceseeeeeeees 2988
Proceedings of April 18, 1995 ............c:..s.eccssssessssseesseeane 3718
Proceedings of April 19, 1995 ...............ce.ssssssssessesseeseess 3877
, fF San 5 > » »
‘e > - pS f- af we ta - 2 . ,
oe 4 , ,+ = om we w< re we ar, Te ™ : a ———
Sh Sea ee 5 4
[4136] going to get together to put it off on the defendant?
: A No, it was just Arleen, Ryan, Shannon.
Q Didn’t mention that a Debbie Mathies was part of
this to put it off on the defendant, did he?
A No.
MR. KEALY: I have no further questions. Thank
you very much.
MS. VOSS: Nothing further.
THE COURT: All right. You may step down.
THE WITNESS: Okay.
THE COURT: All right. Next witness on behalf
of the defense.
MS. VOSS: Pam Maples.
MR. KEALY: I'm sorry -
MS. VOSS: Pam Maples.
eu Th
ee he Pe. ee
Cg eer
__ called as a witness on behalf of the Defense, being duly
sworn to tell the truth, the whole truth, and nothing but
the truth testified as follows:
THE WITNESS: Yes.
THE CLERK: Please state your full name and
spell your last name for the record.
THE WITNESS: Pamela Marie Maples, M-a-p-l-e-s.
THE COURT: All right. Ms. Maples, they have
some questions of you. ;
May [sic] Voss, you may proceed.
MS. VOSS: Thank you.
DIRECT EXAMINATION
[4137] BY MS. VOSS:
Q Ms. Maples, do you know anybody by the name of
John Fry?
A No, ma’am.
Q Do you know somebody by the name of Tony
Hurtz?
A Yes.
Q How do you know Tony Hurtz?
A He’s my cousin.
Q And, uh, at some point did you hear him discuss
any homicides?
Yes.
And when was that?
It was in April of 94.
And, uh, who was, uh — where did this take place?
In Vallejo at my sister Tammy Terrazas’ (ph)
EER as
Q Were you involved in the conversation, or did you
just overhear it?
A Just overheard it.
Q And what did you hear Mr. Hurtz say in regards to
the homicide?
MR. KEALY: Objection, hearsay, relevance.
MS. VOSS: I’m making -
MR. KEALY: No foundation.
a [4138] THE COURT: We'll have to have the jury
_ step outside. Why don’t we take our recess now for the
jurors. Hopefully you can return at 20 to 3:00, and we'll
take care of our matters. Remember the admonition.
(Jurors leave)
THE COURT: All right. The jurors have left the
courtroom. We’re present with the defendant and counsel,
and the offer of proof as to Ms. Maples?
MS. VOSS: Ms. Maples overheard Mr. Fry — Mr.
Hurtz say that he was the one who killed a man and
woman in a car in Vacaville is my understanding.
THE WITNESS: Yes.
MS. VOSS: And that, uh, after he shot them,
that he was full of blood, and that he, uh, put mud on
himself or dirt on himself to cover up the mud — I mean to
cover up the blood basically.
THE COURT: Mr. Kealy?
CROSS-EXAMINATION
BY MR. KEALY:
Q When did this conversation take place?
A April of 94.
Q Who other than yourself was present?
A My sister Tammy, myself, my cousin, and a guy
named Steve.
Q Your cousin, you, Mr. Hurtz?
A Uh-huh.
Q Do you know who Steve is?
A No, am
[4139] Q And what part of the conversation did you
overhear? Were you there for the whole conversation?
A No, I was in and out of the room when they were
talking.
10
Q Well, what part — was the coriversation already
underway about murders —
Yes.
— when you came in?
Uh-huh.
Yes or no. We need a yes or no.
Yes.
So you don’t know how long they had been discuss-
ing, um, you know, whatever context — what you heard?
& > © & © P
You don’t know how that arose, do you?
A Bub-uh,
3 Q Yes or no, please.
A No.
"q Q And you say you were in and out. Did you stay for
_ the whole conversation?
A No.
Q_ So you heard snippets of a conversation, correct?
a A Yes.
Q How long were you in the room present — well,
actually when you come into the room, did you actually sit
down and join the conversation?
A No, I was just in and out of the room. I just lis-
__ tened to bits and pieces of it.
° s -@3 val cee
“4 iy a
- Apa
"r. i
[4140] Q So you don’t know what was said before you
were in the room, then you went out, when you came back
in, correct?
A Uh-huh.
Q Again, yes or no.
A Yes.
Q And you don’t know, I mean, whether this was a
serious discussion or not, correct?
A Yes.
Q You do?
A No, I don’t.
Q You don’t know. I mean if, um, he had said, you
know, I’m making a story or anything of the sort, correct?
A I don’t know.
MR. KEALY: Nothing further.
THE COURT: Ms. Voss?
REDIRECT EXAMINATION
BY MS. VOSS:
Q Uh, when you ~ you did hear Mr. Hurtz say that
he had killed two people?
A Yes.
Q Did he describe whether they were male or fe-
male?
A He said male and female.
Q
A
Q
12
Did he say who he shot first?
Yes.
Who did he say he shot first?
[4141]A The girl.
Q
> © > © > & © & & OB P
Did he say where he shot her?
In the head.
What did he say he did next?
Then he reached over and shot the guy.
And did he say what town they were in?
No.
Did he say — describe the area in any way?
Um, he just said it was in a parking place.
A parking area?
Yeah. Yes. 4
And did he say what he did after the homicides? -
Yes, he said he — he was full of blood after the §
shooting, and he ran through a field, threw mud up on a
himself, and then went to make the phone call for some-
body to pick him up.
MS. VOSS: Thank you. I have nothing further.
MR. KEALY: Yes, please, if I may?
THE COURT: You may.
13
RECROSS EXAMINATION
BY MR. KEALY:
Q When did Mr. Hurtz say that this murder had
taken place?
A I didn’t hear that.
Q So you don’t know whether he was talking about
something the week prior, two weeks prior, two months
prior, two years prior, ten years ago?
A Yes.
[4142]Q Did he say where this murder took place, in
what state?
A No.
Q It could have been in California, Arizona, New
York, anyplace, correct?
Yes.
Did, um, he say what day of the week it was?
No.
Did he say who was with him?
No.
oOo > © & © P
And had you ever heard Mr. Hurtz discussing
other criminal acts of his before?
A No.
Q@ You never heard him discuss other instances of
murders? \
A No.
14
Q So you don’t know what he was talking about on
this occasion, do you?
A No.
MS. VOSS: Your Honor, I’m going to object to
this.
MR. KEALY: I have no further questions.
THE COURT: Okay. Ms. Voss, any further
questions?
MS. VOSS: No, not for the purposes of this
hearing.
THE COURT: Then I don’t believe a sufficient
foundation has been laid to allow this witness to testify as
to alleged statements of Mr. Hurtz to be attributed to the
incidents with which our trial is concerned without more,
so _
[4143] MS. VOSS: Well, maybe I could ask a
couple more questions. I don’t know — I don’t understand
the Court’s ruling then.
THE COURT: You asked for a 402 hearing, and I
made a ruling. All I’m doing is saying, with what I’ve
heard, I would not allow this witness to testify as to what
she heard to attempt to tie it into the facts with which our
case is concerned.
FURTHER REDIRECT EXAMINATION
BY MS. VOSS:
Q Did he say whether the — where the people were?
Like were they in or out of a car?
15
A They were in the car.
Q Did he describe the car? Did he say whether —
THE COURT: You can’t lead her. If you want to
testify —
BY MS. VOSS:
Q Astation wagon or —
A Ican’t say —I mean, I don’t know.
Q_ All right. Um, did he say anything else that would
identify, uh, any other details about the hoiaicide?
A Not that I can think of.
Q Uh, is Mr. Hurtz, um - did he — has he lived in
this area, uh, all his life?
A Idon’t know, ’cause I wasn’t raised with him.
Q Okay. In the last few years do you know where
he’s lived?
A In Sacramento and Fairfield.
[4144] MS. VOSS: Thank you. I have nothing
further.
BY MR. KEALY:
Q You don’t keep track of Mr. Hurtz’s coming and
going, do you?
A No.
Q I mean, two and-a-half years ago, you don’t know
where he was, do you?
*
ae.
et
a
Pi
16
A_ I believe he lived in Sacramento for a little while,
then moved to Fairfield.
Q But I! mean, he could go anywhere, you know, for
any period of time and you won’t know, correct?
A No.
MR. KEALY: That’s all I have. Thank you.
THE COURT: All right. Then Ill sustained the
objection to —
MS. VOSS: Your Honor -
THE COURT: -— lack of foundation to allow
testimony as to alleged statements of Mr. Hurtz.
MS. VOSS: Well, your Honor, I would argue that
the, um — here we have enough detail to identify these
murders, and plus it would be taken in with other mur-
ders. The jury should be allowed to decide what weight is
given. We have a man and a woman who are killed in a
car. The woman is shot in the head. Uh, it’s done in a
parking area. And, uh, there’s certainly not a lot of homi-
cides like that that go on. I would argue that this — there
is certainly sufficient detail to allow this in, and it’s
certainly a direct admission [4145] by Mr. Hurtz that he
was involved in these homicides.
MR. KEALY: No, your Honor, I mean, there’s —
first of all, there’s been absolutely no showing that what-
ever statement was made related in any way to this. To
say this is a unique homicide, certainly is not. We cannot
pin it down in any period of time in the past five, ten,
fifteen years. I mean, she doesn’t know.
17
THE COURT: Okay. I’m going to sustain the
objection. You can always recall the witness. You have
tomorrow off. I don’t know what you can gather, but my
feeling is today I’m not going to allow this witness to
testify. You can give me authorities too with what was
stated today whether or not you have a law that supports
your position, but there’s not been a sufficient showing
that this testimony ties in with the facts of our case.
All right. Do you have another witness?
MS. VOSS: Yes, I do.
THE COURT: All right. You may step down. And
do counsel need five minutes?
MR. KEALY: If I could. Do we know who the
witness is, if I need to get a book?
MS. VOSS: Harmina Ross. Maybe we should do
the transcript right now.
THE COURT: We can do the transcript of Mr.
Radossevich.
Okay. Get that ready, and get your reader here, and
we'll stand in recess until a quarter to 3:00.
(Recess taken)
x *
*
March 16, 1995
4P.M.
Taped Interview
AM = Al McClellan 9
PM = Pamela Maples | 2
AM
PM
AM
PM
AM
PM
18
PAMELA MAPLES
The date is 3/16. It is 4 o’clock. This is a taped
interview with Pamela Maples.
Maples.
Pamela Maples. Oh, o.k., I’m sorry.
Maple syrup, maple tree.
O.K., and we are in Sacramento. Pam, we were
talking about a conversation — you were telling me
about a conversation that occurred, I believe it was,
last April.
Uh huh.
O.K., alright. Before I get into that, I would like to
say that I’ve talked to you, and I’ve told you that I
wanted to take a quick recorded statement regard-
ing the conversation that you heard involving Tony
Hurtz in Vallejo. Right?
Uh huh.
O.K., and I haven't, have I forced you, or coerced
you, or —
No.
O.K, so you're giving this statement freely, right?
Right.
I don’t have your hand behind your back, or —
Arr ‘is er a7 a ar 7, =") oe | Soe id i ad a i | ON, ee Yt aah ® 4 on. ORES Eee
19
No.
O.K. O.K. Pam, when was it that you heard this
conversation?
Inaudible.
Uh huh. What month?
It was in April.
O.K. And, what year was that?
84, I mean 94.
O.K., so that was April of last year?
Uh huh.
O.K., and where did the conversation take place?
At Los Cerritos in Vallejo, on Los Cerritos Street, at
my sister’s house.
O.K., what’s your sister’s name?
Tammy Treeace
O.K., and who was living with Tammy?
My cousin, Tony Hurtz, uh, her boyfriend, Ernie
Minara..
O.K., was it — do you know if it was day or night
time?
It was daytime.
O.K. Tell me what you heard. Tony was, uh, was he
sitting in the living room and —
No, we were all sitting, it used to be my sister's
daughter’s room. She had gave it up to Tony Hurtz
to rent out.
PM
AM
PM
AM
PM
AM
PM
AM
PM
AM
PM
AM
PM
AM
PM
AM
PM
AM
PM
AM
PM
AM
PM
AM
PM
ce 2 8 Re
EZ:
O.K.
And they, that was his room, then at the time. And
they were all sitting in there, and —
Who was in there?
Uhm, me, my sister, Tony, and a guy named Steve.
O.K. And, what did, what did you hear Tony — what
was he discussing?
He was discussing a murder case that had been
done. He was bragging about that he had done the
That he had shot people.
O.K. So, he told you that he had done the shoot-
ings?
Uh huh, he had reached in through the car window
and boom, boom.
So, he, you heard him say that the victims were in
a car?
Yes.
O.K. You were telling me he said something about
being dropped off.
Yes, he, I don’t know who, who had dropped him off,
but he said somebody had dropped him off and he
walked up to them and did what he had to do.
And what was that? Go ahead.
Shoot them.
O.K. Then what happened after that? What did he
say he did after he shot them?
EEZEZEZEZER
PM
AM
Ez
Uh, he shot, he shot them and went out.
Relax.
Inaudible.
Oh, your own words are just fine,
O.K. Is that all.
Uh huh.
Inaudible.
You want to take a break? Gather your thoughts.
Inaudible.
O.K., we’re going to take a break. It’s 4:04.
O.K., the time is 4:07, the date is 3/16, and Pam,
you wanted to take a minute to think because
things apparently started coming back to you.
Yeah.
O.K. So, I'll take this moment to ask you, have I
tried to put any words in your mouth, or asked you
to say anything?
No, you sure didn't.
O.K. O.K., when you were collecting your thoughts
then, and I know you got a little emotional, so
that’s very understandable. You, uh, Ill let you con-
tinue to tell me — you were saying that he men-
tioned the car.
Yeah, where he shot the people. He mentioned he
walked up to, I remember, somebody dropped him
off to this car, or to a certain point, and he walked
up to this car, to these people, took a gun, and shot
these people through the door of the driver’s, uh,
window, put his gun through and shot the driver,
cae 8 8 oe eee eee 8
ee
which was supposedly a girl, and the passenger
was a guy. And, it took more than one shot to shoot
him.
And that’s what he told you?
Uh huh. )
O.K. Well that was the conversation?
Yes, and I don’t know for sure if that was the way
he, the conversation was going.
O.K. And this was Tony Hurtz talking?
Yes.
O.K. Did he mention whether either of the victims
said anything when the shooting was taking place.
I don’t remember any of that.
O.K. Did he say whether there was any yelling, or
anything? Or do you not remember?
I thought there was some yelling, or something or
other, but I don’t remember what about.
O.K. Did he say whether there was anyone else
there, or any other cars? Or, did he not say?
I don’t remember him saying that.
O.K. Alright. What did he say he did after he did
the shootings?
He tock off running, and he was in the woods or
running through something that was to cover up
blood enough to, he found mud somewhere to cover
up the blood that was al] over his clothes from when
the blood splattered from the lady’s head and stuff, it
just splattered all over him, and he was trying to find
23
somewhere he could go to throw mud so he
wouldn't be noticed.
O.K. Is there anything else you can remember as
we sit here today?
Nah.
I can tell you’re getting upset.
Inaudible. No, not yet. No, I can’t remember any-
more than this.
O.K. The time is 4:10, the date is 3:16. This has
been an interview between myself and Pam Ma-
ples. My name is Al McClellan. Pam, let me think a
moment and see if I have anymore questions for
you. I just want to reiterate a little bit. He told you,
or you heard him say that the woman’s head ex-
ploded, or that —
Yes.
O.K.
He was saying he shot her in the head, on the side
of her head, and it just splattered all over the place.
Splattered. O.K. O.K. So he didn’t use the term
“exploded,” he said it “splattered”?
Exploded, splattered, I mean it’s all the same thing.
O.K. Alright, I was just taking back the word that I
had put out there cause I just wanted to be as accu-
rate as possible. O.K. And, after it splattered on
him, well he —
All over the place.
Did he describe what kind of car they were in?
No, I don’t remember, I, uh —
Ee ae RE ee ee Fe ee ee ee ee Oe ee ee
ee Zee 22
O.K.
I thought it was maybe a two-door he was saying,
or something like that, but I’m not for sure.
O.K.
I can’t say, you know, about the car.
O.K. Well, I don’t have anymore questions right
now. And, I'll be in touch with you, o.k.?
O.K.
This is the end of the interview.
25
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF
THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A072396
(Filed March 30, 2000)
(Solano County
Super. Ct. No. C34299)
Vv.
JOHN FRANCIS FRY,
Defendant and Appellant.
John Francis Fry was convicted of two counts of first
degree murder and sentenced to life imprisonment without
the possibility of parole. On appeal, he contends we must
reverse iz conviction because there was insufficient
evidence to support the jury’s verdicts; the trial court erred
by’ ordering the jury to continue deliberations after nine
jurors informed the trial court they did not believe further
‘deliberations would be beneficial; the trial court erred in
its editing of certain testimony read-backs requested by
the jury; und the trial court erred in various of its rulings
dealing with the admission of witness testimony and cross-
examination. We affirm the judgment.
