People v. Boyer

• Decision Date: 11 May 2006
• Docket Number: No. S029476.,S029476.
• Citation: 38 Cal.4th 412,133 P.3d 581,42 Cal.Rptr.3d 677
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard Delmer BOYER, Defendant and Appellant.
• Court: California Supreme Court

42 Cal.Rptr.3d 677

38 Cal.4th 412

133 P.3d 581

The PEOPLE, Plaintiff and Respondent, v. Richard Delmer BOYER, Defendant and Appellant.

No. S029476.

Supreme Court of California.

May 11, 2006.

R. Clayton Seaman, Jr., under appointment by the Supreme Court, Prescott, AZ, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Esteban Hernandez, Frederick B. Clark, Teresa Torreblanca, William M. Wood, Adrianne S. Denault and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

In 1984, a jury convicted defendant Richard Delmer Boyer of the first degree murders (Pen.Code, §§ 187, subd. (a), 189)¹ and robberies (§ 211) of Francis and Aileen Harbitz. An allegation that defendant used a deadly weapon, a knife, in each of the offenses was sustained. (§ 12022, former subd. (b), see now subd. (b)(1).) Under the 1978 death penalty law, special circumstances of multiple murder (§ 190.2, subd. (a)(3)), and robbery murder (id., former subd. (a)(17)(i), see now subd. (a)(17)(A)) were found true.² After a penalty trial, the jury sentenced defendant to death.

We reversed the 1984 guilt and penalty judgments. We concluded that defendant's confession to the police in a custodial setting was obtained in violation of the Fourth Amendment and Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and that admission of the confession in evidence at his trial was prejudicial on the issue of guilt. However, on the record before us, we saw no basis to conclude that other evidence admitted against him was tainted by the Fourth Amendment and Miranda violations, such that it could not be used in any retrial. (People v. Boyer (1989) 48 Cal.3d 247, 256 Cal.Rptr. 96, 768 P.2d 610 (Boyer I).)

After a retrial, in which defendant's confession was not admitted, a jury again found defendant guilty of the robberies and first degree murders of the Harbitzes. A knife-use allegation was again sustained for each crime. The jury found true, as special circumstances, that each murder was committed in the course of a robbery, and that defendant was convicted of more than one murder in the proceeding. Pursuant to the jury's penalty verdict, defendant was again sentenced to death.

This appeal is automatic. We will affirm the guilt and penalty judgments in full.

I. GUILT PHASE EVIDENCE

A. Prosecution case.

In December 1982, retirees Francis Harbitz, age 68, and his wife Aileen Harbitz, age 69,³ were stabbed to death in their Fullerton home. Their bodies were discovered on the late evening of December 12, 1982, by their son William, who came to check on them after attempts to reach them by telephone during that day had failed. William had last seen and spoken to his parents on December 5, 1982.

A friend of Aileen's had telephoned once on the evening of December 7, and several times on the morning of December 8, but got no answer. Later on December 8, the friend went to the Harbitz residence, knocked, got no response, and slipped a note under the door. Papers with handwriting were found on the floor inside the front door on the night of December 12.

When William entered the house, he found Francis's body sitting upright against a bloody hallway wall. Aileen's was lying, surrounded by blood, on the floor of the living room. Francis had sustained some 24 stab wounds to his neck, upper and lower chest, and back. Three of his ribs were fractured by a knife entering his back, and he also suffered a broken arm. One of the neck wounds severed his left carotid artery. Three chest wounds penetrated his heart, and one of these also cut his ascending aorta. Francis bled to death from the wounds to his heart and aorta. Aileen suffered 19 stab wounds to her neck, chest, abdomen, and back. One abdominal entry wound transected her left lung four times, indicating the assailant repeatedly withdrew the knife and reinserted it in the same track. A wound beneath her left ear penetrated to her spine. One of the chest wounds transected her ascending aorta. She bled to death as a result.

At the crime scene, a purse found in the kitchen contained no wallet. Later, at the crime lab, two $50 bills were found folded inside a smaller container at the bottom of this purse. A second purse, found in a back bedroom, contained a total of $40 in cash. In Francis's bedroom, a wallet in a dresser drawer contained approximately $260 in cash. The premises showed no signs of forced entry or ransacking.

