46 Cal.3d 478, 22956, People v. Keenan

Docket Nº:22956
Citation:46 Cal.3d 478, 250 Cal.Rptr. 550, 758 P.2d 1081
Opinion Judge:[10] Eagleson
Party Name:People v. Keenan
Attorney:[7] Frank O. Bell, Jr., Harvey R. Zall, State Public Defenders, Jean R. Sternberg and Joel Kirshenbaum, Deputy State Public Defenders, under appointments by the Supreme Court, for Defendant and Appellant. [8] John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Jo...
Case Date:August 25, 1988
Court:Supreme Court of California
 
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Page 478

46 Cal.3d 478

250 Cal.Rptr. 550, 758 P.2d 1081

The PEOPLE, Plaintiff and Respondent,

v.

Maurice J. KEENAN, Defendant and Appellant.

Crim. 22956.

Supreme Court of California

Aug. 25, 1988.

In Bank

As Modified Sept. 22 and Oct. 31, 1988.

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Frank O. Bell, Jr. and Harvey R. Zall, State Public Defenders, under appointment by the Supreme Court, Jean R. Sternberg and Joel Kirshenbaum, Deputy State Public Defenders, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Herbert F. Wilkinson, Robert R. Granucci and Morris L. Lenk, Deputy Attys. Gen., for plaintiff and respondent.

EAGLESON, Justice.

In San Francisco Superior Court, a jury convicted defendant Maurice J. Keenan of one count of first degree murder (Pen.Code, §§ 187, 189), 1 one count of burglary ( § 459), one count of robbery ( § 211), and two counts of attempted robbery ( § 664), all with personal use of a firearm ( § 12022.5). Defendant also sustained convictions for possession of a sawed-off shotgun ( § 12020) and of a concealable firearm by an ex-felon ( § 12021). Under the 1978 death penalty law, the jury found true special circumstances that the murder was committed in the course of a robbery

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§ 190.2, subd. (a)(17)(i)) and of a burglary (id., subd. (a)(17)(vii)). After a penalty trial, the jury sentenced defendant to death. The automatic motion to modify the verdict ( § 190.4, subd. (e)) was denied, and a death judgment was entered. This appeal is automatic.

We find no prejudicial error at either the guilt or penalty phases. We will therefore affirm the judgment in its entirety.

I. GUILT TRIAL

A. Prosecution case.

On the evening of July 8, 1979, Robert Opel was shot to death in his art gallery at 1287 Howard Street in San Francisco. Defendant and Robert Kelly were jointly charged and tried for offenses culminating in Opel's murder. 2 Compelling eyewitness and circumstantial evidence tied them to the crimes.

The principal prosecution witnesses were Anthony Rogers and Camille O'Grady, friends of the murder victim. Rogers and O'Grady gave similar accounts of the incident. Both testified that Opel lived in an apartment at the rear of the storefront gallery space. The gallery, which specialized in erotic art, was self-supporting, but Opel also supplemented his income by selling drugs, principally amphetamines and phencyclidine (PCP). Drugs were frequently present on the premises.

On July 8, 1979, Rogers and O'Grady visited Opel at the gallery, then attended an early evening swim party at a neighborhood bar. They returned to the gallery around 8:30 or 9 p.m. to check on Opel, who was in bed with bronchitis. Presently the street doorbell rang, and Opel went to answer it. Rogers followed Opel into the gallery area. He saw two men enter, one carrying an attache case. This man, identified at trial as defendant, set the case down on a raised "stage" area and opened the combination lock. Saying "this is for or from Dana," he withdrew an automatic pistol. Simultaneously the other intruder, identified as codefendant Kelly, took a sawed-off shotgun from the case.

Defendant pointed the handgun at Opel, while Kelly brandished the shotgun at Rogers. Both robbers demanded drugs or money. Opel replied he had nothing and insisted they leave. Meanwhile O'Grady walked into the

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gallery area. Kelly placed the shotgun to her neck and threatened to blow her head off if he and defendant did not get what they wanted. Both men continued to demand money or drugs; Opel repeatedly insisted that he had nothing and they should leave his "space."

Defendant then ordered Kelly to escort Rogers and O'Grady to the back and "take them out." Kelly forced them to the kitchen in the rear of the gallery, directed them to sit on the floor, and held the shotgun on them. O'Grady sat facing the kitchen door, which led through a short hallway into the gallery.

