# Petition for Writ of Certiorari — Bradford v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1118

## Text

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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.

eee

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2334%3A1. Public record. Not legal advice.