People v. Boyde

• Decision Date: 11 August 1988
• Docket Number: No. S004447,S004447
• Court: California Supreme Court
• Parties: , 758 P.2d 25 The PEOPLE, Plaintiff and Respondent, v. Richard BOYDE, Defendant and Appellant. Crim. 22584.

Page 83

250 Cal.Rptr. 83

46 Cal.3d 212, 758 P.2d 25

The PEOPLE, Plaintiff and Respondent, v. Richard BOYDE, Defendant and Appellant.

No. S004447.

Crim. 22584.

Supreme Court of California,

In Bank.

Aug. 11, 1988.

Rehearing Denied Nov. 9, 1988.

John M. Bishop, under appointment by the Supreme Court, Riverside, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Jay M. Bloom, Frederick R. Millar and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.

PANELLI, Justice.

Appellant Richard Boyde was convicted of robbery and kidnapping for robbery and found to have personally used a knife in perpetrating these offenses upon a gas station attendant in Riverside on January 5, 1981. (Pen.Code, §§ 211, 209, subd. (b), 12022, subd. (b).) ¹ In addition, Boyde was convicted of robbery, kidnapping for robbery, and first degree murder of the clerk in a 7-Eleven store in Riverside on January 15, 1981. ( §§ 211, 209, 189.) The jury found two special circumstances true (murder during the commission of robbery [ § 190.2, subd. (a)(17)(i) ] and during the commission of kidnapping in violation of section 209 [ § 190.2, subd. (a)(17)(ii)] ), found that Boyde personally used a firearm in perpetrating all three offenses ( § 12022.5), and specially found that Boyde "personally killed [the victim] with express malice aforethought and premeditation and deliberation." The jury fixed the penalty at death; the appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

I. FACTS

A. The Gas Station Robbery.

About 2 a.m. on January 5, 1981, the attendant at a Union 76 gas station in Riverside was robbed of $50 and his watch by a man who had entered the office and displayed two knives. Following the robber's directions, the attendant, Baker, opened the trunk of his car (which was full of miscellaneous items), closed the trunk, turned out the lights, closed up the station, and drove away with the robber in Baker's car. They drove to a park where they smoked a cigarette and talked. The robber said he was out of a job, having just returned from college in the east, and he needed the money to feed his two-month-old baby. He warned Baker not to run away and said he did not plan to use the knives but only had them for self-protection in case Baker tried to "be a hero." The robber then had Baker drive to a doughnut stand where he bought Baker a doughnut. They began walking down the street together after they could not get the car started. During this walk the robber indicated he expected to get caught and asked Baker to give a false description to police. Baker said he would not, and shortly thereafter the robber abruptly turned and ran away.

Baker gave a description to police and later selected Boyde's picture from a photo lineup. He also identified Boyde at trial.

B. The 7-Eleven Robbery-Homicide.

About 4 a.m. on January 15, 1981, Riverside police received a report that the 7-Eleven store on Indiana Street was deserted. Investigating officers found a bullet hole in the store window. With the help of the owner it was determined that $33 had been taken from one of the cash registers and that several hats and hatbands were missing.

Three and one-half hours after the initial report, a local citizen found a body in a nearby orange grove and reported his finding to police at the 7-Eleven store. Investigators found the body, later identified as the store's night clerk Dickie Gibson, lying on its back in the dirt. Detective Callow noticed a gunshot wound in the victim's forehead, a slight wound on the small finger of his right hand, and abrasions on his knees. There were five identifiable footprints at the scene, including an impression left by a flat-soled left shoe near the victim's head and several impressions with a diamond pattern located four feet from the body, near its feet. The autopsy showed the victim was killed by a bullet wound above the right ear, which was probably fired from a .22 caliber gun from a distance of more than 16 inches. There were also gunshot wounds to the fingers of the right hand. The shot to the forehead had not penetrated the skull and was not the cause of death, but the nature of the wound indicated it had been inflicted from close range, probably 6 to 12 inches. The abrasions on the hands and on the knees could have been caused by a hard dirt or asphalt surface. Death probably occurred between 3 a.m. and 5 a.m. on January 15. The victim's brother testified that everything had appeared normal when he stopped by the store for a visit between 1 and 1:40 a.m.

