People v. Andrews, S004617

Citation49 Cal.3d 200,776 P.2d 285,260 Cal.Rptr. 583
Decision Date03 August 1989
Docket NumberNo. S004617,S004617
CourtUnited States State Supreme Court (California)
Parties, 776 P.2d 285 The PEOPLE, Plaintiff and Respondent, v. Jesse James ANDREWS, Defendant and Appellant. Crim. 23785.
[776 P.2d 287] Frank O. Bell, Jr. and Harvey Zall, State Public Defenders, Therene Powell and James A. Uyeda, Deputy State Public Defenders, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Christine C. Franklin, Donald E. deNicola and William T. Harter, Deputy Attys. Gen., for plaintiff and respondent.

KENNARD, Justice.

A jury convicted defendant Jesse James Andrews of three counts of first degree murder (Pen.Code, § 187), 1 one count of robbery ( § 211), one count of rape (former § 261, subd. 2; 261, subd. 3), and one count of sodomy by foreign object ( § 289). The jury found that he had used a firearm in the commission of each offense. ( § 12022.5.) As to each murder, the jury found true three separate special-circumstance allegations: prior murder conviction ( § 190.2, subd. (a)(2)), multiple murder ( § 190.2, subd. (a)(3)), and robbery-murder ( § 190.2, subd. (a)(17)(i)). The jury also found true the special circumstance allegation that defendant had committed a murder during the commission of a rape. ( § 190.2, subd. (a)(17)(iii).) At the penalty phase, the jury returned a sentence of death for each murder. Defendant's appeal to this court is automatic. ( § 1239, subd. (b).) Although we conclude that certain duplicative special-circumstance findings must be stricken, we affirm the judgment in all other respects.

I. GUILT PHASE FACTS
A. The Murders

On the evening of December 9, 1979, police were summoned to the Los Angeles apartment of Preston Wheeler. There they found the bodies of Wheeler, Patrice Brandon and Ronald Chism. Wheeler had been stabbed in the chest six times and shot in the neck at close range with either a .32- or .357-caliber weapon. His face and head were bruised, and his face had been slashed with a knife. Brandon and Chism had been strangled with wire coat hangers. Their faces were bruised, Chism's extensively. Brandon's anus was extremely dilated, bruised, reddened and torn, consistent with the insertion of a penis shortly before her death. There was also redness around the opening of her vagina, and vaginal samples revealed the presence of semen and spermatozoa. All three victims were bound hand and foot.

Roughly a year later, police arrested Charles Sanders, defendant's accomplice, in connection with these crimes. During his interrogation, Sanders gave both a tape-recorded and a written statement. He later cooperated with the authorities and testified against defendant at trial, pursuant to a plea bargain in which Sanders pleaded guilty to three counts of second degree murder and admitted a gun-use enhancement, in return for which he was promised a sentence of seventeen years to life in prison.

B. Sanders's Testimony

Sanders gave the following testimony. After devising a plan to rob Wheeler, a drug dealer, Sanders and defendant went to see their friend Carol Brooks on the night of December 8, 1979. Brooks lived in the same apartment building as Wheeler. Defendant was armed with a .357 magnum. Sanders had a .38- or .32-caliber automatic furnished by defendant. Following their visit to Brooks, the two men went to Wheeler's apartment. In response to their After smoking some marijuana with Wheeler, defendant and Sanders drew their guns. Sanders tied Wheeler and Brandon with belts and socks, put on a pair of gloves, and began to search the apartment for drugs and money. Except for some powder on a saucer which appeared to be cocaine, the search was unsuccessful. Defendant questioned Wheeler, who denied having any drugs or money. Saying he would make Brandon talk, defendant dragged her into the kitchen and closed the door. Sanders remained in the living room with Wheeler.

knocking, Wheeler, who apparently knew defendant, let them in. Also inside the apartment was a woman (Patrice Brandon).

Initially, Sanders heard defendant talking to Brandon and hitting her; later he heard "breathing as though they were making love." Shortly thereafter, defendant came out of the kitchen. Through the partially open kitchen door, Sanders saw Brandon's pants around her ankles.

Defendant put his gun in Wheeler's mouth. He threatened to kill Wheeler and Brandon unless Wheeler revealed the location of the drugs. Wheeler said the "dope" was in the attic, and pointed out a trap door leading up to it. Sanders climbed into the attic.

