Petition for Writ of Certiorari — Bradford v. California

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971455 pec 15199

No.97- ___ OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1997

BILL BRADFORD

Petitioner,

VS.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

Petition For Writ of Certiorari

To The Supreme Court of California

PETITION FOR WRIT OF CERTIORARI

DAVID A. NICKERSON

Attorney at Law

454 Las Gallinas Ave., Suite 183

San Rafael, CA. 94903

Telephone: (415) 507-9097

Attorney for Petitioner

BILL BRADFORD

i

QUESTION PRESENTED

Whether, where law enforcement officers flagrantly disregard

the scope of a search warrant and conduct a general, exploratory

search, the appropriate remedy should be the exclusion of all fruits

of the search or exclusion only of evidence that would not have

been discovered and seized had the officers respected the limits of

the warrant.

PARTIES TO THE PROCEEDINGS

The parties to the proceedings below were Petitioner, Bill

Bradford, and Respondent, the People of the State of California.

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TABLE OF CONTENTS

MUMEBOTION cy ncstnn sence stent ents ee

CONSTITUTIONAL PROVISIONS INVOLVED ....---:

STATEMENT OF FACTS ...-----ssssrrrrrn

REASON FOR GRANTING THE WRIT ...----:-+e0**?

Certiorari Should Be Granted In This Case To Reconcile

A Conflict Between The State Courts And The Federal

Circuit Courts of Appeal Concerning Whether

Suppression Of All The Fruits Of A Search Is An

Appropriate Remedy When Police Officers Act In

Flagrant Disregard Of The Scope Of A Search Warrant.

be AMIE a 65s base donie veesoerereeeee tt?

B. The Facts Concerning The July 31, 1984 Searches ....

C. The Facts Concerning The August 16, 1984 Searches .

D. The Proceedings In The Trial Court .....--+-+++-:

E. The Opinion Of The California Supreme Court ....

iv

TABLE OF CONTENTS - Continued

Page

F. State Courts, Including The California Supreme Court,

Are In Direct Conflict With The Majority Of The

Federal Circuit Courts Of Appeal On Whether Total

Suppression Is An Appropriate Remedy When Police

Officers Act In Flagrant Disregard Of The Scope Of A

UNE OE 6G A die'ok Wha dedi can wes web bus bees 12

LAAT 8c 5 bon be ALE 6 0b 65495 oR CM ERR CERI 15

Vv

TABLE OF AUTHORITIES

Page

Cases

AR... A OES — 7

vi

TABLE OF AUTHORITIES - Continued

Page

Cases continued

Waller v. Georgia, 467 U.S. 39 (1984) ....... 10, 11, 12, 13, 14

Statutes

aah) Se EEL mee ge Min ote. PMT | 8 l

California Penal Code

l

PETITION FOR WRIT OF CERTIORARI

Petitioner Bill Bradford respectfully prays that a writ of

certiorari issue to review the opinion of the Supreme Court of

California entered on July 14, 1997.

OPINION BELOW

The opinion of the Supreme Court of the State of California

was filed on July 14 1997 and reported as People v. Bill Bradford,

15 Cal. 4th 1229, 65 Cal. Rptr. 145, 939 P.2d 259. A copy of that

opinion appears herein as Appendix "A." A timely Petition For

Rehearing was filed in the Supreme Court of California on July

29, 1997. That Petition for Rehearing was denied on September

17, 1997. (A copy of that order appears herein as Appendix "B.")

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28 U.S.C.

section 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitution

provides: "The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or

things to be seized."

2

STATEMENT OF THE CASE

The prosecution of Petitioner in the California state courts

arose out of the death of two women in the summer of 1984.

Petitioner was charged in the Los Angeles County Superior Court

with two counts of first degree murder and one multiple murder

special circumstance allegation. (California Penal Code sections

187, 189, and 190.2, subd.(a)(3).) Prior to trial the court heard

evidence concerning two different motions to suppress evidence

brought by Petitioner. The hearing on these motions to suppress

took some six months and resulted in an ordering granting in part

and denying in part each motion.

Petitioner's trial began with jury selection in June 1987. The

guilt phase trial ended on December 18, 1987 when the jury found

Petitioner guilty of both charged first degree murders and found

true the single multiple murder special circumstance allegation. A

penalty phase trial followed and on February 3, 1988 the jury

returned verdicts imposing a sentence of death.

Petitioner's automatic appeal to the Supreme Court of

California followed. That court affirmed Petitioner's convictions

and sentence of death in a 156-page opinion issued on July 14,

1997. Justice Mosk of the Supreme Court of California dissented

from the affirmance of the sentence of death.

STATEMENT OF FACTS

The prosecution's case at trial was entirely circumstantial and

the local media referred to the case as the "jigsaw puzzle murder

trial." The prosecution's theory was that Petitioner killed Shari

Miller in a remote desert location north of Los Angeles on July

4th, 1984. According to the prosecution, Petitioner stored her

3

body in the trunk of his car for two days, then left the body on the

sidewalk of a Los Angeles parking lot. The prosecution also

theorized that Petitioner drove Tracy Campbell to the same remote

desert location eight days later. Petitioner allegedly killed Tracy

at this desert location. He left Tracy's body in the desert where her

body was found a month later.

A good deal of the circumstantial evidence relied upon by the

prosecution to connect Petitioner to these crimes was obtained as a

result of searches conducted by law enforcement officers of

Petitioner's apartment, automobile and other nearby areas on July

31 and August 16, 1984. The officers conducting these searches

did so while armed with search warrants.

REASON FOR GRANTING THE WRIT

Certiorari Should Be Granted In This Case To Reconcile A

Conflict Between The State Courts And The Federal Circuit

Courts of Appeal Concerning Whether Suppression Of All

The Fruits Of A Search Is An Appropriate Kemedy When

Police Officers Act In Flagrant Disregard Of The Scope OFA

Search Warrant.

A. Introduction

In his motions to suppress evidence, Petitioner argued that the

officers conducting the July 31 and August 16, 1984 searches

flagrantly exceeded the scope of the warrants and conducted

general, exploratory searches. He also argued that the appropriate

remedy for such searches was the suppression of all items seized

during each search. The trial court rejected that argument. On

appeal, the California Supreme Court similarly rejected

Petitioner's contention that suppression of all items seized was the

4

appropriate remedy for a general search conducted with "flagrant

disregard" for the scope of the warrant. Because the opinion of the

California Supreme Court, as well as at least one other state court,

is in direct conflict with the majority of federal circuit courts of

appeal, this Court should grant certiorari pursuant to Rule 10.1(b)

of the Rules of the United States Supreme Court to resolve this

conflict.

B. The Facts Concerning The July 31, 1984 Searches

On July 31, 1984, officers from the Los Angeles Police

Department executed a search warrant at Petitioner's apartment.

The same officers also seized Petitioner's automobile and searched

it pursuant to the same warrant.

Detectives Donald Ravens and Charles Worthen were the lead

investigators. Worthen was the search warrant affiant. Worthen

testified that the principal focus of the warrant was the

investigation into the disappearance of Tracy Campbell, who had

been missing since July 12th. Worthen had obtained a photograph

of Tracy Campbell but did not attach that photograph to either the

warrant itself or to the affidavit in support of probable cause.

Ravens read the affidavit in support of probable cause before the

warrant was executed. He did not, however, read the numerous

attachments to that affidavit. No district attorney reviewed the

warrant before the search was executed.

Worthen expressly told the police officers who were to

execute the search of Petitioner's apartment that they were not to

limit themselves to the items named in the warrant. The officers

were told to search for anything having evidentiary value and seize

anything that might be relevant to anything that was mentioned in

the affidavit in support of probable cause. In particular, Worthen

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5

wanted all photographs seized. Worthen felt he could establish the

relevance of the photographs after they were seized.

Ravens was the officer in charge of executing the search

warrant at Petitioner's apartment. Five other officers assisted. In

seizing items, Ravens did not feel bound by the warrant if he

thought there was evidence related to possible unknown murder

victims. He could not, however, identify any other possible

murder victims and the warrant did not mention any possible

victims besides Tracy Campbell and Mischa Stewart, a male

: victim in an unsolved murder from 1982.

Ravens seized a .22 caliber rifle in a closet even though

firearms were not listed in the warrant. Ravens believed that once

the officers were inside the apartment they were not limited by the

warrant. They were to look for and seize evidence of other

possible homicides, even though none were identified in the

warrant, because such evidence might relate to "future

investigations." Ravens determined that he could seize such items

because they might become relevant later "to another murder." He

could not say, however, to what other murder they may have been

related. Ravens said he was told, if it appeared to be evidence it

can be seized.

Detective Rooney conducted the search of Petitioner's

automobile which took about three hours. Rooney did not read the

affidavit in support of probable cause prior to conducting the

search. He did not have a copy of the affidavit with him at the

time of the search.

Rooney seized numerous papers and documents from the

vehicle that were not listed in the warrant. He took all of them

into the station. Prior to seizing the papers and taking them into

Oooo

6

the station, Rooney made no attempt to determine their relevancy

to any offense mentioned in the search warrant affidavit. Indeed,

even after taking the papers into the station, Rooney made no

attempt to determine the relevancy of any of the seized papers.

Instead, he gave all of the papers to detective Worthen.

Rooney seized a number of other unlisted items for which he

could determine no relevancy. Among the items seized were some

pre-recorded musical tapes, a purple pen, a tube of crazy glue, two

black combs, a light bulb, and a socket wrench.

C. The Facts Concerning The August 16, 1984 Searches

On August 16, 1984, the same Los Angeles police officers

conducted a second search pursuant to a warrant. This second

warrant authorized the officers to search: the apartment of

Petitioner and his roommate, Olga Talbot; "any and all facilities

within the structure, garages or storage units, all basements, attic

areas and all containers located either inside the described

premises or on the grounds of the premises designated for their

use;" three automobiles, including an automobile rented by Olga

Talbot; and a storage locker at another location rented by Talbot.

Detective Rockwood was the officer in charge of these

searches while detective Worthen was again the search warrant

affiant. Worthen was not present when the search warrant was

executed. Rockwood did not read the warrant and did not have a

copy of the warrant in his possession at the time the warrant was

executed. Rockwood did not tell officers Adams and Fueglein,

who also participated in the searches, what to look for during the

searches.

7

Adams could not recall reading the warrant, but knew he did

not read the warrant during the searches. Fueglein was sure he did

not read the warrant or any of the affidavits. Detective Crews

claimed to have read the warrant. However, his only role was to

search Talbot's bedroom.

The police searched a number of lockers in the subterranean

parking area of the Petitioner's apartment building. Rockwood did

not know the total number, but at least six different lockers were

_ searched. The officers did not know the owner of every locker

they searched. In several instances, however, the police searched

lockers which they knew did not belong to Bradford or his

roommate. Some of the lockers had padlocks on them before the

search. These were cut off by the police. Some locker doors were

ripped off of their hinges. One locker containing Christmas tree

ornaments was searched and all of the ornaments broken.

Petitioner's roommate, Olga Talbot, who was not named in the

warrant as someone to be searched or seized, was seized by

officers while she was shopping at a nearby supermarket. She was

forced to sit in a police car for one to two hours and eventually

taken to the police station in downtown Los Angeles. She

remained there for several additional hours. While at the police

station, she was told that she could not leave.

A Chevrolet automobile owned by Olga Talbot was also

seized and taken to the police station. This car was not named in

the warrant. The officers ripped the Chevrolet apart, tore the seats

open, and dismantled the engine. Later, even though the Chevrolet

could no longer be driven, the officers told Talbot to get the car

out of their parking lot or it would be impounded.

It was estimated that the officers seized some 2500 to 3000

items during the execution of the August 16, 1984 search warrant.

8

Approximately 95 percent of the items seized were outside the

scope of the warrant.

The executing officers testified that they did not believe that

the warrant restricted what they could seize. Instead, they

believed the warrant gave them access to the location to be

searched. Once inside that location, the officers could search for

and seize anything they thought might be of "evidentiary value."

Many of the items seized were documents not listed in the

warrant. At the time items were seized, the police did not look at

the documents. As a result, the officers seized such items as

empty envelopes, an Army training manual, documents from a

court case in Louisiana, a bail receipt from Oregon, ten year old

traffic citations, a Boy Scout membership card from 1961, a bank

book for an account that was closed in 1957, and an envelope

dated September 24, 1949. In many instances, the officers could

not recall why various items were even seized. In other instances,

items such as documents were seized so that the officers could

inspect them later and determine at that time whether they had any

The California Supreme Court's opinion lends

approval to this remarkable view of the authority afforded by a

search warrant: “In the present case, the testimony of the officers

involved in the search indicated their belief that they could search for

items not listed in the warrant. This testimony...simply reflected

their entirely appropriate understanding that such items lawfully

might be seized if reasonably believed to be related to criminal

activity." Appendix A, pp. 50-51; People v. Bradford, supra, 15 Cal.

4th at 1294. The state court appears to overlook the distinction

between the lawful seizure of items observed in plain view while

conducting a warrant-authorized search and utilization of warrant-

authorized entry to search for items not listed in the warrant.

9

"evidentiary value." Finally, in some instances, the officers could

not recall even seizing certain items.

D. The Proceedings In The Trial Court

In the trial court Petitioner argued that the police used the July

31 search warrant as "carte blanche" to conduct a general,

exploratory search of Petitioner's apartment and automobile.

Defense counsel noted that thirty-six (36) of the sixty-three (63)

items listed in the return to the warrant were beyond the scope of

the warrant.

Concerning the July 31 searches the trial court found that

"there were aspects of the automobile search as well as the house

search which appeared to be exploratory in nature." The court

also found a "certain retrospective quality" to the police officers’

justification for conducting numerous seizures beyond the scope of

the warrant. The court found that the seizure of a number of items

"can't be justified under any circumstances."

Concerning the August 16 searches, Petitioner again argued

that the police had conducted a general, exploratory search.

Petitioner argued that the officers had conducted a "global

exploratory search" that resulted in "wholesale seizures of

thousands of items." The only appropriate sanction for such a

search, Petitioner argued, was "total suppression" of all items

seized.

The prosecutor argued only that the sanction of total

suppression was not available. After arguing that "federal law

controls,” the prosecutor argued that "there are no federal cases

which allow the sanction" of total suppression.

10

In its ruling, the trial court framed the issue as "the novel

question" of whether total suppression is appropriate "in a

situation where [an] alleged exploratory search was conducted

pursuant to a valid search warrant as amended." The court

believed that there was "no case authority" that "squarely

addressed" the issue.

However, the trial court made several factual findings. First,

the court found that the executing police officers "failed to read

the search warrant before or during the search itself even though a

copy of the search warrant was apparently in plain view at the

location of the search." Second, the officers "searched areas,

including an automobile and numerous lockers, which were clearly

beyond the scope of the search warrant." Third, the officers

“seized numerous items of property neither specifically described

in the search warrant nor relevant to the investigation of either the

Tracy Campbell or Shari Miller cases." As a result, the court

found "portion(s) of the search did possess exploratory qualities,

and that the seizure of numerous items of property was overly

broad."

E. The Opinion Of The California Supreme Court

Concerning the July 31, 1984 searches, the Supreme Court of

California noted in its opinion that Petitioner had argued in the

trial court, and argued again on appeal, that the searches were

general and exploratory. The state supreme court held:

The high court has rejected, however, the contention that

police action disregarding the authorized scope of a

warrant transforms the warrant into an impermissible

general warrant, requiring suppression of the entire fruit of

the search rather than merely those items as to which there

was no probable cause to support seizure - where the

officers have not exceeded the scope of the warrant in the

1]

places searched, but only in seizing items unconnected to

the investigation or prosecution of the crime. In such

circumstances, when all items unlawfully seized are

suppressed, "there is certainly no requirement that

lawfully seized evidence be suppressed as well.

[Citations.]" Waller v, Georgia (1984) 467 U.S. 39, 43-

44, fn. 3.

Appendix A, p. 53;_People v. Bradford, supra, 15 Cal. 4th at 1296.

The state supreme court reached a similar conclusion when it

addressed the August 16 searches. In its opinion in Petitioner's

case concerning the August 16 searches the state supreme court

stated:

As noted above, in a footnote, the high court in Waller v.

Georgia, supra, 467 U.S. 39, discussed and rejected the

defendant's contention that the police so "flagrant[ly]

disregard[ed]" the scope of the warrants in conducting the

seizures that they turned the warrant into impermissible

general warrants, requiring suppression of the entire fruit

of the search, rather than merely suppression of those

items as to which there was no probable cause to support

seizure. Id., at 43-44, fn. 3.

Appendix A, pp. 66-67; People v, Bradford, supra, 15 Cal. 4th at

1305.