I. FACTUAL AND PROCEDURAL HISTORY
.Because the central issue on this appeal is the suffi-
ciency of the evidence to support the murder conviction, we
are required to review the extensive evidence in the lengthy
trial record to determine whether the judgment was sup-
ported by substantial evidence. (People v. Hawthorne (1992)
4 > a - ~ .
ee aa a ee ee ea wee Se ee
<9 pre
a ee ee, Te ee ee, Lee DE. Te EE ee pm en VEC fF) ere Pa
26
4 Cal.4th 43, 63; People v. Johnson (1980) 26 Cal.3d 557,
576-578)
THE CRIME
Between 6:15 and 6:30 a.m. on October 27, 1992, the
bodies of James and Cynthia Bell’ were discovered in a
white 1978 Camaro automobile parked on the dirt shoul-
der of interstate 505 near the freeway intersection with
VacaValley Parkway. Both victims had been shot. Cyn-
thia’s body was on the driver’s side, with the window
down. The victim’s left arm was resting on the door sill,
and her body was turned to the left as though she had
been talking to someone outside the vehicle. According to
witnesses who first saw the body, the upper portion of
Cynthia’s head was “missing.” James’s body was in the
front passenger seat, slumped toward Cynthia’s body. The
car keys were in the ignition and turned to the “on” posi-
tion. However, the engine was not running; the gas tank
was empty, and the battery was dead. Black, sooty carbon
deposits were visible directly below the tailpipe, indicating
the car had been idling for some period of time at that
location. There was an empty paper soft-drink cup from a
Chevron minimart between James’s thighs.
When police officers and paramedics arrived at the
scene between 7:00 and 7:30 a.m., they found the bodies
“ashen,” “very cold,” “very firm,” and mottled or marbled in
appearance. Pictures were taken of the victims’ bodies and
the crime scene between 8:30 and 10:C0 a:m., before the
' At various points during the trial, Cynthia Bell was also referred
to as “Cynthia Edon.” For consistency, throughout this opinion we will
refer to the female victim in this case as Cynthia Bell.
27
bodies were moved or disturbed. By the time the coroners
removed the victims from the car between 11:00 and 11:30
a.m., the bodies were totally rigid and stiff, and retained
their postures when moved.
Three bullets were recovered: one from James’ cheek;
a second from the passenger dour; and a third from the
rear floor of the Camaro behind the passenger seat. Dr.
Aaron Lipton, the pathologist who performed the autop-
sies on the victims, testified that Cynthia had sustained
“massive damage” to the upper part of her face and skull,
“with a large area of these areas of the face and skull
absent ... [aJnd a large portion of the brain material
beneath the skull also absent.” Dr. Lipton opined that the
gunshot wound to Cynthia’s head, which was the cause of
her death, was the result of someone shooting her in the
face from only inches away. Under the circumstances, the
shooter “[plossibly” would be “covered with blood and
tissue” from the victim. James had a total of eight bullet
wounds or his head, chest, back and wrist; death resulted
from the wounds to the head and lungs. Dr. Lipton opined
that James’ wounds were caused by shots fired at him
from the driver’s side of the car.
Based on the photographs of the victims taken after
their bodies had been taken out of the Camaro, Dr. Lipton
opined that they appeared to be “in full rigor mortis,” a
condition which, in a temperate climate like that present
at the time and location of the crime, usually develops
“between six and twelve hours” after death and then
subsides within 36 hours. Rigor mortis would manifest by
a “very firm” condition of the muscles directly under the
skin. At the time he performed the autopsies, beginning at
approximately 8:30 a.m. on October 28, 1992, Dr. Lipton
noted only “mild” or “moderate” rigor mortis remaining in
“aay beta Rae
28
the victims’ bodies. On cross-examination, Dr. Lipton
testified that he originally estimated the victims had died
three or four hours before the bodies were found, based on
the pictures and the descriptions given by the police
investigators. However, he also testified there are many
different variables affecting the accuracy of any estimate
of the time of death based on rigor mortis.
Several witnesses testified to having seen an older-
model white Camaro, matching the description of the
victim’s car, parked at the crime scene between approxi-
mately 8:30 and 10:00 p.m. on October 26, 1992, in the
same location and position where it was subsequently
found with the victims’ bodies the next morning. At least
four different witnesses also described seeing an older-
mode] pickup truck with a light-colored camper shell
parked near the Camaro at some point during this time
period.
Two other individuals testified that they encountered
the victims and their white Camaro at a nearby conven-
ience store sometime between 8:40 and 9:00 p.m. on the
evening of October 26, 1992. Both witnesses testified they
saw James talking on a pay telephone, and heard Cynthia
say something referring to “Leroy.” Neither witness could
tell whether Cynthia was talking to James about someone
else named “Leroy,” or addressing James by his own
middle name of “Leroy.” A third witness saw both victims
sometime between 9:30 and 10:00 p.m. on October 26,
1992, at the Chevron minimart where she worked as a
cashier. James purchased a soft drink at the time.
29
PROSECUTION WITNESS TESTIMONY
Several prosecution witnesses testified to appellant’s
erratic behavior during the weeks prior to the murders.
Arleen Murphy had known appellant for 32 years, al-
though she had lost touch with him for about 10 years
until meeting him again in October 1992. On October 24,
1992, appellant drove Murphy to Davis in his blue truck
with a white camper shell on it. As he “always” did, appel-
lant had a gun in a case on the dashboard of his truck. He
was also carrying a second gun in his belt. After driving
Murphy out a back road and stopping in an isolated
location on a levee, appellant told Murphy he was upset
because he thought she was in league with their mutual
acquaintance Ryan Bernal to steal $1,300 from him, and it
was time for her “to go to sleep.” Murphy tearfully tried to
tell appellant she had no reason to steal from him. Saying
he “had to show somebody up north that he had killed”
her, appellant held his gun out of the window and fired
two shots into the air. Appellant then told Murphy “he was
going to get to the bottom of why ... he was being told
[Murphy] was going to steal” his money. Then appellant
drove Murphy back to a gas station where Murphy’s aunt,
Lynn Ruiz, worked. Appellant again told Murphy “(slome
people up north” were supposed to think she was dead,
and to stay in hiding for a couple of days “so he could get
to the bottom of this.”
Murphy next saw appellant on the morning of October
26, 1992, when she unexpectedly found him sitting on a
couch in the apartment of one of her friends where the
front “door had been kicked in” and was off its hinges.
Appellant told Murphy he had arranged a meeting at his
house with her aunt Ruiz, “to get to the bottom of this and
find out what was going on.” Appellant drove Murphy in
30
his truck back to his house. Murphy then paged Ruiz, who
arrived several hours later. At various points during the
afternoon, Murphy saw a number of people at appellant’s
residence, including appellant’s girlfriend Betty Jo Ring-
ler; appellant’s brother Edgar Fry; Shannon Nissen;
Debbie Mathies; and Bernal. Murphy did not participate
in the conversation between appellant and Ruiz. After
talking with Ruiz, appellant assured Murphy everything
“was going to be okay” between them. Around 5:30 p.m.,
shortly after Ruiz left, the two victims arrived and stayed
awhile. Murphy could not recall seeing them leave. Later,
appellant asked Murphy to purchase a gun for him from
David Sparks, one of two other men who had arrived at
the house, saying she “could get it cheaper” than he could.
Murphy declined.
In order “to make sure everything was cleared up,”
Murphy asked appellant if she was “free to go” Appellant
said, “Yes.” Then he told her he was “going to go kill”
Cynthia and James Bell because Cynthia had stolen from
him and broken into his house. Appellant had thought
Murphy knew the Bells, which had caused him to suspect
Murphy of being involved in a plot against himself. Appel-
lant wanted Murphy to go with him, but she refused.
Appellant then left with Bernal, and Murphy left appel-
lant’s house shortly thereafter.
On cross-examination, Murphy testified that she did
not immediately call the police to tell them about appel-
lant’s threat to kill the Bells because she “was really upset
and stressed” and “didn’t think he was serious.” She did
not tell the police about appellant’s statement for at least a
month because appellant had not yet been arrested and
she “was really scared” of him.
Pe ee ee Ee ee er eh ee Se RP ee RS SS nee REREL Lat a ee On cee. ee eee
. ; -
31
Lynn Ruiz, Murphy's aunt, had been friends with
victim Cynthia Bell for 15 years, and had known James
Bell for about 5 years. On October 24, 1992, she saw
Murphy and appellant at the gas station where she was
working. Murphy appeared “nervous” and “antsy,” like she
was “in a hurry or bothered or something.” At approxi-
mately 1:30 p.m. on October 26, 1992, Ruiz received a page
from a telephone number she did not recognize. When
Ruiz returned the call, appellant identified himself, stated
he had asked Murphy to place the page for him, and said
he wanted to talk with Ruiz about Cynthia. Appellant gave
Ruiz his address and asked her to stop by his home after
she got off work. Ruiz agreed.
When Ruiz arrived at approximately 4:00 p.m., she
found appellant outside his house by his “old,” “bluish”
pickup truck. Appellant told Ruiz he was “upset” with
Cynthia because she owed him $600 to $800 for drugs and
“(hje thought she was trying to rip him off.” Appellant
described an incident in which Cynthia had entered his
house without his permission and “was shocked” when she
opened his bedroom door and found him there. He believed
Cynthia was trying to steal methamphetamine from him,
and he wanted to talk to Ruiz about it because both
Cynthia and Murphy had mentioned her name and “re-
spected [her] opinion.” Ruiz agreed that Cynthia was
probably trying to steal drugs from appellant, and told
him to “(kliss her off,” “stay away from her,” and “ignore
her.” Appellant told Ruiz he had been upset with Murphy
because he thought she was involved in a conspiracy with
Bernal and others “to rip him off also,” and described the
incident in which he had taken “her for a ride out to the
country,” “scared her and threatened her,” and “took his
gun and told her he was going to blow her away ... if she
4 ~* 7 Pay * +. . ’ 5 & =e Z - $ -
eer Ne eae ee ee eg ee TOD ath! age lg ae ne ie Ot ye ee ee” be ee
32
didn’t explain. ...” He had pointed his gun at Murphy’s
head, and had then fired “a couple shots out the window to
scare her or something.” Appellant told Ruiz that Murphy
and Bernal “had to prove their loyalty.” He “wanted to
blow everybody away,” and had only refrained from killing
Murphy because he had “known her for 20 years” since
they “went to school together.”
The next day, Ruiz heard about the discovery of the
bodies by the freeway, and was worried it was Cynthia and
James Bell. She drove to the victims’ apartment to check
on them. She found the apartment dark and a police
officer present. She told the officer about her conversation
the day before with appellant, in which appellant had been
upset with the Bells because he thought they were trying
to steal drugs from him, and “he wanted to blow everybody
away.” The following day Ruiz gave a taped interview to
the police in which she stated that appellant had talked
about taking his gun and blowing Cynthia’s head off.
Lynn Reed was another long-time friend of Cynthia
Bell and Murphy. She had purchased drugs from appellant
as well as used them with him. In the early afternoon on
October 25, 1992, appellant came to Reed’s house looking
for Murphy. Appellant was “[{u}pset, angry, [and] frus-
trated” because, he said, Cynthia had stolen “[a] large
amount of drugs ... from his house.” Appellant told Reed
that Cynthia had come into his house by a sliding glass
door when she thought he was not at home and had stolen
drugs from him while he hid in his closet and watched her.
Appellant came by Reed’s residence again around 6:30
p.m. on October 26, 1992, driving his “baby blue” pickup
truck with a camper shell on it, and accompanied by a
“young man.” Appellant wanted to purchase an ounce of
methamphetamine for $900. He offered a gun for collateral
Re Oe a eS ee ne Ee a Oe eee
Le ee ee ee ee
Re eh aR cal a Ne oe ia i aN te Ghia oe | > rs
33 )
when Reed replied that amount of drug would cost $1,100.
When no agreement was reached, appellant left appearing
“really anxious and frustrated.”
Kathleen (Debbie) Mathies’s testimony at an earlier
trial was introduced through reading a transcript.’
Mathies testified that she was alone with appellant in his
house a “couple” of days before the murders when someone
knocked on the door. Mathies could see through a window
that it was Cynthia Bell, and she informed appellant of
that fact. Appellant told Mathies not to answer the door.
Mathies went upstairs to see appellant in his bedroom,
and closed the bedroom door. Cynthia went around to the
back of appellant’s house and entered through a sliding
glass patio door. She then came upstairs and opened
7 appellant’s bedroom door. Cynthia appeared “shocked” and
“surprised” to find that someone was there, and said she
just wanted “to see what was going on” at the house. After
a few minutes, Cynthia left. Later, Mathies overheard
appellant tell Ringler that he was going to kill Cynthia
because “she did him wrong” over “[djrugs and money.”
Mathies was also present at appellant’s house on October
26, 1992, the day of the murders. At some point that day,
she again heard appellant say he was going to kill Cyn-
thia, and complain that Cynthia “owed him money for
fl ee
ee eT? See ee ghee sn
* In connection with Mathies’ testimony, the trial court told the
jury: “Counsel and the Court have been going over a transcript of the
prior testimony in September of 1994 of the witness Debbie Mathies.
4 We had anticipated that Debbie Mathies would be here earlier this
a week, and then even as late as today, and counsel have agreed that we
can read her testimony and make a finding that she’s unavailable for
trial because of her voluntary use of drugs aid unabie to testify. And
the fact that she is unavailable is in no way connected to any acts or
influence of the defendant, Mr. Fry. This lady is unavailable for the
reasons of her own voluntary use of drugs.”
cs - » s “ro
ye, SS ah Pe A ee, a ee ee ee ee | — a) he el ee ea eS ee ee Se eee) oP ‘
drugs, and they are lying and doing him wrong.” Mathies
had been using methamphetamine, marijuana and alcohol
during the entire time period at issue.
In addition to Murphy, Ruiz, and Mathies, three other
witnesses — Shannon Nissen, David Sparks and Edgar Fry
— testified about appellant’s actions in the days leading up
to and including October 26, 1992, the date of the murder.
A few days before the killings, appellant informed Nissen
that Cynthia owed him $800 for drugs, and that Cynthia
had told his girlfriend Ringler that appellant was sleeping
with Cynthia. Appeliant “wasn’t happy” about this. Appel-
lant’s brother, Edgar Fry, testified that during the day on
October 26, appellant told him that “a day or so before this
time” Cynthia had come into his residence without per-
mission, and he had caught her coming up stairs. Appel-
lant appeared “[ijrritated”; he told Edgar he believed
Cynthia had intended “[t]o steal his drugs.” Appellant had
a .357 revolver which he “usually” took with him whenever
he left the house, carried in a soft tan-colored canvas case.
On October 26, 1992, Nissen was at appellant’s
residence with appellant, Bernal, Murphy, appellant’s
brother Edgar, and Ringler and her two girls. Victims
Cynthia and James Bell were also present for some period
of time during the day. In addition, Sparks and his friend
Jason Gibeau arrived at some point in the evening in a
dark minitruck. Sparks was carrying a .38-caliber pistol
and approximately $1,000 in cash, because he was inter-
ested in purchasing an ounce of methamphetamine. There
was some discussion between Sparks and appellant about
the latter purchasing Spark’s gun, but no sale of the gun took
place. There was also some discussion of purchasing drugs at
appellant’s house, but Sparks declined because he already
had a deal set up elsewhere. After about 30 minutes, Gibeau
and Sparks left in Gibeau’s truck. Bernal asked appellant
if they were meeting at “505.” Appellant replied, “That will
work.” Shortly thereafter, between 7:00 and 7:30 p.m.,
appellant retrieved his gun, and he and Bernal left in
appellant’s truck after telling Edgar he “was going to go
make a drug deal, do some business.” At some point
thereafter, Cynthia and James Bell also left appellant’s
house.’ Edgar testified that Cynthia told him she was
going to meet appellant near the “Wild Oates” store. The
victims left in their automobile, a light-colored 1970's
Camaro.
Sparks testified that after he and Gibeau left in the
latter’s truck and were on the Interstate 80 freeway to
Vacaville, a vehicle pulled up very rapidly behind them. As
it came “[aJs close as you could get without touching,”
Sparks recognized appellant’s truck. Both vehicles pulled
over to the side of the road, and Sparks got out of Gibeau’s
truck to talk with appellant. Appellant apologized to
Sparks that “things . . . didn’t work out at the house,” and
expressed interest in selling him some methamphetamine.
Sparks agreed to ride in appellant’s truck and talk with him
on condition that appellant would drive him to Vacaville.
* Like much of the testimony in this case, there was some conflict
in the witnesses’ recollection of when the victims arrived at appellant’s
house on October 26, 1992, and when they left. As seen, Murphy
testified the Bells arrived at approximately 5:30 p.m. shortly after
Ruiz’s departure, and she did not see them leave. Nissen testified that
Cynthia and James Bell were present at appellant's house during the
afternoon, and that they left about half an hour after appellant left with
Bernal. On the other hand. Edgar Fry testified that the Bells were not
at appellant’s residence when he arrived there at approximately 5:00
p.m., and did not show up until 30 to 45 minutes after appellant left
with Bernal. According to Edgar, the victims stayed for another 30 to 45
minutes and then left.
Bernal got out of appellant’s truck and left with Gibeau in
the latter’s truck.
When Sparks got into appellant’s truck, he saw a soft
gun carrying case on the seat or the dashboard. Appellant
proceeded to drive Sparks around for about 45 minutes,
persistently trying to convince Sparks to “put some money
up” and “go in” with him on purchasing a larger quantity
of drugs, stopping at various locations to talk with differ-
ent individuals about buying drugs or selling Sparks’ gun,
and ignoring Sparks’ repeated requests to drive him to
Vacaville. Sparks began to feel “really uncomfortable.”
Finally, when appellant stopped at a gas station and
walked in, Sparks got out of appellant’s truck, approached
a motorist, and obtained a ride to Vacaville.
Both Nissen and Edgar Fry testified that Bernal
returned to appellant's house sometime later in the eve-
ning, stayed for a few minutes, and then left again. Hours
later that night appellant returned, driving his light blue
pickup truck with the camper shell on it. Nissen, Edgar,
Mathies, and Ringler were all at appellant’s house when
he returned. Eczar, who was not wearing a watch, esti-
mated that it was approximately 10:30 p.m. when appel-
lant returned.