While in the attic, Sanders heard two shots. When he came down, defendant told him he had shot Wheeler because the latter had tried to jump out the window. Sanders asked if Wheeler was dead. Defendant responded he was "standing right up" on Wheeler when he fired the gun. Sanders saw blood on Wheeler's neck and chest. He suggested that they clean the apartment and leave. When Sanders asked about Brandon, defendant replied he had killed her before leaving the kitchen.

During the clean up of the apartment, defendant responded to a knock on the door. Sanders heard the visitor (Ronald Chism) ask if everything was all right and if Wheeler was there. Defendant said Wheeler was home, and invited Chism inside. Defendant then hit Chism on the head, tied him up, and took him into the bathroom. Sanders saw defendant sitting astride Chism's back, joining and separating his clenched fists in a tugging motion, apparently strangling Chism. Sanders could not see what defendant had in his hands.

Thereafter, Sanders saw defendant enter the kitchen and choke Brandon with a wire clothes hanger. Defendant and Sanders then left the apartment and drove away. Defendant gave Sanders some money, saying it was all he had found.

C. Brooks's Testimony

Carol Brooks testified she had known defendant and Sanders for a long time. Her brother was married to Sanders's sister. The night of the murders, defendant and Sanders were at her house between 10 and 11 p.m. Defendant told her they were going to Wheeler's apartment to get some money.

A week or so after the murders, Sanders told Brooks of his involvement in the crimes. Several weeks later, defendant mentioned to Brooks he (defendant) shot Wheeler, took $300, and had sex with Brandon. 2

D. Fingerprint Evidence

Police fingerprint experts Howard Sanshuck and Donald Keir compared 50 latent prints lifted from Wheeler's apartment with fingerprint and palm print exemplars taken from defendant. They concluded that three of the latent prints were defendant's: a fingerprint on a coffee table in the living room, and a set of left and right palm prints on the kitchen floor. The left palm print was found about an inch from Brandon's body.

Shortly after the murders, Sanshuck's supervisor, Jimmy Cassel, Jr., performed a preliminary examination of the latent prints lifted from the crime scene. At that time, Cassel erroneously marked the prints found on the kitchen floor as Wheeler's but later identified them as belonging to defendant. He explained his earlier examination had been a "very quick run-through." He attributed the erroneous marking to accidentally

placing the [49 Cal.3d 209] lifts in the wrong pile while going through them. At trial, Cassel saw no similarity between the lifts and Wheeler's prints.

E. Defense Evidence

Defendant did not testify. The defense consisted primarily of attempts to undermine Sanders's credibility.

Edward Tate testified he and Sanders began confiding in each other while both were in the Los Angeles County jail in 1981. Sanders told Tate his girlfriend was putting a lot of pressure on him, and he was going to fabricate a story "to shift the weight over" to an unnamed male fighting extradition in Florida. 3 Approximately 18 months later, Tate was transferred to the jail's high security section. There he met defendant, and learned defendant was the person of whom Sanders had been speaking.

Henry Wilds testified that in May 1982--during a poker game with Tate, Sanders and two other inmates nicknamed "Evil" and "Treach"--Sanders, referring to the murders at issue here, said he was going to "put it on a dude" named Chester. When Wilds asked, "You fixin' on lyin' on somebody?," Sanders responded, "Somebody got to ride on this." Wilds then threw down his cards, said he was not going to play with any "snitch-ass dude," and left. Tate partially corroborated Wilds' testimony, saying he remembered Wilds' calling Sanders a lying snitch but could not recall the circumstances under which the accusation was made.

Sanders denied making the statements that Wilds and Tate attributed to him. He did not know anyone named Henry Wilds, but acknowledged that he might know Wilds by another name and that he had played poker with "Evil" and "Treach."

II. GUILT PHASE ISSUES
A. Admission of Sanders's Tape-recorded Statement

The defense implied during the cross-examination of Charles Sanders that he had lied about the killings. In an effort to rehabilitate him, the prosecution sought to introduce Sanders' written and tape-recorded statements made to the police just after his arrest, both of which were substantially similar to his testimony at trial. The trial court allowed the prosecution to introduce the tape-recorded statement over defense objection.

Defendant contends admission of the tape recording was prejudicial error. The People respond the tape was admissible on three different theories: (1) as a refutation to a charge of recent fabrication (Evid.Code, § 791, subd. (b)); (2) as a prior consistent statement which preceded a prior inconsistent statement (Evid.Code, § 791, subd. (a)); and (3) pursuant to the "entire act" provisions of Evidence Code section 356. Because we agree with the People's first theory of admissibility, we need not address the others.

Subdivision (b) of Evidence...

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