In short, as to each search, the state supreme court held that

this court's opinion in Waller required rejection of Petitioner's

contention that the executing officers’ flagrant disregard of the

limits imposed by the warrant required the suppression of the

entire fruits of the search. The state court reached this conclusion

despite the fact that under the state court's own reading of the

Waller footnote, Waller involved a factually distinguishable

situation in that in Waller the searching officers seized items

without probable cause, but did not exceed the scope of search

authorized by the warrant. Here, by contrast, there were facts

12

showing that the officers had exceeded the scope of the authorized

search, i.e. the officers had searched an automobile and numerous

residential storage lockers not named in the warrant and had

explicitly testified that once they had used the warrant to gain

entry to places named in the warrant. they felt feel to search for

items not specified in the warrant.

F. State Courts, Including The California Supreme

Court, Are In Direct Conflict With The Majority Of

The Federal Circuit Courts Of Appeal On Whether

Total Suppression Is An Appropriate Remedy When

Police Officers Act In Flagrant Disregard Of The

Scope Of A Search Warrant

In Waller vy, Georgia, supra, 467 U.S. at 43-44 fn. 3 this Court

addressed the contention of the petitioner in that case that the

“police so flagrantly disregarded the scope of the warrants in

conducting the seizures at issue here that they turned the warrants

into impermissible general warrants." The petitioner in Waller

cited to United States v. Heldt, 668 F.2d 1238, 1259 (D.C.

Cir.1981) and United States y. Rettig, 589 F.2d 418, 423 (9th Cir.

1978) "for the proposition that in such circumstances the entire

fruits of the search, and not just those items as to which there is no

probable cause to support seizure, must be suppressed." However,

this Court concluded: "In these circumstances, there is certainly no

requirement that lawfully seized evidence be suppressed as well."

Waller y. Georgia, supra, 467 U.S. at 43-44 fn. 3.

The California Supreme Court took this rather cryptic

sentence in the Waller footnote to mean that suppression of the

entire fruits of a search is never appropriate, even when the police

act in flagrant disregard of the scope of the warrant. Appendix A,

pp. 53, 66-67; People v. Bradford, supra, 15 Cal. 4th at 1296,

13

1305. Other state courts have similarly understood the Waller

footnote. In Klingenstein v. State, 330 Md. 402, 411-412, 624

A.2d 532, 537 (Md. App. 1993), the defendant "leaned heavily on

the flagrant disregard exception in arguing that the suppression of

all of the items seized at the pharmacy was proper." The

Maryland state court concluded: "The Supreme Court of the

United States, however, has not adopted the concept. That Court

has made no more than a passing reference to it...[i]n Waller v.

Georgia, 467 U.S. 39, 43-44 n. 3... We are not persuaded to

overlay the exclusionary rule of the Fourth Amendment with the

flagrant disregard’ concept. The Supreme Court has not seen fit to

do so and neither do we."

As both the California Supreme Court and this Court in the

Waller footnote recognized, the majority of the federal courts of

appeal have held differently. In United States v. Heldt, supra, 668

F.2d at 1259, the circuit court case cited in Waller footnote, the

court of appeals held:

We recognize that in some cases a flagrant disregard for

the limitations in a warrant might transform an otherwise

valid search into a general one, thereby requiring the

entire fruits of the search to be suppressed.

In United States v. Rettig, supra, 589 F.2d at 423, which was also

cited in the Waller footnote, the circuit court held:

Where evidence is uncovered during a search pursuant t a

warrant, the threshold question must be whether the search

was confined to the warrant's terms. . . . [We find the

record establishes that the agents did not confine their

search in good faith to the objects of the warrant, and that

while purporting to execute it, they substantially exceeded

any reasonable interpretation of its provisions. As

interpreted and executed by the agents, this warrant

became an instrument for conducting a general search.

Under the circumstances, it is not possible for the court to

identify after the fact the discrete items of evidence which

14

would have been discovered had the agents kept their

search within the bounds permitted by the warrant; and

therefore all evidence seized during the search must be

suppressed.

Since this Court's opinion in Waller the majority of federal

courts of appeal have interpreted the Walier footnote as endorsing

the holdings of Heldt and Rettig. For instance, in United States v.

Medlin, 798 F.2d 407, 411 (10th Cir. 1986) the circuit court

expressly cited Waller for the proposition that: “The rule is that

only the improperly seized evidence, not all the evidence, must be

suppressed, unless there was a flagrant disregard for the terms of

the warrant. See Waller vy. Georgia, 467 U.S. 39, 44 n. 3." The

majority of other circuits have reached a similar result with or

without reference to the Waller footnote. United States y. Beck,

122 F.2d 676, 680 (8th Cir. 1997); United States v. Jones, 31 F.2d

1304, 1314 (4th Cir. 1994); United States v. Mittelman, 999 F.2d

440, 444 (9th Cir. 1993);United States v. Lambert, 887 F.2d 1568,

1572-1573 (11th Cir. 1989); United States v. Young, 877 F.2d

1099, 1105 (ist Cir. 1989);United States v. Henson, 848 F.2d

1374, 1383-1384 (6th Cir. 1988); United States v. Matias, 836

F.2d 744, 747-748 (2nd Cir. 1988).?

The opinions of these federal circuit courts of appeal are in

conflict with the opinions of the state courts of California and

: One federal circuit has also declined to adopt the

"flagrant disregard" test. In United States v, Willey, 57 F.3d 1374,

1390 fn. 31 (Sth Cir. 1995) the defendant argued that the agents

exhibited a flagrant disregard for the scope of the search warrant and

that as a result “all the evidence from the search should be

suppressed." The court of appeals stated: "This Court has not

adopted the flagrant disregard exception to severability."

15

Maryland. The state courts believe that the footnote in Waller

rejected the rule that total suppression is necessary when officers

act in flagrant disregard of the scope of a search warrant. The

federal circuit courts, on the other hand, believe that the Waller

footnote endorsed the holdings of Heldt and Rettig which had held

previous to the Waller opinion that total suppression was an

appropriate remedy. This Court should grant certiorari to resolve

the clear conflict of opinion between the lower courts.

16

CONCLUSION

For the foregoing reasons, the instant Petition for a Writ of

Certiorari should be granted.

Dated: March 2, 1998

Respectfully submitted,

DAVID A. NICKERSON

Attorney at Law

454 Las Gallinas Ave., Suite 183

San Rafael, CA. 94903

Attorney for Petitioner

BILL BRADFORD

App. |

APPENDIX A

The PEOPLE, Plaintiff and Respondent,

v.

Bill BRADFORD, Defendant and Appellant.

No. $005707.

Supreme Court of California.

July 14, 1997.

Rehearing Denied Sept. 17, 1997.

Defendant was convicted in the Superior Court, Los Angeles

County, No. A089976, Paul Boland, J., of two counts of murder and

sentenced to death, and he appealed. The Supreme Court, George,

C.J., held that: (1) conduct of searches did not constitute exploratory

searches; (2) officers acted in good faith; (3) omissions from

affidavit did not affect probable cause determination; (4) questioning

of defendant did not violate right to counsel; (5) two counts were

properly tried together: (6) evidence sustained conviction; (7)

prosecutors did not engage in misconduct; (8) closing argument at

both phases was proper; (9) instructions were proper; (10) there was

no juror misconduct warranting dismissal of jurors or additional voir

dire prior to penalty phase; (11) defendant was properly permitted to

represent himself at penalty phase, even though he presented no

evidence; and (12) evidence concerning prior rape was properly

admitted at penalty phase.

Affirmed.

Mosk, J., filed an opinion concurring in part and dissenting in

part.

App. 2

David A. Nickerson, under appointment by the Supreme Court,

San Rafael, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief

Assistant Attorney General, Carol Wendelin Pollack, Assistant

Attorney General, William T. Harter, Susan Lee Frierson and David

F. Glassman, Deputy Attorneys General, for Plaintiff and

Respondent.

GEORGE, Chief Justice.

Following the guilt and special circumstance phase of a capital

trial, a jury found defendant Bill Bradford guilty of the first degree

murders of Shari Miller and Tracey Campbell. Pen.Code §§ 187,

189.2. The jury also found true the special circumstance that

defendant had committed multiple murder. (§ 190.2, subd. (a)(3).)

Following the penalty phase of the trial, the jury imposed the

death penalty. After denying defendant's motion for modification of

the verdict imposing the death penalty, the court sentenced defendant

to death for the murders of Shari Miller and Tracey Campbell. This

appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in

its entirety.

I. FACTS

The evidence at trial established that between July 4 and July 6,

1984, defendant killed Shari Miller in a remote desert area, stored her

body in the trunk of his vehicle for a number of hours, and then

> All further statutory references are to the Penal Code

unless otherwise indicated.

App. 3

deposited her body in a parking lot in West Los Angeles, where it

was discovered on the morning of July 6, 1984. The evidence also

established that on July 12, 1984, defendant drove Tracey Campbell

to the same remote desert area, where he killed her that day or the

following day. On this occasion defendant left the body at the desert

site, where it was discovered on August 11, 1984.

A. GUILT PHASE EVIDENCE

1. Disappearance of Shari Miller

Defendant became acquainted with Nicholas (Nick) Klos in

1982. Klos often camped in a horseshoe-shaped "bowl area" in an

isolated part of the desert near Lancaster, south of Edwards Air Force

Base, and on two weekends in April 1983, Klos and defendant,

accompanied by others, had driven their motorhomes to that site.

Approximately one week prior to July 4, 1984, defendant contacted

Klos and inquired whether he intended to go to the bowl area on July

4, 1984. Approximately one week later, defendant again contacted

Klos and asked for directions to the bowl area.

Shari Miller, who was 21 years of age, lately had been residing

in her automobile. She was acquainted with Marcia Peltier and

Michael Faddis. In late June 1984, Faddis, who sometimes recovered

used but undamaged clothing from trash containers, had given Shari

a blouse with a snail print on it. During June, Shari had given Faddis

a double-bladed knife in a double sheath that she desired to sell.

Near the end of June, Faddis returned the knife to her because he had

been unable to sell it for her.

In late June 1984, Shari had shown her mother, Mara Lyn Miller,

a ring decorated with a carved head of an "Indian chief." At that time

Shari wore her hair long. On June 29, Shari telephoned her mother

App. 4

from Daniel Freeman Memorial Hospital, telling her that, while in

the shower, she had received a bad cut requiring five stitches on her

left arm just below the elbow. Shari, wearing a bandage on her arm,

arrived at her mother's residence that night, remaining overnight.

Approximately 2:20 p.m. on Saturday, June 30, Mrs. Miller

overheard Shari place a telephone call and address someone as

"Bill," telling him she was sorry she had missed him the week before

and inquiring whether the job still was available. Afterward, Shari

informed her mother that she was going to have a job posing for a

photographer, modeling leather jackets and boots for "In The Wind"

magazine. Telephone records subsequently confirmed that a

telephone call had been made from the Miller residence to

defendant's residence at 2:22 p.m. on June 30. Mrs. Miller saw her

daughter for the last time when Mrs. Miller left the residence

approximately 3:00 p.m. on the afternoon of June 30.

On the afternoon of July |, Shari met her friend Carolyn Bury

and told her that she was looking forward to the opportunity within

the next week to model leather outfits for a photographer who “had

a lot of money," lived on a boat in the Marina, and owned a

motorcycle. The photographer would provide the clothing, and Shari

"made it very clear that there wouldn't be any nude shots." Bury

previously had observed that Shari had three tattoos:

Harley-Davidson Motorcycle "Wings" on her left ankle, Winnie the

Pooh on her abdomen close to her pubic hair, and an "S" on the

bottom of her foot. Shari wore her hair long. Bury had noticed Shari

wearing a silver ring made from a spoon.

On the night of July 1 or early on the morning of July 2, Shari,

wearing cut- off jeans and a sleeveless top, arrived at a residence

where Marcia Peltier was staying. Between 9:00 a.m. and 11:00 a.m.

on July 2, the two women made lists of things they planned to do that

App. 5

day. Shari's list included the notation: "Bill Bradford, Meat Market,

6:00 p.m." Shari mentioned an upcoming modeling job. At

approximately 11:00 a.m., Kurt Androsky, a house painter who

recently had become acquainted with Shari, arrived. Androsky, who

did not have transportation that day and who knew Shari wanted a

job, inquired whether she would assist in the completion of a

house-painting job at a residence in the San Fernando Valley. She

accepted and, driving her vehicle, left with Kurt to go to the job site.

During their drive to that location, Androsky, a narcotics user,

injected methamphetamine, and Shari attempted to do so but was

unsuccessful. Androsky and Shari arrived between 11:00 a.m. and

noon and painted the building for six or seven hours, using yellow

paint. Beverly Holst, the owner of the residence, recalled that on a

date within several days of July 4, when Holst returned from work,

she noticed that Androsky was employing a female assistant dressed

in a tank top and cut-off jeans. Holst observed in the driveway a

brown or blue vehicle similar in size to a Dodge Dart. The back seat

of the vehicle was filled with miscellaneous items.

Androsky and Shari departed at approximately 6:30 p.m. and

proceeded to the Meat Market, a bar in West Los Angeles. Shari

mentioned to Androsky that she had an offer to model for a

photographer, using motorcycles as props, on the following day.

After Shari made a telephone call, the photographer arrived at the

bar. Shari introduced the man but Androsky was unable to identify

defendant as the man he had met. Shari dropped off Androsky in

Venice at approximately 9:00 p.m. that evening.

Schylee O'Hare, a bartender at the Meat Market bar, was

acquainted both with defendant and Shari, a former employee at that ©

bar. At approximately noon on July 3, Schylee waited on the

sidewalk for the bar to open. Shari drove up, exited from her vehicle,

App. 6

and asked Schylee for a dime, stating she was going to telephone

defendant, who had arranged to take photographs of her. Schylee

observed that Shari was wearing a tank top, jeans, and leather

moccasins that laced up to the knee.‘

Evans Haas had become acquainted with defendant at the Meat

Market bar in early June, and also previously had met Shari. Just

before noon on Tuesday, July 3 or Wednesday, July 4 (he was not

certain which date), Haas visited defendant's apartment on Midvale

Avenue in Los Angeles to inspect a motorcycle that defendant had

offered for sale. Approximately one hour later, Shari, wearing long

jeans, arrived at defendant's apartment.

Defendant's motorcycle was not functioning properly, and at

approximately 2:00 p.m., Haas and defendant took one of the

motorcycle parts to Bartels Harley Davidson shop in Culver City.

The shop was open, and defendant had a conversation with an

employee concerning the part, which purportedly had been repaired.”

* Schylee also testified that she had seen defendant at the bar

at approximately 5:00 p.m. on the same afternoon she saw Shari.

When Schylee asked whether defendant had seen Shari, he replied

"Yes," and then took a photograph of Schylee, giving it to her several

days later. Other testimony established, however, that this

photograph was taken subsequent to certain photographs defendant

had taken at a photographic show on July 8, and Todd Heidrick, who

spent time with defendant on July 9, noticed that he took a

photograph of a waitress at the Meat Market bar on that date.

* According to Ron Bartels, who worked at the motorcycle

shop, the store had not been open on July 4, although it was possible

a salesman was in the showroom on that date. According to William

(continued...)

baie YE he OR Re setts

1b a Scat Al Sica hae

App. 7

When defendant and Haas returned to the apartment, Shari was

asleep inside defendant's automobile. Defendant asked Haas to stand

holding a bottle of liquor next to Shari and took a Polaroid

photograph of them. Approximately 45 minutes later, at 2:30 p.m.,

Haas departed.

Gary Williams, who together with his mother, Olga Talbot,

shared the apartment on Midvale Avenue with defendant, was

introduced to Shari on that day. Williams recalled driving in and out

of the garage as Haas and defendant worked on the motorcycle.

Although Williams testified at trial that the date was July 1, relying

upon the circumstance that he had not gone to work that day, he was

impeached with his preliminary hearing testimony indicating that the

date was July 3 and with his employment records demonstrating that

he had not worked on July 3.

.At approximately 5:00 p.m. on July 3 or 4 (he was uncertain

which date), Todd Heidrick, a cousin of Tracey Campbell, who had

become acquainted with defendant, was walking along Midvale

Avenue in Los Angeles on his way to West Hollywood. Defendant

drove up in his automobile and agreed to give Todd a ride.

Defendant was accompanied by someone whom he introduced at the

time as "Shari," whom Todd later identified from photographs.

At approximately 6:00 p.m. on July 3, Shari arrived at the

residence of Oliver De la Torre, with whom she had become

romantically involved the previous month. She spent the evening but

departed at 1:00 a.m. on July 4. Appearing to be apprehensive, Shari

told De La Torre that she had agreed to meet someone at a bar but

*(...continued)

Bartels, owner of the shop, it was not open on July 4, and store

records indicated no sales of motorcycles or parts on July 4.