Nissen, Edgar and Mathies each gave somewhat
differing accounts of appellant’s actions and appearance
upon his return home. Nissen testified that appellant was
wearing a T-shirt, blue jeans and tennis shoes, and was
carrying his gun case. According to Nissen, there were
spots of blood on appellant’s shirt, his shoes, his forehead,
the gun case, and “maybe his pants.” Appellant appeared
“tired” and “kind of nervous”; he went to the kitchen,
wiped his face and forehead with a towel, and then walked
;
|
4
:
|
4
Vee te ae Sere a! CU CT keh le le
SAS Peg ae
4
|
:
)
’
;
é
i
by
7
37
up to his bedroom. Edgar testified that appellant was
wearing “[pJants with no shirt,” and carrying a “satchel or
briefcase.” He immediately went “straight upstairs” and
into the bathroom off the master bedroom, from which
Edgar heard running water. In response to Edgar’s ques-
tion, appellant said he had taken his shirt off because
there was blood on it. Edgar saw a large spot of blood on
appellant’s pants. Mathies saw appellant drive up and
then sit in his truck for a while before coming in the house
and going upstairs to the bathroom, where he washed
blood off his hands. Mathies could not remember whether
appellant was wearing a shirt.
Nissen, Mathies, Edgar and Ringler all followed
appellant upstairs to his bedroom. Mathies testified that
after coming out of the bathroom, appellant said that he
had “killed her,” and “had to do James, too,” He reported
that “[hje blew their heads off with a gun,” and that
Cynthia’s head “looked like spaghetti.” He had shot James
Bell “a couple of times in the back” after missing with his
first shot. According to Nissen, appellant “kind of smiled”
and asked him if he “had ever seen what a .357 does to
someone’s head at close range.” When Nissen shook his
head “[nJo” appellant said “It’s not pretty.” ‘Referring to
Cynthia Bell, appellant stated “we wouldn’t have to worry
about her anymore.” When appellant announced that the
Bells “were taken care of,” Edgar asked him if he “had
done” Cynthia. Appellant said, “Yes.” According to Edgar,
appellant said he told Cynthia “she shouldn’t have fucked
with him,” and told James “he was sorry” before shooting
him. Like Nissen, Edgar also testified that appellant
commented that “you couldn’t imagine what a .557 would
do ... [tlo somebody’s skull.” Appellant pulled a nickel-
plated .357 gun out of the gun case and unloaded it. The
et tie ee
’ Se ait
Pa ore nae See Pe
ES” ee RE eS em
Pee A ee,
Es LES LS Eee SET eee ae ee Se NTS See NSIS WS Lge re a
a ee Se ee
( (aero St
oe on e
=
38
gun contained four spent shells and two live shells, which
both Edgar and Nissen described as .357 “wadcutters.”
Appellant asked Nissen if he wanted to clean the gun.
When Nissen declined, appellant handed the gun to Edgar,
who cleaned it for him. Both Nissen and Edgar testified -
they saw what appeared to be blood on the gun. In addi-
tion, Mathies saw blood on appellant’s wrist watch, which
appellant also asked Edgar to clean off.
. Both Mathies and Edgar Fry testified that appellant
and Edgar discussed what to do with appellant’s bloody
clothes. Edgar told appellant that if he “did do it,” then “he
better get rid of his clothes.” Edgar volunteered to take
them with him when he left. At first appellant resisted the
idea, because he had few pairs of pants and the ones he
was wearing “were good pants.” Eventually appellant gave
Edgar a paper bag, which Edgar assumed contained
appellant’s clothing. He disposed of it in a dumpster. He
knew that he could get in trouble for destroying evidence,
but did it because he wanted to help his brother. Appellant
left the house again around 11:30 p.m., saying he was
going to the Chevron station to “make a transaction.”
Appellant returned about 20 minutes later. Edgar left
appellant’s house between 1:00 and 2:00 a.m. that morn-
ing.
Nissen spent the night at appellant’s house. The next
morning, appellant asked him to help take the camper
shell off appellant’s pickup truck. Appellant was in a
hurry; he told Nissen he “didn’t want people to recognize
the truck.” While they were working on the truck, appel-
lant told Nissen “that he shot [Cynthia Bell] and her
boyfriend.” Appellant described shooting Cynthia once in
the head from the driver’s side of the car, after which
James Bell had turned toward appellant, put his hands in
eae ee eee ee es ee AML IS ot eee Ta by ol eee PAR eT eee & Fee _-"
: . : ve Oil tai 795 f.. ~ y = 3 t a
39
the air, and said “What the fuck are you doing.” Appellant
then demonstrated how he had shot James three times,
“pop, pop, pop.’” Nissen did not report appellant’s confes-
sion when the police questioned him about the murders on
October 28 as they served a search warrant on appellant’s
residence, because appellant was his friend, and he “didn’t
want him to get in trouble.” In addition, Ringler and
appellant both told Nissen that, if asked, he should say
appellant was home at the time of the murders. A “couple
days” later the police returned to the house to talk with
Nissen, and threatened to arrest him for possession and
use of methamphetamine. At that point, Nissen decided to
tell the police what he knew in order to avoid arrest. On
cross-examination, Nissen admitted reading press ac-
counts of the killings before he spoke to the police. How-
ever, he testified he never felt threatened by the police to
tell anything but the truth, and that he did tell the truth.
Like Nissen, Mathies did not contact the police de-
spite her knowledge of appellant’s involvement in the
murders. She testified she did not contact the police and
initially denied knowing anything because she “was
scared.” She denied changing her story because the police
had threatened to arrest her and take her children away.
When she first heard appellant threaten to kill Cynthia
Bell, Mathies did not believe it, and simply thought it was
“an expression.” On cross-examination, Mathies testified
that Nissen was not in the bedroom when appellant was
cleaning up after the killings.
Edgar Fry testified that during a conversation with
appellant after the police first searched appellant’s resi-
dence and seized his clothing, appellant told Edgar that he
had thrown the .357 into the bushes at the Chevron
station after he drove by his house and saw police activity
mes «free.
(f2 )F = Cee
ne NS Et ead oie
ae a ae
there. Appellant said someone named “Mike” picked up the
gun for him. A few days after the killing, while they were
working on a car together, appellant told Edgar that he
had the power “[t]o give or take life.” Appellant told Edgar
to “[j]ust keep [his] mouth shut” if contacted by the police.
Edgar intended to do so, until contacted by the police and
offered immunity for telling what he knew. The police
never asked him to say anything but the truth, and never
threatened him other than to tell him what he “was up
against.”
During the search of appellant’s home on October 28,
1992, police found a gun box labeled “‘Ruger, Security-six,
.357 Magnum Cal. stainless steel.’” The police also 1vund a
metal box containing 12 bullets on a bookcase in appel-
lant’s bedroom, a loaded Winchester .22-caliber rifle in the
living room closet, a “pipe bomb,” and a loaded .22-caliber
revolver under the seat of a red Chevrolet pickup truck
parked at appellant’s residence. The police were not able
to find any other gun on the premises. There was a white
camper sheil in appellant’s backyard. There were two
small .3 gram packages of methamphetamine on the
premises, as well as marijuana and drug paraphernalia.
Appellant arrived on the premises while the officers were
serving the warrant. There was a loaded .22-caliber pistol
in his jacket pocket and five additional rounds of .22-
caliber ammunition. The police also found a 12-gauge
shotgun and .22-caliber rifle in the blue pickup truck
appellant was driving upon his arrival. The white camper
shell was subsequently found to fit the blue pickup truck.
Appellant was arrested for gun possession and then
released.
Police records showed that appellant had registered a
Ruger Security Six .357-magnum pistol on May 22, 1991.
_ » *. —_ ’ »
Oe gee a ee ee a eT
a ee PE ee ee eC a ee Lae Se ee RI en ee Ne Seen NS ane
41
The gun was light silver in color, with a “brushed,” “satin
finish” and black rubber grips. An analysis of three of the —
bullets found at the crime scene showed that two were
“semi-wadcutter” style, and one was a “round-nosed” style
bullet. All three were fired from a gun with lands and
grooves matching those of either a .38-special or a .357-
magnum.
On November 10, 1992, Dixon police received a
request to “be on the lookout” for appellant in connection
with the murders. Police officers observed appellant the
next morning and followed him into a gas station. When
asked to stay in his vehicle and keep his hands where the
police could see them, appellant accelerated his vehicle
and quickly drove out of the gas station. The police acti-
vated lights and siren and attempted to execute a traffic
stop, but appellant drove on through a stop sign and
eniered the freeway. Appellant accelerated to a speed of
about 90 miles an hour before police were able to force him
to stop. Appellant was taken into custody.
The prosecution offered the testimony of Robert
Jacobitz, a jailhouse informant. Jacobitz testified that
while they were incarcerated in the same facility, appel-
lant asked his advice on joining a prison gang called the
Aryan Brotherhood. Jacobitz told appellant that one had
to “make your bones” by killing someone before being
allowed to join. While together in the law library, appel-
lant told Jacobitz about his case, and said his brother was
“the star witness in the case against him.” The more
appellant talked about his brother, the angrier and more
vehement he became, stating: “ ‘My brother has cost me 2-
1/2 years of my life, and now he’s trying to cost me my
whole life.’” Jacobitz told appellant he should have his
brother “whacked, taken care of,” i.e., killed. Appellant
ES EE Ee AL) hee Ee RR Le DT oT Cea Ne a Re a Cane Oe ee Se, Cee ee eee ee ee ah ee
42
replied that this would not help because the prosecutor
could simply use his brother’s testimony from the two
previous trials; “[wJhat he needed was his brother to
change his testimony to offset other witnesses.” Jacobitz
told appellant he could arrange to have people call on his
brother to coerce him to change his story, possibly by
cutting off his finger. Appellant repeatedly stated his
intention to kill his brother after he had “let some time
pass.”
Jacobitz testified that appellant discussed the facts of
his case with him in detail. Appellant said he had been
“doing a lot of crazy things” during the time just before the
murders, “going around kicking people’s doors in” and
“putting guns to their heads.” Because Cynthia Bell owed
him money and he had caught her breaking into his house,
appellant arranged to meet her in a secluded “undevel-
oped” area of Vacaville with the intent to kill her. When
appellant arrived, the Bells were already there. Appellant
told Jacobitz that he walked up to the Bell’s car, leaned
down and kissed Cynthia on the cheek while she sat in the
driver’s seat, said something to her, and then “blew her
head off” by shooting her once with his .357 handgun.
Appellant then reached across her, and said:
“T’m sorry, James. You're in the wrong place at the wrong
time.’” He then shot James three times. Appellant told
Jacobitz that a piece of Cynthia’s skull was found 35 feet
away, and that he had blood on his shirt, pants and shoes.
Appellant told Jacobitz the killings were “almost like a
sexual rush.” When he returned to his house he was
“pumped up” and splattered with blood, and made in-
criminating statements to his brother and other witnesses.
Among other things, appellant told Jacobitz he had said
“*You should have seen what a .357 does to a girl’s head.’”
Te a Se ee Ye ee ee ee ee ee ee NS en A Eee ee ee ee ee
43
Appellant told Jacobitz his brother had disposed of his
bloody clothes in a trash can, and that his girlfriend’s “best
friend,” a “black male,” had the murder weapon in his
possession.
Jacobitz and appellant discussed the various wit-
nesses testifying against him and what could be done with
respect to each of them. Appellant reportedly thought
Nissen could not “be tampered with” because he was
currently living out of state. Appellant thought that
because of her heroin addiction, Mathies might be vulner-
able to a “hot shot,” or mortal overdose. Appellant also told
Jacobitz that an out-of-state truck driver claimed to be an
eyewitness to the murders and was testifying that appel-
lant was not the murderer. Appellant and Jacobitz “were
both laughing” about the truck driver’s testimony. Appel-
lant gave Jacobitz the names of his brother, his brother’s
wife, and the fact they had three children. Jacobitz took
notes and wrote down the names. Later, appellant himself
wrote down Edgar’s name and address on a piece of paper
and gave it to Jacobitz. The piece of paper was admitted in
evidence at trial.
Jacobitz testified that he decided to contact the
authorities and become an informant after appellant told
him he would be willing to harm his brother’s children.
Jacobitz had recently become a father for the first time,
and “felt that was wrong.” Jacobitz sent the district
attorney an eight-page letter detailing what appellant had
said, without asking for any compensation or reward.‘ In
* According to Jacobitz: “When he told me he had no problem if. . .
the .. . last alternative is using the kids to get his freedom, I know that
John Fry is out of control and needs to be stopped.”
i og sO wae > eae &
Oe eR ee ee ee TEE See OT EE? al OP EES Te ean Re nee Se. | nee a ee
nd @: Pree hi woe vic en
Pe TE Le oe eT ae ee ae Nee Oe te ee a ee AUS xt
A ee! ee
ae wie, eS eee
5 er PR Pee AF
bs
>:
J
:
bi,
h!
?
>
c
‘4
‘,
=
3
“s
Be gy eg Pe DP ee Ee ee Ge Tee, ee gee eee NS Te eee ke
44
return for additional cooperation, Jacobitz subsequently
received diversion to a counseling program for a pending
domestic abuse charge, and the district attorney agreed to
recommend that Jacobitz’s parole not be revoked. As a
result, Jacobitz testified, he had “been branded a snitch,”
which “could be a death sentence in prison.” During the
period prior to trial Jacobitz had been isolated from the
rest of the jail population for his own protection. On cross-
examination, Jacobitz admitted convictions for robbery
and larceny, and acknowledged that he had had access to
one of appellant’s newspaper clippings on this case.
During the course of renovations to a commercial
building at 5141 Quinn Road in Vacaville in May 1993,
appellant’s gun, a .357 Ruger, was discovered in the metal
“channel” of a door frame, inside its tan canvas case. The
gun was not loaded, but a speed loader found with the gun
contained six bullets. Of the bullets, two were .38’s and
four were .357’s. According to the individual who found the
gun, the bullets were “blunt” or “flat” on top. The building
where the gun was found was approximately one mile
from the location of the murders. The gun was confirmed
to be the weapon appellant had previously registered with
the Vacaville police. Edgar Fry testified that the gun found
in the building on Quinn Road was the same gun he
cleaned off on the night of the killings. He also testified
that the canvas gun case “looks familiar” and “very well
could be” appellant’s. An expert criminalist testified that
one of the bullets recovered from the victims had definitely
been fired from appellant’s gun. Two other bullets found at
the crime scene “could have been fired from” that gun as
well, although there were too few markings on the slugs to
be certain they had come from appellant’s gun.
gee RY eee Ts ae See
a ee a ee
my —
——e ee
Se ee eee ee ee a ee ee Se Gee wee
45
Michael Walker testified that in late 1992 he rented
space at 5141 Quinn Road for a general repair shop. For
3 the last three months of the year, Walker shared the space
with one “Mike Turner.” In exchange for his oral promise
to pay half the rent, Turner had his own key to the rental
unit, “stored some stuff” there, and came and went as he
pleased. Near the end of December 1992, Turner “stopped
coming around” because of a dispute with Walker over
money Walker knew appellant from when they both drove
trucks for the same company. About one month before the
murders, appellant and Ringler “stopped by” Walker's
shop on Quinn Road when he was there. Michael Turner
was seen standing across the street from appellant’s house
at the time the police served the search warrant on Octo-
ber 28, 1992. After the police spoke with Turner briefly, he
walked away from the area.
Douglas Carter, a dispatcher at the trucking company
for which both Walker and appellant had worked, testified
that he helped Walker move his possessions out of the
Quinn Road unit in March 1993. One or two days before
appeliant’s arrest, Carter saw appellant outside the offices
of the trucking company. Knowing that the police were
looking for appellant, Carter asked him “if he killed the
kid out there in Yolo County,” referring to a recent shoot-
ing death. Appellant said, “No,” but added that “he killed
the people in Vacaville.” Appellant told Carter that the
people he killed had been “harassing him and his kids,”
and that “he just went to his pickup, got his gun and killed
them.” When Carter asked him “‘... What were you
thinking,” appellant replied, “‘I just messed up.’” When
Carter told appellant “he should turn himself in,” appel-
lant said, “‘No,’... ‘they won’t catch me.’” Carter did not
go to the police with this information because he did not
‘
ti
wh
3
a
1
:
a
4
|
gr Lee a ee Oe eee ett ue
Cae ie =7 2 .
SS ee Oy eA ERE Pe ea E eee
© ey alee,
;
3
+.
3
:
7
46
want to get involved. He also did not know whether to
believe appellant’s confession, “because sometimes he
seemed kind of full of hot air.”
DEFENSE WITNESS TESTIMONY
In his defense, appellant offered evidence and testi-
mony to show that (a) he was not present at the scene of
the crime when it occurred; (b) the prosecution’s witnesses
were not credible: and (c) at least three other people (Daryl
Borelli, Ryan Bernal, and Anthony Hurtz) were linked to
the murders, and had means, motive, and opportunity to
commit them.
Appellant’s girlfriend Ringler and her daughter
Cynthia C. gave testimony on the identities of the persons
coming, going and staying at appellant’s residence on
October 26, 1992. Cynthia C. confirmed the testimony of
Nissen and Edgar Fry that appellant left the house at
approximately 7:00 p.m., shortly after Sparks and Gibeau
left; and that Cynthia and James Bell were in the house
for at least 20 to 30 minutes between 7:30 and 8:00 p.m.
before leaving. Cynthia C. also confirmed that appellant
generally carried his handgun on the dashboard of his
truck. Ringler similarly testified that appellant “always
had his gun with him,” and he “always” took the gun with
him when he got out of his truck. However, on the day
after the murders, when appellant drove Ringler to work
in his pickup truck, Ringler could not recall whether he
brought his gun with him.