C. Appellant's Arrest and Statements to Police.

Detective Knoffloch, who was investigating the 7-Eleven homicide, showed Boyde's photo to Detective Callow, who was investigating the Baker robbery at the gas station as well as the homicide. After Baker selected Boyde's photo from a photo lineup, Callow obtained a warrant to search Boyde's home. The search recovered a distinctive watch which Baker identified as his. Boyde was placed under arrest on January 22 for the robbery and kidnapping of Baker.

At 8:15 that evening, Callow found Boyde yelling and creating a disturbance in the holding cell. Callow described Boyde as "very, very hyper"; his arms were clutched across his chest and he was physically shaking. Boyde told Callow he could not stand being locked up. Callow took him to an interview room and gave him cigarettes and coffee.

After advisement as required by Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, Boyde waived his rights and agreed to discuss the gas station robbery with Detective Callow. Callow informed Boyde he was under arrest for this robbery and that the watch recovered from Boyde's home had been stolen in it. Boyde denied involvement and claimed he had bought the watch from "Moe." Confronted with information that clothing recovered from his home matched the description of the robber's clothes, Boyde claimed he had loaned the clothes to "Moe." Told that the victim had selected his picture in a photographic lineup, Boyde explained that "Moe" looked quite a bit like him. Finally, confronted with Callow's assertion that police had sufficient evidence to prove he committed the robbery, Boyde said, "you got me."

Boyde then became disturbed at the prospect of returning to prison or jail and asked if there were any way he could avoid it. Callow told him "six or seven times" the police department could not make any such promises. Boyde then asked what would happen if he had information--specifically about the football coach at the 7-Eleven store who was killed. Callow said that he would be willing to relay his information to the district attorney's office.

Boyde then told Callow that he had been at his nephew Carl Franklin's ² house between 2:30 and 3 a.m. when his nephew and Big Mike drove up in Big Mike's car. Big Mike got out, holding a paper bag with money in it and a gun. Eventually, Ellison told Boyde the two men had held up the 7-Eleven store on Indiana Street and had taken the clerk to an orange grove and shot him in the head. Boyde identified Big Mike's gun as a .22 caliber revolver.

Unable to find any Department of Motor Vehicles or police department record of "Carl Franklin" or "Big Mike," Callow asked Boyde if he would be willing to show officers Carl Franklin's house. Boyde agreed and directed the officers to Ellison's house. Boyde was not able to find Big Mike's house.

At 8:30 the next morning Detectives Ropac and Lund, also unable to find any information on "Big Mike" or "Carl Franklin," confronted Boyde with their belief that he had been untruthful with Detective Callow. Boyde agreed to talk further, and a second Mirandized interrogation was conducted and tape recorded. This time Boyde admitted he had been with Ellison from 11 p.m. on January 14 through the time of the homicide. Boyde explained that Ellison had come to Boyde's apartment complex to borrow some gas money from his grandmother. Ellison invited Boyde to go riding with him in his mother's car. The two rode to Ellison's house in Hillside where they drank some beers with guys from the neighborhood, including Big Mike. The group broke up about 11:45, and Big Mike invited Boyde to go riding with him and Ellison. Boyde accepted but asked to be home early. The three drove to San Bernardino, around Riverside and then returned to Ellison's house. There Ellison pulled out a loaded .22 caliber hand gun that belonged to Ellison's mother, Otharaean Owens.

The three men drove to the 7-Eleven store at Indiana and Monroe Streets so that Boyde could buy cigarettes and a soda. Both Boyde and Big Mike got out of the car, but Big Mike went into the store alone while Boyde and Ellison waited outside. It was late. The clerk unlocked the door to let Big Mike in, and Big Mike walked to the back of the store. As Boyde was returning to the car, he looked up in time to see Big Mike pull the gun on the clerk who raised his hands and then put money from the cash register into a bag. Big Mike then brought the clerk outside and told him to get in the back seat of the car. The clerk did not close the car door completely, and as Big Mike entered the other rear door, the clerk threw a stereo speaker at him and ran from the car. Big Mike fired once and then chased him. The clerk fell near the side of the store, and Big Mike caught up with him. They returned to the car, and Big Mike told Ellison to drive up Monroe toward the orange groves. Boyde tried to convince Big Mike to let the clerk go, but he refused.

They stopped the car on the pavement near the groves. Big Mike and the clerk walked into the trees. The clerk did not try to escape but asked whether he would be shot. Big Mike said no. Ellison turned the car around. From 25 to 30 feet Boyde could see Big Mike force the clerk to get on his knees facing the trees and place his hands on top of his head. Big Mike stood behind. After Big Mike...