App. 8

did not want to go to the meeting. She asked De La Torre to leave

the door unlocked, because she would return during the night, but she

failed to return.

Olga Talbot later told the police that, on July 4, she awoke at

4:30 a.m., as was her custom. On her way to the store, she walked

past the living room sofa where defendant slept, noticing he was not

present. Talbot soon returned, remaining inside the apartment except

for a period of several hours in the afternoon. Defendant did not

return until late that evening.®

As discussed below in greater detail, photographs of Shari later

were found in defendant's possession. The photographs depicted

Shari wearing various outfits such as a dress or cut-off jeans and a

blouse, posing before distinctive rock formations in the desert. The

bandage on her arm was visible. One photograph, taken while Shari

was lying down, depicted her bare breasts close up, with her shirt

pushed back under her arms, which were held against her body. A

police forensic photographer later determined, by taking photographs

at the same desert sites during the same time of year and attempting

to duplicate the shadows, that one of the photographs of Shari had

been taken at approximately 11:05 a.m. and another had been taken

® Olga Talbot testified as a hostile witness for the

prosecution. She testified, contrary to her statement to the police,

that when she got up at approximately 4:30 a.m. on July 4 to have

coffee, defendant was sleeping on the sofa in the living room, and

was still in that location at 8:00 a.m. when Talbot wert to the store.

Talbot further testified that when she returned to the apartment for

several minutes at 10:00 a.m., defendant was not at the apartment,

but that when Talbot returned at 2:30 p.m., he was present. Talbot

also testified that defendant left in the early evening and that when

she awoke at 4:30 a.m. on July 5, defendant was asleep on the couch.

App. 9

at approximately 2:00 p.m., indicating Shari was alive at least until

the early afternoon of July 4.

2. Discovery of the body of Shari Miller

At 6 a.m. on July 6, Steven Craig, who had an office near the

corner of Elm Street and West Pico Boulevard in West Los Angeles,

arrived at work and parked his automobile in an alley near Elm

Street. As he walked toward the front of the building, he noticed a

large bundle in the parking lot. At 9:50 a.m. that morning, Los

Angeles Police Department (LAPD) Officer Edwin Souza was

dispatched to the parking lot. He observed a bundle covered by a

quilt that was stained with blood. A strong odor emanated from the

quilt and a human hand was visible.

LAPD homicide detectives, including John Rockwood and John

St. John, observed the body at the scene and were present at the time

the coroner's investigators unwrapped the quilt. The body, initially

identified as Jane Doe No. 60, was that of a partially decomposed

Caucasian female, five feet nine inches tall, and one hundred twenty

pounds. The body was nude and was bound by a single long leather

thong ligature that encircled and tied the ankles together, wrapped

around the left thigh, and tied together the wrists in front of the

abdomen. The neck had ligature marks. The nipples had been

entirely removed, and skin tissue had been removed from areas on

the lower abdomen and left ankle. The body had an S-shaped tattoo

on the bottom of the right foot. Yellowish matter was found under

the fingernails. The hair was approximately six inches in length.

A medical examiner for Los Angeles County, Dr. Wegner,

performed the autopsy. Death occurred by ligature strangulation,

causing discoloration of the head and neck. The nipples and sections

of skin had been removed after death by means of a sharp cutting

App. 10

instrument. The back of the left forearm below the elbow had a cut

that had been closed with five blue sutures, but no bandage was

present. An Indian head silver ring was found on one of the fingers.

The medical examiner estimated that death had occurred between

20 hours to 3 days prior to the time the body first was examined on

July 6, or between 3:30 p.m. on July 3 and 7:30 p.m. on July 5. The

medical examiner calculated that the time of death would be nearer

to the evening of July 5, assuming 110 degree heat at the time of

death, storage in the trunk of a vehicle during a period of time prior

to the body's discovery at 6:00 a.m. on July 6, and additional

exposure prior to the body's cold storage at 3:30 p.m. that day.

On July 8, a locked automobile, later determined to be Shari's,

was discovered in the parking lot of Sarno's Bar, located two blocks

from defendant's apartment in Los Angeles. Within several weeks,

the police matched a fingerprint taken from an arrest record for Shari

with that of Jane Doe No. 60. On August |, Shari’s mother was

informed of her daughter's death.

On August 7, the police located and searched Shari's vehicle in

the towing yard where it had been stored since July 8. Although

Shari customarily had stored many of her belongings inside her

automobile, neatly arranged and covered with the quilt that later was

found wrapped around her body, at the time the police located the

vehicle, the articles inside were in disarray. The several outfits Shari

wore in the photographs taken by defendant were not recovered from

the vehicle, nor from several friends’ residences where she had stored

clothing. The yellow substance on a pair of cut-off jeans recovered

from Shari's automobile and on a wristwatch subsequently recovered

from defendant's residence, as well as scrapings from the fingernails

of Shari’s body, were analyzed and found to have the same

composition as the yellow paint at Mrs. Holst's residence.

App. 11

3. Disappearance of Tracey Campbell

In the spring of 1984, Tracey Campbell, 15 years of age, moved

from Montana, joining her mother, Lica Jane McCabe, who recently

had rented a small studio apartment (that did not have a telephone),

located on Midvale Avenue in Los Angeles. Tracey attended junior

high school during the remainder of the school year. During ‘ie first

part of June 1984, they were joined by Tracey's brother Derrill, sister

Tanya, and cousin Todd Heidrick, all of whom soon located jobs.

Tracey remained in the apartment alone during the day, putting away

the bedding and cleaning the apartment after the others had gone to

work, but she declined to do the dishes. It was Tracey's habit to

leave the apartment door open during the day. Tracey, who smoked

approximately one-half pack of cigarettes per day, always purchased

them at the Arco Station located on Overland Avenue and Venice

Boulevard, several blocks from the apartment. Tracey did not drive

or hitchhike. At the time of her disappearance, she had no money.

In early June, Tanya, Todd, and Tracey, sunbathing at the front

of the apartment, met defendant, who lived upstairs in the adjacent

apartment complex and was washing his motorcycle nearby. At the

time, defendant told them that he was a photographer. Later in June,

Todd and Tanya had drinks with defendant at Sarno's Bar. On July

1, Todd and Tanya attended the Los Angeles Gay Pride Festival, and

two or three days after the festival, on the afternoon of July 3 or July

4, defendant, accompanied by Shari Miller, agreed to drive Todd to

West Hollywood.

On the morning of July 9, defendant saw Todd as the latter left

the apartment to purchase a newspaper and cigarettes. Defendant

offered to drive Todd and purchased the cigarettes for him. They

drove to the One Hour Moto-Photo store on Venice Boulevard to

App. 12

drop off film and pick up developed photographs. Todd indicated his

interest in preparing a photographic modeling portfolio. At some

point, defendant and Todd returned to defendant's apartment, where,

from the hall closet, defendant retrieved a number of developed

photographs. He showed Todd the photographs, which depicted

female models, including several photographs that proved to be of

Shari Miller. Defendant and Todd had drinks at the Meat Market bar,

where defendant took a photograph of a blonde woman, later

identified as Schylee O'Hare.

Late that afternoon, Todd agreed to have defendant photograph

him at a construction site next to their apartment complex, and Todd

mentioned the plan to Tracey when he returned to the apartment in

order to change clothing. After shooting the photographs, Todd and

defendant had them developed at the one-hour photography store

and, upon returning to the apartment, showed the photographs to

Tracey and other family members. Defendant and Todd spent the

remainder of the night together, at one point driving to the

"Tennessee" bar.

On July 11, upon arriving home from work, Todd visited

defendant at his apartment. Tracey appeared at the door to inform

Todd that it was time for dinner, and in the ensuing conversation,

Tracey mentioned that she wanted to become a professional model.

Defendant showed her a copy of Faces International, a magazine

featuring photographs of people who desired to become models, and

advised Tracey to obtain a good photograph of herself and submit it

to the magazine. Tracey asked if defendant would prepare a

photographic portfolio of her, but he declined, stating that he did not

photograph minors. Later that evening, Derrill and Tracey went to a

sandwich shop, where Tracey purchased a "subway" sandwich and

brought one-half of the sandwich home, mentioning that she would

eat it for lunch the following day.

te gee 220 aA Sener SET

App. 13

On the morning of July 12, 1984, Tracey was dressed in a blue

and white two-piece bathing suit, completely covered by a black,

floral-patterned top and shorts outfit, and also wore an ankle bracelet

with an amethyst stone and a "pinkie" ring that had the initial T on

it. At approximately 8:00 a.m., after Todd, Tanya, and their mother

left the apartment to go to work, Derrill heard a knock on the

apartment door. Defendant spoke with Tracey at the door for several

minutes, and Derrill heard defendant mention having a job for

Tracey, and possible jobs for Todd and Derrill. Derrill approached

and spoke briefly with defendant about the job, disclosing that he

was about to leave for work.

Approximately 15 minutes later, at 8:25 a.m., Derrill departed for

his job, leaving a pack of Camel cigarettes for Tracey. At

approximately 9:00 a.m., Bill Scognamillo, a neighbor in the same

building who knew the family and had observed that Tracey usually

left the apartment door open while she cleaned inside, walked by and

noticed that the apartment door was closed.

At 4:30 that afternoon, Todd returned from work to find the front

door to the apartment locked and the curtains closed. At

approximately 5:00 p.m., Mrs. McCabe arrived, but because she had

given her keys to Tanya that morning, she and Todd had to pry open

the window screen in order to gain entrance. Inside, they discovered

that the mattresses were still on the floor, and the cat was inside, but

there were no dirty dishes in the sink. Tracey's half-eaten sandwich

still was in the refrigerator, and her purse was in the apartment.

That evening, when Tracey did not return, Mrs. McCabe, Tanya,

Todd, and Derrill began to ask neighbors in the apartment complex,

including Bill Scognamillo, whether they had seen Tracey. Todd

went to defendant's apartment, but he was not at home and his

vehicle was not in the garage. Olga Talbot informed Todd that

App. 14

defendant was in Orange County. Todd later returned to defendant's

apartment and found a note that Olga had addressed to defendant and

placed on the door, indicating defendant still had not returned. Todd

checked the garage several times that evening, but defendant's

vehicle was not present.’

On the morning of July 13, Mrs. McCabe filed a missing person

report at the police department on Tracey's disappearance. That

morning and afternoon, Todd checked again and found that

defendant's automobile still was not present in the garage.

At approximately 8:30 that morning, Steven Marshall, a private

investigator who was an acquaintance of defendant, telephoned

defendant's apartment and spoke to Olga Talbot. Talbot told him she

was worried that defendant had "taken the little girl next door the

previous day and was not yet home." Marshall proceeded to

defendant's apartment, and he observed Mrs. McCabe walking

nearby. Marshall inquired whether she had seen defendant. Mrs.

McCabe said she had not but was looking for him because the

previous day defendant and Tracey had left together, and defendant

“had her daughter." Marshall offered to assist in the search and

proceeded to the apartment garage, where he noticed that defendant's

” According to Olga Talbot, testifying as a hostile witness,

on July 12, 1984, Talbot prepared and placed inside Talbot and

defendant's apartment, a note to defendant that referred to Tracey and

to Talbot's missing vacuum cleaner. According to Talbot's

testimony, defendant had returned to their apartment sometime after

nightfail, and the following morning, July 13, she and defendant

proceeded to Tracey's apartment to ascertain whether Tracey had

returned, but were told by Tracey's family that she had not returned.

No other witnesses verified that Talbot and defendant had visited

Tracey's apartment at that time.

App. 15

automobile was not present. At least five times that day Marshall

telephoned defendant's apartment, and each time Talbot told him

defendant had not returned. At approximately 4:00 p.m., defendant

personally answered the telephone and agreed to meet with Marshall

at another location. At that meeting, when Marshall inquired

whether defendant had seen Tracey, he stated that he had driven her

to purchase cigarettes and had dropped her off at Venice Boulevard

because she wanted to hitchhike to the beach.

On the same date, Bill Scognamillo observed defendant, who

carried a small or medium-sized briefcase, unlocking the front door

of his apartment. Scognamillo approached and asked whether

defendant had seen Tracey. Defendant did not respond and entered

the apartment, and Scognamillo followed him inside. Defendant,

who appeared nervous, dropped the briefcase on a coffee table,

grabbed a pornographic magazine, and told Scognamillo to look at

some photographs. Defendant moved the briefcase first to the front

door and then to the hallway. When Scognamillo again asked

whether defendant had seen Tracey, he responded that he had been

in the desert taking photographs and had not seen her. When

Scognamillo inquired whether defendant had seen Tracey in the last

two days, defendant replied that the previous day Tracey had visited

his apartment to make a telephone call and then had departed.

Scognamillo proceeded to the apartment's parking garage to discover

whether defendant's vehicle had dust on it, but it was clean.

Scognamillo then went to Tracey's apartment to inform her family of

what he had learned.

At approximately 5:00 on the afternoon of July 13, defendant

visited Mrs. McCabe's apartment, where she, Tanya, Derrill, Todd,

and Scognamillo were present. Defendant, who was trembling,

appeared highly agitated, did not make eye contact, and stood in the

doorway of the apartment. When asked in a non- confrontational

App. 16

manner whether he had seen Tracey and where he had been,

defendant stated he did not know where she was and that he had gone

to Orange County. Defendant stated that Tracey, wearing a black

shorts and top outfit over a blue bathing suit, had stopped by his

apartment at approximately 2:30 the previous afternoon to telephone

a girlfriend. Defendant subsequently had given Tracey a ride to the

corner of Midvale Avenue and Venice Boulevard to purchase

cigarettes at a liquor store. Tracey had told him that she was going

to the beach.

Following this conversation with defendant, Tanya and Todd

proceeded to the parking garage. They noticed that defendant's

automobile was clean and that there were water spots on the

windows. When Todd saw defendant near his apartment later that

evening, Todd asked why the vehicle was so clean. Defendant

responded that he had had to clean the interior and exterior of the

automobile because a fire had ignited in the heater or carburetor.

On July 14, LAPD Officer Michael Taylor interviewed defendant

at his apartment concerning the missing person report that Tracey's

family had filed. Defendant informed Officer Taylor that at

approximately 2:30 p.m. on July 12, Tracey, who wore a bikini

covered with a wrap, had visited his apartment to use the telephone,

and defendant subsequently had given her a ride to the corner of

Midvale Avenue and Venice Boulevard.

On July 16, LAPD Officer James Gillespie interviewed

defendant at his apartment. Defendant gave a nearly identical

account, this time remarking that while in the apartment, Tracey had

mentioned her desire to become a model, and defendant, who had

informed her that he was a photographer, had agreed to prepare a

photographic portfolio for her. Following the interview, defendant

consented to a search of his apartment. The police briefly looked

App. 17

over items on the tables in the living room and kitchen and opened

a hall closet, but did not locate anything that appeared to relate to the

case. After defendant executed a consent form authorizing the police

to search his automobile, the police briefly examined the inside and

trunk of the vehicle without finding anything significant, but they

noticed that the floorboard was damp. Defendant stated he had

washed the vehicle that day. The interview and searches were

completed within one-half hour.

4. Defendant's initial arrest

On July 31, LAPD officers obtained warrants to arrest defendant

in connection with the presumed death of Tracey Campbell, and to

conduct a search of his apartment and vehicle. At approximately

6:00 p.m., Detectives Charles Worthen, Robert Rooney, and John

Rockwood arrested defendant at the Meat Market bar and seized his

automobile, transporting it to the police station.

Detective Donald Ravens participated in the police search of

defendant's apartment. Inside a box located in a hall closet, the

officers found a silver chain, a bracelet with a rainbow design, one

pair of earrings having purple stones, and one pair of earrings having

stones resembling diamonds. On a coffee table, the officers found a

key chain with four keys attached to multiple other key chains.

At approximately 6:30 p.m., Detective Robert Rooney and other

officers searched defendant's vehicle, discovering a knife and an

address book in the trunk. Inside the vehicle, the officers discovered

two Polaroid photographs and a number of photographic negatives,

as well as a camera bag containing photographs, negatives, and

camera equipment. Under the floorboard, the officers found a

keychain with several keys and three rings attached. One of these

App. 18

keys subsequently was discovered to fit the locks and ignition both

of Shari's vehicle and Olga Talbot's vehicle.

Detective Rooney removed the items and placed them on the

"homicide desk" inside the police station. The Polaroid photographs

depicted a young woman asleep in a vehicle. Several negatives and

photographs inside the camera bag depicted the same young woman

posing, with a bandage clearly visible on her arm, at various

locations in the desert. Upon observing the photographs, Detective

Rockwood noticed and commented to Detective St. John, who was

investigating the death of Jane Doe No. 60, that the woman in the

photographs had an ankle tattoo in the same area of the body where

the skin had been removed from the body of Jane Doe No. 60, and

that there might be a connection between the two cases. Thereafter,

an LAPD forensic expert matched the fingerprints of Jane Doe No.

