People v. Cummings

• Decision Date: 29 April 1993
• Docket Number: No. 24863,No. S004699,S004699,24863
• Citation: 850 P.2d 1,4 Cal.4th 1233,18 Cal.Rptr.2d 796
• Court: California Supreme Court
• Parties: , 850 P.2d 1 The PEOPLE, Plaintiff and Respondent, v. Raynard Paul CUMMINGS and Kenneth Earl Gay, Defendants and Appellants. Crim.

Page 796

18 Cal.Rptr.2d 796

4 Cal.4th 1233, 850 P.2d 1

The PEOPLE, Plaintiff and Respondent, v. Raynard Paul CUMMINGS and Kenneth Earl Gay, Defendants and Appellants.

No. S004699.

Crim. No. 24863.

Supreme Court of California,

In Bank.

April 29, 1993.

As Modified on Denial of Rehearing June 23, 1993.

Page 808

[4 Cal.4th 1255] [850 P.2d 13] Robert Weisberg, Professor of Law, Stanford University, Stanford, and Richard Urdan, Graham & James, San Francisco, under appointments by the Supreme Court, and Martin H. Dodd, Marron, Reid & Sheehy, San Francisco, for defendants and appellants.

Daniel E. Lungren, Atty. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., Edward T. Fogel, Jr., Asst. Atty. Gen., Carol Wendelin Pollack, Acting Asst. Atty. Gen., Robert F. Katz, Donald E. De Nicola, Susan Lee Frierson and William T. Harter, Deputy Attys. Gen., for plaintiff and respondent.

BAXTER, Justice.

I.

After a joint trial before separate juries in the Los Angeles County Superior Court,

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[850 P.2d 14] defendants Raynard Paul Cummings and Kenneth Earl Gay were convicted of the June 2, 1983, wilful, deliberate, and premeditated first degree murder of Paul Verna. (Pen.Code, § 189; count XIX.) ¹ The juries also found that the murder was committed under the special circumstances of an intentional killing of a peace officer engaged in the performance of his duties by one who knew or should have known he was such (§ 190.2, subd. (a)(7)), and was committed for the purpose of preventing a lawful arrest (§ 190.2, subd. (a)(5)); that a principal was armed with a firearm (§ 12022, subd. (a)); and that each defendant personally used a firearm (§§ 12022.5, subd. (a), 1203.06, subd. (a)(1)). Each jury returned a penalty verdict of death

Raynard Paul Cummings had previously entered pleas of guilty to two counts (I, VII) of attempted robbery (§§ 664/211), eleven counts (II, III, IV, V, VI, VIII, IX, XII, XIII, XIV, XV) of robbery (§ 211) and one count (XVI) of conspiracy to commit robbery (§§ 182/211), in each of which he and Kenneth Earl Gay were jointly charged. He had also entered pleas of guilty to two additional robbery counts (X, XI) and to one count (XVIII) of being an ex-felon in possession of a concealable firearm (§ 12021). ²

The jury before whom Kenneth Earl Gay was tried jointly with Raynard Paul Cummings on the murder charge had first heard evidence on counts charging Gay with, and ultimately convicted him of, the two attempted robbery counts, ten of the robbery counts (counts II, III, IV, V, VI, VIII, IX, XII, XIII, XIV), conspiracy to commit robbery (count XVI), and being an ex-felon in possession of a concealable weapon (count XVII), and found that he had personally used a firearm in committing three of those offenses (§§ 12022.5, 1203.06, subd. (a); counts II, VI, IX) and had inflicted great bodily injury on victims in two (counts II, VI). ³

After denying motions for new trial and modification of the penalty, the trial court imposed a sentence of death on each defendant for the murder. These appeals are automatic. (§ 1239, subd. (b).)

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[850 P.2d 15] Each defendant claims that he was denied trial before a jury selected from a representative cross-section of the populace; that the trial court erroneously [4 Cal.4th 1257] excused for cause prospective jurors whose views on the death penalty did not affect their ability to fairly apply the law; and that the court erred in denying their motions for severance and instead required them to stand trial together before separate juries on the murder count and, as to Gay, on the robbery counts. They also argue that their motions for change of venue were erroneously denied.

Each also makes several individual claims of error. We conclude that the robbery, attempted robbery, and conspiracy to commit robbery convictions of defendant Gay must be reversed, but the judgments should be affirmed in all other respects.

II.

GUILT PHASE

THE PROSECUTION CASE

A description of the procedures utilized in the trial court and an overview of the evidence offered at the guilt phase of the joint murder trial is helpful in understanding the procedural and substantive issues. The evidence will be discussed in greater detail as it is relevant to the specific claims of error.