At trial, Cynthia C. claimed she could place appel-
lant’s return to the house at precisely 10:01 p.m., because
she turned around and looked at the clock when he came
in the door. According to Cynthia C, there was nothing
baa Stee} ie “ > 2 Pye “
— . WO a. ee ae ee ee re eee oe ee
;
Saree a a ee *
I 8 I EL ee AO Pe ee ee ot ee eS
ie aS tial » |
! 47
unusual about appellant’s appearance; he was carrying a
black briefcase, wearing jeans and a T-shirt, and appeared
“casual.” She did not see any blood on him. On the other
hand, she admitted originally telling the police she could
only estimate the time of appellant’s return home as
between 9:30 and 10:15 p.m. because she did not look at
the clock. Cynthia C. also claimed that Bernal came to the
house at 11:00 p.m., about one hour after appellant re-
turned; appellant never left the house again that night;
and she would have seen appellant leave because he would
have walked by where she was watching television.
Ringler testified that on October 23, 1992, she and
appellant agreed that Ringler should “take over” appel-
lant’s drug business and collect his debts because appel-
lant “wasn’t doing very well.” After that, “everybody had to
deal with” her. According to Ringler, she and Cynthia Bell
were “[vjery good friends”; although she had a serious
“fight” with Cynthia on October 24, 1992, they resolved it
the next day. Ringler testified that she did not know about
the incident in which Cynthia had “broken into” appel-
lant’s residence until Cynthia herself told her about it.
Ringler did not know what Cynthia owed appellant,
although she knew Cynthia owed money for a “sixteenth”
of methamphetamine Ringler had “front[ed]” her. Ringler
testified that appellant never gave Cynthia a hard time
about the money Cynthia owed him, and she never heard
appellant ever say he wanted to harm or kill Cynthia or
James Bell. However, Ringler conceded that appellant was
angry with Cynthia because of her attempt to break into
his residence, with what he believed was an intent to steal
drugs; indeed, as a result of that incident, Cynthia and
appellant were not speaking to each other and appeared to
be trying to avoid each other.
:
;
|
;
.
y
|
:
:
.
|
:
:
|
48
Ringler testified that appellant came home between
10:00 and 10:30 p.m. on October 26, 1992, wearing a T-
shirt and pair of jeans. Appellant was “tweaking” on
methamphetamine, but otherwise appeared “basically
normal! for him at that point in time.” Ringler did not see
any blood on appellant’s shirt or pants, or anything in his
hands. After a while, appellant went to the Chevron
station, and then returned after about 15 minutes. He
went straight upstairs without washing himself. Ringler
denied hearing appellant talk about harming Cynthia or
James Bell that night, hearing any discussion of what to
do with appellant’s clothing, or seeing any blood being
cleaned off appellant’s body, gun or watch. Ringler ac-
knowledged that she knew Michael Turner; Turner was “a
good friend” of hers; he was present at the house on the
night of the search warrant; she introduced Turner to
appellant; and she saw Turner alone at the “shop” on
Quinn Road where the gun was later discovered. However,
Ringler denied ever asking Turner to do anything with
appellant’s gun. Ringler admitted that she continued to
have a relationship with appellant at the time of trial, and
that she lied to the police to protect him when initially
questioned about his whereabouts on the night of the
murders.
Manuel Michel, another “good friend” of appellant,
testified that he saw appellant at a liquor store between
6:00 and 7:00 p.m. on October 26, 1992. Later, he went by
appellant’s house. According to Michel, he was already at
appellant’s residence when appellant returned that eve-
ning, and “was the first one [appellant] saw when he
opened the door.” He and appellant went upstairs, where
they consumed methamphetamine. Michel denied that
appellant had any blood on him at the time.
49
Pete Joy testified that he met appellant at a Chevron
station sometime between 10:00 and 10:30 p.m. on October
26, 1992, to buy some methamphetamine. They left around
11:00 p.m. Shannon Joy testified that appellant looked
“jumpy and a little shaky.” She and her husband sent
appellant $80 after his house had been searched, and let
him stay in their mobile home.
Ronald Lewis, who had known appellant for about five
years as of the time of trial, testified that he saw appellant
and Mathies the day after Lewis heard about the murders.
Lewis testified that Mathies had a “very bad” reputation
for truthfulness.
Charles Morton, a criminalist expert in firearms,
testified that there were insufficient markings on the
bullets found at the crime scene to match them to appel-
lant’s gun. Although he conceded there was “significant
agreement” between test bullets fired from appellant’s gun
and the bullets that killed the victims, he opined the
agreement was not “sufficient” to make an id..ntification.
APPELLANT’S TESTIMONY
Appellant testified in his own defense. In October
1992, he owned a 1977 “[plowder blue” Ford pickup truck
with a white camper shell. At the time he also owned five
guns, including a Ruger .357-magnum. Appellant denied
killing either Cynthia or James Bell, threatening to do so,
or talking with anyone about having done so.
Appellant testified that he began selling drugs to
support his own methamphetamine habit after he was
fired from his truck driving job in September 1992, He was
50
not very successful at it, and was “slowly losing ground.”
Appellant met Cynthia Bell because she was a friend of his
girlfriend, Ringler. He would “front” one-sixteenth of an
ounce of methamphetamine to Cynthia, who would in turn
“cut” the drug, divide it into smaller parcels, and then pay
him back after selling it herself. Although Cynthia was in
debt to appellant for as much as $700, appellant claimed
she would always pay him back. Just before she was
murdered, Cynthia owed him between $150 and $170.
Appellant claimed that he never threatened Cynthia about
the money she owed him.
Appellant described the incident on October 23, 1992,
in which Cynthia Bell “entered my house without asking,
or broke into the house, however you want to say it.” He
claimed that he did not get angry at Cynthia; instead, he
was “more amused” by the incident. After Cynthia found
him in his bedroom, he “fronted” her a quantity of
methamphetamine, injected her with some of the drug,
and then socialized with her and James Bell. He claimed
that after that, everything “was fine” between them.
Appellant had known Murphy from going to school
with her between 1966 and 1979. He started selling drugs
to her in October 1992. Murphy introduced appellant to
Bernal about one week before October 26. Through Bernal,
appellant also became reacquainted with Daryl] Borelli,
whom appellant had known in high school. Bernal served
as a conduit for drug purchases by appellant from Borelli.
On October 25, Borelli brought two ounces of metham-
phetamine to appellant’s house. They had never dealt
personally with each other before. Later that night, Borelli
came over to appellant’s house again. They talked in
appellant’s bedroom about the “games” Bernal was play-
ing, and decided that from then on Bernal would not serve
}
§
:
‘
3
:
:
;
;
d
;
51
as a “middleman” for them. According to appellant, Borelli
told him that as long as he had Murphy and Cynthia in his
business, he “was going to have problems,” and Cynthia
“shouldn’t even be able to breathe the air that we do.”
Appellant denied saying anything negative about Cynthia
to Borelli or twirling a gun around in his presence.
Appellant acknowledged driving Murphy out into the
country on October 24, 1992. He claimed he was merely
taking the “rural route” to Davis. According to appellant,
Murphy was “hysterical,” so he simply let her talk for a
while. Then he began to question her about a tape re-
cording he had heard of a suspicious conversation between
Murphy and Bernal. Appellant denied threatening to kill
Murphy at any time or pointing a gun at her. According to
appellant, he simply “decided to play a little game,” and
shot his gun out of the truck window twice. Appellant next
saw Murphy on the morning of October 26, when, accord-
ing to him, she called to ask him to pick her up at a
friend’s apartment in Davis. When he arrived, he became
irritated because no one was there. He kicked the door,
and it “flew open.” He then went in and sat on a couch,
thinking “somebody would show up sooner or later.” When
Murphy arrived, appellant left a note apologizing for the
damage to the door.
Appellant asked Murphy to contact Ruiz because he
wanted to ask her advice about how to get along with
heavy methamphetamine users. He denied making any
threats against the Bells or anyone else while talking with
Ruiz. He “could have said something” to the effect that he
felt “like just blowing them away,” but he was only “laugh-
ing and joking,” and not directing the comment “toward
any one person.” Appellant decided he “didn’t want to deal
in drugs anymore,” because he “didn’t want to put up with
sh ee SCC
Fert ae et Se ee! eee
— Ser ee ae re ae
~~.
52
the games that were being played,” and was planning on
“cutting everybody loose,” including Cynthia. He did not
want to talk to Cynthia or have anything to do with her,
although she would continue tc be welcome in his house
because of her friendship with Ringler. Appellant denied
making any arrangements with Cynthia to meet her at the
intersection of Interstate 505 and VacaValley, or anywhere
else that day.
Sparks arrived at appellant’s house with “another kid”
whom appellant did not know between 5:30 and 6:00 p.m.
on October 26, 1992, and tried to sell appellant a .38
special. Appellant did not buy it because it was damaged.
According to appellant, Sparks said he had some money
and was looking for an ounce of methamphetamine.
Because he did not want to deal in his house, appellant
told Sparks to wait in a nearby park while appellant tried
to find some drugs. Appellant and Bernal left in appel-
lant’s pickup truck at the same time Sparks left. When
Sparks proceeded onto the freeway instead of toward the
park, appellant followed close behind and blinked his
headlights. They pulled over, and agreed that Sparks
would come with appellant to look for methamphetamine
while Bernal went with Gibeau and then met them at a
gas station in an hour. Once appellant found some
methamphetamine, however, Sparks was no longer inter-
ested in buying it and instead asked appellant to take him
to Vacaville. Appellant declined, saying he would take
Sparks to the agreed rendezvous. According to appellant,
Sparks “was so spun, he couldn’t talk.” After driving
around for awhile looking for someone to purchase Sparks’
gun, appellant stopped at the gas station and got out to
telephone Ringler, leaving his own .357 gun on or under
the seat. When appellant returned to the truck, Sparks
53
was gone. Appellant did not see Sparks leave; he assumed
Bernal had picked him up. Appellant did not check to see
if his gun was still in the truck.
Appellant testified that after Sparks left, Bernal and
Gibeau arrived and talked with him for about 20 minutes
before leaving. John Peterskoff and Manuel Michel, two of
appellant’s former trucking acquaintances, also pulled up
at the gas station. After drinking beers and socializing
with them for at least an hour, appellant telephoned
Ringler at approximately 7:00 p.m. Thereafter, he “shot
up,” and drove home “very slowly.” When he got home, he
“pulled into the driveway and sat there for a while,”
“trying to maintain control” and “get a focus.” After
Mathies, Nissen and Ringler asked him if he “was going to
come inside or just sit out there all night,” he came inside
with his briefcase and his shirt on. Because appellant “was
pretty spun” on drugs at that point he “didn’t even think
about” his gun, even though it was his normal custom
always to retrieve his gun from the truck and bring it into
the house with him in the briefcase or some other holder.
Appellant went upstairs, put down his briefcase, and went
into the bathroom. He denied changing his clothes or
having any blood on him. A few minutes later, someone
came to the bedroom and informed appellant that Michel
was there to see him. Michel stayed for about an hour
talking with appellant and taking drugs. Between 10:00
and 10:30 p.m., in response to two telephone calls, appel-
lant went to the nearby Chevron station to supply Pete
and Shannon Joy with methamphetamine. After about 20
minutes, appellant came home and went to sleep.
- The next morning, appellant asked Nissen to help him
take the camper shell off of his pickup truck because he
wanted to save gas mileage. He denied telling Nissen he
Gat un Sf -_ . + » . eae : saan wie ‘
i vee See oe eee PAE, Slt Pee a et eee TO een
P ee ee ee ey ee ae ee ee eee
54
did not want anyone to recognize thé truck, or saying
anything to Nissen about the victims. Appellant claimed to
have asked Nissen to take his gun from his briefcase, and
to put it behind the seat of the truck. According to appel-
lant, his “last clear recollection” of the gun was seeing in
on the seat of his truck while he was talking with Sparks.
He assumed the gun was in his briefcase because it was
his usual habit to put it in the briefcase when he got out of
the truck and went into the house. Appellant conceded
that his usual custom was to have a trigger lock on the
gun, and that it would have to be removed for the gun to
be used.° Appellant also admitted he lied to the police
when asked when he had last seen his .357. Appellant
denied asking Turner to get rid of his gun.*
Appellant denied telling Carter that he killed the
Bells. According to appellant, Carter asked him whether
he killed someone in Yolo County and whether he “did the
two in Vacaville.” After “playing with [Carter’s] mind” and
“having fun” with him a bit, appellant told him “No, but
they sure think I did.” Appellant claimed he fled from the
police when they tried to arrest him because he “had no
intentions on going to prison for three counts of murder
that I didn’t do.”
Appellant denied confessing to Jacobitz or giving him
any information about the Bells’ murder. According to
* On October 28, 1992, the police found a trigger lock in a gym bag
on the passenger floorboard of appellant’s pickup truck.
* Appellant testified he did not know Turner, and was introduced to
him the first time when Turner came with Ringler to pick him up at the
police station. According to appellant, he did not ask Turner to “get rid”
of his gun because “I didn’t even know Mike Turner. I wouldn't ask
somebody I didn’t know to do something like that.”
z
’
a
¥
Zi
S
:
4
rt ee eR ee ee IE Pl ee Pp ee Pe ee ha Pe ee ae ee ee ee
55
appellant, Jacobitz was a known “liar”; appellant was
suspicious of him because he asked too many questions
about appellant’s case and wanted to read all of appel!ant’s
newspaper clippings. Appellant let Jacobitz read some
newspaper clippings, which Jacobitz kept for several days.
However, appellant would not let Jacobitz read the police
report because he mistrusted him. Appellant thought
Jacobitz may have heard him talk with other inmates
about how witnesses had testified at his earlier trials.
Appellant testified that while in the county jail law li-
brary, Jacobitz offered to help him by having Edgar killed.
Appellant rejected the offer, saying he just wanted Edgar
“to tell the truth,” i.e., that Edgar “had been threatened”
by the police to give testimony against appellant. On cross-
examination, appellant admitted that he gave Edgar’s
address to Jacobitz. According to appellant, he “didn’t
think {there] was any harm” in doing so even though
Jacobitz claimed to be a member of the Aryan Brotherhood
and had offered to have Edgar “done in,” because Jacobitz
was “a liar.”
" In support of his testimony in this regard, appellant offered the
testimony of two other county jail inmates (James Stevenson and Brett
Swafford) that Jacobitz was in the vicinity when appellant talked about
what had happened at his previous trials. According to these inmates,
discuss what he himself actually did or did not do. The inmates testified
that Jacobitz read the Vacaville newspaper, and was interested in
newspaper clippings about appellant’s case which he obtained either
from appellant directly or through one of the inmates to whom appel-
lant had loaned them. Swafford testified that appellant expressed
concern about Jacobitz, saying he did not trust him, and volunteered
that he was “going to have some fun with the guy.” Swafford was
impeached with prior felony convictions, and admitted that appellant
was a “good acquaintance” of his in the jail.
(Continued on following page)
rh. oF p > ‘ es 7 rie
Sy oF Rep a ee ae ee te, Eee ee ee
56
TIME OF DEATH EVIDENCE
Appellant offered markedly conflicting testimony from
several witnesses in an attempt to establish that the
murders could not have occurred during the time frame
established by the prosecution witnesses. Russell Carter, a
truck driver from Missouri, testified that when he drove
by the scene of the murders between 6:10 and 6:45 a.m. on
October 27, he saw several people and at least five vehi-
cles: an old two-tone brown Ford van, a dark brown 1975-
1977 Oldsmobile Cutlass, a beat-up old Volkswagen, a
1981-1982 silver Cadillac, and a Camaro. Carter saw a
woman in the driver’s seat of the Camaro; an approxi-
mately 40-year-old man with a light blue T-shirt standing
next to the Ford van; a gray-haired man in the driver’s
seat of the Cadillac with a woman with long gray hair in
the passenger seat; another person in the Oldsmobile; and
yet another man walking toward the Camaro with a smal]
pistol in his hand. This man had light brown shoulder-
length hair, was five feet seven to eight inches in height
and about one hundred forty pounds in weight, and was
wearing a T-shirt, jeans and a baseball cap. When he
reached the Camaro, the man shot the woman in the head,
causing blood to splatter all over the windshield. Mean-
while, the man standing next to the van was talking into a
portable scanner or telephone. Carter called 911 on his CB
radio, drove to the business to which he was making a
delivery, and called 911 a second time. Although Carter
had never seen appellant before, he was sure appellant
In addition, Charles Millard testified that he visited appellant in
county jail as a favor to appellant’s mother. According to Millard, about
one week before trial appellant told Millard he was concerned that
Jacobitz was a “snitch” because he persisted in asking about appellant’s
trial.
we ee ee ee ee a a
ne EG es RS Te ig Ee oe ee pads A RCL ee Ogee Se ne
57
was not the man he saw shoot the woman because the
shooter had a full head of hair. On cross-examination,
Carter conceded he was some “distance” away from the
scene; because he had “to watch the road” as he drove his
tractor-trailer by, he could not “see all of it.”
Still other defense witnesses gave contradictory and
inconsistent evidence about what they saw and the times
that they saw it as they drove by the scene of the murders.
Charles Anderson testified that when he drove by the
murder scene at approximately 8:15 p.m. on October 26,
1992, he saw an older Camaro or Firebird together with a
light green mid 70’s Ford pickup with a lumber rack and
no camper shell. Robert Tavares testified he saw a white
Camaro and a blue 1970’s Chevrolet pickup parked side by
side approximately one hour later. According to Tavares, a
“very skinny,” 6-foot-tall 20 or 30-year-old white male with
dirty blond shoulder-length hair got out of the passenger
side of the car. Tavares did not see anyone else around,
and could not tell if the windows of the Camaro were open.