60 with those of Shari Miller, taken from a record of her arrest in

1980.

Following defendant's arrest on the evening of July 31,

Detectives Worthen and Rockwood interviewed him for four to five

hours, and on the following day for an additional seven to ten hours.

The police asked defendant about the identity of a young woman

depicted in several photographs he had taken. Defendant told them

that her name was Shari Miller. He had known her two years, having

met her when she was a barmaid at the Meat Market bar. She was in

the process of obtaining a divorce, had been a restaurant manager,

currently was working as a house painter (he had noticed she had

flecks of paint on her clothing), and intended to major in graphic arts

at college.

Defendant stated that Shari had wanted recent photographs of

herself to give to her mother. Defendant had taken the photographs

during the last part of June at Castle Rock in Topanga Canyon.

ee

App. 19

Defendant had dropped off some of the prints for Shari at the Meat

Market bar, retaining other prints that he thought were very good, to

show to her in person. He last had seen Shari on June 30 or July 1,

when she stopped by his apartment and he took the Polaroid

photographs. On the Fourth of July, he had gone to the Huntington

Beach area to watch the tall ships, but did not take photographs.

Defendant identified his address book, which contained

telephone numbers for Shari’s mother’s residence, addresses for

several of her friends, and a map she had drawn for defendant

indicating where she then was staying. When asked about the

bracelet, two pairs of earrings (with white stones and purple stones),

and a chain seized from his apartment, defendant stated that

approximately two months earlier, Shari had given them to him,

asking him to have the bracelet re-plated, the earrings remounted, and

a medallion added to the chain. He stated that the keychain with

three rin gs attached belonged to him, and the rings had belonged to

several of his ex- wives, including Cindy and Susie, who had

returned them.

When asked about Tracey Campbell, defendant provided the

following account to the detectives. Defendant first met Tracey on

July 9, when he took photographs of Todd at the construction site.

He denied having had a conversation with Tracey on July 11

concerning her plans to become a model. On the morning of July 12,

he had cleaned and vacuumed at Culver City Camera Shop. At

approximately 2:30 p.m., as he returned to his apartment, Tracey

appeared, wearing floral-patterned blue gym shorts with a matching

tie top and a bikini swimsuit top; and asked to use his telephone to

contact a girlfriend. Defendant then gave Tracey a ride to the corner

of Midvale Avenue and Venice Boulevard, but did not learn where

she intended to go after that. Defendant proceeded to drive a

circuitous route to Santa Monica airport, Marina Del Rey, Century

App. 20

City, back to Santa Monica airport, the Mormon Temple, Loyola

University, El Segundo, Los Angeles International Airport, King

Harbor, Malibu, Leo Carillo State Beach, and Culver City Camera,

and then returned to his apartment.

The officers previously had learned that in April 1983, defendant

and Nick Klos had driven to the bowl area in the desert near

Lancaster, and they asked defendant whether he had gone to that part

of the desert with a group of individuals that included Klos.

Defendant stated that he had gone to the desert with those persons at

that time, but denied that he had gone to the desert with anyone else.

Defendant was released from custody on August 3.

On August 7, the police questioned Juanita Farren, an employee

of the One Hour Moto-Photo shop on Venice Boulevard, where

defendant was a regular customer. The police subsequently obtained

store records establishing that defendant had brought in film for

developing on July 6, 9, 18, 24, and August 9. Among the negatives

submitted during that period were those depicting Shari.

On August 9, defendant arrived at the photography shop and

asked to speak with Farren, who stepped outside the store. He told

her that he knew the police were following him and drew her

attention to a particular vehicle across the street, stating that it was

a police vehicle. Defendant inquired as to what Farren had told the

police. Defendant and Farren then went inside the store. Defendant

had brought in a stack of negatives and reviewed them to determine

which ones he wished to have reprinted, eventually requesting that

50 to 60 be reprinted. As defendant examined one strip of negatives,

he cut off one of the negatives with a pair of scissors, placed the

negative in his mouth and chewed it, scraping off the emulsion with

his teeth. Defendant had the remainder of that strip reprinted.

App. 21

5. Discovery of the body of Tracey Campbell

On August 11, Nick Klos directed the police to the bow! area in

the desert near Lancaster, and approximately 75 law enforcement

officers, assisted by Klos, conducted a search of the area. There they

discovered a severely decomposed and partly skeletonized body,

identified on August 16 through her dental records as that of Tracey

Campbell. Bloodstains near some boulders marked the original

location of the body, which had been moved approximately 15 feet,

probably by the activity of coyotes. Both hands, as well as bones

from all of the limbs, were missing. Other bones, including leg

bones, had been separated from the body by animals and were

located some distance from the body. There was no significant

amount of skin remaining on the body from the waist down, and the

skin that did remain was completely mummified. The genital organs

were completely decomposed and the sex of the body no longer was

ascertainable. The body was nude, but a blouse with a snail print on

it was wrapped around the face.

On August 12, Dr. Wegner, the Los Angeles County medical

examiner, performed an autopsy, determining that the cause of death

was ligature strangulation. There were deep ligature imprints along

the midline of the upper back, splitting into two imprint lines

extending around the neck, consistent with the use of a rope to cause

death. A similar V-shaped imprint on the chest indicated that the

victim had been tied up, probably prior to death. Dr. Wegner was

unable to establish the exact date of death, but testified that the

condition of the body was consistent with death having occurred on

July 12.

App. 22

6. Defendant's second arrest

On August 16, defendant was re-arrested and transported to

Parker Center in downtown Los Angeles. At approximately 6:45

p.m., Detectives St. John and Melleker attempted to interview

defendant. The interrogation room was equipped with a hidden tape

recorder, and Detective St. John also carried a briefcase that

contained another tape recorder. Defendant was advised of his rights

pursuant to Miranda,* and defendant informed the detectives that he

wished to have his attorney present. The detectives escorted him to

a telephone, and he attempted to contact his lawyer. The detectives

switched off the recording devices.

Defendant was unable to contact the attorney and was returned

to the interrogation room. Meanwhile, Detective Worthen, who had

just returned to the police station, was informed that defendant did

not wish to waive his right to an attorney. Five to ten minutes later,

Detective Worthen informed Detective St. John that defendant now

was willing to answer questions without the presence of his attorney.

At approximately 7:30 p.m., Detectives St. John and Melleker,

re-activating the recording devices, reentered the interrogation room

and inquired whether defendant now wished to speak to them.

Defendant, responding affirmatively, was re-advised of and waived

his rights pursuant to Miranda. Defendant told the officers that he

had known Shari Miller approximately two years. Asked when he

last had seen Shari and whether he ever had taken her photograph,

defendant gave the following account. In June, defendant had agreed

to photograph Shari. She missed their scheduled meeting and had

telephoned him from her mother's residence in San Pedro to

® Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694.

App. 23

apologize for canceling. Approximately one week later, during the

last part of June, possibly on June 28, defendant had taken one and

one-half rolls of film of Shari in Topanga Canyon, and later that

evening they had gone to see the film, The Survivors, at a drive-in

theater. Defendant then dropped Shari off at the Meat Market bar.

The following day, Shari had appeared at defendant's apartment

while defendant and Evans Haas were working on defendant's

motorcycle. Defendant and Haas drove to Bartels Harley-Davidson

in Culver City. They returned to discover Shari asleep in defendant's

automobile, and he recorded the scene with his Polaroid camera.

Shari departed to collect her payment for house painting work she

had performed in the San Fernando Valley, arranging to meet

defendant that evening at the Meat Market bar to obtain the

photographs that defendant had taken. Shari did not appear at that

time, and defendant never saw her again, except several weeks later

to wave to her as she drove by in her vehicle.

Defendant told the detectives that he had photographed Shari

only in Topanga Canyon, inside the Meat Market bar, and inside his

vehicle in the garage of his apartment. Defendant told the detectives

that the photographs of Shari standing in front of the desert rock

formations were taken in Topanga Canyon. Confronted with the fact

that the photographs had been taken in the Lancaster desert area,

defendant replied that the photographs were "taken up in the

Chatsworth area" near Castle Rock.

When asked about Tracey, defendant explained that he had met

Tracey's family while he was cleaning his motorcycle in front of his

apartment building, and had met Tracey the day he took photographs

of Todd at the construction site. Defendant saw Tracey again one

morning when he visited her family's apartment. That afternoon, she

App. 24

visited defendant's apartment to use the telephone, and later he

dropped her off at a coffee shop on Venice Boulevard.

The detectives informed defendant that Tracey's body had been

discovered approximately 150 yards from the same desert location as

that depicted in defendant's photographs of Shari. Defendant stated

that he was unfamiliar with that location. When the police told

defendant that they could "place" defendant and Shari in the same

desert location where Tracey's body had been discovered, defendant

responded, "I can't explain it to you." Asked if he had killed Shari or

Tracey, defendant replied, "No sir." He asked to "try the attorney

again," and the interview concluded.

The same day, August 16, LAPD officers and Lancaster sheriff's

deputies obtained a second search warrant for defendant's apartment.

In the hall closet, they discovered a wristwatch with a dark band

flecked with yellow paint, similar to the watch Shari wore in the

photographs taken in the desert. The police found approximately 50

documents in defendant's name, as well as a pair of beach thongs

similar to thongs found in Shari's automobile. In the bedroom of

Olga Talbot's son, Gary Williams, the police found, inside a box, a

section of white rope that Williams denied owning. The police

recovered a number of photographs from the hall closet and the

storage area located in the apartment garage. From the same storage

locker, the police recovered a leather shoelace-type thong and a

double-bladed knife.

On August 17, pursuant to a search warrant, defendant's vehicle

was searched. Luminol and phenolphthalein tests indicated the

possible presence of blood on the floor mat in the trunk. Because

these tests also may produce positive results if the chemicals utilized

have contact with other substances, such as meat or vegetables, a

human precipitant test was conducted. The result was not positive,

App. 25

indicating either that no human blood was present or that the sample

used was too minute to produce a reaction.

The white rope recovered from the box in a bedroom at

defendant's apartment proved to make an impression identical to the

ligature impressions discovered on Tracey's body. During trial, the

jury was transported to view the bowl site. The jury was shown that

the location where Tracey's body was discovered was approximately

400 feet from the location of Shari in one of defendant's photographs,

identifiable because of the distinctive rock formations in the

background.

The defense rested without presenting any evidence.

After hearing the evidence described above, the jury found

defendant guilty of two counts of first degree murder. The jury also

found true the special circumstance that defendant had committed

multiple murder.

B. PENALTY PHASE EVIDENCE

1. Prosecution case

The prosecution called seven witnesses who testified concerning

a prior rape for which defendant was charged and eventually

convicted, as well as a number of prior uncharged criminal activities.

During this phase of the trial, prior to the prosecution's presentation

of its final three witnesses, Ellen F., Cindy F., and Cheryl V.,

defendant successfully moved to relieve his appointed attorneys and

proceeded to represent himself. Defendant, stating that "no defense"

would be presented, declined to cross-examine two of those

witnesses.

App. 26

a. Julianne P.

In August 1982, Julianne P., who had spent several nights in her

automobile, met defendant, who invited her to move into his

motorhome. They commenced a sexual relationship in October of

that year. Julianne moved out in February 1983, but they had sexual

intercourse two or three times in March 1983. On the weekend of

April 9, 1983, defendant and Julianne drove in defendant's

motorhome to the desert near Lancaster, in order to watch the landing

of the NASA Space Shuttle. They were joined by Nick Klos and five

other individuals who arrived in Klos's motorhome. The group then

drove the motorhomes to a bowl-shaped area in the desert to spend

the night. At approximately 3:00 on the afternoon of April 10, Klos

and defendant drove their respective motorhomes away from the

bowl site. When the motorhomes reached the highway, Klos turned

in the direction of Los Angeles, but defendant turned in the other

direction, stopping at a market. Defendant then drove the motorhome

back to the bow! site, telling Julianne that he wanted to make certain

that the campfire had been extinguished.

At approximately 4:00 p.m., when they arrived at that location,

defendant told Julianne to check the campfire. She did so, reentered

the motorhome, reported that the fire was extinguished, and reminded

defendant that they needed to return to Los Angeles. Defendant

turned off the ignition, opened a can of beer, and stated that he

needed to relax and that they might stay in the desert until

Wednesday. Defendant pulled out a knife from the side of the

driver's seat and told Julianne that he was going to get a "piece of

ass" one way or another and that she must strip. He made a twisting

motion with the knife, telling Julianne that her clothes were going to

come off one way or another and that he would cut them off if she

did not remove them. Julianne removed her clothing.

App. 27

Defendant told her to go to the back of the motorhome. He told

her to masturbate, and she complied. Defendant moved to the back

of the motorhome, opened a drawer, and retrieved various oils and

gels, telling her to use them. Defendant began to masturbate, then

poured an oil over Julianne. Defendant had her insert a dildo into her

vagina and move the dildo in and out while simultaneously orally

copulating him. Defendant produced a bag with various lingerie

garments and had Julianne put on a garter belt, half-bra, and g- string,

telling her that he wanted her to look like a "whore." He began to

strike her in the face while calling her a whore. While the dildo still

was inside her vagina, defendant gave her a pair of scissors and told

her to cut off her pubic hair, so that she would have "a teenage look,"

and told her to place the hair in a bottle. Defendant filmed this

activity.

Defendant then ordered Julianne to drink a liquid that had the

appearance and taste of diluted milk, apparently containing a

substance that caused her to lose "full awareness." Her cognizance

of the sequence of subsequent events was uncertain. At some point,

defendant had Julianne pull the dildo out of her vagina and place it

in her anus. When she refused his subsequent order to lick the dildo,

defendant stuck his finger into her anus, removed it with excrement

on it, and forced her to lick his finger and the dildo. Defendant

produced some rope and threatened to tie up Julianne and use the

knife on her if she made any attempt to run. Defendant beat her with

a belt and belt buckle on her buttocks, lower back, and thighs,

producing bruising that was observable for several weeks.

At another point, after initially asking Julianne whether she

wanted a beer and then refusing to give her one, defendant eventually

poured into a beer bottle a substance that he said was cocaine and

would make her body numb, and told her to drink it. She initially

refused. Defendant picked up an ice pick, made a stab at her breast

App. 28

and knee and attempted to stab her hand, and pulled her hair back,

threatening to stab the back of her head if she did not drink the

liquid. She drank it.

When Julianne told defendant that she had to go to the bathroom,

he told her that he did not want her to "dirty up his bathroom" in the

motorhome and ordered her go outside, where it had become very

cold, and urinate in a douche bottle. Defendant filmed this activity

and then ordered her to drink the urine. She began to drink it but lost

consciousness. When she regained consciousness, defendant, who

had an erection, was standing in the doorway of the motorhome.

Defendant forced Julianne's head onto his penis, and she orally

copulated him. Defendant urinated in her mouth and urinated all

over her, laughing at her reaction.

Defendant had Julianne get on the bed in the back of the

motorhome, and twisted, sucked, and bit her nipples very painfully

and placed clothespins on them. Defendant had her orally copulate

him again while lying on her stomach, so that the clothespins were

painful. Defendant then told her to sit on top of him and had sexual

intercourse with her. Defendant, with his penis still inside Julianne's

vagina, fell asleep. Julianne fell asleep, and when she awoke,

defendant was on top of her, having sexual intercourse. She again

fell asleep.

Eventually, Julianne awoke to find that defendant had dressed.

Defendant drove the motorhome to Los Angeles. After Julianne

departed in her own vehicle, she told Nick Klos what had happened.

Pursuant to Klos's advice, Julianne reported the incident and went to

the hospital. Several days after his arrest on August 16, 1984, for the

present offenses, defendant pleaded no contest to one count of rape.

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App. 29

b. Tamara H. and Mark W.

In the summer of 1982, Mark W. met defendant while both were

residing at a trailer park in the Marina Del Rey area. Mark W. lived

in a recreational vehicle together with Steve Marshall, his former

personal manager during Mark's earlier career as a musician, and

Marshall's girlfriend. Later that year, Marshall departed, taking

Mark's personal belongings. Mark moved to Phoenix, Arizona,

where in March 1984, he met Tamara H., then 21 years of age, and

together they moved to Venice, California. Learning through a

mutual friend that defendant needed assistance in a rape case

involving "Julieanne P[ }," to whom Mark previously had been

introduced, Mark met with Marshall and defendant. Mark agreed to

testify truthfully on defendant's behalf. As a loan, defendant paid for

Mark and Tamara's motel room, food, and other necessities.

