People v. Boyette

• Decision Date: 02 December 2002
• Docket Number: No. S032736.,S032736.
• Citation: 58 P.3d 391,127 Cal.Rptr.2d 544,29 Cal.4th 381
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Maurice BOYETTE, Defendant and Appellant.

127 Cal.Rptr.2d 544

29 Cal.4th 381

58 P.3d 391

The PEOPLE, Plaintiff and Respondent, v. Maurice BOYETTE, Defendant and Appellant.

No. S032736.

Supreme Court of California.

December 2, 2002.

As Modified February 11, 2003.

Rehearing Denied February 11, 2003.¹

Lnne S. Coffin, State Public Defender, under appointment by the Supreme Court, Audrey R. Chavez, Deputy State Public Defender; Law Offices of Coffin & Love and Andrew S. Love for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Catherine A. Rivlin and Christina Vom Saal, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, J.

Maurice Boyette was convicted in 1993 in Alameda County Superior Court of the first degree murders of Gary Carter and Annette Devallier. (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated.) The jury also sustained a special circumstance allegation that defendant committed a multiple murder (§ 190.2, subd. (a)(3)) and enhancement allegations that defendant was armed with, and used, a firearm in the commission of the murders (§§ 12022, subd. (a), 12022.5, subd. (a)). The jury also convicted defendant of being a felon in possession of a firearm. (§ 12021.) On March 25, 1993, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).)

After considering the claims raised on appeal, we affirm the judgment in its entirety.

I. Guilt Phase

A. Facts

1. The Murders

Antoine Johnson was a drug dealer in Oakland, California. Johnson, who had one glass eye and impaired vision in his other eye, befriended defendant, then 19 years old and homeless. Defendant lived with Johnson in a house on 14th Street with a man both knew as "Bishop," one of Johnson's dealers, and Donald Guillory, a habitual user of rock cocaine. On May 23, 1992, Bishop had the use of a tan or yellow, older model Lincoln Continental. Guillory borrowed the car that day to run some errands.

Kenya Lita Cook, Johnson's girlfriend, lived at 2501 Cole Street, a house notorious for its drug activity. Johnson sold drugs and kept cash and weapons at the Cole Street house. Jasmeen Banks, Cook's sister, also lived at the house, as did Marcia Surrell, defendant's mother. Victim Gary Carter sometimes stayed at the Cole Street house with his girlfriend, victim Annette Devallier. Surrell, Carter and Devallier were drug addicts.

On May 23, 1992, Cook telephoned Johnson and informed him that Carter had stolen $3,500 worth of rock cocaine and $1,000 cash from the house. When Guillory returned to the 14th Street house around 5:00 p.m., defendant and Johnson were waiting on the front steps. Johnson asked Guillory to drive them to the Cole Street house and he agreed.

When they arrived at the Cole Street house, Guillory was told to wait in the car. Defendant had to help Johnson up the stairs because he was nearly blind. After a short time, defendant and Cook emerged from the house carrying bags of clothing and put them in the trunk of the car. Defendant told Guillory to come into the house and he complied. He sat on a chair and then moved to a couch at Johnson's request. Johnson was sitting on a long sofa and had a handgun hidden behind him. Defendant, Cook and Jasmeen Banks entered and sat down. Guillory felt tension in the air and asked what they were doing. Johnson told him they were waiting for someone. The group sat and waited; no one spoke.

Later that evening, Carter and Devallier arrived at the house. Upon seeing every-one in the living room, Carter asked, "What's up?" Johnson replied, "Where's my stuff at?" Without waiting for an answer, Johnson produced a handgun and fired four shots in Carter's direction. Carter, who was about four feet from Johnson, grabbed his side and fell. Guillory jumped up and tried to flee out the back door, but found it locked. Meanwhile, Devallier, who apparently had been in the entry when the shooting started, started to help Carter down the stairs and out of the house. Guillory looked back and saw defendant grab the gun from Johnson and say, "Give me the gun, man."

Defendant ran outside with the gun. Devallier was dragging Carter away from the house, but dropped him and ran when she saw defendant. Defendant caught her in the street. She turned to face him and pleaded, "Please, don't do it." Defendant shot her twice in the face from close range, killing her instantly. Guillory heard these two shots as he was leaving the house. He then heard two more shots and saw defendant standing over Carter's body. Defendant apparently shot Carter in the head as he lay there.