In direct contradiction to Tavares’s testimony, Scott
Schriefer testified that he did not see any vehicles in the
area when he drove by the murder scene at approximately
9:15 p.m. Lisa Peer saw an older white Camaro and a
newer red Camaro racing up Interstate 505 sometime
during the night of October 26. At approximately 12:08
a.m., Peer saw the same two cars parked at the scene of
the murders. A very petite, 5-foot-4-inch woman with short
brown hair was apparently arguing with a man about five
: feet eight to nine inches with “new-fangled” spiky hair,
who towered over her. When Linda Daraskavich drove by
the same scene about 3:05 a.m., she saw the Camaro and
an older model, dark-colored pickup truck. A tall, thin
man, six feet to six-foot three inches in height and wearing
Bee RTE Fe Sas
58
a dark-colored baseball cap, was walking from the car to
the truck. Daraskavich could not tell if the windows of the
Camaro were rolled up or down.
THIRD PARTY CULPABILITY EVIDENCE
Through the testimony of several witnesses, appellant
tried to establish that one or more of several other indi-
viduals was the actual perpetrator of the murders in this
case. The defense theory was that these persons were
acting on behalf of Daryl Borelli, another local metham-
phetamine dealer to whom Cynthia Bell owed money.
BORELLI
Called as a hostile witness by the defense, Borelli
himself testified that he and appellant had been ac-
quainted from school, but were never friends. Borelli was
employed as a custodian at the University of California in
Davis; he denied selling drugs in 1992 or that Bernal
worked for him as a middleman, and claimed that no one
owed him any money in 1992. Borelli had known Michael
Walker, the man who rented the space where appellant’s
gun was found, for eight years. Borelli denied having
anything to do either with the Bells’ murder, or with the
disappearance of appellant’s gun.
According to Borelli, the first contact he had with
appellant since grade school occurred when appellant
called his house in October 1992, told Borelli’s wife that
Bernal and Murphy were trying to “rip him off,” and asked
Borelli to come over to appellant’s house immediately if he
wanted to see Bernal alive again. Borelli went to appel-
lant’s house and met with appellant and Bernal in appel-
lant’s bedroom. Appellant was heavily under the influence
ee en RO Se ee apes a co al
4 y
.
’
59
of drugs; he accused Cynthia Bell of trying to steal his
drugs and owing him $600, and talked about blowing her
head off. While doing so, appellant was twirling a cocked
.357-magnum around his finger and playing a tape of a
telephone conversation between Bernal and Murphy.
Borelli acknowledged that he did not immediately tell the
police about appellant’s threats against Cynthia Bell,
explaining that he did not want to get involved. He told
the entire story only after he heard that appellant was
accusing him of the murders.
Debra Lyn Neundorf testified via transcript from a
previous trial. She had been friends with Cynthia Bell for
15 years and had dated Borelli for 2 years, although not in
October 1992. Neundorf testified that Borelli never told
her he was present when the Bells were shot, and she
never heard him agree to meet Cynthia on Interstate 505.
She denied ever selling drugs to Cynthia on Borelli’s
behalf; hearing Borelli threaten to kill Cynthia; hearing
Borelli say that Cynthia owed him money; or ever telling
anyone that Borelli was responsible for the Bells’ murders
or had said he was, or that she herself was a witness to
the killings. Neundorf admitted that in September or
October 1992, Borelli commented that Cynthia Bell
“shouldn’t be allowed to even breathe the air.” However,
she did not believe this to be a threat. According to Neun-
dorf: “Daryl thought that about a lot of people. It was a
way to keep me home and not find out ... what he was
doing out and about.” Neundorf never saw Borelli in a red
Camaro or with a .357-magnum handgun. She denied she
ever told defense investigator McClellan that Borelli told
her “he had a gun that was used in the homicides of the
Bells” which “he got rid of.” Neundorf also denied Borelli
had ever threatened her, or that she was afraid of him. On
60
cross-examination by the People, Neundorf testified that
when she was interviewed by defense investigator
McClellan and the defense attorney, they tried to tell her
things that she knew not to be true, without tape re-
cording the interview or providing her with any report for
her to review.
To contradict Borelli and Neundorf, the defense
offered the testimony of several witnesses who claimed
Neundorf had previously indicated that someone other
than appellant had committed the murders. George
McCleese testified that Neundorf told him she had wit-
nessed the homicides, and appellant “wasn’t the one that
did it”; instead, she said they were committed by “[hler
boyfriend,” without identifying him directly. Neundorf
drove a green Ford pickup truck. McCleese talked with
Anthony Hurtz about appellant when the two were in
custody together in March 1993. According to McCleese,
Hurtz told him appellant would not be convicted because
appellant did not commit the murders, and the gun used
in the killings was hidden in a storage shed on Leisure
Town Road. McCleese did not recall whether Hurtz said he
was involved. He also testified he did not believe Hurtz,
because of Hurtz’s own reputation as a “loud talker” who
liked to “make himself look big.” McCleese was impeached
with several felony convictions for burglary and receiving
stolen property. He admitted he had previously testified
that Neundorf did not tell him anything about witnessing
the murders or her boyfriend committing the crimes.
To support McCleese’s testimony and impeach Neun-
dorf appellant offered the double hearsay testimony of
McCleese’s mother, Helen Dixon, to the effect that the
boyfriend of Dixon’s daughter told Dixon that Neundorf
had said she knew it was not appellant “that did the
eae ed eee “
’ ‘
61
killing” because she (Neundorf) was there at the time.
Dixon was not told who did commit the “killing,” or even
what murder(s) were being discussed. Appellant also
offered the testimony of Diane McClure, a legal secretary,
that while present at an interview of Matthew Cordell she
heard Cordell state he had sold large amounts of metham-
phetamine to Borelli; he had witnessed drug transactions
between Borelli and Cynthia Bell; and he had heard
Borelli express anger against Cynthia because she had
“burned” him, as Borelli rolled some bullets back and forth
in his hand. When on the stand, Cordell himself denied
making any of these statements. Cordell did testify he
heard Sparks say he had been dropped off at the “country
Oates store” while the victims “were being done.”
HuRTz
Aside from this testimony purportedly linking Borelli
to the murders, the defense offered evidence of the possible
involvement of Anthony Hurtz. Hurtz himself testified
that in October 1992 he made “(t]he majority” of his money
in construction, doing “concrete work.” He denied making
money selling drugs; ever selling drugs to Cynthia Bell; or
even knowing the victims, appellant, or any of the other
principal individuals in this case. He denied any involve-
ment in the Bells’ murder or telling anyone he had been
involved, and claimed he was at home with his girlfriend
in Sacramento all night on October 26, 1992. He also
denied possession of a 357 revolver in October 1992. He
admitted he had been convicted of at least one felony, and
that he use to go “by the name of Leroy or Uncle Leroy.”
To contradict and impeach Hurtz, appellant offered
the testimony of several witnesses linking Hurtz to the
|
i?
;
5
> ao ae.
Tee ee Sie ee ee ee ee ees ae ee ee ee ee
& 43a >. «fF -™
=." ©
62
murders. Hurtz’s former girlfriend Chantelle Eittreim
testified via transcript that she was living with Hurtz in
late 1992, at which time he was heavily involved in drug
trafficking, selling four to five pounds of methampheta-
mine e\ sry other day. At the time, he owned both .357-
magnum and .38-caliber handguns. According to Eittreim,
after receiving a page sometime after 10:00 p.m. on Octo-
ber 26, he told her he had to go to Dixon to meet “Ryan”
because “‘[sJome bitch burned one of my friends, and I
have to go take care of it.’” Eittreim accompanied Hurtz to
Dixon where Hurtz met with Bernal in a restaurant for
about 20 minutes while Eittreim remained outside. After
Hurtz took her home, he left again and did not return
until the next morning. Eittreim tried to page him several
times during the night, but he did not respond. In Decem-
ber 1992, Hurtz told her the police were looking for him
because they wanted to question him about the murders.
He told her he had attended the meeting at which the
killings were planned, and was also there when the
victims were murdered. According to Eittreim, Hurtz told
her “that [Cynthia] took it like a man,” while “James was
on the floorboard with his hands over his head begging not
to be shot.” After October 26, Hurtz changed the outer
appearance of his automobile and started acting “para-
noid.” On cross-examination, Eittreim could not state
Hurtz’s pager number, conceded she did not like Hurtz,
and admitted she was addicted to methamphetamine in
October 1992.
Both of Ejittreim’s parents testified for the defense.
Candida Eittreim testified that at first, Hurtz told her he
had committed the murders of the Bells. Then he changed
his story to having been involved in the murders. Finally,
he told her he had only helped plan the killings and was
: o¥
.
oF
pe Ee eee et eA Re ee eae ea, as ee ae ee a ee ae ee ee oy ee eee ele eT ae ee 7
s
4
63
there when they were committed. He asked for her help in
getting an attorney, and her husband hired one for him.
Later he threatened to kill her and her family if she
testified in this matter. On cross-examination, Mrs.
Eittreim admitted she did not contact the police “right
away” after Hurtz’s alleged confession because she did not
believe him; and when she was later contacted by the
police, she “misled” and lied to them. Mr. Eittreim testified
that in January 1993, Hurtz asked him to pick up a .357
revolver from a storage unit off Leisure Town Road in
Vacaville. As soon as he did so, Mr. Eittreim turned it over
to the police.
Kenneth Keith, yet another admitted methampheta-
mine abuser, testified he was rooming with Eittreim and
Hurtz in October 1992. Keith did not think Hurtz came
home on the night of October 26, although he had only
“vague” recollection of that date and was using drugs at
the time. According to Keith, in January or February 1993,
Hurtz told him he knew Cynthia and did not like her
because “[sJhe had a big mouth and she talked a lot.”
Hurtz also told Keith he had seen the Bells on “(t]he night
that it happened,” and he knew who killed them but “he
wasn't going to tell.”
Harmina Ross, another former girlfriend of Hurtz and
the mother of his child, testified he had begun dealing
drugs in 1992. Although she tried paging him several
times on October 26, he did not respond. In December
1992, Hurtz told her he had shot two people at close range
while they were sifting in a Camaro in a vacant lot in
Vacaville; the second person killed had begged not to be
shot and “tried to get away.” Later, Hurtz changed his
story and told her he was only a suspect and was not
responsible for the murders. Ross acknowledged that she
64
did not come forward with Hurtz’s confession until she was
contacted by a defense investigator. When Ross subse-
quently spoke with the police, she did not mention Hurtz’s
confession.
Eliane West was a friend and neighbor of Hurtz in
October 1992. She testified that Hurtz told her he was
present at the planning of the murder of the two people in
the white car out in the area of the Nut Tree. She did not
relay this information to the police. According to West,
Hurtz sent her a letter threatening that if she “said
anything to anybody about him being there when they
were planning it, that they would never ever find [West].
He would guarantee it.” West was unable to produce the
letter, claiming it was stolen from her apartment. She did
not remember the date on the letter or how many pages it
was. She also testified that Hurtz had sent her two
friendly notes from jail.
BERNAL
Finally, the defense also attempted to link Ryan
Bernal to the murders through the testimony of several
additional witnesses. Bernal himself did not testify be-
cause of his pending prosecution for the murder of Gibeau
and his consequent invocation of the Fifth Amendment.
The testimony of other defense witnesses was introduced
to establish that Bernal had known Borelli for approxi-
mately 15 years and sold methamphetamine on his behalf.
About one week before the date of the murders on October
26, 1992, Murphy introduced Bernal to appellant.
Ryan Vergos, who testified through transcript, lived
with Bernal and his family in a mobile home on the
property of his uncle George Santos. Bernal owned a faded
65
black baseball-type cap. Vergos did not know appellant,
and did not see appellant with Bernal on October 26. That
evening, Bernal left in a small truck sometime between
8:30 and 9:00 p.m. Bernal did not come home until the
next morning between 7:30 and 9 am. Bernal told Vergos
that his uncle “helped him” with some killings in Vacaville.
Several days later, Bernal told Vergos that it was actually
appellant who had killed the Bells. Vergos testified that
Bernal was a liar, and was very afraid of Borelli, for whom
he sold methamphetamine. Cynthia Bell had purchased
methamphetamine from Borelli regularly, and Vergos
heard Borelli say she owed him money. A week before the
murders, Borelli was furious because he needed $1,500
that Cynthia owed him, and “he wanted her taken care of.”
Cordell told a defense investigator that Nissen said he
had lied about appellant’s involvement in the murders in
order to protect Bernal. Nissen described Bernal as his
“best friend,” whom he had met through another drug
client of appellant named Jason Kraak. Kraak in turn
testified that Nissen had a “very bad reputation” for
“making up stories, lying,” and untruthfulness. Although
Nissen never told Kraak he was going to lie or had lied in
his testimony about appellant’s involvement in the kill-
ings, he did say that he, Murphy and Bernal had decided
they were “going to put it off on” appellant. This was
because Bernal “was young and had his whole life ahead of
him,” and because the police had played them a tape
recording in which appellant threatened to kill Nissen.
On cross-examination, Kraak conceded that Nissen
never said he was going to lie about appellant and the
murders, and Kraak did not know whether or not Nissen’s
statement about “putting it off” on appellant was the
truth. Kraak testified that a few days after the homicides,
‘a> ot oo
Pe
A E
dt cali
66
appellant told him that Cynthia Bell “was found with her
head blown off from the jaw up.” Appellant told Kraak that
the police had shown him photographs of the victims when
he was arrested; he asked Kraak if he had “ever seen what
a .357 wadcutter does to a person.” Appellant never told
Kraak that he had killed the Bells, and Kraak never saw
appellant with a gun.
REBUTTAL AND SURREBUTTAL
In rebuttal, the prosecution offered evidence Harmina
Ross told the police that Hurtz had told her he was a
suspect in the victims’ murders but was not responsible for
their deaths, and “he gave her reasons why.” Ross never
gave the police any information that Hurtz had confessed
to the murders himself.
Officer Robert Lee testified that on November 2, 1992,
Ringler’s daughter Cynthia C. told him appellant carried
his handgun wherever he went, and she had last seen him
with it at approximately 6:00 p.m. on October 27, 1992. He
was carrying it in a brown-colored, soft handgun case.
According to Officer Lee, Cynthia C. had never mentioned
appellant carrying a briefcase.
Finally, the prosecution offered evidence that in his
initial contacts with the police, truck driver Russell Carter
told the police that he had stopped his truck at the scene
of the crime at approximately 6:50 a.m. on October 26,
1992, and approached the victims’ car, at which point he
observed that someone had been shot. Carter did not
report that he actually saw the shootings take place, and
did not mention the presence of any people other than the
victims at the scene. Aside from reporting that he observed
one “mid-sized, four-door Oldsmobile” leaving the area.
a a ie st , ee ae ee ee 8
. TF VtLOS 2
67
Carter did not mention any other vehicles in the area.
Carter also told the police he thought the shootings must
have been done by means of a rifle. The police did not
follow up on Carter’s report because it was totally incon-
sistent with the physical evidence at the scene, the fact the
killings had been committed with a handgun, and the
actual condition of the victims’ bodies when found around
the same time Carter claimed to have seen them.
In surrebuttal, the defense offered the testimony of an
employee of the business to which Carter made a delivery
at approximately 7:00 a.m. on October 27, 1992. He
described Carter as looking “like he saw a ghost, . . . very
distraught, very upset.” Carter told him he had seen
someone standing next to a car holding a gun pointed in
the window, who then got into a brown car and drive away.
PROCEDURAL BACKGROUND
Appellant was charged in February 1993 with three
counts of first degree murder of three victims (James Bell,
Cynthia Bell, and Jason Gibeau), with allegations of the
special circumstance of multiple murder and of firearm
use. (Pen. Code, §§ 187; 190.2, subd. (a3); 12022.5.)° In
May 1993, appellant’s section 995 motion to set aside the
information was granted with respect to the charged
murder of Gibeau.
Appellant’s first two trials resulted in mistrials due to
juror deadlock. Appellant’s third jury trial commenced on
February 24, 1995. On June 8, 1995, the jury convicted
* Unless otherwise indicated, all further statutory references are to
the Penal Code.
appellant of first degree murder on both counts, and found
true the allegations of firearm use and multiple murder
special circumstances. He was sentenced to life in prison
without the possibility of parole, plus a term of 35 years.
This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE To CONVICT
Appellant’s principal contention is that there was
insufficient evidence to support the jury’s verdict that he
murdered Cynthia and James Bell. Based on our exhaus-
tive review of the lengthy record, we conclude there was
ample evidence to support the conclusion that appellant
was guilty as charged.