During this time, defendant attempted to arrange to have Tamara

work as a model for him. Tamara refused to do so without Mark

being present. Defendant eventually agreed that both Mark and

Tamara would be present during the modeling session. At

approximately 4:00 one afternoon in June 1984, defendant picked

them up in his vehicle and proceeded to an airport, where he took

photographs, and then drove them to several bars, including the

"Tennessee" bar. There, defendant told Mark that he had to do a

“drug run." They had several drinks, which seemed to have a strong

effect, and left the last bar at approximately 11:00 p.m. Defendant

drove until Mark and Tamara fell asleep. Tamara awoke when it was

still dark outside, and discovered they were in the desert. Defendant

tapped Tamara on the knee and told her to get out of the automobile.

He was carrying a light and a rifle or shotgun that he pointed at

Tamara, ordering her to remove her clothing and put on an outfit

consisting of shorts and a top. Defendant fired a shot, and Tamara

complied. Defendant, who had his pants down and had an erection,

App. 30

attempted to force Tamara to orally copulate him. Her mouth

touched his penis for “half a second."

Meanwhile, Mark awoke and realized that they were in the desert

and that he was the only person inside the vehicle. He got out, heard

a gunshot, saw a light in the direction of the sound of the gunshot,

and yelled for Tamara, who yelled in return. The light moved toward

the vehicle, and Mark was able to see defendant, carrying a

fluorescent light and what appeared to be a . 22-caliber rifle, walking

20 feet behind Tamara, who was dressed in lingerie and was crying.

When they approached the vehicle, defendant placed the light on top

of the vehicle, removed several dirty mats from the trunk, and placed

them on the ground behind the vehicle. He ordered Mark and

Tamara to remove all their clothing, firing two shots toward the

ground as they did so. He directed them to lie on the mats, and told

Tamara to tie Mark with ropes that were attached to the vehicle's

bumper and to orally copulate him. When Mark failed to become

aroused, defendant placed the gun so that the barrel touched Mark's

testicles and said he was going to "blow his balls off" if Mark did not

get an erection. Defendant forced Tamara to orally copulate

defendant, which she did for less than a minute, and then ordered

Tamara to again orally copulate Mark. She did so for approximately

one-half hour, but he did not respond.

Eventually, defendant told Mark and Tamara that he was being

paid $1,800 to detain them, and that they were waiting for others to

arrive, including the person who had hired defendant. Defendant

said that when the others soon arrived, Mark and Tamara were

"going to get it." Mark was nude the entire time, while Tamara was

forced to change into sexually suggestive clothing that defendant

retrieved from the trunk of the vehicle. At one point, while Tamara

was nude, defendant tied her arms and legs with a long rope, took

App. 31

Polaroid photographs of her, and asked her what kind of "kinky"

things she had done with men.

As the sky became light, defendant stated that it appeared "this

person was not going to show up." Defendant untied Mark, and

saying, "this is it," pointed the rifle at him and forced him to walk

into a ravine. Tamara began to cry. Mark turned toward defendant

and said, "you are shooting me in the back." Mark told defendant to

face him and shoot him while Mark looked at his eyes. Defendant

began to cry and put down the rifle. Defendant gathered the

photographs he had taken throughout the night, doused them with

lighter fluid, and set them on fire.

When they returned to the automobile, defendant told them that

Steve Marshall had taken out a "contract" on Mark and Tamara, and

that they must leave Los Angeles or Marshall would learn the job had

not been performed and kill them all. Defendant drove them back to

Los Angeles, and after Mark and Tamara retrieved their belongings

from the motel room, defendant drove them to San Diego. Mark and

Tamara checked into a motel room. When defendant refused to leave

immediately, Tamara went to the lobby and asked the manager to

telephone the room after a few minutes to inform them that all the

guests had to leave. This ploy was successful, and defendant

departed. Mark and Tamara asked for a different room and returned

to Phoenix the following day. They had no subsequent contact with

defendant and did not contact the police. Mark believed that

Marshall truly had arranged a "contract" on him.

c. Ellen F.

In June or July 1980, Leslie Carlson and his wife Ellen F. (then

21 years of age), met defendant while living in a trailer court in

Niceville, Florida. In August 1980, at Carlson's invitation, defendant

App. 32

began to live with the couple. During the first week of September

1980, Carlson and Ellen F. separated and Carlson departed.

Defendant continued to live with Ellen in a platonic relationship,

helping out with the rent and expenses.

Approximately 2:00 a.m. on September 20, 1980, Ellen,

awakened by noise, discovered defendant, who was intoxicated,

beating her dog with a stick that had nails in it. Ellen told defendant

to “please quit." Defendant then entered the trailer, told Ellen to

remove her clothing, and began to beat her with a closed fist, striking

her in the throat, neck, and legs. Ellen refused to remove her

clothing. Defendant then began “shoving things inside" her.

Defendant shoved the handle of a dog brush into her vagina and

rectum, and then down her throat. Defendant opened a bottle of

Tabasco sauce, shoved it in Ellen's vagina and rectum, then poured

the sauce down her throat. Defendant also shoved a coat hanger into

Ellen's vagina and rectum, and then down her throat. Defendant,

grabbing and opening a pair of scissors, threatened to cut off her

nipples, but she knocked the scissors out of his hand. Defendant

choked Ellen and attempted to penetrate her vagina with his penis.

He continued to beat her during the ordeal. Ellen was crying and

pleaded with defendant to stop, but he told her to shut up and said he

was doing what he wanted to do. The incident lasted three to four

hours until defendant fell asleep.

When defendant awoke after a few minutes, Ellen asked him to

take her to the hospital. When he failed to do so, Ellen crossed the

street and, spitting up blood, appeared at the residence of a girlfriend,

who telephoned for an ambulance. Ellen was taken to the police

station and then to a hospital, where she was hospitalized for two

weeks. Her primary source of pain was in her throat. One night,

when she began to choke, a nurse pulled a piece of a coat hanger

App. 33

from inside her throat. A month later Ellen moved from Florida, and

she did not file charges against defendant.

d. Cindy F.

Cindy F., who was living in Culver City at the time, met

defendant in 1974 or 1975 when she was 15 or 16 years of age, fell

in love with him, and within several weeks commenced living with

him. Approximately six months later, defendant began to beat Cindy

on a weekly basis. Often he forced her to have intercourse after these

beatings. Cindy became pregnant, and at one point defendant

attempted to slam Cindy's stomach into a door. She was able to

move out of the way, but her finger caught in the door and was

almost entirely severed. Their son, named after his father and known

as B., was born on September 2, 1976.

Defendant continued to beat Cindy, and twice threw the infant B.

against the wall. On one occasion between Christmas Day in

December 1976 and January 1, 1977, defendant appeared at Cindy's

workplace. Defendant gave Cindy a box, telling her, "here's your

Christmas present," and departed. Cindy unwrapped the box and

found B., whom defendant had placed in an infant holder, underneath

a indbreaker with the hood covering his face and tied in back.

Cindy returned to their apartment that evening to find that everything

in it had been demolished, including all of the baby's presents, which

had been torn or cut in pieces. Cindy departed with B. that evening.

In early 1977, Cindy moved in with another man and became

pregnant by him. Defendant asked Cindy to return to him, agreeing

to take her back although she told him she then was pregnant by the

other man. In the summer of 1977, defendant and Cindy commenced

living together again, moved to a motorhome in Michigan near

Cindy's parents, and got married. Defendant began to beat Cindy on

App. 34

a daily basis. Cindy gave birth to her second son, A., on December

15, 1977. Two days later, defendant said he would kill A. because

defendant was not the father. Cindy hid A. in a pile of dirty clothing,

and defendant attacked B., throwing him against a wall. Cindy

telephoned her parents, and although defendant grabbed the

telephone and threw it across the room, Cindy's parents could hear

her screams, proceeded to the motorhome, and prevented defendant

from committing any further violence. During this period, Cindy's

parents came to the motorhome 20 to 30 times to stop defendant from

fighting with Cindy.

Cindy continued to live with defendant until June 1978, and

during this period defendant beat her on a daily basis, also striking

both children. On one occasion, defendant threw a rock into a body

of water so that B., who was approximately one year of age and

could not swim, would enter the water. On another occasion,

defendant locked the children in the motorhome and turned on the

gas, stating that he was going to "blow them up." Defendant also

attempted to strangle Cindy with his bare hands. Soon after the latter

two incidents, Cindy, telling defendant that she was going to the

laundry, put the children in the automobile and drove to California.

Later in 1978, while in California, Cindy received a message at

her workplace that defendant had deposited for her at the residence

of a mutual friend some of the children's baby books and her personal

belongings that she had left behind in Michigan. Cindy drove to the

friend's residence, and, leaving the children in the automobile,

knocked on the front door. When no one appeared, Cindy proceeded

to the back door, which was open. As Cindy entered the back door,

defendant closed the door behind her. He asked her to return to him,

but she declined. Defendant, stating that he should lock up the

residence, asked her to extinguish the lights. When Cindy turned her

back to do so, defendant placed a piece of clothing around her neck,

App. 35

attempted to strangle her, and beat her in the face. Defendant walked

outside to the automobile and retrieved A., then approximately one

year of age, while Cindy picked up B., then approximately two years

of age.

Once they had returned to the residence, defendant found a

shotgun and told Cindy that if she did not do everything he told her

to, they "were going to die." Defendant proceeded to beat up Cindy,

also repeatedly attempting to force her to orally copulate him.

Defendant gave B. a black eye, and repeatedly pointed the shotgun

at A., saying that he was going to kill him. Defendant said that he

was going to make Cindy love him or no one else would ever love

them. Defendant swallowed a handful of Codeine tablets and said

that after they took effect he would kill Cindy and the children. He

continued to beat and kick Cindy. Approximately two hours later,

their mutual friend returned to the residence and stopped defendant

from proceeding further.

Cindy suffered bleeding from the temple near the right eye, the

nose, and the mouth from this episode, as well as temporary

blindness. She incurred permanent partial hearing loss from several

incidents in which defendant kicked her in the side of the head.

e. Cheryl V.

In 1972, defendant became acquainted with Cheryl V. through

his then- girlfriend, Theresa, when Cheryl stayed in their apartment

in California for three months before obtaining her own apartment.

On May 9, 1972, Cheryl, then 17 years of age, lived with her infant

daughter in her apartment in Mar Vista. At approximately 3:00 a.m.,

defendant appeared at Cheryl's apartment. Defendant was limping

and reported that he had been in a motorcycle accident and was

locked out of his apartment. Cheryl told him that he could sleep on

App. 36

the waterbed in the living room. Cheryl returned to sleep in her

bedroom.

From the living room, defendant began calling out to Cheryl for

various reasons, at one point telling her that her boyfriend was at the

front door. She returned to the living room, opened the front door,

and found no one present. As she started toward her bedroom,

defendant grabbed her, threw her down on the waterbed, and began

to remove her robe. Cheryl began biting, scratching, kicking,

pushing, and screaming. Defendant sat on top of Cheryl and

attempted to place his penis in her mouth, but she would not let him.

He then masturbated on her chest until he ejaculated. Defendant told

her that "he always wanted to do it so he did." Cheryl told him to

leave, and eventually he departed. Cheryl contacted the police and

later filed charges against defendant for attempted rape.

2. Defense case

After defendant eventually was granted permission to act as his

own attorney, he rested without calling any witnesses to testify and

without presenting any evidence in mitigation.” Subsequent to the

prosecutor's closing argument, defendant made the following closing

argument to the jury: "Think of how many you don't even know

about. You're so right. That's it."

° Prior defense counsel had contacted several witnesses,

served subpoenas to compel their appearances, served a subpoena to

produce records concerning defendant's conduct during his stay in

county jail, and requested that judicial notice be taken of the juvenile

dependency files pertaining to defendant's two sons. Defendant's

mother arrived at court and waited to be called to testify as a witness

but was not called by defendant.

App. 37

At the conclusion of the penalty phase, the jury fixed the penalty

at death.

II. DISCUSSION

A. GUILT PHASE

1. Issues pertaining to searches and arrests

a. Motions to quash and traverse the July 31, 1984, search

warrant and to suppress evidence

Defendant contends that the trial court erred in denying in part

his motions to quash and traverse the search warrant and to suppress

the evidence seized in the search conducted on July 31. Following

several hearings on the motion to suppress evidence, the trial court

ultimately permitted the prosecutor to introduce into evidence several

photographs and negatives depicting Shari Miller, as well as a knife

seized in the course of that search. We set forth the relevant

procedural facts below.

. Detective Worthen, assigned to investigate the disappearance of

Tracey Campbell, and Detective Ravens, assigned to investigate the

murder of one Mischa Stewart, believed to have been murdered by

defendant, decided to conduct their respective searches

simultaneously on July 31. Detective Worthen subsequently

assumed responsibility for both investigations.

Mischa Stewart, an African-American homosexual male, 23

years of age, last was seen alive near closing time on the night of

October 8, 1982, departing from the Pink Elephant, a gay bar located

in Santa Monica. Stewart left in the company of a man who earlier

in the evening had informed the doorman that his name was "Bill"

App. 38

and that he was trying to sell his truck or motorhome. The following

morning, Stewart's nude body was discovered in an alleyway across

the street from the Tennessee Savings & Beer Co., a bar frequented

by defendant. A woman's bra, used as a ligature to strangle Stewart,

was wrapped around his neck, and a pair of women's panties bearing

the logo, "Genuine Harley Ass," covered his face. Semen was

discovered on his upper leg. The doorman at the Pink Elephant

subsequently identified defendant from a photographic lineup as the

man who left with Stewart.

On July 31, Detective Worthen prepared an affidavit of probable

cause in support of a warrant to search defendant's person, apartment,

and vehicle. The affidavit did not refer to Jane Doe No. 60, who had

not yet been identified as Shari Miller nor connected to defendant,

but did refer to Tracey Campbell, as well as to Mischa Stewart. The

affidavit included extensive information as to the circumstances

surrounding the disappearance of Campbell and the death of Stewart,

describing defendant's connection to both cases, including the

circumstance that he appeared to be the last person to have been seen

with each victim. The affidavit also described the incident in the

desert involving Julianne P. for which charges then were pending

against defendant.

The affidavit explained defendant's considerable involvement in

photography and stated that it appeared, as part of defendant's modus

operandi, that he "takes photographs [of] or films his victims." The

affidavit referred to numerous attachments, including the following:

the police reports of the investigations in the Campbell and Stewart

cases; the police and medical reports of the Julianne P. incident,

noting that she had been threatened with a knife and icepick, "forced

to submit to various sexual atrocities," and that “part of these acts

were filmed by the suspect"; a report of a police interview with

Tracey's cousin Todd Heidrick, noting that defendant had

:

App. 39

photographed him prior to engaging in sexual activity with him;'° and

defendant's three-page "rap sheet" indicating other incidents of

sexual or violent assaults.

The search warrant authorized the seizure from defendant's

person of samples of blood, semen, saliva, and head and pubic hair.

With regard to Tracey Campbell, the warrant authorized the search

and seizure of any blood, head and pubic hair, and particular items

of clothing and jewelry and, with regard to Mischa Stewart, a

particular jacket. The warrant also authorized the seizure of "any and

all photographs and negatives," camera equipment, sexual devices,

items of “underclothing" such as bras, panties, novelty items, and

negligees, defendant's bank books, credit cards, gasoline purchase

receipts, mail order catalogs, and "receipts for such items purchased."

Pursuant to the warrant, the police seized among other items 189

photographs (including those of Shari Miller), a knife, and a rifle.

Defendant, asserting that the warrant was overbroad and not

supported by probable cause and that the search itself was general

and exploratory, moved to quash and traverse the warrant and to

suppress numerous items seized. Following argument by counsel,

the trial court ruled that the warrant was overbroad to the extent it

permitted the seizure of "any and all photographs" and deemed the

warrant amended so that, in effect, the references to any and all

photographs were limited to those "pertaining to" Campbell or

Stewart or to certain lingerie.

The prosecution then urged that, despite the warrant's

overbreadth, it was unnecessary to suppress any of the evidence

seized, because the "good faith" exception to the rule requiring

'0 That detail of defendant's relationship with Heidrick was

excluded from the evidence presented at trial.

oe etn Tee ener ne ee eu

App. 40

suppression of evidence seized pursuant to an invalid warrant was

applicable, and that any evidence seized beyond the proper scope of

the warrant was admissible pursuant to the “nexus rule." To

determine whether the good faith exception and nexus rule applied,

and whether a general, exploratory search had been conducted, the

trial court ordered an evidentiary hearing.

At that hearing, Detective Worthen testified that he provided

Detectives Ravens and Rooney with copies of the search warrant and

explained the contents of the warrant and affidavit to these

detectives, as well as to Detective Rockwood and other officers. The

officers discussed the warrant over the course of several days, and

Detective Worthen held a meeting on the morning of the search.

