People v. Bigelow

• Decision Date: 27 December 1984
• Docket Number: Cr. 22018
• Citation: 209 Cal.Rptr. 328,37 Cal.3d 731,691 P.2d 994
• Court: California Supreme Court
• Parties: , 691 P.2d 994, 64 A.L.R.4th 723 The PEOPLE, Plaintiff and Respondent, v. Jerry Douglas BIGELOW, Defendant and Appellant.

Page 328

209 Cal.Rptr. 328

37 Cal.3d 731, 691 P.2d 994, 64 A.L.R.4th 723

The PEOPLE, Plaintiff and Respondent, v. Jerry Douglas BIGELOW, Defendant and Appellant.

Cr. 22018.

Supreme Court of California.

Dec. 27, 1984.

Opinions Modified on Denial of Rehearing Feb. 6, 1985. ^*

Roger E. Venturi, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

BROUSSARD, Justice.

Defendant Jerry Bigelow was convicted of the first degree murder, robbery, and kidnaping of John Cherry. The jury found that Bigelow was armed with and used a firearm during the commission of these crimes. It further found four special circumstances under the 1978 death penalty initiative: (1) intentional murder for financial gain (Pen.Code, § 190.2, subd. (a)(1)); ¹ (2) murder for the purpose of avoiding arrest or perfecting an escape ( § 190.2, subd. (a)(5)); (3) murder while defendant was engaged in the commission of robbery ( § 190.2, subd. (a)(17)); and (4) murder while defendant was engaged in the commission of kidnaping (id.). The jury returned a verdict imposing the death penalty. Bigelow's appeal is automatic. ²

I. Statement of Facts.

We summarize the evidence presented by the People and recount the procedures leading to Bigelow's conviction. Testimony and rulings which give rise to issues on appeal will be discussed in greater detail later in the opinion.

In July of 1980 Bigelow, then age 20, was imprisoned for robbery at the Calgary Correctional Institution, a Canadian prison known as "Spy Hill." About July 18, he and Michael Ramandonovic escaped from that prison. In Calgary they met two women, Karen Keraiff and Candis Oglow, and persuaded the women to drive them to the United States. The escapees then made their way from Montana to California, committing a series of burglaries, using stolen credit cards, and siphoning gas.

On July 30, they reached Sacramento and checked into the Holiday Inn. They tried to use a stolen credit card to buy clothing at Macy's, but Ramandonovic was arrested when he attempted to pick up the clothing. Bigelow then hitchhiked to Los Angeles.

Ramandonovic phoned Karen Keraiff in Calgary, and she agreed to make arrangements for his bail. Keraiff and Oglow drove to Sacramento, where Keraiff left her car as collateral for the bail. Bigelow then returned to Sacramento. On August 20, he and Ramandonovic broke into the Sacramento apartment of Robert Goodwin and stole a number of items, including a .38 caliber revolver. On August 23 they broke into John Nelson's car and stole his wallet, money and credit cards.

On August 24, Bigelow and Ramandonovic decided to hitchhike with the objective of stealing the driver's car and money. John Cherry picked them up and offered to give them a ride to Modesto. When they reached Modesto, Ramandonovic pulled out the revolver and told Cherry to take them to Los Angeles.

As the car neared Merced, Ramandonovic told Cherry to pull off the freeway so they could find a place to urinate. They drove about a mile through farmland and stopped by a cornfield. According to Bigelow, Ramandonovic told Cherry they were going to tie him up and leave him there. Bigelow went to the car to get Cherry's long pants and shirt, then returned to the car to look for something to bind Cherry when he heard a shot. Ramandonovic ran back to the car, and said, "Come on, let's go." They drove off in Cherry's car, taking Cherry's dog with them.

Ramandonovic did not testify at Bigelow's trial. Oglow, however, testified that when the men returned to Sacramento Bigelow told her that he had told the driver to lie down in a cornfield and had shot the driver in the head. Later, according to Keraiff, when the four were driving to Los Angeles in Cherry's car, Bigelow said to Ramandonovic, "I don't know why you were so upset. I'm the one that shot him, not you." Bigelow explained to the women that he "had sent Mike to the car to get rope and when he came back the guy was shot."

Bigelow, Ramandonovic, and the two women drove to Flagstaff, Arizona, where Ramandonovic decided to leave the others and departed with the dog, revolver, and half the money. Keraiff then took a bus back to Sacramento. On August 24, Bigelow and Oglow attempted to rob a grocery store in Seligman, Arizona, but were apprehended shortly after the robbery. Bigelow was driving the car stolen from Cherry. Two days later Ramandonovic was arrested for speeding in New Mexico; the arresting officer found the stolen gun and dog.