STANDARD OF REVIEW
When the sufficiency of the evidence to convict is
challenged on appeal, the critical inquiry is “whether, after
reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 318-319,
original italics; see also People v. Berryman (1993) 6
Cal.4th 1048, 1083, overruled on other grounds in People
v. Hill (1998) 17 Cal.4th 800, 823, fm. 1.) An appellate
court “must review the whole record in the light most
favorable to the judgment below to determine whether it
discloses substantial evidence — that is, evidence which is
reasonable, credible, and of solid value — such that a
reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (People v. Johnson, supra, 26
Cal.3d at p. 578.)
ee ee eee ee ee LL ee PR Te tg a ee DS Pe PAR eel ye ey fa »
OP let oe es tee le. Te. pie’
Se Ne or ee Ee Pre ae Yee
i el ee eh
69
In reviewing the evidence adduced at trial, our per-
spective must favor the judgment. (People v. Bloom (1989)
48 Cal.3d 1194, 1208; People v. Barnes (1986) 42 Cal.3d
284, 303-304; People v. Matian (1995) 35 Cal.App.4th 480,
483-484.) “This court must view the evidence in a light
most favorable to respondent and presume in support of
the judgment the existence of every fact the trier could
reasonably deduce from the evidence. [Citation.] If the
circumstances reasonably justify the trial court’s findings,
reversal is not warranted merely because the circum-
stances might also be reasonably reconciled with a con-
trary finding. [Citations.] The test on appeal is whether
there is substantial evidence to support the conclusion of
the trier of fact; it is not whether guilt is established
beyond a reasonable doubt. [Citation.] [¥] Before the
judgment of the trial court can be set aside for insuffi-
ciency of the evidence to support the verdict of the jury, it
must clearly appear that upon no hypothesis whatever is
there sufficient substantial evidence to support it. [Cita-
tion.}” (People v. Redmond (1969) 71 Cal.2d 745, 755.) The
standard stated by California cases is entirely consistent
with the controlling federal law. (Jackson v. Virginia,
supra, 443 U.S. at pp. 318-319; In re Winship (1970) 397
U.S. 358, 362.)
There is no question that the prosecutor’s burden is a
heavy one. “To justify a criminal! conviction, the trier of
fact must be reasonably persuaded to a near certainty. The
trier must therefore have reasonably rejected all that
undermines confidence.” (People v. Hall (1964) 62 Cal.2d
104, 112.) Nevertheless, even though “[elvidence which
merely raises a strong suspicion of the defendant’s guilt is
not sufficient to support a conviction” (Redmond, supra, 71
Cal.2d at p. 755), this court is bound by the findings of the
Pe CM a pt ee ee Ey Mee ek eae en
4
a
A
;
:
.
.
:
. 7 oe te
— 2? Cee eo
ROD I ET Re RE OR Td ee Malem eel a pl I Ree Ee ae en I) TR OED coh? aang tL Ook Pee
70
trier of fact where, by its verdict, it has rejected an hy-
pothesis pointing to innocence and there is evidence to
support its implied finding that guilt is the more reason- e
able of the two hypotheses. Moreover, we must be ever
mindful of the fact that it is the exclusive province of the :
trier of fact to determine the credibility of a witness and ;
the truth or falsity of the facts upon which a determina- .
tion depends. (Barnes, supra, 42 Cal.3d at p. 303.) “Thus,
even though the appellate court may itself believe that the .
circumstantial evidence might be reasonably reconciled ‘
with the defendant’s innocence, this alone does not war- :
rant interference with the determination of the trier of
fact. [Citations.] Whether the evidence presented at trial is
direct or circumstantial, . . . the relevant inquiry on appeal
remains whether any reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt.
[Citations.}” (People v. Towler (1982) 31 Cal.3d 105, 118,
original italics.)
SUBSTANTIAL EVIDENCE SUPPORTS THE VERDICTS
2
|
1
Appellant argues that the prosecution’s evidence of his |
guilt is undermined by his competing evidence (a) suggest- a
ing the victims were murdered after 10:30 p.m. on October 3
26, 1992, the time at which the prosecution witnesses z
testified that appellant returned home; (b) attacking the }
credibility of the prosecution witnesses; and (c) raising the |
q
;
:
:
:
d
be possibility of third-party culpability involving Borelli,
. Hurtz and Bernal. This argument simply asks this court to
- reweigh the evidence and make different determinations
3 of credibility than those already made by the trier of fact.
3 This we may not do. (People v. Ochoa (1993) 6 Cal.4th
1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.)
wan iat ee » “ - 5 6
espe cf oor a ee Ae Oe 6 . a . an 4). ei. oe o " lala aren”. es
1 Pe Ee Le ae a ey ae ee ee OEY He ORY RAPED TM ae PE Ree EE et ee
a Be be Ni Oy oe Ge i - -
7 ** Ce ee Oe oe oe ae nf AL es | >
we °% ¥ ye ¥1 eo, MA rs BE :
71
There was ample evidence to support of [sic] the jury’s
verdicts. Numerous witnesses testified that Cynthia Bell
owed appellant money for drug transactions, and he had
recently been deeply angered when he caught Cynthia
sneaking into his house unannounced and entering his
bedroom, evidently with the intent to steal from him. At
least three witnesses — Murphy, Ruiz and Mathies —
testified that appellant had threatened to kill Cynthia Bell
during the few days immediately preceding the murders.
Several witnesses, including his own brother, testified that
when appellant returned home after 10:30 p.m. on the
night of the murders, he was spotted with blood. His
handgun also had blood on it, and contained four spent
shells. He made incriminating statements to his brother
and several other witnesses, saying he “did” Cynthia and
James Bell and describing the impact of a .357-magnum
bullet on a human head. Appellant’s gun was found in a
location tied to appellant and his girlfriend, and expert
testimony established that one of the bullets recovered
from the victims had definitely been fired from appellant’s
gun. Appellant fled from police in a high-speed chase when
they attempted to take him into custody. Finally, he
confessed his crime to a fellow inmate, tried to arrange to
have his brother Edgar and his family injured in order to
coerce Edgar to change his testimony, and even wrote
down his brother’s name and address to give to the other
inmate.
Appellant’s evidence does not undermine the substan-
tiality of the prosecution case. His own testimony about
his activities and whereabouts on the night of the murder
was extraordinarily vague, particularly with regard to the
critical time period between 7:00 and 10:30 p.m, Many
details of appellant’s testimony were actually in conflict
A os Co SS : +
BS ts ed A ER ee eee een ee Paes
;
cs
;
:
ce
4
72
with the testimony of other defense witnesses.” The physi-
cal evidence of the victims’ bodies, found in a state of full
rigor mortis as of approximately 11:00 a.m. on October 27,
was consistent with placing the time of the murders
around 10:00 p.m. the night before. On the other hand, the
physical condition of the bodies was completely inconsis-
tent with appellant’s reliance on the testimony of truck
driver Russell Carter, who claimed to see the murders take
place at 6:50 a.m. on October 27, or just before the arrival
of the police at 7:00 a.m., by which time the bodies were
already stiff cold and ashen.” The fact the victims’ Camaro
had its ignition in the “on” position with an empty gas
tank and obvious carbon buildup below the exhaust pipe
clearly indicated the car had been idling there for a
lengthy period of time. In short, appellant’s theory that the
victims had been shot only minutes before the police
arrived was unbelievable and completely contrary to all
the other evidence in the case.”
* For example, Michel testified he was the first person appellant
saw when the latter returned home the night of October 26, and they
immediately went upstairs together. Appellant, in contrast, testified he
went upstairs as soon as he came home that night; only later did
someone come up to his bedroom to tell him Michel was there to see
him.
Needless to say, truck driver Carter’s alleged observation of the
murders at 6:50 a.m. is also inconsistent with the earlier discovery of
the bodies sometime between 6:15 and 6:30 a.m.. by William Patterson,
the man who first called 911 and reported the murders to the police.
Carter also gave the police several inconsistent versions of the event,
including that he had not seen the actual murder and speculated that it
had been committed with a rifle.
" Appellant actually offered a wide variety of possible times the
victims could have been shot, based on the testimony of all the various
defense witnesses who made ambiguous sightings of something
suspicious taking place at the location of tae murders at different times
(Continued on following page)
rf. as f ’ : . 3 ¥
Ee ee eS eee ee eee ee ee ee eee eee Se a Ae ae 6 Oe ep ee a Fae | Ta Se Bee ae SB ee a CU os ft
73
Appellant’s evidence of the purported third party
culpability of Borelli, Hurtz and Bernal was both contra-
dictory and weak. Other than alleged “confessions” by
these individuals to others, there was no physical evidence
linking them to the crime, and no witnesses to their
activities on the night of the murders. Moreover, the
supposed “confessions” were themselves ambiguous and
self-contradictory. The witnesses who testified to these
confessions themselves lacked credibility, either because
they had personal motives rendering them hostile to the
alleged suspects or biased in favor of appellant; or because
of their own failure to give timely, truthful information to
the police. In light of the prosecution evidence of appel-
lant’s threats against the victims prior to the murders, his
bloody clothing and gun on the night of the killings, his
admissions to several witnesses, the discovery of appel-
lant’s gun and its establishment as the murder weapon,
and appellant’s high-speed flight from the police, the jury
was not required to accept this flimsy defense evidence.
Finally, appellant’s attack on the credibility of the
prosecution’s witnesses does not render insufficient the
evidence of appellant’s guilt. These arguments were made
by defense counsel at trial, and were rejected by the jury.
It was exclusively for the jury, as the ultimate arbiter and
finder of fact, to assess and adjudge the credibility of all the
witnesses, both prosecution and defense. In the absence of
clear evidence that the jury’s determination of credibility was
egregiously arbitrary, capricious and irrational, we will not
Pe ee ee
eee. 2
PET eR Ee Sete ay Pee OY Gee ts ee ee LE Oe OS Ln Oe ee Tee ey ae eee te eee ee
-* ae a Se. be
toe
> ee
of the night and morning of October 26 and 27. Appellant’s own
contradictory evidence, obviously offered in the hope of raising some
“reasonable doubt” in the minds of the jurors, was insufficiently
substantial to offset the substantial evidence of appellant’s guilt.
Ly Oe REP See em
SR, ee oy Pee
74
disturb that determination. (Barnes, supra, 42 Cal.3d at p.
303; Towler, supra, 31 Cal.3d at p. 118.)
Ill. PROPRIETY OF CONTINUED JURY DELIBERATIONS
Appellant contends the trial court erred in responding
to the jury foreperson’s report that the jury was dead-
locked by determining that additional deliberations would
be appropriate. Appellant is wrong; there was no abuse of
the trial court’s discretion.
PROCEDURAL BACKGROUND
On May 16, 1995, after 11 days of deliberations, the
jury sent the trial court a note from the foreperson stating
that she believed “we are deadlocked at this point,” and
asking the trial court: “Do you have any suggestions for us
regarding what we might do to break the deadlock?” The
trial court called the jury into the courtroom and asked the
foreperson whether (a) if the jury continued in its delibera-
tions, the foreperson thought there was a reasonable
possibility that the jury might arrive at a verdict; and (b)
whether there was anything further the trial court could
do to assist the jury in arriving at a verdict. The foreper-
son responded that the jurors were “just looking for ...
anything that the Court might suggest that we could try to
do to break the deadlock.” The trial court inquired how the
jury was split, and was told that after four votes, the jury
was split seven to five.
The trial court admonished the jurors that each party
had a right to the jurors’ own individual opinions; “every-
body is entitled to their own opinion as a juror”; the jurors
awe & ee ee
Pa SS ek er lhe
—
4
,
o
;
*
75
should “unhesitatingly change” their votes if they were
shown to be wrong during deliberations; “until you are
convinced that you are wrong, then you should stick to
your vote”; “if a verdict can be reached, then we want a
verdict to be reached”; and “[ilf a verdict can’t be reached,
then that’s just the way it is.” The trial court then polled
the jury to determine whether they individually believed
further deliberations would be useful. Seven jurors agreed
with the foreperson that their deliberations “hopelessly
deadlocked”; one “[hJesitantly” agreed; one was undecided;
and two disagreed. On the basis of this poll, the trial court
sent the jurors back to deliberate further, again instruct-
ing “that if you are convinced that you are wrong, then you
should change, [but] if you are not convinced, ... you
should stick with you own vote....” The trial court told
the jurors it would check with them the next day “as to
what, if any, progress” had been made, “and if not, then we
can go from there again.”
At that point, the foreperson asked for further clarifi-
cation of the concept of reasonable doubt. The trial court
told the foreperson to reread the instruction, and added
that “it’s really you, as individual jurors, when you read
that instruction, to apply it and then give it the meaning
to which you feel it’s entitled.” Thereafter, the jury delib-
erated for two days without communicating with the court.
On May 19, the jury requested a readback of some por-
tions of trial testimony, and informed the court it had
selected a new foreperson. On May 22, the trial court
suggested making an inquiry about whether the jurors felt
they were making progress, but the prosecutor objected on
the ground that “[they’re obviously working,” and “if they
haven't brought the subject matter up with the Court, we
shouldn’t be bringing that up.” The jury was brought in,
~~ ie s,s ow en ee i nl “Te . ee er ee ery We ee eee eee
76
and the new foreperson indicated the jury’s willingness to
continue deliberations the next day.
On June 1, the trial court sua sponte asked the jury to
come into the courtroom to inquire whether there had
been any progress in the deliberations. At that time, the
new foreperson stated: “Yes, there has been some change.”
The trial court reread CALJIC No. 17.40 instructing the
jury that both sides were entitled to the individual opinion
of each juror; each juror was to decide the case for him or
herself, after discussing the evidence and instructions
with the other jurors; and although each juror was not to
hesitate to change an opinion if convinced it was wrong, he |
or she was not to decide any question in a particular way :
just because a majority of the jurors, or any of them, might :
favor such a decision. Upon seeing “all affirmative nods”
from the jurors in response to its question whether further
deliberation would be helpful, the trial court sent them
back to deliberate. On June 8, the jury returned verdicts of
guilty on both counts.
be ieee eee Ae
APPLICABLE LAW
: Under Penal Code section 1140, “[e)xcept as provided
. by law the jury cannot be discharged after the cause is
submitted to them until they have agreed upon their
verdict and rendered it in open court, unless by consent of ;
both parties, entered upon the minutes, or unless, at the q
expiration of such time as the court may deem proper, it
satisfactorily appears that there is no reasonable probabil-
ity that the jury can agree.” Generally, “[t]he determina- |
; tion whether there is reasonable probability of [jury]
; agreement rests in the discretion of the trial court. [Cita-
| tions.] The court must exercise its power, however, without
=<“... oe eS ee
77
coercion of the jury, so as to avoid displacing the jury's
independent judgment ‘in favor of considerations of com-
promise and expediency.’ [Citation.]” (People v. Breaux
(1991) 1 Cal.4th 281, 319; see People v. Pride (1992) 3
Cal.4th 195, 265; People v. Rodriguez (1986) 42 Cal.3d 730,
775.)
The issue of coercion is necessarily dependent on the
facts and circumstances of each case. (People v. Sandoval
(1992) 4 Cal.4th 155, 195.) On the one hand, coercion has
been found where a trial court, by insisting on further
deliberations, expresses an opinion that a verdict should
be reached. (People v. Crossland (1960) 182 Cal.App.2d
117, 119; People v. Crowley (1950) 101 Cal.App.2d 71, 75.) .
On the other hand, a trial court’s refusal to discharge a :
jury in the face of the jury’s repeated reports of impasse
does not necessarily amount to an implied suggestion to
the jury that a verdict should be reached. (Rodriguez, :
supra, 42 Cal.3d at p. 775.) :
Thus, it is neither an abuse of discretion nor inher- .
ently coercive for a trial court to inquire into the numeri- |
cal division of the jury in an attempt to determine whether
there is any reasonable probability of agreement, or to ask
for a resumption of deliberations after ascertaining the 4
breakdown in juror voting. (Breaux, supra, 1 Cal.4th at p.
319; People v. Sheldon (1989) 48 Cal.3d 935,958-960;
Rodriguez, supra, 42 Cal.3d at pp. 775-776, fn. 14; People
v. Carter (1968) 68 Cal.2d 810, 817.) Similarly, it is not
necessarily coercive for a trial court to ask a jury to re-
| sume deliberations more than once, even after the jury has
deliberated for several days and repeated polling shows
the jurors are unanimously negative about the prospects :
for a verdict. (Breaux, supra, 1 Cal.4th at p. 319 [jury 3
twice asked to resume deliberations after four days of
“oa
os
__~. =_ news =
Ea ENE ge EER RES) ne WEE TO REE AE OR SN a hs NT oe ee ae
78
deliberations despite polling showing all jurors negative
on prospect of a verdict; held, no coercion); Rodriguez,
supra, 42 Cal.3d at pp. 775-776 [jury asked to resume
deliberations after 18 days of deliberation and 4 impasses;
held, no coercion].) A trial court does not abuse its discre-
tion or coerce the jury by inquiring into the numerical
division of voting and individually polling the jurors in an
effort to see if there was anything the court could do to
assist the jury in its deliberations to reach a verdict, as
long as the court makes no threats or other statements
that could be interpreted either as suggesting that a
verdict must be reached, or as exerting undue pressure on
any individual juror. (Breaux, supra, 1 Cal.4th at pp. 319-
320; Carter, supra, 68 Cal.2d at p. 815; People v. Thomas
(1991) 231 Cal.App.3d 299, 303; People v. Duran (1983)
140 Cal.App.3d 485, 501-502.)
Because a trial court is charged with determining
whether there is a reasonable probability of agreement, it
may properly determine that further deliberation might be
beneficial even if the jurors unanimously express the
opposite opinion. Where even a single juror expresses the
opinion that consensus might be reached if further clarify-
ing instructions are given, it is not an abuse of discretion
for the trial court to respond affirmatively to the sugges-
tion. (People v. Proctor (1992) 4 Cal.4th 499, 539; Stone v.
Superior Court (1982) 31 Cal.3d 503, 522; People v. De La
Roi (1944) 23 Cal.2d 692, 701; Thomas, supra, 231
Cal.App.3d at p. 303.) Indeed, because one of the primary
duties of the trial court is to help the jury understand the
legal principles it is asked to apply, “a court must do more
than figuratively throw up its hands and tell the jury it
cannot help.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
|
:
{
3
4
;
i
7
:
:
“
79
DISCUSSION: NO COERCION
OR ABUSE OF DISCRETION
Appellant asserts that the trial court abused its
discretion by requiring further deliberation after the
foreperson reported the jury was deadlocked. The asser-
tion is meritless, both on the law and on the facts of the
record in this case.