Detective Worthen instructed the officers to search for photographs

of Stewart, Campbell, and other males and females, particularly

young females (due to his suspicion that items of Campbell's clothing

might be worn by other subjects in certain of the photographs), and

for photographs depicting desert scenes. Detective Worthen told the

officers to search for anything having evidentiary value, including

the items specified in the warrant and the attachments to the

affidavit, such as an icepick, knife, or rifle.

Detective Worthen testified that he had given these instructions

based in part upon information he had received concerning

defendant's previous criminal activities. Detective Worthen had been

informed by the San Fernando Valley district attorney's office of the

incident that had occurred several weeks prior to the disappearance

of Tracey, in which defendant had taken Mark W. and Tamara H. out

to the desert. Detective Worthen had learned, and informed the

investigating officers, that defendant had threatened Mark W. with

a rifle, may have forced Tamara H. to perform oral copulation, and

had taken photographs of one or both victims.

App. 41

Detective Worthen also relied upon information he had

concerning the circumstances of the alleged attack on Julianne P.

Although the police previously had searched defendant's motorhome

in connection with that case, Detective Worthen believed additional

items might be located in defendant's apartment.

Datta

—

Detective Worthen also had learned from defendant's former

wife, Cindy, that many years previously, defendant sometimes had

awakened screaming due to "nightmares of a girl that he murdered

and buried," and that defendant once had threatened Cindy with a

rifle. A number of interviewees had informed Detective Worthen

that for a period of several years, defendant had photographed

various young women and girls, often having them dress in outfits

selected by defendant. Detective Worthen learned of at least one

other unreported possible criminal incident occurring in 1972 or

1974, in which defendant purportedly had driven a female 15 years

of age to Malibu Canyon, where he attempted to give her narcotics

and take her photograph. Based upon his review of defendant's

criminal history and his knowledge of the facts of the present cases,

Detective Worthen suspected that defendant might be responsible for

the deaths of persons in addition to Stewart and Campbell.

Detective Worthen testified that he also relied upon defendant's

"rap sheet." Defendant's prior record included a 1972 charge of

assault with intent to commit rape, reduced to battery pursuant to

defendant's guilty plea, several charges of indecent exposure in 197]

that had been dismissed, and several earlier charges of automobile

theft.

Detective Worthen testified that he believed he had probable

cause to seize each of the photographs on the basis of the warrant and

affidavit. Detective Worthen had informed the police officers

| assigned to search the apartment that they were not limited to the

- 5 = —— Ss ee

Sore a cca eee eno rere

App. 42

items described in the warrant, but were to seize any item that might

have relevance to anything mentioned in the affidavit. Detective

Worthen did not recall whether he had a photograph of Campbell or

Stewart with him at the time he and the officers executed the search

warrant.

Detective Ravens, who was in charge of the search of defendant's

apartment, testified that prior to the search, he had read the affidavit

of probable cause but not its numerous attachments. He believed that

the police were to seize an item not listed in the warrant if, once the

police were inside the apartment, there appeared evidence related to

other possible murder victims that might be used in future

investigations.

The police seized many of the contents of the hall closet in

defendant's apartment. Detective Ravens seized a .22-caliber rifle

not described in the warrant, because it was common police practice

to seize all firearms in a homicide case. Pursuant to the warrant's

direction to seize all photographs, Detective Ravens seized a photo

album in the belief that photographs might be relevant to another

criminal investigation. Detective Ravens had not been informed

specifically what jewelry Tracey was wearing when she disappeared,

and therefore seized numerous pieces of jewelry that he believed

might belong to her.

After 6 p.m. on July 31, Detective Rooney conducted a search of

defendant's automobile. The detective had investigated the death of

Mischa Stewart, had seen his photograph and observed his body at

the murder scene, and also had received a photograph and description

of Tracey. Rooney previously had examined and had with him a

copy of the search warrant, but did not recall reading the affidavit.

Rooney searched for those items listed in the warrant and also for

App. 43

items having evidentiary value with regard to defendant's criminal

activities.

Detective Rooney testified that he seized various items, including

a bag that contained numerous photographs and negatives, pursuant

to the search warrant's directive to seize "all photographs." Due to

the difficulty in examining the items with a flashlight inside the

vehicle, and because he believed that Detective Worthen would be

better able to determine their relevancy, Detective Rooney removed

the items and placed them on a desk inside the police station. Upon

briefly examining the photographs--including those that proved to be

of Shari Miller--Detective Rooney believed it possible they might be

of Tracey Campbell, or that they might relate either to the case

involving the sexual assault and torture of defendant's girlfriend

occurring in the desert, or the case involving the man and woman

who were tied and threatened with a "knife" in the desert. Because

he believed a knife was involved in that case, Detective Rooney also

seized a knife found inside the trunk.

That same evening, Detective Rockwood, who had observed the

body of Jane Doe No. 60, reviewed the photographs that Detective

Rooney had placed on the desk. Detective Rockwood noticed that a

woman in the photographs appeared to have tattoos in the same area

of the left ankle as the area in which skin had been removed from the

body of Jane Doe No. 60 and concluded there was some connection

between the two women.

The trial court denied the defense motion to suppress evidence.

The court ruled that the police officers had not conducted an

exploratory search, but rather had seized items described in the

warrant or closely resembling such items, or that were so

interconnected with specifically described items that it would be

App. 44

impossible or impracticable to separate the items prior to their

seizure.

Prior to the trial court's ruling, our court had held that items not

named in a search warrant may be seized if the officer is " '

“presently aware of some specific and articulable fact from which a

rational link between the item seized and criminal behavior can be

inferred." ' " (People v. Easley (1983) 34 Cal.3d 858, 872, 196

Cal.Rptr. 309, 671 P.2d 813; People v. Ramos (1982) 30 Cal.3d 553,

573-574, 180 Cal.Rptr. 266, 639 P.2d 908; People v. Superior Court

(Meyers) (1979) 25 Cal.3d 67, 73-74, 157 Cal.Rptr. 716, 598 P.2d

877; People v. Hill (1974) 12 Cal.3d 731, 762, 117 Cal.Rptr. 393,

528 P.2d 1, overruled on other grounds in People v. DeVaughn

(1977) 18 Cal.3d 889, 896, 135 Cal.Rptr. 786, 558 P.2d 872.)

Thereafter, the United States Supreme Court in Arizona v. Hicks

(1987) 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347,

held that, when the initial intrusion that brought officers within plain

view of an item is supported by one of the recognized exceptions to

the warrant requirement, such as exigent circumstances, the seizure

of items not listed in a warrant is legal only if the police have

probable cause to believe (rather than merely a reasonable suspicion)

that the items are related to a crime.

Based upon that ruling, defendant moved for reconsideration of

the motion. Upon reconsideration, the trial court granted the motion

in part, suppressing the rifle seized from defendant's apartment, but

declining to suppress the several photographs depicting Shari Miller

or the knife. The trial court determined that despite the warrant's

overbreadth, the photographs seized from defendant's vehicle were

admissible because the officers executed the search in a "good faith"

belief the warrant was valid, and because Detective Rockwood's

testimony concerning the connection he perceived between the

woman in the photographs and Jane Doe No. 60 established a nexus

App. 45

between those photographs and the items w'iose seizure was

authorized by the warrant. The court found that a nexus was

established between the knife and “two acts of criminal behavior

where a knife had been used."

(1) Restriction of scope of inquiry

Defendant asserts that the trial court improperly limited the

scope of the hearing by declining to permit defendant to introduce all

of the items, including 189 photographs, that the police had seized.

The record reflects that defendant's motion catalogued each item

seized. The police officers who testified were examined extensively

by the defense, not only concerning the knife and several

photographs that the prosecutors sought to have admitted, but also

concerning numerous other photographs and items seized.

The trial court did not err in declining to permit the introduction

into evidence and examination of the police officers as to every

single item seized. The reporter's transcript and related minute

orders recording the lengthy proceedings involved in the suppressior

motion demonstrate that the trial court, in ruling on the motion, was

well aware of the nature and number of items seized that did not

directly pertain to the subject investigations, and therefore properly

could evaluate, for example, whether the search was exploratory in

nature.

(2) Consideration of applicability of the good faith

exception

Defendant asserts that the warrant was so facially deficient that

no reasonable police officer could have relied upon it to conduct the

search, and that therefore the trial court erred in even considering

whether to apply the "good faith" exception to the rule otherwise

App. 46

requiring the suppression of evidence seized pursuant to a facially

valid warrant subsequently determined to be invalid. As noted

above, in the present case the trial court determined that the reference

in the search warrant to all photographs was overbroad, thus finding

the warrant partially invalid.

Pursuant to California Constitution, article I, section 28,

subdivision (d), our review of issues related to the suppression of

evidence derived from police searches and seizures is governed by

federal constitutional standards. (People v. Camarella (1991) 54

Cal.3d 592, 595-596, 286 Cal.Rptr. 780, 818 P.2d 63; see People v.

Glaser (1995) 11 Cal.4th 354, 363, 45 Cal.Rptr.2d 425, 902 P.2d

729; People v. Banks (1993) 6 Cal.4th 926, 934, 25 Cal.Rptr.2d 524,

863 P.2d 769; People v. McPeters (1992) 2 Cal.4th 1148, 1171, 9

Cal.Rptr.2d 834, 832 P.2d 146.) The warrant clause of the Fourth

Amendment expressly provides that no warrant may issue except

those “particularly describing the place to be searched, and the

persons or things to be seized." (U.S. Const., 4th Amend.; Walter

v. United States (1980) 447 U.S. 649, 656-657, fn. 8 [100 S.Ct. 2395,

2401-2402, fn. 8, 65 L.Ed.2d 410].) “General warrants of course, are

prohibited by the Fourth Amendment. '(T)he problem (posed by the

general warrant) is not that of intrusion per se, but of a general,

exploratory rummaging in a person's belongings.... (The Fourth

Amendment addresses the problem) by requiring a “particular

description" of the things to be seized.' (Coolidge v. New

Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038-2039, 29 L.Ed.2d

564 (1971))." (Andresen v. Maryland (1976) 427 U.S. 463, 480, 96

S.Ct. 2737, 2748, 49 L.Ed.2d 627.) The high court also has

recognized, however, that in a complex case resting upon the piecing

together of “many bits of evidence," the warrant properly may be

more generalized than would be the case in a more simplified case

resting upon more direct evidence. (Id. at p. 481, fn. 10, 96 S.Ct. at

p. 2749, fn. 10.)

App. 47

In United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82

L.Ed.2d 677, the high court held that evidence obtained pursuant to

a facially valid search warrant subsequently determined to be invalid

is admissible if the officers executed the search in objectively

reasonable reliance upon the validity of a search warrant issued by

a neutral magistrate. (Id. at p. 922-923, 104 S.Ct. at p. 3420-3421;

People v. Camarella, supra, 54 Cal.3d 592, 602-603, 286 Cal.Rptr.

780, 818 P.2d 63; see People v. Machupa (1994) 7 Cal.4th 614, 618,

fn. 1, 29 Cal. Rptr.2d 775, 872 P.2d 114.) The court in Leon noted

several exceptions to the admissibility of evidence seized under these

circumstances, however, including the situation in which the warrant

is "so facially deficient--i.e., in failing to particularize the place to be

searched or things to be seized--that the executing officers cannot

reasonably presume it to be valid." (United States v. Leon, supra,

468 U.S. 897, 923, 104 S.Ct. 3405, 3420-3421.)

A police officer may not shift all of the responsibility for the

protection of an accused's Fourth Amendment rights to the magistrate

by executing a warrant no matter how deficient it may be in

describing the places to be searched and the items to be seized. An

officer applying for a warrant is required to exercise reasonable

professional judgment. (People v. Camarelia, supra, 54 Cal.3d 592,

604, 286 Cal.Rptr. 780, 818 P.2d 63; Bailey v. Superior Court (1992)

11 Cal.App.4th 1107, 1114, 15 Cal.Rptr.2d 17 [lack of probable

Cause was so apparent that reliance upon warrant was unreasonable];

see People v. Maestas (1988) 204 Cal.App.3d 1208, 1218-1221, 252

Cal.Rptr. 739.)

Defendant relies upon several cases from the federal courts of

appeals. Such decisions, as we often have observed, provide

persuasive rather than binding authority. (People v. Crittenden

(1994) 9 Cal.4th 83, 120, fn. 3, 36 Cal.Rptr.2d 474, 885 P.2d 887;

People v. Burton (1989) 48 Cal.3d 843, 854, fn. 2, 258 Cal.Rptr. 184,

App. 48

771 P.2d 1270.) The cases cited by defendant are distinguishable in

any event. In United States v. Stubbs (9th Cir.1989) 873 F.2d 210,

212, a search warrant, held to be so facially invalid that a reasonable

officer could not have presumed it to be valid, permitted the seizure

of all accounts and business records that had been created during a

seven-year period and that contained references to a number of

individuals. In Center Art Galieries--Hawaii, Inc. v. U.S. (9th

Cir.1989) 875 F.2d 747, 752-753, the warrant held to be facially

invalid permitted the seizure of all “documents, books, ledgers,

records and objects which are evidence of violations of federal

criminal law." In U.S. v. Dozier (9th Cir.1988) 844 F.2d 701,

707-708, the warrant held to be facially invalid authorized the seizure

of "written records, financial statements, address books, ... telephone

books, and bills." In United States v. Washington (9th Cir. 1986) 782

F.2d 807, 819-820, the court held to be facially invalid a warrant

authorizing the seizure of evidence of the suspect's association with

several named persons as well as any unnamed persons.

In the present case, by contrast, the only portion of the warrant

that the trial court deemed to be overbroad was the reference to "any

and all photographs."'' Assuming arguendo that the trial court was

correct in finding that part of the warrant to be overbroad, the

reference to photographs encompassed only one category of items,

and the warrant otherwise specified the items to be seized. The

warrant's failure to particularize items within this category of articles

to be seized did not render it so facially deficient that no reasonable

officer could presume it to be valid.

'! The trial court also deemed omitted from the search

warrant application the reference to defendant's bank accounts, credit

card receipts, and gasoline purchase receipts.

App. 49

(3) Finding that the police officers’ conduct was

objectively reasonable

Defendant contends that, even assuming the warrant's facial

validity justified a reasonable officer in presuming it valid and

performing the search pursuant to its authorization, the prosecutor

failed to demonstrate that the officers acted in an objectively

reasonable manner. First, according to defendant, few of the officers

involved in the execution of the warrant actually had read the

warrant, the affidavit in support of probable cause, or the attached

exhibits. To the contrary, the record of the evidentiary hearing

establishes that Detective Ravens, who executed the warrant to

search the apartment, had read the affidavit in support of the search

warrant, and that Detective Rooney, who executed the warrant to

search the vehicle, had the warrant in his possession and seized items

within the scope of the warrant. In addition, Detective Worthen, who

had investigated the Campbell and Stewart cases and had learned of

defendant's prior criminal activity, had discussed with the officers,

including Ravens and Rooney, the contents of the affidavit and

warrant and the acts presently under investigation, as well as the

previously charged and uncharged criminal acts.

Second, defendant asserts that the officers’ lack of good faith is

demonstrated by the testimony of Detective Worthen and Officer

Ravens, which indicated either their personal belief, or their

communication to other officers, that the investigators were not

limited to the items named in the warrant and could seize anything

possibly relating to a crime, once having gained access to the

apartment and automobile. In view of the entire testimony of these

officers, we do not believe that their isolated comments, to the effect

that they could seize items not listed in the warrant, demonstrates

failure on their part to act in an objectively reasonable manner.

App. 50

The plain-view doctrine permits, in the course of a search

authorized by a search warrant, the seizure of an item not listed in the

warrant, if the police lawfully are in a position from which they view

the item, if its incriminating character is immediately apparent, and

if the officers have a lawful right of access to the object. (Horton v.

California (1990) 496 U.S. 128, 135-137, 110 S.Ct. 2301, 2307-2308,

110 L.Ed.2d 112; Texas v. Brown (1983) 460 U.S. 730, 739, 103

S.Ct. 1535, 1541-1542, 75 L.Ed.2d 502 (plur.opn.); see Minnesota

v. Dickerson (1993) 508 U.S. 366, 374-375, 113 S.Ct. 2130,

2136-2137, 124 L.Ed.2d 334.) In such circumstances, the

warrantless seizure of evidence of crime in plain view is not

prohibited by the Fourth Amendment, even if the discovery of the

evidence is not inadvertent. (Horton v. California, supra, 496 U.S.

