People v. Sims

• Decision Date: 28 June 1993
• Docket Number: No. S004783,S004783
• Citation: 5 Cal.4th 405,20 Cal.Rptr.2d 537,853 P.2d 992
• Court: California Supreme Court
• Parties: , 853 P.2d 992 The PEOPLE of the State of California, Plaintiff and Respondent, v. Mitchell Carlton SIMS, Defendant and Appellant.

Page 537

20 Cal.Rptr.2d 537

5 Cal.4th 405, 853 P.2d 992

The PEOPLE of the State of California, Plaintiff and Respondent, v. Mitchell Carlton SIMS, Defendant and Appellant.

No. S004783.

Supreme Court of California In Bank.

June 28, 1993.

Rehearing Denied Sept. 15, 1993.

Leon Letwin, Los Angeles, and Richard A. Wasserstrom, Santa Cruz, under appointments by the Supreme Court, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Asst. Atty. Gen., Robert F. Katz, Susan Frierson, John R. Gorey and David F. Glassman, Deputy Attys. Gen., for plaintiff and respondent.

GEORGE, Justice.

Following the guilt phase of a jury trial, defendant Mitchell Carlton Sims was found guilty of one count of first degree murder (Pen.Code, §§ 187, 189 )¹, two counts of attempted murder (§§ 187, 664), and three counts of robbery (§ 211). The jury found that defendant used a firearm during the commission of each offense (§ 12022.5, subd. (a)) and found true two special-circumstance allegations that defendant committed the murder while lying in wait (§ 190.2, subd. (a)(15)) and during the commission of a robbery (§ 190.2, subd. (a)(17)(i)). Following the penalty phase of the trial, the jury imposed the death penalty. We affirm the judgment in its entirety.

FACTS

I. GUILT PHASE EVIDENCE.

A. The prosecution's case.

1. The crimes.

On December 8, 1985, in Glendale, California, defendant and codefendant Ruby Padgett ² entered a Domino's Pizza parlor On the afternoon of the following day, a man and a woman entered a Sears store in Glendale and purchased a package of socks, underwear, a clothesline, and a knife. At the sales counter, the clerk overheard the woman admonish the man, who appeared anxious, to relax, because they would be leaving the store shortly.

[853 P.2d 998] and asked Kory Spiroff, the assistant manager, for directions to a drugstore.

On the evening of December 9, Kory Spiroff was working at the Domino's Pizza parlor with delivery drivers Edward Sicam and John Harrigan. The three men wore Domino's Pizza uniforms, consisting of short-sleeved shirts bearing a Domino's badge and a name tag above the badge. At 11:03 p.m., they received a telephone order for pizza from a male who spoke with a southern accent. The order was to be delivered to room 205 of the Regalodge Motel, located a three-minute drive from the parlor.

At 11:26 p.m., Harrigan, who was 21 years of age, left the parlor in his Toyota truck to deliver the pizza. He had sufficient money to make change for a $20 bill.

Approximately 11:45 p.m., defendant and Padgett entered the Domino's Pizza parlor. Defendant approached the front counter, pointed a gun at Sicam, and ordered Sicam and Spiroff into a back office. Spiroff warned defendant that a delivery driver was expected to return shortly. Defendant removed his sweater to reveal a Domino's Pizza shirt bearing Harrigan's name tag and chuckled, "No, I don't think so."

Defendant found a bank deposit bag, which he gave to Padgett, who began to remove the cash (approximately $2,000) from the cash drawers. Defendant told Padgett to watch for fingerprints and began wiping the tables and cash drawers.

At this point, Richard Wagner, an off-duty coworker and friend of Spiroff, arrived at the store in a truck, accompanied by his wife. After Wagner parked in front of the store and entered the premises, defendant ordered Spiroff to approach the front counter. Spiroff acknowledged the Wagners as customers, rather than acquaintances, and asked them to stand on the other side of the front counter. Mr. Wagner was puzzled and suspected a robbery was in progress.

Defendant, wearing a Domino's shirt bearing Harrigan's name tag, walked to the front counter. Mr. Wagner, impersonating a customer, ordered a pizza. Defendant told him to wait outside the store in his truck and that defendant would bring the pizza to him as soon as it was prepared. He then returned to the back office with Spiroff, where Padgett was holding Sicam at gunpoint. Padgett, commenting to defendant that he had "always wanted a watch," took Spiroff's watch from a windowsill and handed it to defendant.

When the pizza was prepared, defendant brought it to the Wagners, who were waiting outside. The Wagners then left and, proceeding to a pay telephone, called the manager of the Domino's Pizza parlor, who told them he was unaware of any employees at the establishment other than Sicam and Spiroff. The Wagners then contacted the police.

