People v. Brooks
| Decision Date | 20 March 2017 |
| Docket Number | S099274 |
| Citation | 396 P.3d 480,219 Cal.Rptr.3d 331,3 Cal.5th 1 |
| Court | California Supreme Court |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Donald Lewis BROOKS, Defendant and Appellant. |
John L. Staley, San Diego, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Donald Lewis Brooks of the first degree murder of Lisa Kerr (Pen. Code, § 187, subd. (a) ),1 and found true two special-circumstance allegations—that the murder was committed while defendant was engaged in the commission of kidnapping (§ 190.2, subd. (a)(17)(B)), and that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). The jury also convicted defendant of arson causing great bodily injury (§ 451, subd. (a)), and stalking (§ 646.9, subd. (a)). After a penalty phase, the jury returned a verdict of death. Defendant moved for modification of his sentence to life without the possibility of parole (§ 190.4, subd. (e)). The trial court denied the motion andSEE CONCURRING & DISSENTING OPINION sentenced him to death.2 Defendant's appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow, we vacate the jury's finding that the murder was committed while defendant was engaged in the commission of kidnapping, but affirm the judgment in all other respects, including the sentence of death.
Defendant met the homicide victim, Lisa Kerr, in October 1997 at a dance sponsored by Alcoholics Anonymous (AA), an organization to which they both belonged. For about 10 months, defendant kept it a secret that he was having an affair with Kerr, who was married and the mother of a young son. In August 1998, however, defendant revealed the affair during a lengthy conversation with another AA member, Mark Harvey. Defendant told Harvey that he was in love with Kerr, that their relationship was perfect, and that his life was finally falling into place. But defendant also indicated that he was upset and frustrated because Kerr had recently decided to reconcile with her husband for the sake of their son. Defendant told Harvey that he did not want his relationship with Kerr to end, and that he wanted to stab Kerr's husband or "get him out of the picture."
Kerr soon began expressing to friends that she was afraid of defendant. One day in late September 1998, for example, she made a series of phone calls to Harvey's girlfriend, Lynda Farnand, who also knew defendant. According to Farnand, Kerr was talking very fast and sounded scared. After the last conversation that day, Farnand accompanied Kerr to the local police station. Kerr called Farnand again several days later, this time telling her she was concerned about three messages defendant had left on her home telephone answering machine. Farnand came to the house and listened to the messages. The first message was simply music. The second message began with music and ended with defendant calling Kerr a slut and a whore. In the final message, Farnand heard defendant say that "if he couldn't have her, nobody could have her."
Around the same time that Kerr was starting to confide in others that she feared defendant, defendant was talking to friends about the affair, saying he was frustrated with being "led on" by Kerr, and expressing open hostility toward Kerr's husband. One of the individuals with whom defendant spoke about the situation was Dwayne Kari, who also knew Kerr and was a good friend of Kerr's husband. Kari disapproved of the affair and repeatedly advised defendant to put an end to it. One morning in November 1998, Kari observed defendant driving his van toward Kerr's home. Kari gave chase and eventually caught up with defendant, accusing him of stalking Kerr and telling him it needed to stop. Kari also warned defendant that "it was going to get personal" after defendant admitted having previously told Kari that he planned to stab Kerr's husband. Defendant responded by saying Kerr was "screwing him around." To prove his point, defendant retrieved some items from his van. The first item was a tape-recorded message that Kerr had left on defendant's answering machine that said, "All I can say about last night was ‘yummy.’ " The other item was a piece of paper on which Kerr had written "Lisa Brooks." Defendant said he was going to show these items to Kerr's husband "if she doesn't leave him."
Defendant continued to follow Kerr. David Heiserman, who defendant had hired to assist him in his plumbing business, was in the van with defendant when they circled Kerr's home. Defendant explained to Heiserman that he wanted "to see what was going on," then parked the van one block away and was gone for 25 minutes. In December 1998, Kerr told her friend Cheryl Zornes that she feared defendant because "every time she turned around" he was outside her home or workplace watching her. Kerr also told her friend that she was going to inform her husband about the affair before defendant did, and that she and her husband were going to split up after Christmas. At some point during that conversation, Kerr mentioned that, for her birthday, defendant had arranged to have an airplane with a banner fly over her house, telling her friend, "Look what he's willing to do for me." According to Kerr's friend, Kerr seemed scared and confused when she said that.