128, 130, 110 S.Ct. 2301, 2304.) Where an officer has a valid

warrant to search for one item but merely a suspicion, not amounting

to probable cause, concerning a second item, that second item is not

immunized from seizure if found during a lawful search for the first

item. (Id. at p. 138-139, 110 S.Ct. at p. 2308-2309.) This rule was

stated by the high court in Horton in the context of a search

conducted pursuant to a warrant, notwithstanding the circumstance

that in other cases applying the plain view doctrine in various

contexts, the determination that the incriminating nature of an item

was "immediately apparent" was based upon whether the officers had

probable cause to believe that the item was either evidence of a crime

or contraband. (E.g., Minnesota v. Dickerson, supra, 508 U.S. 366,

375, 113 S.Ct. 2130, 2136-2137; Arizona v. Hicks, supra, 480 U.S.

321, 326-327, 107 S.Ct. 1149, 1153-1154.)

In the present case, the testimony of the officers involved in the

search indicated their belief that they could search for items not

listed in the warrant. This testimony, read in context and considered

in light of the information in their possession concerning not only the

Campbell and Stewart matters but the other incidents, simply

Se

App. 51

reflected their entirely appropriate understanding that such items

lawfully might be seized if reasonably believed to be related to

criminal activity. Absent any indication to the contrary, this

testimony does not demonstrate that the officers’ conduct was

objectively unreasonable.

(4) Finding of a nexus between authorized and

nonauthorized items seized

Defendant contends that the trial court erred in determining that

a nexus existed between items named in the search warrant and the

photographs of Shari Miller and the knife found in defendant's

vehicle (items not described in the warrant), thereby improperly

justifying the seizure of those items. He urges that probable cause

did not exist to seize those items.

As discussed above, in the course of a search authorized by a

warrant, the seizure of an item not listed in the warrant may be

authorized by the plain view doctrine. The plain view doctrine does

not create an independent "exception" to the warrant clause, but

simply is an extension of whatever may be the prior justification for

the officers’ "access to an object." (Texas v. Brown, supra, 460 U.S.

730, 738-739, 103 S.Ct. 1535, 1541-1542.) The officers lawfully

must be in a position from which they can view a particular area; it

must be immediately apparent to them that the items they are

observing may be evidence of a crime, contraband, or otherwise

subject to lawful seizure, and the officers must have a lawful right of

access to the object. (Horton v. California, supra, 496 U.S. 128,

136-139, 110 S.Ct. 2301, 2307-2309; see Minnesota v. Dickerson,

supra, 508 U.S. 366, 374-375, 113 S.Ct. 2130, 2136-2137, Coolidge

v. New Hampshire (1971) 403 U.S. 443, 465-468, 91 S.Ct. 2022,

2037-2039, 29 L.Ed.2d 564.) If, however, the incriminating

character of an object in plain view is not immediately apparent, the

App. 52

plain view doctrine cannot justify its seizure. (Horton v. California,

supra, 496 U.S. 128, 135-137, 110 S.Ct. 2301, 2307-2308; see

Minnesota v. Dickerson, supra, 508 U.S. 366, 375, 113 S.Ct. 2130,

2136-2137.)

As we previously have explained, the photographs were seized

pursuant to a warrant, later determined by the trial court to be

overbroad to the extent it authorized the officers to seize "any and all

photographs," a determination we assume, for the sake of argument,

to be correct. Detective Rooney, acting in the objectively reasonable

belief that the warrant was valid, seized the photographs pursuant to

that warrant. Therefore, no basis has been presented upon which to

suppress this evidence.

In addition, even were the good faith exception not available to

justify the seizure of the photographs, the elements of the nexus rule

were satisfied. Officer Rooney expressly was authorized to search

the vehicle and to seize, at a minimum, photographs relating to

Tracey Campbell and Mischa Stewart. As night fell, Rooney

transported the bag of photographs and negatives 100 feet to a desk

inside the police station in order to examine them. Within a short

time, Detective Rockwood, also assigned to the investigation of the

Campbell and Stewart cases, observed the photographs that bore a

resemblance to Jane Doe No. 60. Therefore, the officer made this

discovery during the course of the search for photographs authorized

by the warrant. (See Horton v. California, supra, 496 U.S. 128,

140-142, 110 S.Ct. 2301, 2309-2311 [weapons that were discovered

prior to locating the proceeds of the robbery named in the warrant

were lawfully seized].) Detective Rockwood, without further

investigation, merely examined the photographs and realized their

similarity to Jane Doe No. 60--thus, it was " ‘immediately apparent’

to him that the items he observed might be evidence of a crime or

otherwise subject to seizure without conducting any further search of

App. 53

the object." (Id. at p. 136, 110 S.Ct. at p. 2307-2308; Minnesota v.

Dickerson, supra, 508 U.S. 366, 375, 113 S.Ct. 2130, 2136-2137.)

The elements of the nexus rule also were established with regard

to the seizure of the knife. Detective Rooney lawfully was in a

position to view the contents of the vehicle trunk, and it immediately

was apparent to him that the knife might be evidence relating to a

criminal incident. (Horton v. California, supra, 496 U.S. 128, 136,

110 S.Ct. 2301, 2307-2308; Minnesota v. Dickerson, supra, 508 U.S.

366, 374-375, 113 S.Ct. 2130, 2136-2137.) The trial court did not err

in determining that the nexus rule applied.

(5) Finding that the search was not general or

exploratory

Defendant contends that the police improperly utilized the

warrant to conduct a general, exploratory search of his apartment and

vehicle. The purpose of the "particularity" requirement of the Fourth

Amendment is to avoid general and exploratory searches by requiring

a particular description of the items to be seized. (Coolidge v. New

Hampshire, supra, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038-2039;

Stanford v. Texas (1965) 379 U.S. 476, 485, 85 S.Ct. 506, 511-512,

13 L.Ed.2d 431.) The high court has rejected, however, the

contention that police action disregarding the authorized scope of a

warrant transforms the warrant into an impermissible general

warrant, requiring suppression of the entire fruit of the search, rather

than merely those items as to which there was no probable cause to

support seizure--where the officers have not exceeded the scope of

the warrant in the places searched, but only in seizing items

unconnected to the investigation or prosecution of the crime. In such

circumstances, when all items unlawfully seized are suppressed,

"there is certainly no requirement that lawfully seized evidence be

suppressed as well. [Citations.]" (Waller v. Georgia (1984) 467 U.S.

App. 54

39, 43-44, fn. 3, 104 S.Ct. 2210, 2214, fn. 3, 81 L.Ed.2d 31;

Andresen v. Maryland, supra, 427 U.S. 463, 482, fn. 11, 96 S.Ct.

2737, 2749, fn. 11.) In the present case, the officers searched for and

seized items--including some that the trial court considered

unlawfully seized and ordered suppressed--only from the "places"

designated in the warrant.

In asserting that the search was general and exploratory,

defendant relies upon the contention made and rejected earlier--that

the executing officers had not read the contents of the warrant or the

affidavit of probable cause. Defendant also asserts that because the

officers seized more items not named in the warrant than items

named, this circumstance establishes the exploratory nature of the

search. In view of the information possessed by the officers in

charge, the contents of the affidavit of probable cause, and the

information contained in the attachments, that circumstance did not

by itself establish that the search was exploratory.

b. Motions to quash and traverse the August 16, 1984,

search warrant and to suppress evidence

(1) Finding that the affidavit of probable cause

supported issuance of the search warrant

Defendant contends that the trial court erred in denying his

motions to quash and traverse the search warrant issued on August

16. Defendant contends that several of the statements in the affidavit

were false and misleading and that, if such statements were

considered excised or corrected, the remaining contents of the

affidavit were insufficient to justify a finding of probable cause to

support issuance of the warrant.

App. 55

In Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 57

L.Ed.2d 667, the United States Supreme Court held that a defendant

may challenge the veracity of statements contained in an affidavit of

probable cause made in support of the issuance of a search warrant.

When presented with such a challenge, the lower courts must

conduct an evidentiary hearing if a defendant makes a substantial

showing that: (1) the affidavit contains statements that are

deliberately false or were made in reckless disregard of the truth and

(2) the affidavit's remaining contents, after the false statements are

excised, are insufficient to justify a finding of probable cause. At the

evidentiary hearing, if the statements are proved by a preponderance

of the evidence to be false or reckless, they must be considered

excised. If the remaining contents of the affidavit are insufficient to

establish probable cause, the warrant must be voided and any

evidence seized pursuant to that warrant must be suppressed. (Id. at

pp. 155-156, 98 S.Ct. at 2676-2677.)

A defendant who challenges a search warrant based upon an

affidavit containing omissions bears the burden of showing that the

omissions were material to the determination of probable cause. (See

People v. Luttenberger (1990) 50 Cal.3d 1, 14-15 & fn. 4, 265

Cal.Rptr. 690, 784 P.2d 633.) "Pursuant to section 28(d), materiality

is evaluated by the test of Illinois v. Gates (1983) 462 U.S. 213, 103

S.Ct. 2317, 76 L.Ed.2d 527 [ ], which looks to the totality of the

circumstances in determining whether a warrant affidavit establishes

good cause for a search. [Citation.]" (People v. Luttenberger, supra,

50 Cal.3d 1, 23, 265 Cal.Rptr. 690, 784 P.2d 633.)

In moving to quash and traverse the August 16 search warrant,

defendant contended that the affiant, Detective St. John, made

statements in the affidavit that were false and misleading. The

prosecution eventually conceded that an evidentiary hearing was

necessary. Following the hearing, at which Detective St. John

App. 56

testified at length, the trial court denied the motion, ultimately

permitting the prosecution to introduce into evidence items seized

pursuant to the warrant, including the double-bladed knife and

sheath, the wristwatch flecked with yellow paint, the leather

shoelace-type thong, and the section of white rove.

(a) Omission of information that Shari was seen

after June 30

Detective St. John stated in the affidavit that the last person

whom Shari was known to have intended to visit was a photographer,

identified as defendant through the telephone calls that Shari had

made from her mother's residence on June 30. Detective St. John

also stated in the affidavit that he had interviewed Danny Collins,

who "informed me that he had last seen Ms. Miller on July Ist ... and

that she was going to meet a photographer."

At the evidentiary hearing, Detective St. John testified as

follows. He had intended the magistrate to infer that it was possible

that Shari Miller had not been seen after June 30th. Prior to August

16, however, Detective St. John had interviewed four of Shari's

associates, who indicated they believed that they had seen Shari

between July 1 and July 4, and Detective St. John knew that Shari

had not been killed prior to July 4. Detective St. John also had

learned that employees of a camera store had seen defendant and

Shari in the store approximately on July 1. In addition, Detective St.

John had observed a drawing of a rose, bearing Shari's signature and

dated July 1, discovered during the search of Shari Miller's vehicle.

Detective St. John did not include this information in the affidavit.

The trial court determined that Detective St. John had been

selective in providing information to the magistrate, with the

intention of conveying a particular impression regarding defendant's

App. 57

role in Shari's death. The court found that Detective St. John

demonstrated an intentional or reckless disregard of the truth in

failing to mention his interviews with Shari's associates, who had

told him they had seen her after July 1. The court also found,

however, that the affidavit, considered as amended to include this

information, was sufficient to establish probable cause supporting

issuance of the warrant. The court observed that, even in light of this

information, Detective St. John remained "justified in making a

conclusion to the magistrate that after June 30, 1984, that Shari

Miller intended to see a photographer named Bill, that she saw Mr.

Bradford during this time--during the time between June 30 and the

point at which she died, and that she met with foul play."

It does not appear that the magistrate would have been misled by

the affidavit. Although defendant has not acknowledged the fact in

his brief, the affidavit itself, after indicating there had been contact

between defendant and Shari on June 30, stated that Danny Collins

had seen Shari on July 1, suggesting that the time frame of Shari's

disappearance was not exact. As the Attorney General has observed,

the affidavit described the discovery of Jane Doe No. 60 on July 6

and noted the coroner's estimate of her death as having occurred

between 36 to 48 hours previously--information that also suggested

Shari had been alive for a day or so after June 30.

Moreover, even assuming the omitted statements did mislead the

magistrate to believe Shari last had been seen alive on June 30, those

omissions clearly were not material in light of the totality of the

circumstances. The affidavit stated that the police had discovered

through the photographs recovered in the previous search and

through fingerprint records that Shari was Jane Doe No. 60, and also

had discovered through defendant's own statements that he was

acquainted with Shari and had taken photographs of her within

several days of her disappearance. The affidavit explained that the

App. 58

police had determined that defendant had lied about the date and

location at which the photographs were taken, that Shari's

photographs had been taken at approximately the same location in

the Mojave desert where Julianne P. had been raped and where

Tracey's body had been discovered, and that both murder victims

were killed in a similar manner. The trial court did not err in finding

that, considered as amended to include the above described

information, the affidavit established probable cause.

(b) Request to search for items already in police

custody

On August 7, Detective St. John led a search of Shari's

automobile, containing her clothing and other personal belongings.

The police removed and inventoried the items, which included a

silver spoon ring, five pierced earrings, two silver bracelets, two

pairs of cut-off jeans, a black wrist strap, and a pair of brown thongs.

Despite the prior recovery of similar items, Detective St. John

sought authorization in the warrant to search for a "silver spoon

ring," “women's pierced earrings," a "gold bracelet," “blue cut off

shorts," a "female watch with black band," and any "female clothing

as shown in [a] series of 9 photographs of Shari Miller" attached as

exhibits to the affidavit, depicting her wearing a pair of cut-off blue

jeans, a pair of brown thongs, a wrist band, and jewelry. The

affidavit of probable cause did not state that Shari's vehicle earlier

had been inventoried, nor that similar articles already were in police

custody.

The trial court determined that Detective St. John failed to

exercise due care in seeking authorization to search for the silver

spoon ring that already was in police custody. The court also found

Detective St. John negligent in “not more fully and explicitly

App. 59

revealing which items were already in police custody and for

expressing his reasons for requesting permission to search for

additional sets of those items."

Defendant contends that Detective St. John knew or should have

known that the silver spoon ring already was in police custody, and

that his request to search for this article demonstrated an intentional

or reckless disregard of the truth. Detective St. John testified that on

August 7, he personally directed the taking of the inventory and

photographs of the articles, as well as the preparation of the property

report. The silver spoon ring and many of Shari's belongings were

included within one item, "one red duffle bag containing

miscellaneous objects," the contents of which Detective St. John did

not examine or record. The evidence does not establish that at the

time he prepared the affidavit of probable cause, Detective St. John

had personal knowledge of the prior seizure of the spoon ring.

Defendant further contends that even if Detective St. John

personally did not know the spoon ring was in police custody, other

police officers investigating Shari's death had personal knowledge

that this item had been seized, and should have so informed

Detective St. John. Although it is the rule that "the police cannot

insulate one officer's deliberate misstatements merely by relaying it

through an officer-affiant personally ignorant of its falsity" (Franks

v. Delaware, supra, 438 U.S. 154, 163-164, fn. 6, 98 S.Ct. 2674,

2680, fn. 6; U.S. v. DeLeon (9th Cir.1992) 979 F.2d 761, 764),

nothing in the record indicates that the police officers who searched

Shari's vehicle deliberately withheld from Detective St. John

information that the spoon ring earlier had been seized. The trial

court did not err in determining that Detective St. John merely was

negligent.

App. 60

Defendant also contends that additional items sought by

Detective St. John-- pierced earrings, a gold bracelet, cut-off jeans,

a woman's watch with black band, and a pair of brown

thongs--already were in police custody, and the inclusion of them in

the affidavit demonstrated an intentional or reckless disregard of the

truth. Detective St. John testified he had observed that Shari had

pierced ears, and he knew she occasionally wore pierced earrings.

Although Detective St. John was aware that pierced earrings had

been recovered from Shari’s vehicle, he certainly was not

unreasonable in seeking their seizure based upon the surmise that she

owned additional pierced earrings. The gold bracelet appearing in

the photographs and listed in the affidavit clearly was distinct from

the two silver bracelets that the police already held in custody.

Detective St. John testified that Doreen Music, a criminalist

working with Detective St. John, compared the pair of cut-off jeans

in the photographs with the two pairs of cut-off jeans recovered from

Shari's vehicle, and was unable positively to identify either pair as

those Shari wore in the photographs. Detective St. John observed

that the pair of thongs depicted in the photographs was the same

color as the pair already in police custody, and he did not know

whether Shari owned any additional pairs. Detective St. John was

unable to determine from an examination of the photographs whether

the black wrist strap worn by Shari included a watch, or whether it

matched the black wrist strap found inside her vehicle.

We have reviewed this evidence, and it does not appear that the

items recovered from the vehicle matched those in the photographs.

Although the pair of thongs depicted in the photographs resembled

the pair already in police custody, the thongs were fungible in nature

and it was not unreasonable to conclude that Shari may have owned

additional pairs. In addition, the officer who seized the watch with

yellow paint flecks was aware of Shari's recent activity as @ painter,

App. 61

a circumstance that supplied independent probable cause for seizure

of that item. Accordingly, we conclude that the trial court did not err

in finding that although Detective St. John should have disclosed in

his affidavit that items similar to those in the photographs already

were in police custody, his failure to do so merely was negligent and

was not intentional or reckless.

