People v. Bemore

• Citation: 996 P.2d 1152,94 Cal.Rptr.2d 840,22 Cal.4th 809
• Decision Date: 20 April 2000
• Docket Number: No. S012762.,S012762.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Terry Douglas BEMORE, Defendant and Appellant.

94 Cal.Rptr.2d 840

22 Cal.4th 809

996 P.2d 1152

The PEOPLE, Plaintiff and Respondent, v. Terry Douglas BEMORE, Defendant and Appellant.

No. S012762.

Supreme Court of California.

April 20, 2000.

Rehearing Denied June 21, 2000.

Matthew G. Newman, Parker, AZ, under appointment by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

A jury convicted defendant Terry Douglas Bemore (defendant or Bemore) of one count of first degree murder (Pen.Code, § 187),¹ one count of robbery (§ 211), and one count of burglary (§ 459). Under the 1978 death penalty law, two special circumstance allegations were found true, namely, that the murder occurred during the commission of a robbery (§ 190.2, subd. (a)(17)(A)), and that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)).

Following a penalty trial in front of the same jury that decided guilt, defendant was sentenced to death. The trial court denied the automatic motion to modify the verdict. (§ 190.4, subd. (e).) This appeal is automatic. (Cal. Const., art. VI, § 11; Pen.Code, § 1239, subd. (b).) No prejudicial error occurred at defendant's trial. We therefore will affirm the judgment in its entirety.

I. GUILT PHASE EVIDENCE

A. Prosecution Case

The crime occurred August 26, 1985, at the Aztec Liquor Store in San Diego. The victim, 55-year-old Kenneth Muck, was the lone clerk on duty and was responsible for closing the store at 10:00 p.m. — the approximate time of the robbery and murder.

A small storage room in the back of the liquor store contained cleaning supplies, including commercial mops, and a safe sitting on the floor. A door opened from the storage room into a Dumpster area behind the building. The back door was unlocked only when trash was discarded, usually at closing time.

Upon closing, Muck was required to transfer cash from the register to the top chamber of the safe. Muck did not know the combination to this chamber and could not retrieve money once it was deposited inside. However, all employees knew the combination to a separate bottom chamber of the safe, which held money placed in the register at the start of each shift. Money was wrapped in cloth bags tied with distinctive sailing knots by the owner of the store, Otto Heinkel.

Muck was required to set the burglar alarm before leaving work each night. When this task was performed, a loud ring would alert persons in the store that the alarm had been set. An alarm-on signal would also be received at the premises of a private security company.

The time of the crime was established primarily through witnesses who lived nearby. Walter Cardwell testified that between 9:30 and 9:45 p.m. on August 26, he returned a plunger he had borrowed from the liquor store a short time earlier. During Cardwell's return visit, Muck was otherwise alone, and the pair chatted for about five minutes. While walking between the store and his apartment, Cardwell saw a distinctive maroon Buick, later identified as defendant's, parked in the lot in front of the store.²

Another neighbor, Sandra McIndoe, testified that between 9:45 and 10:00 p.m., her roommate told her to look at something "odd" outside their bedroom window, which faced the Dumpster area behind the liquor store. There, McIndoe saw two people she could not otherwise identify standing around a "medium to large-sized sedan-type" car. Both McIndoe and a woman who lived in another building nearby testified that they did not hear the usual ring of the liquor store alarm at 10:00 o'clock the night of the crime.

At some point after 10:15 p.m., the security company informed the store's owner, Heinkel, that the alarm had not been set. Heinkel called an employee, John Riley, and asked him to investigate. When Riley arrived at 10:45 p.m., he unlocked the front door and saw that the cash register drawer was open and empty — its normal condition after money has been removed and placed in the safe at closing time. However, as Riley approached the storage room, he saw blood on the floor. He fled and called the police from a business nearby.

The police found Muck lying dead on the floor of the storage room. There was a large amount of blood, including a smear or trail leading from the body towards the back door, which was open. The safe was gone, and striation marks suggested it had been dragged or pushed outside. Heinkel estimated that the safe contained "at least $1,200" when it was stolen, accounting for both "start-up" money in the bottom chamber and sales receipts in the top chamber.