That record clearly shows the trial court did nothing
to coerce the jury, and did not abuse its discretion in
having the jurors continue their deliberations after inquir-
ing into the numerical division of voting and individually
polling the members in an effort to see if there was any-
thing it could do to assist them in their deliberations to
reach a verdict. The trial court made no threats or other
statements that could be interpreted as exerting undue
pressure on any juror; nor did it ever indicate that it was
necessary for the jury to reach a verdict. The trial court
never expressed an opinion on appellant’s guilt or inno-
cence of the charges; nor did it comment on the evidence.
Indeed, appellant’s assertions notwithstanding, the trial
court specifically told the jury they were not required to
return a verdict.”
" The trial court stated: “If after there’s a vote or two votes or
three votes or, as in your case, four votes, if you are shown that you are
wrong or that the evidence does not support your vote, then you should,
as the law says, unhesitatingly change. [4] But until you are convinced
that you are wrong, then you should stick to your vote, and that’s what
was carefully pointed out by both attorneys, and that’s the law that I!
gave you during the instructions. [¥) So with that, the question then
boils down, if you wish further deliberation, and you have been in
deliberation for quite a period of time — and all of you, the Court knows,
were very attentive throughout the trial. We went through a long
time. .. . But if a verdict can be reached, then we want a verdict to be
(Continued on following page)
80
Thus, the trial court specifically reinstructed that (a)
each party had a right to the jurors’ own individual opin-
ions and each juror was entitled to his or her own opinion;
(b) each juror was to decide the case for him or herself,
after discussing the evidence and instructions with the
other jurors; (c) although the jurors should “unhesitatingly
change” their votes if they were shown to be wrong during
deliberations, they should not decide any question in a
particular way just because a majority of the jurors, or any
one of them, might favor such a decision; (d) “until you are
convinced that you are wrong, then you should stick to
your vote”; (e) the individual jurors should interpret and
apply the instructions themselves; and (f) although a
verdict should be reached if possible, “[i]f a verdict can’t be
reached, then that’s just the way it is.” The trial court only
had the jury continue deliberations after it became appar-
ent that some jurors believed further deliberations would
be useful, and that it would be possible to reach a verdict.
On this record, the trial court’s actions were clearly
not coercive and not an abuse of discretion. (Breaux,
supra, 1 Cal.4th at pp. 319-320; Carter, supra, 68 Cal.2d at
p. 815; Rodriguez, supra, 42 Cal.3d at pp. 775-776, fn. 14;
Thomas, supra, 231 Cal.App.3d at p. 303; Duran, supra,
140 Cal.App.3d at pp. 501-502.) There was no error.
IV. EDITING OF TESTIMONY READBACKS
Appellant next contends the trial court committed
prejudicial error by editing some of the testimony read-
hacks requested by the jury. Specifically, appellant claims
reached. If a verdict can’t be reached, then that’s just the way it is. It’s
not to — because everybody is entitled to their own opinion as a juror.”
81
the trial court’s editing of some of jailhouse informant
Jacobitz’s trial testimony at the time of its readback to the
jury violated appellant’s right to have the jurors apprised
of all the evidence in the record. The contention is merit-
less.
At issue is the jury’s requested readback of a portion
of the trial record relating to appellant’s jailhouse conver-
sations with Jacobitz. The jury asked for a readback of the
testimony of both appellant and Jacobitz on the subject of
what appellant told the latter about this case, and their
conversation in the jailhouse library. Later, the jury asked
to rehear portions of both individuals’ testimony concern-
ing “descriptions of blood and skull pieces” and “gun(s).” In
consultation with counsel, the trial court edited the
transcripts of appellant and Jacobitz for purposes of
readback, striking portions regarding conversations
between appellant and other prisoners because “[(tJhat
doesn’t respond to the question they’re talking about.”
Defense counsel objected and asked the court to read back
large portions of cross-examination. However, the trial
court concluded that these portions were outside the scope
of the jury's request, which was for a readback of testi-
mony on the conversations between appellant and Jacobitz.
The trial court was not required to accede to defense
counsel’s request. It is the jury’s right to have testimony
reread, not that of the parties or their attorneys. The trial
court’s obligation is simply to comply with the jury’s
request. (§ 1138; People v. Ainsworth (1988) 45 Cal.3d 984,
1020; People v. Cooks (1983) 141 Cal.App.3d 224, 261;
People v. Butler (1975) 47 Cal.App.3d 273, 284.) Here, the
material sought to be included by the defense in the read-
back was clearly outside the scope of the jury's request. The
jury did not ask for testimony about conversations between
i el ed et ae 744+ a 29 ad ee OPS 2 oS 2
BPR CS EP eee ae ee eee Ue REE Pe Gs ete ate ey, Sate ee, Oe Oe 2 ee
- % : ee sR
ne
i
"ou
’
i ee
A Pee
i
- Oa
—~_—. oo oe
- . -
ETS Oe gee See oa Le Ae. ey ee — %
. 7 : 7 eee ve +
Re EF OE SIR Te Eee Ae PR ey One en eee Ty See Meee en ea ee ee Nea Pe ier a Bes ¥ ie
“" : ’ " Ee ee ae ee ge eae ae ” ‘ Oe pee ee
82
appellant and other prisoners in the jail, or about other
places where Jacobitz might have gleaned information
about appellant’s case. It simply asked for a readback of
testimony about what Fry told Jacobitz in their own
private conversations. The trial court was under no obliga-
tion to have Jacobitz’s cross-examination read, or any
other portion of the record not encompassed by the jury's
specific request. (People v. Cathey (1960) 186 Cal.App.2d
217, 222.) The jury did not ask for any further readbacks.
We may assume that if the testimony actually read to
them did not contain the material they wished to hear,
they would have said so. (People v. Gordon (1963) 222
Cal.App.2d 687, 689.)
Contrary to appellant’s assertion, it is not reasonably
probable a result more favorable to himself would have
occurred had the redacted portions of the testimony also
been reread. Jacobitz’s testimony was corroborated by the
notes he took during his library conversation with appel-
lant, and the slip of paper given to him by appellant with
Edgar Fry’s name and address. It is not reasonably prob-
able that rereading appellant’s testimony that Jacobitz
learned these facts by overhearing appellant’s jailhouse
conversations with other prisoners — which testimony of
course the jury had already heard — would have resulted
in appellant’s acquittal. (People v. Watson (1956) 46 Cal.2d
818, 836.)"*
” Appellant failed to request any instruction pursuant to CALJIC
No. 3.20 cautioning the jury about the credibility of jailhouse infor-
mants, an instruction that need only be given if requested by a party.
He has therefore waived that issue. (§ 1127a; People v. Daya (1994) 29
Cal.App.4th 697, 714.)
< 7 - bo = SaPupeted cy i gat wins eg ote 5s ep Bite my 9 er = “i Ws ¥ ‘ ’ ts To ie eS hee
Vv. SANITIZATION OF HURTZ’S CONVICTIONS
Appellant argues the trial court erred by permitting
the defense to cross-examine Hurtz about his two prior
felony convictions, but disallowing it from eliciting the fact
that those convictions were for drug-related offenses.
There was no error.
After appellant called Hurtz as a witness, defense
counsel questioned him about his sources of income in
October 1992. When Hurtz testified that he worked as a
construction worker, defense counsel asked the following
leading question: “And weren’t you, in fact, making your
money dealing drugs at that time, Mr. Hurtz?” The trial
court sustained objections to this question on grounds of
both relevance and the fact it was leading. Under further
questioning, Hurtz testified that he made “(t]he majority”
of his money from construction, and that he did “[n]ot”
have “another source of income at or about the time of
October of 1992.” When defense counsel then attempted to
ask Hurtz if it was true he had been convicted of a particu-
lar crime, the trial court interposed and ruled: “My feeling
would be you could ask him if he has been convicted of a
felony, and Ill allow if he’s been convicted of a felony, if
that answer is true, but not what felony.” Thereafter,
defense counsel] was only able to elicit Hurtz’s admission of
at least one felony conviction.
Later, defense counsel objected on the record to the
trial court’s ruling, arguing that Hurtz had in fact been
convicted of two felonies — sale and possession for sale of
drugs — and that both felonies were crimes of moral
turpitude. The trial court ruled that although appellant
could impeach Hurtz’s credibility with the fact of his felony
» ’ * Me, Poe - - * ti a> ie ew Pe ’
: A rt - tl - Ji , wigs Sab os 1g ee ene a ier tee
pi) ah < a eats A eg ee ps ) J 4 ~ - P pas ee ee Pte
RE ee SO IT Se CN Pe eT ee Ne Gee, OY Se PUT Mie OWE Re PEE e
. % - ‘ 4
84
convictions, the nature of the crimes of which he was
convicted “is of no relevance.”
Under California Constitution, article I, section 28,
subdivisions (d) and (f), trial courts have broad power to
exercise discretion under Evidence Code section 352
(hereinafter referred to as section 352) to permit the use of
prior felony convictions for impeachment purposes, so long
as the convictions are of crimes involving “moral turpi-
tude.” (People v. Castro (1985) 38 Cal.3d 301, 306, 312-
317.) In addition, trial courts have broad discretion to
“sanitize” such prior convictions, in order to reduce a
demonstrable potential for unfair prejudice. (Sandoval,
supra, 4 Cal.4th at pp. 177-178; People v. Mickle (1991) 54
Cal.3d 140, 172; People v. Collins (1986) 42 Cal.3d 378,
387-389; People v. Foreman (1985) 174 Cal.App.3d 175,
179-182.) Thus, a ruling refusing to permit impeachment
with a prior conviction is reviewed for abuse of discretion.
(Cal. Const., art. I, § 28, subd. (f); Castro, supra, 38 Cal.3d
at p. 306; People v. Gordon (1990) 50 Cal.3d 1223, 1239;
People v. Dewey (1996) 42 Cal.App.4th 216, 220; People v
Stewart (1985) 171 Cal.App.3d 59, 65.)
Under section 352, a trial court may in its discretion
exclude material evidence if its probative value is substan-
tially outweighed by the probability that its admission will
necessitate undue consumption of time, or create a sub-
stantial danger of undue prejudice, confusion of the issues,
or misleading the jury. The weighing process under section
352 depends upon the trial court’s consideration of the
“ The Supreme Court has defined “moral turpitude” as a “‘readi-
ness to do evil,” or “any character trait which can reasonably be
characterized as ‘immoral.’” (Castro, supra, 38 Cal.3d at pp. 314-317, &
fn. 13.)
3
..
:
"
E
a
unique facts and issues of each case, rather than upon the
mechanical application of automatic rules. (Stewart,
supra, 171 Cal.App.3d at p. 65; People v. Yu (1983) 143
Cal.App.3d 358, 377.) We will not overturn or disturb a
trial court’s exercise of its discretion under section 352 in
the absence of manifest abuse, upon a finding that its
decision was palpably arbitrary, capricious and patently
absurd. (People v. Rodriguez (1994) 8 Cal.4th 1060, 1124-
1125; People v. Robbins (1988) 45 Cal.3d 867, 880-881;
People v. Adams (1980) 101 Cal.App.3d 791, 799; People v.
Cordova (1979) 97 Cal.App.3d 665, 670.) “The [trial]
court’s exercise of discretion under Evidence Code section
352 will not be disturbed on appeal unless the court
clearly abused its discretion, e.g., when the prejudicial
effect of the evidence clearly outweighed its probative
value.” (People v. Brown (1993) 17 Cal.App.4th 1389,
1396.)
There was no abuse of discretion in this case. The trial
court was clearly entitled to make a discretionary deter-
mination on the admissibility of Hurtz’s prior felony
convictions under section 352. As appellant points out, the
trial court simply ruled that the nature of the crimes of
which Hartz had been convicted was irrelevant; it did not
explicitly base its ruling barring admission of this evi-
dence on a section 352 analysis. However, in stating that
the evidence was “irrelevant,” the court essentially made a
dispositive determination for section 352 purposes, since
evidence that is irrelevant cannot be probative, without
regard to any question of prejudice. Hurtz’s prior felony
convictions were relevant to impeach his credibility as a
witness only, not to prove his prior conduct. (Castro, supra,
38 Cal.3d at pp. 306, 312-316, 322-323; Stewart, supra,
171 Cal.App.3d at pp. 63-66.) It is patently clear from
Sine if wx - : q - eh ~ nd ah dale oe hn el Sane
SE Re nee Ye ee ee ee SE ee eee eee Pinas © Wee, ent Oe ere ein tet ee 4 ;
Phe
b
a!
M
+8
rf
%
a
‘ea
—
~
,
off
4
Fares ©
7, SM Ae sth See eee Ee ee ee ee oe
oa ota -
ies
ee ei eee POS Ee eee, Se OC eee ee Ree Ne ae ee ee Sen ene. Garry ae a oe ere Tee a Se ee “p> Sat ae ea Se) ene, Se ‘ ‘ :
a , - — 9 eee a Sa Ne? ee PSE be ME St aad RT ee ae eee aetets fm, SD 7 oe eS ee ae 5 ye Oe
. . ay oe 5 1 x 5h P Sed > ba i SS kee ‘ee ee Oe
ae “a
Ki
-
86
appellant’s defense strategy at trial as well as his argu-
ments on appeal that his purpose was to convince the jury
that, given his drug convictions, Hurtz was probably
involved in drug trafficking in 1992. Such an inference in
[sic] beyond the scope of impeachment for credibility
purposes. For this reason, the trial court’s decision not to
permit the admission of this evidence did not exceed the
bounds of reason. (Sandoval, supra, 4 Cal.3d at p. 178;
People v. Massey (1987) 192 Cal.App.3d 819, 825; Stewart,
supra, 171 Cal.App.3d at p. 65.)
Appellant also urges that the precise nature of Hurtz’s
prior convictions was admissible to impeach his testimony
that his only source of income was his employment as a
concrete worker and denying that he sold drugs. In fact,
Hurtz testified that he made “most” of his money from
construction work; he never actually denied selling drugs.
Given the lack of such direct testimony, Hertz’s drug
convictions were not relevant to impeach his testimony,
and the trial court’s discretionary decision sanitizing his
testimony was not unreasonable.” (People v. Clair (1992) 2
Cal.4th 629, 655.)
VI. EXCLUSION OF EVIDENCE OF BORELLI’S ALLEGED
CONDUCT
Next, appellant contends the trial court erred by
preventing the defense from presenting certain evidence in
* In any event, given the substantial evidence supporting appel-
lant’s guilt and Hurtz’s admission that he had been convicted of an
unnamed felony, it is not reasonably probable that permitting the
defense to establish that Hurtz had been convicted of selling drugs
would not have tipped the balance in this case in favor of acquittal.
(Watson, supra, 46 Cal.2d at p. 836.)
Seer, ey PARR ON Tem Me Se Re ee ne Oe PELE le OO OL Rg, Fa eT aE Oe EE eee Oe REO Pr oe ee %
ae tyme, Gel ane be . ON pay Se DAS eed eve ce pet any Se YP" SOc te oe 4 jade Aph
ce Se RES. Ss Se ~ Nee oe ee Oe we Oe ee ee eS RO ee ma eee tek Se) Geee Tees, ete ee Fe
SOS Do IE OAR EO ROO Le Mee tt eS
te) a ee Eee ee
4
:
;
}
}
A
:
87
support of its third party culpability theory, to the effect
that Borelli had engaged in conduct “similar” to that
involved in this case. Once again, the contention is merit-
less.
PROCEDURAL BACKGROUND
At issue is appellant’s attempt to convince the jury
that the Bells’ murders were ordered or instigated by
Borelli and performed by persons other than appellant,
through the introduction of evidence to the effect that
various allegedly “independent” witnesses had heard
Borelli (a) complain victim Cynthia Bell owed him a drug
debt, (b) state “he wanted her taken care of,” and (c)
subsequently admit having ordered the Bells’ murder. In
support of this theory, appellant sought to introduce
alleged “character” evidence to the effect that, on various
other occasions, Borelli had asked people to “take care of”
other individuals with whom he was having difficulties.
Thus, appellant moved in limine to permit the intro-
duction of testimony regarding three alleged incidents
supposedly “similar” to the Bells’ murders. In the first
alleged incident, Bernal allegedly asked Vergos to “take
care of” Debra Neundorf for Borelli. Vergos refused.
Borelli then asked Neundorf to meet him “in a somewhat
isolated location” on the side of a road just off Interstate
505. There, Borelli and Neundorf had an angry conversa-
tion. Borelli pulled out a gun and fired three times, shout-
ing “‘you need to be like George, dead.’” Neundorf was
able to avoid the shots, and Borelli “sped off.” In the
second alleged incident, Be:nal approached appellant and
asked him to “get rid of a guy named Rick for Borelli.”
Appellant refused, but later confronted Borelli, “who
” ee
e Pele ee Bp" a, ee ace, 5
Pe ee ee ee ee es eee ee eg
5 ~ » * :
a ee ee ee eT
eA eee ee Send a PART e oy eee ee
eet ee, Tene abe
Po ee aes Se Pe oo.
tA
=)
‘
‘
.
a
j
,
q
j
By
’
88
confirmed that he wanted Rick harmed.” In the third
alleged incident, Bernal confided to Murphy that he and
Borelli had planned “to get rid of” appellant. Bernal
offered to introduce Murphy to the people who were to
commit the homicide, but Murphy refused.