(c) Omission of information relating to prior

searches

Detective St. John did not describe in the affidavit the two prior

searches that had been conducted of defendant's apartment and

vehicle on July 16 and July 31. These searches consisted of a

consensual and cursory search conducted by a single police officer

on July 16, and the more extensive search (discussed, ante, pp.

172-180 of 65 Cal.Rptr.2d, pp. 286-294 of 939 P.2d) conducted

pursuant to a warrant by several officers on July 31. The trial court

found that the August 16 affidavit referred several times to the July

31 search, that the attachments to the later affidavit included a copy

of the earlier warrant and the related property return, and that the

magistrate had sufficient time to read the contents of the August 16

affidavit as well as portions of the attachments, including the prior

warrant and return, and reasonably would have understood there had

been a prior search on July 31 before issuing the August 16

warrant."

2 In his appellate brief, defendant contends that the August

16 affidavit of probable cause did not refer expressly either to the

July 16 or July 31 searches, or to the circumstance that following the

latter search, defendant was arrested and released, with no charges

filed. Defendant further suggests that the warrant and affidavit of

probable cause for the July 3! search may not have been attached as

(continued...)

App. 62

Defendant contends that pursuant to U.S. v. Whitworth (9th

Cir. 1988) 856 F.2d 1268, 1281-1282 (Whitworth ), it was not "proper

for law enforcement officials to withhold information regarding prior

searches of the same premises for magistrates considering warrant

applications." That decision and others have observed that prior case

authority has declined to establish a per se rule against consecutive

searches, presuming, “ 'in the absence of some showing to the

contrary, that officers perform their duties and properly execute the

'2(__.continued)

exhibits to the August 16 affidavit of probable cause.

The August 16 affidavit itself does not refer expressly to the

July 16 search, nor does it specify the date of the July 31 search.

Nonetheless, the August 16 affidavit, referencing a particular exhibit,

clearly does refer to Detective Worthen's search and to defendant's

arrest for murder, specifying that at that time defendant had informed

the detective that he last had seen Shari on June 30. In addition, we

have reviewed the original August 16 warrant, affidavit, and all

attached exhibits, which include a copy of the July 31 search warrant

and affidavit of probable cause (the latter document itself referring

to the July 16 search) as well as the return to that search warrant.

Accordingly, even considering the August 16 affidavit by

itself, the magistrate would have ascertained that defendant

previously had been arrested and a prior search had been conducted

sometime during the six weeks prior to August 16. Moreover, it

appears the magistrate was presented with virtually the entire record

of the July 31 search, including a description of the items seized in

that search. Nothing in the trial court motions to quash and traverse

the August 16 warrant and the related motions to suppress evidence,

or in the oppositions filed by the prosecutor, suggest that this

information somehow was not before the issuing magistrate.

App. 63

processes placed in their hands.' " (Id. at p. 1282; Filippelli v.

United States (9th Cir.1925) 6 F.2d 121, 125.)

In Whitworth, a warrantless but consensual search was

conducted of the defendant's residence, and a second search pursuant

to a warrant was conducted eleven days later. (856 F.2d 1268,

1278-1279.) The court found the government's intentional failure to

mention the initial search in the subsequent affidavit to be

"problematic." It concluded, however, that the consent-based search

had not been performed as thoroughly as a warrant-based search

would have been, and that probable cause still existed for the

subsequent search. (Id. at p. 1282.) In the present case, similarly, the

July 16 consensual search of defendant's apartment and vehicle was

extremely cursory in nature and did not negate probable cause to

believe that incriminating evidence would be found during a

subsequent search based upon a warrant.

Moreover, with regard to the subsequent warrant-based searches,

the present case is factually distinct from Whitworth in two

important respects. First, the August 16 affidavit expressly referred

to a previous search conducted pursuant to a warrant, and the

attachments thereto specified that it occurred July 31 and provided

documentation of the objects of that search as well as its results.

Second, the issuance of the second search warrant was based upon a

showing of additional criminal activity.

The probable cause supporting the July 31 search warrant was

predicated upon defendant's connection with two incidents arising in

the "westside" of Los Angeles--the disappearance of Tracey

Campbell on July 12 and the murder of Mischa Stewart in October

1982. Following the July 31 search of defendant's apartment and

vehicle, but prior to the application for a search warrant made on

August 16, the police had made several major discoveries. Tracey's

App. 64

body, found in the desert area near Lancaster, provided specifics as

to the location and manner of her death. Shari's body had been

identified in part through defendant's possession of her photographs,

and he had admitted his personal acquaintance and contacts with her

just prior to her disappearance--circumstances that, combined with

information provided by others, connected defendant with her death

as well. Further, as Detective St. John testified, following

defendant's release from police custody on August 3 until his

re-arrest on August 16, defendant had the opportunity to conceal

small items on his person--jewelry or human parts--and transfer them

to his apartment during that period. Even had it been emphasized in

the affidavit of August 16 that two prior separate searches had been

conducted within a one- month period, the magistrate reasonably

could have concluded that additional probable cause existed to

conduct a third search.

(2) Finding that the search was not general and

exploratory

Defendant contends that the trial court erred in denying his

motion to suppress all evidence seized in the August 16 search on the

ground that the search was general and exploratory. The search

warrant issued on that date authorized the police to search

defendant's apartment and “all facilities within the structure, garages

or storage units, basements, attics, and all containers located either

inside the premises or on the grounds of premises designated for their

use," a 1965 Dodge, a 1984 Dodge Daytona, a 1977 Datsun, and a

Marina Del Rey storage area rented to Olga Talbot. The warrant

specified numerous items of property, the majority of which

consisted of clothing and jewelry worn by Tracey or Shari, camera

equipment and film, cigarettes, maps of Los Angeles, human

specimens, such as hair, blood, and body fluids, defendant's bank

books, credit cards and receipts, mail order catalogues, as well as

App. 65

knives and sharp cutting instruments. The return to the search

warrant reveals that a number of additional items, including an

additional vehicle, medicines, toiletries, magazines, and

miscellaneous papers, were seized.

A hearing was conducted at which the officers conducting the

search testified for the prosecution and Olga Talbot testified for the

defense. The trial court determined that the search exceeded the

scope authorized by the warrant and encompassed the search of a

vehicle and several storage lockers not named in the warrant.

Accordingly, it ruled that evidence seized during the unauthorized

portions of the search could not be introduced at trial and ordered

suppressed numerous items, including a belt buckle with a

motorcycle logo that the prosecution had sought to admit at trial.

The trial court rejected, however, defendant's motion to suppress all

evidence seized during the search, including that lawfully seized--a

motion premised upon the theory that the conduct of the police was

in "flagrant disregard" of the authorized scope of the search and must

be punished by a total suppression of evidence. Although remarking

that "portions of the search did possess exploratory qualities, and that

the seizure of numerous items of property was overly broad," the trial

court found that "the officers had not acted in bad faith," and that

"the majority of the items seized" were seized }awfully. The court

concluded that: “whatever criticism may be directed toward the

conduct of this particular search it does not appear to rise to the level

of the egregious misconduct which justifies the imposition of the

ultimate sanction of total suppression of items seized during the

course of this search."

(a) Restriction of scope of inquiry

Defendant contends, as he did with respect to the July 31 search,

that the trial court improperly limited the scope of the hearing by

App. 66

declining to permit defendant to introduce all of the individual items

seized by the police. The record reflects that defendant's motion

catalogued each item seized. The police officers who testified were

examined extensively concerning numerous items seized. The

defense motion as well as the return to the warrant recorded the

number and variety of items seized and the areas searched. The

entire record of the proceedings reflects that the trial court, in ruling

on the motion, was cognizant of the areas searched that were not

clearly designated in the warrant and the nature and number of items

seized that did not pertain directly to the subject investigations, and

therefore could evaluate properly whether the search was exploratory

in nature. The trial court did not err in declining to permit the

introduction into evidence of every single item seized.

(b) Finding that the police were not in "flagrant

disregard" of the authorized scope of the search

Defendant contends that the executing officers’ failure to peruse

the contents of the warrant prior to or during the search, their failure

to limit the area of the search to those areas described in the warrant,

and their failure to confine their seizures to those items designated in

the warrant demonstrate that the officers' conduct was in "flagrant

disregard" of the scope of their prior authorization. According to

defendant, the improper police conduct necessitated total suppression

of the fruits of the seizure, including those items seized within the

scope of the warrant.

As noted above, in a footnote, the high court in Waller v.

Georgia, supra, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31,

discussed and rejected the defendants’ contention that the police so

"flagrant[ly] disregard[ed]" the scope of the warrants in conducting

the seizures that they turned the warrants into impermissible general

warrants, requiring suppression of the entire fruit of the search, rather

App. 67

than merely suppression of those items as to which there was no

probable cause to support Seizure. (Id. at pp. 43-44, fn. 3, 104 S.Ct.

at 2214, fn. 3.) The court noted that the defendants did not assert that

the officers exceeded the scope of the warrant in the places searched

but only that the police unlawfully seized and took away items

unconnected to the prosecution. Because all items that were

unlawfully seized were suppressed, "[i]n these circumstances, there

is certainly no requirement that lawfully seized evidence be

suppressed as well. [Citations.]" (Ibid.; Andresen v. Maryland,

supra, 427 U.S. 463, 482, fn. 11, 96 S.Ct. 2737, 2749, fn. 11.)

Subsequent to Waller v. Georgia, supra, 467 U.S. 39, 104 S.Ct.

2210, a number of decisions of the lower federal courts--decisions

that, as earlier observed, provide persuasive rather than binding

authority (People v. Crittenden, supra, 9 Cal.4th 83, 120, fn. 3, 36

Cal.Rptr.2d 474, 885 P.2d 887)--have addressed the foregoing issue.

The Ninth Circuit has interpreted the footnote in Waller to mean that

when the police seize items in flagrant disregard of the limitations

imposed: by a search warrant, a blanket suppression both of items

seized pursuant to the warrant and those seized outside the scope of

the warrant is mandated. (U.S. v. Mittelman (9th Cir.1993) 999 F.2d

440, 444; U.S. v. Chen (9th Cir.1992) 979 F.2d 714, 716-720;

United States v. Medlin (10th Cir.1986) 798 F.2d 407, 410-411;

United States v. Crozier (9th Cir.1985) 777 F.2d 1376, 1381; see

United States v. Tamura (9th Cir.1982) 694 F.2d 591, 597; United

States v. Rettig (9th Cir.1978) 589 F.2d 418, 423.) The majority of

other circuits also have concluded that police conduct in flagrant

disregard of the scope of the warrant may justify total suppression of

the evidence seized. (U.S. v. Young (1st Cir.1989) 877 F.2d 1099,

1105; U.S. v. Matias (2nd Cir.1988) 836 F.2d 744, 747-748; U.S.

v. Jones (4th Cir.1994) 31 F.3d 1304, 1314; U.S. v. Henson (6th

Cir.1988) 848 F.2d 1374, 1383-1384; United States v. Decker (8th

Cir.1992) 956 F.2d 773, 779; Marvin v. United States (8th Cir.1984)

App. 68

732 F.2d 669, 674-675; U.S. v. $149,442.43 in U.S. Currency (10th

Cir.1992) 965 F.2d 868, 875; United States v. Lambert (1 Ith

Cir.1989) 887 F.2d 1568, 1572-1573; United States v. Wuagneux

(11th Cir.1982) 683 F.2d 1343, 1354; United States v. Nicely

(D.C.Cir.1991) 922 F.2d 850, 858; United States v. Heldt

(D.C.Cir.1981) 668 F.2d 1238, 1259-1260). Only one circuit

expressly has declined to adopt the "flagrant disregard" standard

requiring blanket suppression. (U.S. v. Willey (Sth Cir.1995) 57

F.3d 1374, 1390.)

In U.S. v. Chen, supra, 979 F.2d 714, the Ninth Circuit explained

that the suppression of all evidence is an extraordinary remedy, used

only when the violations of the warrant's requirements are so extreme

that the search essentially is transformed into an impermissible

general search. (Id. at p. 717.) The courts rarely have actually

concluded that police conduct was so extreme as to warrant total

suppression. The remedy has been justified when the police

exceeded the "scope of the warrant in the places searched" (Waller

v. Georgia, supra, 467 U.S. 39, 44, fin. 3, 104 S.Ct. 2210, 2214, fin. 3;

United States v. Decker, supra, 956 F.2d 773, 779), the police used

the warrant as a pretext to search for evidence of unrelated crimes

(United States v. Rettig, supra, 589 F.2d 418, 423), or the police were

motivated " ‘by a desire to engage in indiscriminate "fishing" ' "

rather than by “considerations of practicality" (U.S. v. Chen, supra,

979 F.2d 714, 717; U.S. v. Medlin (10th Cir.1988) 842 F.2d

1194-1199)."° The mere magnitude of the seizures does not establish

'S In other search-related contexts, the Supreme Court has

commented that subjective intent by itself, "does not make otherwise

lawful conduct illegal or unconstitutional." (Whren v. United States

(1996) 517 US. 806, ----, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89;

Scott v. United States (1978) 436 U.S. 128, 138, 98 S.Ct. 1717, 1723,

(continued...)

App. 69

a violation of the federal Constitution. (United States v. Lambert,

supra, 887 F.2d 1568, 1572-1573; United States v. Wuagneux, supra,

683 F.2d 1343, 1352.)

Assuming that the remedy of total suppression is required when

police conduct is in flagrant disregard of the limits of the warrant, we

conclude that in the present case the trial court properly found that

the application of that extreme remedy was not warranted and

suppressed only items not covered by the warrant. Although the

record indicates that the officers searched a vehicle and several

storage locker areas that were not clearly named in the warrant, it

also establishes that defendant had no reasonable expectation of

privacy with regard to the vehicle and certain of the locker areas. It

is also apparent that other locker areas in which he had such a

reasonable expectation of privacy were within close proximity to the

vehicles as well as to the lockers identified at the scene as being used

by the inhabitants of defendant's residence.

Although the officers seized a number of items that clearly fell

outside the scope of the warrant, the record reveals that the bulk of

these items might have had some bearing upon the current offenses.

(United States v. Tamura, supra, 694 F.2d 591, 597.) The several

remarks by police witnesses indicative of a broader purpose do not

establish a flagrant disregard of the limits of the warrant when

considered in the context of the total testimony. The officers may

have entertained the hope that evidence pertaining to unrelated

crimes also would be discovered, but it is very apparent that the

search was not simply a pretext for a general search for evidence of

unrelated crimes. The record does not demonstrate that the officers

had not been briefed or prepared as to the objects of the search (see

'3(._ continued)

56 L.Ed.2d 168.)

App. 70

United States v. Heldt, supra, 668 F.2d 1238, 1259-1262), or that

their search amounted to a "fishing expedition." (Cf. United States

v. Medlin, supra, 842 F.2d 1194.) Nor was the behavior of the

officers so unconscionable as to amount to a due process violation.

(United States v. Tamura; supra, 694 F.2d 591, 597.) Under these

circumstances, the trial court did not err in declining to order the

"extraordinary remedy" of total suppression of all items seized.

c. Motion to suppress defendant's August 16, 1984,

statements to the police

During the trial, defendant moved to suppress the evidence of

statements he made during an interrogation by the police conducted

on August 16. Out of the presence of the jury, the trial court held a

hearing on defendant's motion to suppress the evidence, at which the

following testimony was presented.

Upon defendant's arrest on August 16, at approximately 6:45

p.m., Detectives St. John and Melleker attempted to interview him in

an interrogation room at Parker Center in downtown Los Angeles.

The conversation secretly was taped by the Scientific Investigation

Division (hereafter, SID), and was taped by an additional recording

device inside a briefcase that Detective St. John brought to the

interrogation room. The detectives informed defendant that they

were part of the robbery-homicide division and wanted to speak to

him about Shari Miller and Tracey Campbell. After they provided

him with the advisements required by Miranda, defendant informed

the detectives that he wished to have his attorney present during

questioning. Detective St. John switched off the recording device in

his briefcase, and defendant was escorted from the room to telephone

his attorney. The detectives left the room and instructed SID to cease

recording.

App. 71

At approximately 6:50 p.m., following several unsuccessful

attempts to contact his attorney, defendant was escorted back to the

interrogation room, where he was handcuffed to a chair and left

alone. Detective Worthen, who earlier that day had informed

Tracey's mother that Tracey's body had been discovered in the desert,

and who recently had arrived at the squad room, was informed that

defendant had invoked his constitutional rights. Several minutes

later, Detective Worthen entered the interrog

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