Kelly took $5 and a camera offered by Rogers and rifled through O'Grady's bag. Meantime, O'Grady and Rogers overheard a continuing argument between defendant and Opel in the gallery area. Defendant said, "I'll blow your head off." O'Grady saw defendant, who for some period was standing in the kitchen doorway, fire a shot upward toward the ceiling. She then heard a second shot and a shattering sound, after which the raised voices of Opel and defendant were still audible. Finally there was a shot followed immediately by the sound of a falling body. Apparently Kelly was also in the gallery area at that moment.

Meanwhile, according to Rogers, other tenants in the building had heard the commotion and were coming down the stairs to investigate. Kelly, still carrying the shotgun, returned to the kitchen. Defendant yelled to Kelly, "Kill them both. Let's get out of here. There's a crowd gathering." Kelly ripped a telephone cord from the wall and tied Rogers's and O'Grady's hands behind their backs. He told them they would die if they ever saw or identified the robbers. Once satisfied the intruders had left, Rogers and O'Grady freed themselves and entered the gallery. There they found Opel on the floor, breathing heavily.

Opel had received a small-caliber gunshot wound to the head. He later died of the injury. The physical evidence indicated the fatal shot had been fired from relatively close range, probably less than a foot.

Though both Rogers and O'Grady saw defendant only for relatively brief periods, they testified that the light and distance were good, and that they observed him clearly. 3 The night after the murder, O'Grady, who had worked as an artist, drew memory sketches of the robbers. The sketch of the man later identified as defendant included distinctive items, such as a reddish-brown jacket and a diamond or crystal stickpin. O'Grady testified that defendant was wearing these items on the night of July 8, 1979.

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On the night O'Grady drew the sketches, she also received a call from a musician friend, Ruby Zebra. Anthony Rogers was with O'Grady when the call occurred. Zebra advised that "Dana" was at the TraveLodge Motel at Polk and Ellis Streets with the wife of one of the murderers; according to Zebra, Dana wanted to get in touch with O'Grady. O'Grady knew a Dana Challman, who sometimes sold Opel Quaaludes. According to Rogers, Zebra advised O'Grady that the murderers' names were "Bob" and "Maurice Keenan"; Rogers then placed those names on the sketches O'Grady had done.

O'Grady relayed Zebra's tip to the police. On the morning of July 10, 1979, they went to the motel room described by Zebra. The room was abandoned, with items such as a camera left behind. While in the room, the officers received word to telephone Zebra. As a result of the subsequent call, they went to Zebra's home, where they met Challman. Challman named defendant as a suspect in the Opel murder and gave defendant's residence address. Zebra and Challman also said that defendant and his wife were planning to go to Miami.

The officers proceeded to the address given by Challman. There the manager identified photographs of defendant and his wife. The manager said the couple had left with luggage in a taxi shortly before the police arrived.

Defendant, Kelly, and defendant's wife Linda Holt were apprehended at San Francisco International Airport the same day. Defendant was carrying false identification. The suspects' luggage was taken into custody and searched under warrant. It contained the sawed-off shotgun identified as that brandished by Kelly at the gallery and the automatic pistol which, according to ballistics evidence, fired the fatal shot. There was ammunition for both weapons. Also included was a reddish-brown leather jacket, later identified by O'Grady as that worn by the robber with the handgun.

Defendant refused to participate in a physical lineup, even after a deputy public defender acting as his counsel informed him of the consequences. Rogers was unable to identify defendant's picture in a photo spread he viewed shortly after the gallery incident. However, both Rogers and O'Grady identified a different, more recent picture of defendant in photo spreads on July 11, 1979, three days after the murder. Rogers indicated that the second photo more closely depicted defendant's appearance at the time of the gallery incident.

Rogers positively identified defendant at trial. At first, O'Grady was unable to identify the robbers in the courtroom. She later did so, however,

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noting that both by then looked "very different" and "more cleancut." Rogers agreed, explaining that defendant previously had hair which came over his ears, but at trial he wore glasses, was "a lot neater," and was clean-shaven.

Asked about the intruders' demeanor at the gallery, both Rogers and O'Grady indicated that Kelly was somewhat "hyper" and excited but that defendant for the most part seemed normal and in command. Rogers declared that defendant "was calm, he was giving the orders, he was in charge of everything that was happening." Both witnesses claimed they had no trouble understanding defendant's speech. O'Grady admitted she had called defendant "crazy" in early police and media interviews, but she explained she meant only that robbers who carry out threats to kill are crazy. Neither Rogers nor O'Grady saw evidence, based on their own experience, that defendant was under the influence of amphetamines.

The prosecution also introduced evidence of three nonviolent escapes by defendant from jail...

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