Despite her expressions of fear, Kerr accepted defendant's offer of financial assistance after separating from her husband and moving to her own apartment in January 1999. Defendant signed the rental agreement, naming "Donald Brooks and Lisa Brooks" as the tenants. According to Kerr's close friend, Kimberlee Hyer, Kerr said the only reason that defendant was in her life was "for the money." Hyer eventually helped Kerr pay her bills, telling Kerr that "she didn't ever have to ask [defendant] for money again." According to defendant's plumbing assistant Heiserman, Kerr was sarcastic and rude to defendant and made fun of him in front of others.
Meanwhile, defendant's obsession with Kerr intensified, and he stepped up his surveillance of her. He continued to follow Kerr to or from places he knew she would be, such as her workplace, her apartment, and certain bars. Defendant also showed Heiserman a package containing a mail-ordered listening device that he was going to use to bug Kerr's apartment. According to Heiserman, defendant was upset with Kerr because she wanted to go back to her husband and family and because he believed she was "running around on him" with fellow AA member Mark Harvey. In February or early March 1999, defendant told Heiserman that he was tormented by thoughts of Kerr, and said once or twice that he wanted to kill her by blowing up her car or being a sniper. According to Heiserman, defendant also talked about blowing up Kerr's car or setting it on fire in order to get her "off his mind."
In the days and weeks preceding Kerr's death, defendant appeared even more consumed by his thoughts of Kerr. According to Heiserman, defendant's appearance was uncharacteristically disheveled and he was so "out of control" that Heiserman quit working for him. Defendant told Heiserman that he wanted Kerr to leave her family and start a family with him. He also said that, were she to refuse, he "wouldn't be able to live with it or be able to see her," and again mentioned blowing up her car. Meanwhile, Kerr's fear of defendant became more acute. According to Kerr's friend Hyer, 10 days before Kerr's death she insisted Hyer promise that she would take care of Kerr's son in the event anything happened to her.
On March 23, 1999, the day prior to Kerr's death, Kerr drove her car to Harvey's house around 7:00 p.m. to babysit one of his two young daughters so that he could attend an AA meeting. When Harvey returned to the residence around 10:00 p.m., he noticed the silhouette of someone and the glow of a cigarette at the edge of the fence and driveway, near some bushes. His back neighbor's dogs were barking, but he did not investigate. When Harvey entered the house, he saw Kerr asleep on the couch and his daughter asleep in her crib.
Kerr awoke around 11:00 p.m., and went outside to smoke. When she came back inside, she was shaking and nervous, and Harvey asked what was wrong. Kerr told him it would not be a good idea for her to accept his earlier offer for her to rent a room in his home because defendant had threatened to kill Harvey and his children in order to get to her. Kerr started to leave, but then said to Harvey, "We need to talk." Kerr and Harvey went back inside the house and sat in the living room on separate couches, one of which was located near an open heater vent, and they talked for the next two hours, until 1:15 a.m. Sometime during their conversation, Kerr became very upset and told Harvey she was afraid of defendant because he was following her to work and AA meetings, and had threatened to kill her. Kerr also indicated that she was frustrated by her relationships with her husband and defendant, who she described as "overwhelmingly emotional." She told Harvey she "adored him" for being "the balance" between the two men. Kerr and Harvey talked about the possibility of becoming physically involved, but they agreed that they would not do so. At one point, however, Kerr sat on the floor while Harvey massaged her shoulders for a minute.
When Kerr and Harvey had finished talking and walked outside, Harvey tried to give Kerr a hug goodbye. She warned, "Be careful, ‘Squirrel Boy’ might be watching us." Kerr previously had referred to defendant as "Squirrel Boy." Before Kerr departed, Harvey asked her to call him when she arrived...
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