During the colloquy with the trial court concerning
this motion, the trial court pointed out that all of the
testimony concerning the incidents was hearsay and
asked, “How am I going to get those in?” The triai court
then denied the motion in limine without prejudice,
expressly in order to permit defense counsel to renew the
motion when seeking to introduce the testimony during
trial. However, appellant did not attempt to introduce this
evidence again.
te A ee ORR on RD, Co Oa a
EVIDENCE OF ALLEGED PRIOR MISCONDUCT
TO PROVE THIRD-PARTY CULPABILITY
The fact that an individual may have committed other :
offenses in the past may be evidence of his or her bad
character, or propensity or disposition to commit the crime
charged. As a general rule, evidence of a person’s character
or character trait, whether in the form of an opinion,
reputation, or specific instances of conduct, is inadmissible
when offered to prove that person’s conduct on a given
occasion. (Evid. Code, § 1101, subd. (a).) If evidence of
prior misconduct, bad acts or offenses is offered only for
this purpose, it must be excluded. (People v. Thompson
(1980) 27 Cal.3d 303. 316-317; People v. Basket (1965) 237
Cal.App.2d 712, 715, overruled on other grounds in People
c v. Kelley (1967) 66 Cal.2d 232, 243, fn. 5; 1 Witkin, Cal. ;
Evidence (3d ed. 1986) Circumstantial Evidence, § 356, pp.
3 325-326.)
RISE es Bigs Fhe SRE ER NOT Se SR SME Le ae eh err NT a eS geen 2 Phe eg
Ree ee eee
-_ OY
s
:
—S 7 eee ioe | ack pee eee ee ee ee ee ae ot tae yp ne Es. ee ee
i a Te ee
2 4
” a
y.
89
However, where the purpose of introducing evidence of
other crimes, uncharged offenses or prior bad acts is not to
show bad character or a disposition to commit a crime, but
instead is to establish some other independent material
fact in issue in the case, the evidence may be admissible
for that particular limited purpose. (Evid. Code, § 1101,
subd. (b); People v. Haslouer (1978) 79 Cal.App.3d 818,
825; 1 Witkin, Cal. Evidence, supra, Circumstantial
Evidence, § 357, pp. 326-328.) Thus, among other things,
evidence of prior misconduct is admissible if relevant to
prove identity, opportunity, intent, or common design,
method, scheme or plan. (Evid. Code, § 1101, subd. (b);
People v. Balcom (1994) 7 Cal.4th 414, 422; People v.
Ewoldt (1994) 7 Cal.4th 380, 399-402; Haslouer, supra, 79
Cal.App.3d at p. 825; CALJIC No. 2.50 (1994 rev.) (5th ed.
supp.); 1 Witkin, Cal. Evidence, supra, Circumstantial
Evidence, § 357, pp. 326-328.) This analysis also applies to
“proposed evidence regarding prior criminal conduct of a
third party alleged to have committed the charged of-
fense.” (People v. Davis (1995) 10 Cal.4th 463, 501.) In
such a case, the proffered third party culpability evidence
must “show a fact other than the third party's criminal
disposition, such as motive or intent,” or else it “does not
amount to direct or circumstantial evidence linking the
third person to the actual perpetration of the crime.”
(Ibid.)
Appellant now contends the trial court prejudicially
erred in limiting his right to present a defense based on
third party culpability by introducing evidence of alleged
prior similar conduct under Evidence Code section 1101.
According to appellant, the evidence of Borelli’s alleged
acts and behavior with regara to persons other than the
victims in this case was admissible as relevant to prove a
2
‘4
;
be
4)
4
a
ie ee
ae ae
common scheme, design or plan. (Evid. Code, § 1101, subd.
(b); Balcom, supra, 7 Cal.4th at p. 422; Ewald, supra, 7
Cal.4th at pp. 399-402; Haslouer, supra, 79 Cal.App.3d at
p. 825; CALJIC No. 2.50 (1994 rev.) (5th ed. supp.); 1
Witkin, Cal. Evidence, supra, Circumstantial Evidence,
§ 357, pp. 326-328.)
Evidence of an individual’s previous uncharged
misconduct may be relevant and admissible where the
‘uncharged misconduct and the charged offense share
sufficient common features to support the inference that
they are both manifestations of a common design or plan.
(People v. Ewoldt, supra, 7 Cal.4th at pp. 401, 403.) In
determining whether evidence of the uncharged prior
misconduct is relevant to demonstrate a common design,
method or plan, the court must consider the nature and
degree of similarity between the uncharged misconduct and
the charged offense. (Jd. at p. 402.) The degree of similarity
required to establish a common design, method, scheme or
plan is greater than that required to prove intent, but less
than the high degree of similarity required to prove identity.
(Ud. at pp. 402-403.) In order to establish a common design or
plan, the evidence of prior uncharged misconduct must
demonstrate not just a mere similarity in results, but such a
“concurrence of common features” that the various events
are naturally explained as the individual manifestations of a
general design, method, scheme or plan rather than merely a
series of similar spontaneous acts. (Jd. at p. 402.)
§
‘
See Fe a ee ee Ne ee ee a eee ee oe ee Pe
SS i ie otal, 0 he ee
The Supreme Court in Ewoldt requires a two-step ;
analysis before prior uncharged offenses are admitted in a
subsequent trial on charges of similar offenses: the initial
analysis under Evidence Code section 1101; and an addi-
tiona; analysis under Evidence Code section 352 to deter-
mine whether the probative value of the uncharged prior
91
offenses was substantial enough to outweigh the prejudice
inherent in all such evidence. (Ewoldt, supra, 7 Cal.4th at
pp. 404-407.) It is not necessary that the trial court spe-
cifically mention Evidence Code section 352 in making this
analysis, although it is better practice to do so. What is
essential is that the record show the trial court in fact
weighed prejudice against probative value. (People uv.
Zapien (1993) 4 Cal.4th 929, 960; People v. Heishman
(1988) 45 Cal.3d 147, 170.) This determination is commit-
ted to the sound discretion of the trial court, and will not
be reversed on appeal absent a clear abuse of discretion.
(People v. DeRango (1981) 115 Cal.App.3d 583, 589-590.)
The underlying inference supporting the admission of
prior bad act evidence is that, if the individual committed
the former act and did so in a particular fashion, he or she
must also have committed the charged crime, in the same
way or with the same intent. (People v. Diaz (1992) 3
Cal.4th 495, 561-562; Robbins, supra, 45 Cal.3d at p. 879;
People v. Wade (1988) 44 Cal.3d 975, 990; Thompson,
supra, 27 Cal.3d at p. 315; Haslouer, supra, 79 Cal.App.3d
at pp. 827-828.) No matter for which purpose the prior act
evidence is admitted — whether to show “identity,” “intent,”
or the existence of a “common scheme or plan” pursuant to
which the charged act allegedly occurred — the essential
foundational premise for admission of the uncharged acts
is that the alleged acts were actually committed by the
individual in the first place. Unless this fundamental
precondition is met, evidence of uncharged acts can have
no materiality to the charged offense, and cannot form the
basis for any reasonable inferences about the individual’s
intent, plan, or identity as the perpetrator. (People v.
Albertson (1944) 23 Cal.2d 550, 576-581; People v. Marti-
nez (1992) 10 Cal.App.4th 1001, 1006-1008; People v.
:
1
;
a ON eee ee Oe ae? ee ee
i he nd Se
Dellinger (1984) 163 Cal.App.3d 284, 298-300; People v.
Long (1970) 7 Cal.App.3d 586, 590; People v. Jackson
(1967) 254 Cal.App.2d 655, 658-660.)
DISCUSSION: APPELLANT’S
PROFFERED EVIDENCE WAS INADMISSIBLE
The short answer to appellant’s contention that the
trial court erred in not permitting him to introduce the
subject “evidence” in this instance is that there was no
competent evidence to be admitted. Even if relevant,
hearsay evidence is inadmissible except as provided by
law. (Evid. Code. § 1200, subd. (b).) Appellant never
responded to the trial court’s expressed concern that the
entirety of the proffered testimony constituted inadmissi-
ble hearsay. Certainly, he did not establish that it came
within any particular exception to the hearsay rule. As the
proponent of this evidence, appellant bore the burden of
establishing the necessary foundation for its admission.
(People v. Ramos (1997) 15 Cal.4th 1133, 1177.) We will
not assume error in the absence of any record affirma-
tively supporting such a foundation. Having failed to
proffer competent, admissible evidence that Borelli had
actually engaged in the supposedly “similar” prior acts or
that any of these alleged incidents actually occurred,
appellant cannot possibly assert error in the trial court’s
refusal to admit this testimony under Evidence Code 1101.
(Evid. Code, § 354; Ramos, supra, 15 Cal.4th at pp. 1177-1
178.)
“ For example, appellant has never offered any evidence to support
his assertions about Borelli’s alleged attempts to shoot Neundorf during
an argument with her on a side road off Interstate 505. As appellant
concedes, Neundorf herself denied that Borelli ever threatened her or
(Continued on following page)
|
F
|
|
5
.
4
j
:
.
|
:
4
1
‘
-
;
q
’
‘
4
4
;
3
!
4
A LS TE re EE ears ar, C8 age Nore rt Ga | a rr ae ae | ee eee
93
VII. ADMISSION OF EVIDENCE OF APPELLANT’S BE-
HAVIOR TOWARD MURPHY
In a corollary to the preceding argument, appellant
urges that because his proffered “bad acts” evidence
against Borelli was excluded, the trial court should also
have excluded the evidence of appellant’s threatening
behavior toward Murphy. There is no merit to the conten-
tion.
The crucial difference between the two situations is
both obvious and determinative. As seen, there was no
competent evidence proffered concerning Borelli’s alleged
prior threats or misdeeds against third persons. On the
other hand, Murphy herself testified at length about how
appellant took her for a long drive along deserted country
backroads, stopped his pickup truck in an isolated loca-
tion, threatened her life over a drug and money dispute,
fired his .357-magnum out of the window, and told her he
“was going to get to the bottom of this.” Murphy’s direct
testimony about appellant’s words and actions toward her
indisputably distinguishes this incident from those alleged
by appellant of Borelli.
By the same token, there is no question the evidence
of appellant’s behavior toward Murphy was admissible to
prove motive, opportunity, intent, preparation, plan,
knowledge and potential identity. The incident evidenced
appellant’s practice of using his gun to threaten people
over drug and money disputes, his method of going to an
that she was afraid of him. Appellant does not suggest what sort of
competent evidence could contradict the testimony of the only two
people purportedly present at the alleged incident. Similar difficulties
exist with respect to the hearsay evidence regarding the other two
allegedly “similar” incidents.
5
7 ¢ 5
.
;
P
4
:
-.
‘
:
:
oe aye eee a ey
: to ae _ ;
een we oS) ee oe eee Me ee ee eee
4
%
7
7
:
:
4
%
B
E
i,
3
j
i
2
.
:
’
94
isolated spot to do so, and his stated desire and intent to
kill those who he perceived as cheating him. This incident,
occurring only two days before the subject murders, clearly
demonstrates motive, plan, intent and identity. Tiere was
no error or abuse of discretion in admitting this e idence.
VIII. EXCLUSION OF TESTIMONY OF DEFENSE WITNESS
MAPLES
Appellant argues the trial court denied him his
constitutional right to present a defense and to a fair trial
by excluding the testimony of defense witness Pamela
Maples to the effect that she overheard Hurtz confess to
two killings committed under circumstances similar or
matching those of the murders at issue in this case. To the
contrary, the record demonstrates there was no error or
violation of appellant’s constitutional rights.
FACTUAL AND PROCEDURAL BACKGROUND
Defense witness Pamela Marie Maples testified that
Hurtz was her cousin. According to Maples, while at her
sister’s house in Vallejo in April 1994 she “overheard”
Hurtz discussing some homicides. After the trial court
sustained the prosecution’s objection to the admission of
Maples’ testimony as to what she heard Hurtz say, the
defense made an offer of proof that Maples overheard him
say he had killed a man and a woman in a car in Vacaville,
and was covered with blood as a result.
Under questioning outside the presence of the jury,
Maples testified that she was present with her sister,
Hurtz, and “a guy named Steve” at a conversation in
which Hurtz allegedly said he had killed a man and a
woman in a car. Maples was “in and out of the room” at
a 66. 2+ Sheed ol
95
the time, only heard “bits and pieces” of the conversation,
and never joined in it. The conversation was already
underway when she came in; she did not know how long
they had been discussing the murders, the context of the
discussion, or whether it was “serious” or not. Neverthe-
less, Maples testified that Hurtz said he shot “[t]he girl”
“ijn the head” first, and “[tJhen he reached over and shot
the guy.” Hurtz said they were in a parking place, but did
not otherwise describe the locale of the murders or the
type of car the victims were in. Afterward, according to
Maples’ version of what Hurtz said, “he was full of blood”
and “ran through a field, threw mud up on himself, and
then went to make the phone call for somebody to pick him
up.” Maples “didn’t hear” Hurtz say when the murders
took place. Under cross-examination, she acknowledged
that she had no idea whether the murders took place one
week or 10 years before the conversation, or whether they
took place in California or somewhere else.
The trial court sustained the prosecution objection,
stating the defense had failed to establish sufficient
foundation to permit Maples to testify as to the alleged
statements of Hurtz, because there was insufficient
evidence to connect the details of the incident allegedly
described by Hurtz to the facts of the murders at issue in
this case.
APPLICABLE LAW
A criminal defendant has the right to present evidence
of third party culpability if it is capable of raising a rea-
sonable doubt about the defendant’s own guilt. (People v.
Hall (1986) 41 Cal.3d 826, 833; People v. Von Villas (1992)
10 Cal.App.4th 201, 264.) However, a trial court is not
96
required to permit the admission of any evidence, however
remote, to show a third party’s culpability. “[T]here must
be direct or circumstantial evidence linking the third
person to the actual perpetration of the crime.” (Hall,
supra, 41 Cal.3d at p. 833; see also People v. Clark (1992) 3
Cal.4th 41, 131; Sandoval, supra, 4 Cal.4th at p. 176.)
The mere possibility that some third person commit-
ted the crime is not enough. In order to place reasonable
limits on the trial of collateral issues and avoid undue
prejudice to the People from unsupported jury speculation
on the possible guilt of other suspects, there must be some
competent and substantial proof of a probability that this
actually happened. (People v. Green (1980) 27 Cal.3d 1, 22,
overruled on other grounds in Hall, supra, 41 Cal.3d at p.
834, fn. 3; People v. Perry (1980) 104 Cal.App.3d 268, 272;
People v. Whitney (1978) 76 Cal.App.3d 863, 869-870.)
Even if a defendant's evidence is found to raise a reason-
able doubt, the evidence may still be excluded in the
discretion of the trial court if its probative value is sub-
stantially outweighed by the risk of undue delay, preju-
dice, or confusion of the issues. (§ 352; Hall, supra, 41
Cal.3d at pp. 829, 834; Von Villas, supra, 10 Cal.App.4th at
p. 265.) An appellate court should not disturb the trial
court’s exercise of its wide discretion in making this
determination unless there has been a manifest abuse of
discretion resulting in a miscarriage of justice. (People v.
Milner (1988) 45 Cal.3d 227, 239; People v. Harlan (1990)
222 Cal.App.3d 439, 446.)
DISCUSSION: NO ABUSE OF DISCRETION
The trial court did not abuse its discretion in exclud-
ing Maples’ testimony in this case. Even if her testimony
was fully credited, there was simply insufficient evidence
to connect the murders she heard Hurtz describe, with the
ones at issue here. Although Hurtz allegedly said he shot a
man and a woman sitting in a car in a “parking place,”
Maples did not know when or where the killing occurred,
or even if Hurtz was seriously describing an act he had
himself committed. There was no mention of Cynthia or
James Bell, and indeed no identification of the alleged
victims’ of Hurtz’s murders at all.
Given the absence of any actual linkage to the charged
offenses, or any other evidence supporting an inference
that the killings allegedly described by Hurtz were those
of Cynthia and James Bell, Maples’ testimony simply did
not tend to show appellant’s innocence. In view of the total
charged offense and the charged crimes, the evidence was
insufficient to raise a reasonable doubt. The trial court’s
ruling was an appropriate exercise of its discretion under
section 352. (Davis, supra, 10 Cal.4th at p. 502; Pride,
supra, 3 Cal.4th at p. 238; Clark, supra, 3 Cal.4th at pp.
132-133; Von Villas, supra, 10 Cal.App.4th at pp. 266,
267)"
" At any rate, no possible prejudice could have occurred to
appellant as a result of the exclusion of Maple’s testimony. As seen, the
trial court had already permitted appellant to introduce the very
similar testimony of both Harmina Ross and Eliane West regarding
Hurtz’s alleged confessions of shooting two unidentified people at close
range while the victims were sitting in a parked car near Vacaville.
Maple’s testimony to similar effect was merely cumulative.
oe pe tT; ‘ ,
a7 ¥ / WIRED Ss + -f ‘
aes he * is Pll a ee ee ee ‘} Z
ers “Vs Je pat: Sa 4 , OAT SOEs % ee
ee
98
(X. EXCLUSION OF IMPEACHMENT EVIDENCE AGAINST
NEUNDORF
Appellant next contends the trial court erred in
refusing to allow him to impeach the stipulated testimony
of his own defense witness Debra Neundorf by means of
alleged prior inconsistent statements and statements
against penal interest. Although we believe the trial court
erred in its analysis of the question whether Neundorf’s
alleged out-of-court statements were made against her
penal interest, we conclude that any possible error in
denying their admission was not prejudicial.
PROCEDURAL BACKGROUND
Debra Neundorf was called as a defense witness at
both of appellant’s prior trials. The defense was unable to
call her in person as a witness at this trial because she
was declared unavailable, having invoked her Fifth
Amendment rights due to an arrest prior to trial. The
parties therefore stipulated that her testimony from the
second trial could be read into evidence. Pursuant to this
stipulation, Neundorf’s direct, cross, redirect and recross
examinations from the prior trial
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.