On the night William discovered his parents' bodies, he mentioned defendant's name to the police. William had met defendant three years earlier, when defendant lived near William and his wife in a Fullerton apartment complex known as the International Hotel. William introduced defendant to his parents, and defendant had done yard work for the senior Harbitzes. Defendant's relationship with the victims was cordial, and they had lent him money. According to William, defendant wore a "standard buck knife" in a sheath on his belt "all the time."

William had recently moved from the International Hotel, without telling defendant, but had kept his old telephone number. William had not seen defendant for six months to a year. During this period, defendant had called three times, though William did not speak to him personally. Defendant telephoned William again on December 8, 1982, at which time they engaged in small talk.

On December 14, 1982, police searched the El Monte residence defendant shared with his girlfriend, Cynthia Cornwell. Items retrieved from the premises included a pair of Levi's, a buck knife, and a sheath. The burned remnants of a jacket were found in a hibachi on the kitchen stove of the El Monte house. At some point, police also recovered Aileen's wallet from a sewer.

The Levi's had a hole in the left knee and also contained three bloodstains. One stain, near the hole, was consistent with defendant's blood, but not with the victims.' A second stain was consistent with Francis's blood, but not with Aileen's or defendant's. A third stain was consistent with Aileen's blood, but not with Francis's or defendant's. The buck knife had a spot of human blood, but the sample was too small to analyze for identity. The victims' wounds could have been inflicted with the buck knife, but not with a kitchen knife found on a counter in the Harbitzes' home.

John Kennedy testified under a grant of immunity as follows: In December 1982, he lived in Temple City, near El Monte. On December 7, 1982, Kennedy, driving his mother's car, arrived at the El Monte house shared by defendant and Cornwell between 4:30 and 5:00 p.m. Defendant asked for a ride to his parents' house so he could pick up money his father had received for selling one of his guns. After 45 minutes or so, they departed. It was beginning to get dark. Defendant was walking and talking normally. He was wearing a blue jacket.

Kennedy drove. They first stopped to buy a quarter-gram of cocaine from a dealer Kennedy knew, with $25 Kennedy had borrowed from his brother for that purpose. They injected the cocaine. Typically, a cocaine injection produced a five-minute "rush" and a one-hour "high."

After they consumed the cocaine, defendant directed Kennedy on a 10-minute drive to defendant's parents' house. Kennedy stayed in the car. Defendant went inside for 15 minutes. He returned with a tire and a foam mattress and said his father had given him a check.

Next, defendant directed Kennedy a short distance to an apartment complex, where defendant tried and failed to obtain a marijuana cigarette. Defendant then had Kennedy drive to the International Hotel in Fullerton to find "Bill." This trip took about 20 minutes. When they arrived both men went to an apartment door, and defendant knocked. A young woman answered and said no Bill lived there.

Remarking that Bill must have moved back with his parents, defendant told Kennedy to drive to another location. Defendant first suggested they were headed to "some dope dealer's house," but when they arrived at their destination—three or four miles from the International Hotel — defendant said he was going "to Bill's parents' house." Darkness had fallen. Defendant directed Kennedy where to park. Kennedy remained in the car. Defendant got out, walked around a corner, and disappeared from view. He was acting normally.

After 45 minutes, defendant returned. He seemed to be walking normally, and was carrying a towel. At that moment, a patrol vehicle with red lights on its roof approached. Defendant walked to the back of Kennedy's car and began wiping the rear window with the towel. After the patrol car passed, defendant got in and instructed Kennedy "to take off calmly, not to attract any attention."

Kennedy did not know where they were, but, following defendant's directions, he drove back to the freeway. Defendant was "talk[ing] okay." As they drove, Kennedy saw defendant apply the towel to his left knee. Defendant referred to "dope dealers that don't have no dope," and said "that he had to hurt `em." Defendant indicated he himself had been stabbed.

Once they were on the freeway, Kennedy saw defendant going through two wallets. Defendant said he needed to find a bushy area beside the freeway. As they passed such an area, between the Durfee and Peck Road offramps of Interstate 10 near El Monte, defendant threw out one of the wallets. He discarded the second wallet in "a gutter, a sewer" beside the Temple City Boulevard offramp. He instructed Kennedy not to tell anybody what had happened that night.

When they arrived back at the El Monte house, Kennedy saw the stab wound in defendant's knee. Defendant and Cornwell went into the bathroom to tend the wound. At the house, Kennedy noticed defendant was wearing his buck knife in a sheath on his waist. Before leaving, Kennedy saw this knife lying on a dresser, blade open. There was blood on the...