Cook helped Johnson out of the house and into the car. Defendant and Guillory then got into the car. Guillory was so unnerved by what he had just witnessed that he had trouble starting the car. Everyone became angry, and Johnson slapped Guillory's head and said if he did not drive better, the "next bullet" would be for him. Guillory eventually started the car and drove away. During the drive back to Bishop's house on 14th Street, Johnson asked about Devallier and defendant said she was "gone." Upon arriving at the house, Johnson and defendant told Guillory, "You don't know nothing, you didn't do nothing, just keep your mouth shut." Later, Guillory overheard Johnson and defendant tell Bishop, "We smoked him."

Police responded to the scene and found Carter's body on the sidewalk and Devallier's body in the street. The front door to the Cole Street house was open but the back door was locked. Both a television and the dryer were turned on. Police found five shell casings in the living room and seven in front of the house. They were Winchester nine-millimeter casings and were all fired from the same gun, a Glock Luger nine-mulimeter semiautomatic pistol. Analyzing the bullet holes in the living room, police determined that the trajectories of the bullets were consistent with having been fired by someone sitting on the long sofa.

Dr. John Iocco, a pathologist, examined the bodies. He determined Devallier had been shot in the face with two bullets, either of which shot would have been fatal. Carter had been shot eight times, but only the shot in the head was disabling and fatal. The other bullet wounds (in his arms, chest, abdomen and legs) would not have immobilized him. Iocco' found cocaine in both Carter's and Devallier's blood.

David Brooks, a neighbor across the street, confirmed that sometime after 11:00 p.m., he saw people struggling in front of the Cole Street house. Someone came out of the house and fired a gun at point-blank range at a male lying on the sidewalk. The gunman then went to a woman who had crawled to the middle of the street. She was on her hands and knees when the gunman shot her. It was too dark to make any positive identifications, but the killer had a build similar to defendant's. Greg Martin was across the street and heard gunshots around 11:25 p.m. He saw a large American car parked in front of the Cole Street house. A few minutes later, the car was gone. A few days later, Guillory found himself in another of Bishop's cars with defendant. Defendant warned that he "better not say nothing about [the murders]" and threatened that if Guillory talked, he "would be next." Defendant also told him that if he was sent to jail, he would also kill Guillory's family.

2. The Investigation

Before June 3, 1992, Sergeant David Kozicki had received anonymous telephone calls indicating that four people were present at the Cole Street house at the time of the murders: defendant, Antoine Johnson, Jasmeen Banks and Kenya Lita Cook. Sergeant Kozicki left messages for all four and asked that they contact him. On June 3, defendant and Johnson contacted Sergeant Kozicki and made appointments to speak to him. Defendant came to the police station on June 4, waived his Miranda rights,² and gave a recorded statement. He admitted he was at the Cole Street house the night of the murders, as were Johnson, Banks and Cook. In addition, a drug dealer nicknamed "Dee" and one of Dee's friends, a man defendant did not know, also were there. Earlier, defendant said, he had heard Carter bragging he had stolen $3,500 worth of drugs from Dee. Defendant claimed Johnson had fired only a single shot at Carter but that he saw Dee and his friend kill Carter and Devallier.

After he gave this statement, police released defendant. Johnson came in the next day and gave a similar statement to police.

Police determined the true identity of "Dee" was Ronald Thomas. Seventeen years old at the time of the Cole Street murders, Thomas had escaped from custody a month before the murders and spent the entire Memorial Day weekend at his mother's home in Richmond. His sister Tonita confirmed that Thomas had spent the night of the killings at a barbecue with friends and relatives. Thomas denied participating in the killings, saying Antoine Johnson was an associate, not a friend. Although defendant claimed he had met Thomas while the two were in juvenile hall together, records showed defendant and Thomas were never in that institution at the same time.

After police released defendant and Johnson, Sergeant Kozicki received more anonymous telephone calls. The callers stated that the police should not have released defendant and Johnson since they were responsible for the killings; that Guillory also had been present and served as the getaway driver; and that by releasing defendant and Johnson, Guillory's life was now in danger. Sergeant Kozicki interviewed Guillory on June 25, 1992, and he denied any knowledge of the killings. When informed that defendant and Johnson had been released and that anonymous callers had said Guillory's life was in danger, Guillory admitted being at the scene and seeing Johnson and defendant shoot the victims.

On July 30, 1992, police arrested defendant, Johnson...