Defendant reentered the store premises, began to pace the floor, and asked Spiroff where defendant could lock up the two men. Defendant then announced he had decided to take both men one at a time into the walk-in cooler. The cooler was 8 feet by 12 feet, with a 3-tier rack against the left wall, and was maintained at a temperature between 32 and 40 degrees Fahrenheit. Defendant first forced Spiroff into the cooler, proceeding to tie his hands tightly behind his back with one end of a rope. He then looped the other end of the rope over the rack and pulled it downward, raising Spiroff's arms to a painful position behind his back, which in turn forced Spiroff to stand on his tiptoes to lessen the tension of the rope. When Spiroff complained, defendant told him, "Shut up. At least you live." Defendant then tied the end of the rope around Spiroff's neck with a knot in back of the neck, pulling the rope so tautly that--if Spiroff lowered himself from his tiptoes--the tension of the rope At that point, Spiroff felt extreme pain in his legs, neck, wrists, arms, and shoulders, and his hands and wrists were numb. Because of the low temperature and his stance on his tiptoes, Spiroff's calves began to tighten. But when he failed to maintain that stance, the rope tightened around his neck, beginning to strangle him.

[853 P.2d 999] would cause him to strangle. When defendant asked him at what time the cooler would be opened the following day, Spiroff said that ordinarily the door would be opened at 11 a.m. Defendant stated that by that time, he and Padgett would be in San Francisco. When Spiroff asked defendant about the whereabouts of Harrigan, defendant told him that Harrigan had been tied up at the motel and would be found after Spiroff was found.

Defendant next brought Sicam into the cooler and bound him in a similar manner. When Sicam moaned that defendant was choking him, defendant responded, "You are alive." Defendant then closed the cooler door, leaving the establishment at 12:15 a.m. with Padgett.

While standing on the toes of one foot, Spiroff attempted to knock over cartons stacked on the ground next to him so that he could stand on them and thereby alleviate the pressure of the rope around his neck. As he moved from side to side, however, the rope tightened around his neck. Eventually he was able to knock over a box so that he and Sicam could stand on it.

In response to Mr. Wagner's telephone call, Glendale police officers arrived at the Domino's Pizza parlor at 12:30 a.m. They were met by Mr. Wagner and the manager. The officers entered the establishment and, upon opening the door to the walk-in cooler, found Spiroff and Sicam. After the officers untied the ligatures, either Spiroff or Sicam told them that the person responsible for their plight was wearing Harrigan's uniform shirt and that Harrigan was last seen leaving to deliver a pizza to the Regalodge Motel.

After proceeding to the Regalodge, the officers obtained from the motel manager the key and the registration card to room 205. The room was registered under defendant's name. Upon entering the room, the officers heard the sound of running water from inside the bathroom. Opening the bathroom door, an officer found the dead body of Harrigan in the bathtub. The bathtub was full of water, and Harrigan's body was submerged under the water with his back parallel to the side of the tub. His head was located immediately under the water spout, submerged approximately one inch under the water line, with cold water running onto the back of his neck. His wrists were bound behind his back; his ankles were bound, and his feet and hands were "hogtied" together behind his back. Harrigan's head was covered with a pillowcase bound tightly around his neck with a rope. A folded washcloth had been placed inside his mouth, secured by a sock tied around his head. No money, wallet, or car keys of the decedent were found on the premises. The telephone cord inside the room had been severed.

Dr. Joseph Cogan, the forensic pathologist who performed the autopsy on Harrigan's body, determined that the cause of death was ligature strangulation. His opinion was based upon (1) the depth of the ligature furrow around the decedent's neck, indicating the extreme pressure of the ligature around the neck; and (2) the numerous hemorrhages on the inner eyelids, indicating that Harrigan was alive when the neck ligature was applied, because it obstructed the flow of blood to the head and the brain. Dr. Cogan opined that the decedent lived for no more than 10 minutes after the neck ligature was applied and that the use of this ligature was sufficient in and of itself to kill Harrigan. Dr. Cogan further testified he could not rule out drowning as a possible concurrent cause of death, based upon Harrigan's having been found fully submerged in a bathtub of water with a gag in his mouth, and the presence of frothy pulmonary edema in his trachea and bronchi.

Investigative technicians testing for fingerprints in the motel room were for the most part unsuccessful, because all surfaces appeared to have been wiped with a The rope used as ligatures to bind Harrigan, Spiroff, and Sicam was similar to the clothesline sold to the unidentified couple at the Sears store shortly before the commission of the crimes. The knots used to tie the ligatures of Spiroff and Sicam were of the same type as was found on the ligatures on...