Detective Patrick Padillo testified that two sets of bloody shoe prints — one significantly larger than the other — were found in the storage room. Impressions made by the larger shoes were greatest in number and were located closest to the body. No bloody prints attributable to the smaller shoes, estimated to be men's size eight, were found in the immediate vicinity of the body. Testimony by a shoe print expert, John Simms, and by an investigator for the district attorney's office, Richard Cooksey, established that the larger set of prints were made by Puma tennis shoes — men's size 13 — bearing a particular herringbone pattern on the soles.

The forensic pathologist who performed the autopsy, Dr. Robert Bucklin, testified that Muck was over six feet tall, weighed 188 pounds, and was in good physical condition before he died. The autopsy disclosed one blunt force laceration and several abrasions, mostly to the head. There were also 37 stab wounds distributed over Muck's entire body.

Almost half, or 17, of the knife wounds were located on the front and back of the torso. Dr. Bucklin identified one back wound and four chest wounds as "potentially fatal," either individually or in combination. However, three of the latter wounds were particularly dangerous because they "blended" together on the chest, involved a great deal of force, and penetrated through the rib cage into the heart and lungs. The 20 remaining knife wounds — none identified as fatal — were located on Muck's head, neck, arms, legs, hips, and buttocks. They included two punctate marks on the left side of the neck and one nick or cut to the jugular vein on the right side of the neck. Dr. Bucklin indicated that because pressure in the veins of a live person is much lower than pressure in the arteries, a cut to the jugular vein would produce only a momentary spurt of blood, which would be followed by a "slow gradual flow as opposed to [the continuous] spurting type flow which might be expected from [cutting] an artery."

Dr. Bucklin encountered two unusual circumstances during the autopsy. First, while four shallow cuts on the arms seemed defensive in nature, Dr. Bucklin found no defensive knife wounds on Muck's hands — wounds commonly present in multiple stabbing cases like this one. Second, Dr. Bucklin observed a "cluster" of eight puncture and cutting wounds on Muck's right lateral flank. These injuries were "distinct and different" from all other stab wounds because they were smaller, shallow, and irregular in shape.³

As discussed later in the opinion, two knives were linked to defendant and the capital crime — a Dragon Taiwan knife identified as People's exhibit No. 48, and a Super Thrower knife identified as People's exhibit No. 66. Dr. Bucklin testified that the eight wounds on Muck's flank could have been made with People's exhibit No. 48, given the size, shape, and rough finish of the blade. However, Dr. Bucklin believed the fatal knife wounds on Muck's torso were inflicted with a different knife — one that created cuts with a "sharper," more regular edge — such as People's exhibit No. 66.

Brian Kennedy, a deputy sheriff, testified as an expert in bloodstain pattern analysis, and reconstructed the crime in light of Muck's injuries and the bloody scene. Kennedy believed Muck was probably seated upright on the floor — legs "drawn up" and feet bottoms "facing each other" — when "several blows" with the knife were delivered, including the nonlethal cut to his jugular vein. This conclusion was based on a single venal spurt pattern, as well as several miscellaneous spatter marks, on certain boxes; bloody crease marks in clothing on Muck's lap; the presence of blood drops on the ankle area of his sock; a blood flow stain running down the shirt towards his lap; and a transfer stain caused when the bottom of his chin evidently hung down against his bloody shirt.

According to Kennedy, additional stab wounds — including some of the injuries identified as fatal by Dr. Bucklin — were administered after Muck assumed the prostrate position in which he was ultimately found. Evidence supporting this conclusion included the large pool of blood underneath the chest cavity, and bloody "spine" marks projecting from the pool onto surrounding surfaces. Such blood loss and spining evidently occurred when the knife was driven violently into Muck's chest while he was lying down, causing blood which had collected and started to clot underneath him to squirt sideways onto the floor, and driving clots onto the wall.

Kennedy also believed Muck had been restrained during the attack — testimony consistent with autopsy evidence concerning the lack of defensive cuts on his hands. Several finger-size "compression marks" appeared in bloodstains circling the left wrist. A blood-free zone on the right wrist was roughly the size of a hand and, along with contact stains on the bicep, suggested that Muck's right arm had been grabbed and held against his bloody shirt. Based in part on the fact that blood had started to clot before the stabbing was complete, Kennedy estimated that the 37 knife wounds were inflicted over a period of 15 to 30 minutes.

Finally,...