The robberies and related offenses in which defendants were implicated were committed in April and May 1983. All were committed in northern Los Angeles County. ⁴ Those charged in counts XII, XIII, and XIV allegedly occurred on May 29, 1983. That charged in count XV, of which only defendant Cummings was convicted, was allegedly committed on May 31, 1983, only two days before the murder. The time frame within which they were committed is relevant inasmuch as the People theorized that fear of arrest for the robberies was a motive for the murder.

The murder was committed about 5:40 p.m. on June 2, 1983, in the 12000 block of Hoyt Street in the Lakeview Terrace district of San Fernando Valley, a location within the City of Los Angeles. The victim, Los Angeles Police Department Motorcycle Officer Paul Verna, had stopped a stolen car being driven by Pamela Cummings (Pamela) for a traffic violation. The car stopped in front of 12124 Hoyt. Pamela's husband Raynard (Cummings) was in the rear seat of the two-door coupe. Kenneth Gay (Gay) was in the front passenger seat. The car, a gray or silver and black two-door 1979 Oldsmobile Cutlass coupe, had been stolen by Cummings and a second person who [4 Cal.4th 1258] entered the North Hollywood home of the sixty-nine-year-old owner and took the keys from her at gunpoint on May 26, 1983. Pamela had removed the license plates on the car prior to the time it was stopped by Officer Verna, replacing them with plates stolen from another car.

Pamela, who had no driver's license, stepped out of the car and offered other identification to the officer. He then approached the car and asked the occupants for identification. Officer Verna was then shot six times by the occupants of the car, all shots coming from a single handgun. The first shot knocked him backward and he fell. The coroner later labelled that first shot "Number 6." The remaining shots hit him as he was falling and lay on the street. The car then drove off, but quickly returned and stopped by the fallen officer. Gay stepped out, picked up Pamela's identification card, and the murder weapon which had been dropped or thrown down at the scene. The officer's gun was also picked up, either at this time or earlier when he fell.

The field identification card which Officer Verna had completed when he questioned Pamela was found at the scene.

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[850 P.2d 16] The entries on that card, although inaccurate as Pamela had given a false address, gave investigating police officers information that led to the apartment complex in which Kenneth and Robin Gay (Robin) lived. The officers followed Pamela and Robin from that location to a bus depot, and to Oceanside where the women left the bus and were picked up by Cummings and Gay in Robin's green Plymouth automobile. The foursome were arrested on June 3, 1983, after they had stopped at a convenience store in Escondido where Pamela had asked the proprietor for directions to Arizona and then had driven on to San Diego and headed east on a main route toward that state

The officers were not aware while following the car that Cummings and Gay were in it. Only after they learned that the women planned to go to Arizona and stopped the car did they find the two men, Gay lying on the floor behind the front seat of the car and Cummings on the back seat. Officer Verna's gun was found on the floor under Gay.

At almost the same time, the Oldsmobile Cutlass was located where it had been abandoned. The license plates had been changed. Fingerprints of Cummings, Gay, and Pamela were identified in that car.

The murder weapon was not located. A comparison of bullets fired from a gun possessed by Cummings prior to the murder with those which killed Officer Verna confirmed that the same gun was used to commit the murder.

In the days immediately before the murder Cummings had told a companion twice that he was not worried about being stopped by police while in a stolen car because he would not give the officer a chance to ask him any questions. Both Gay and Pamela were present on one occasion when Cummings made this statement.

[4 Cal.4th 1259] At the time of the murder Cummings was on parole by the State of Delaware. Gay was on parole following a felony conviction in California.

Several eyewitnesses observed some of the events on Hoyt Street. Their versions of the events and identification of the shooter or shooters varied greatly. The People relied on the statements of these witnesses and of others who related inculpatory statements subsequently made by Cummings for a theory that Cummings fired the first shot from the rear seat after which the gun was passed to Gay who stepped out of the car and fired the remaining shots into the fallen body of Officer Verna. Each defendant relied on some of the same evidence, as well as forensic evidence, in his effort to persuade the jury that the other fired all of the shots.

The eight independent eyewitnesses testified variously:

1. OSCAR MARTIN, who was 12 years old in 1983, identified Cummings as a person who shot Officer Verna. His trial and preliminary hearing testimony, and his statements to investigating officers, differed in significant respects.

At the trial Oscar testified that he was in the front yard of his home when he saw Officer Verna giving Pamela a ticket. A four-door gray car was stopped in front of the house. Oscar testified at one point that the driver's side was farthest from his house, but later said the driver was not on the far side. ⁵ The officer's motorcycle was behind the car.

Oscar went into his house and told his mother, who was in the kitchen, what he had seen. She told him to stay inside. He then...