The body of John Cherry was not discovered until October 9. It was lying face down in a cornfield. An autopsy determined that the cause of death was a single bullet which entered the head above the right ear. Ballistics analysis determined that the bullet could have been fired from the .38 revolver taken from Robert Goodwin's apartment.

Bigelow and Ramandonovic were jointly charged with murder, kidnapping and robbery. The cases were soon severed and James Barnett, a Merced County Deputy Public Defender, was appointed to represent Bigelow. He moved unsuccessfully to strike the robbery and kidnaping charges and the special circumstances.

On December 5, 1980, about three months before the scheduled trial date, Bigelow told the court he was not satisfied with appointed counsel, and requested new counsel. The court rejected the request, affirming its confidence in Barnett.

Trial was continued until March 24, 1981. On March 20, Bigelow again requested new counsel. The court reaffirmed its confidence in Barnett and denied the request as untimely.

On March 23, after his efforts to replace Barnett with other appointed counsel failed, Bigelow inquired whether he could represent himself, and asked the court, "Your Honor, in a capital case like mine is there--would I be able to defend myself with a public defender as an advisor?" The court replied, "No, you can't do that, and I certainly don't think you should even think about defending yourself. But we will take that up in the morning, Mr. Bigelow."

The next morning, the court returned to the subject and asked, "Now, Mr. Bigelow, are you still insisting that you be your own attorney?" Bigelow replied, "In a sense where I could use maybe a public representative as an advisor." The court promptly rejected that suggestion, saying, "That's not permitted under California law."

Although disappointed at the court's refusal to consider an attorney advisor, Bigelow continued to assert his right to represent himself. The trial court then questioned Bigelow at length about his knowledge of legal procedures and his understanding of the dangers of representing himself. Dissatisfied by Bigelow's answers to his inquiry, the judge initially concluded that Bigelow was not competent to waive counsel.

After the lunch recess, however, the judge inquired whether Bigelow still wanted to represent himself. When Bigelow said "yes," the judge responded: "All right. You're going to represent yourself.... I'm going to give him a tablet and a pencil, and we're going to start in right away." The voir dire of the jury followed immediately. ³

Bigelow participated ineffectually in the process of selecting the jury, and briefly cross-examined some of the prosecution witnesses. He called only one defense witness, the detective who heard his confession, and used him to establish that the confession was not taken under oath. The court denied Bigelow's motion to exclude the confession on that ground.

The jury returned a special verdict finding Bigelow guilty of murder in the first degree, that the murder was a willful deliberate and premeditated murder with malice aforethought, that it occurred during the commission of robbery, and during the commission of kidnaping. The jury further found that he was armed with and used a firearm during the commission of the murder. Finally, the jury found each of the charged special circumstances to be true: (1) that Bigelow "was personally present and physically aided or committed the acts causing the death of [the victim] and ... murdered [the victim] intentionally and carried it out for financial gain"; ⁴ (2) that he "committed the murder for the purpose of avoiding or preventing a lawful arrest or to perfect, or attempt to perfect an escape from lawful custody"; (3) that he committed the murder while "engaged in or ... an accomplice in the commission of ... robbery;" and (4) that he committed the murder while "engaged in or ... an accomplice in the commission of kidnapping, a violation of Section 207 of the ... Penal Code."

At the penalty trial, the prosecution called no witnesses and presented only the record proving Bigelow's robbery conviction in Canada. Bigelow called his sister and brother ⁵ to testify that he had been rejected and regularly beaten by his father, had begun to use drugs as a teenager, and had attempted several times to kill himself by a drug overdose.

The jury returned a verdict imposing the death penalty. The trial court denied Bigelow's motion to reduce the penalty. This appeal followed.

II. The Trial Court's Failure to Consider the Appointment of Advisory Counsel Is Reversible Error.

The People concede that the trial judge erred in ruling that California law does not permit the appointment of advisory counsel. In People v. Mattson (1954) 51 Cal.2d 777, 336 P.2d 937, this court, after holding that a defendant was not entitled both to counsel and to represent himself, added: "We are not saying that the trial court may not in its discretion, upon what it may determine to be good cause shown, ... permit a defendant who appears in propria persona to employ an attorney to sit by him and advise him during the presentation of the case in court, or even appoint an attorney (with the latter's consent) to render such advisory services to an indigent defendant who wishes to represent himself.... These matters are within the sound discretion of the trial judge, who is in a position to appraise the courtroom situation and determine what...