People v. Brown

• Decision Date: 05 December 1985
• Citation: 220 Cal.Rptr. 637,709 P.2d 440
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Albert Greenwood BROWN, Jr., Defendant and Appellant. Crim. 22501.

Page 637

220 Cal.Rptr. 637

709 P.2d 440

The PEOPLE, Plaintiff and Respondent, v. Albert Greenwood BROWN, Jr., Defendant and Appellant.

Crim. 22501.

Supreme Court of California,

In Bank.

Dec. 5, 1985.

As Modified on Denial of Rehearing Jan. 30, 1986.

Quin Denvir and Frank O. Bell, Jr., State Public Defenders, under appointment by the Supreme Court, Monica Knox, Robert Scarlett and Steven W. Parnes, Deputy State Public Defenders for defendant and appellant.

Robert W. Brower and Kincaid, Gainunzio, Caudle & Hubert, Oakland, as amici curiae on behalf of defendant and appellant.

John K. Van de Kamp, Atty. Gen., Keith I. Motley and Jesus Rodriguez, Deputy Attys. Gen., John J. Meehan, Dist. Atty., William M. Baldwin, Asst. Dist. Atty., and Sandra Margulies, Deputy Dist. Attys., for plaintiff and respondent.

GRODIN, Justice.

Defendant Albert Greenwood Brown, Jr., was convicted on one count of rape (Pen.Code § 261, former subd. (3)) ¹ with the infliction of great bodily injury ( § 12022.8) (count I) and one count of first degree murder ( §§ 187, 189) (count II). The jury made a special finding that the murder was premeditated. A special circumstance that the murder was committed in the course of a rape ( § 190.2, subd. (a)(17)(iii)) was found true. Defendant admitted allegations that he had suffered a prior conviction and prison term for rape. ( §§ 667.5, subd. (a), 667.6, subd. (a).)

Acting under the 1978 death penalty initiative law ( §§ 190.1-190.7), the jury fixed the punishment on count II as death. The court denied the automatic application for modification of judgment ( § 190.4, subd. (e)) and imposed a further sentence of thirteen years on count I (the upper term for rape, plus a consecutive five years for the great bodily injury) with a five-year enhancement for the prior prison term. This appeal is automatic.

Defendant raises several claims of error at the guilt and special circumstance phase of his trial. We find merit in defendant's contentions that the testimony of a hypnotized witness, evidence of forensic tests of crime-scene fluid stains, and statistics about defendant's blood characteristics were improperly admitted at the guilt phase. However, we conclude that the errors were harmless in light of the extremely strong evidence against him. We will therefore affirm the guilt and special circumstance findings.

At the penalty phase, we agree with defendant's objection to instructions that the jury must not be swayed by sympathy or consequences in choosing a sentence. Prior authority of this court flatly prohibits the giving of such antisympathy instructions at a capital penalty trial. (People v. Lanphear (1984) 36 Cal.3d 163, 166, 203 Cal.Rptr. 122, 680 P.2d 1081; People v. Easley (1983) 34 Cal.3d 858, 876, 196 Cal.Rptr. 309, 671 P.2d 813.) We are persuaded that their inclusion in this case was prejudicial on the issue whether defendant should live or die. The penalty judgment must therefore be reversed.

Defendant also argues that the 1978 death penalty law is unconstitutional, and contends he cannot be resentenced under its provisions, on grounds among others that it impermissibly provides for a mandatory death penalty under certain circumstances. We will conclude that the 1978 statute, correctly construed, preserves the jury's constitutional discretion to decide the appropriate penalty and is therefore valid. We will note, however, that trial court's in future cases should give instructions which clarify the sentencer's responsibility.

I. GUILT TRIAL

A. Prosecution case.

On October 28, 1980, about 7:30 a.m., 15-year-old Susan J. left her home on Victoria Avenue in Riverside to walk to school with her younger brother and sister. After the younger children left Susan to walk to their elementary school, she continued up Victoria Avenue toward Arlington High School. She never arrived, and efforts throughout the day to locate her were unsuccessful. Her parents telephoned the police.

Sometime between 7 and 7:30 that evening, the telephone at Susan's home rang, and Susan's mother answered it. The male-voiced caller said, "Hello, Mrs. J., Susie isn't home from school yet, is she?" Mrs. J. replied that she was not. The voice then declared, "You will never see your daughter again. You can find her body on the corner of Victoria and Gibson." At Mrs. J.'s request, the caller repeated the information, then hung up. Mrs. J. telephoned the police again.

Around 7:30, the Riverside Police Department received another call. A male voice said, "On the corner of Gibson and Victoria, fifth row, you will find a white Caucasian body of a young girl in the orange grove."

Police officers were sent with a police dog to the orange grove at the corner of Gibson and Victoria. They found nothing. Officer Taulli, one of the policemen at the scene, went to the J. residence to get an article of Susan's clothing to be used by the dog as a scent guide.

Officer Taulli arrived at the J. home about 8:30; police chaplain Phillip Morgan arrived at the same time. While Taulli was still there, the telephone rang, and he answered it. A male voice asked if "this [is] the [J.] house or the [J.] residence?" Taulli advised that it was. The caller said, "You can find Sue's identification in a telephone booth at the Texaco station at Arlington and Indiana." Taulli told Morgan and Mrs. J. to record any further calls verbatim, then returned to the grove with an article of Susan's clothing.

After sniffing the item brought by Taulli, the dog shortly found a pair of torn panties in the grove. The dog then led police down the next six rows of trees. There Susan's body was found lying face down, with dirt piled up on both sides of the head. The body was nude below the waist, except for socks, and Susan's bra was partially pulled out from under her blouse. Several school notebooks and Susan's tennis shoes were found near the body. Her jeans were located elsewhere in the grove. A shoelace, apparently from one of her shoes, was wrapped tightly around her neck. Susan was holding a spark plug wire cap in her hand, and a spark plug wire was discovered nearby.

Homicide investigators were called to the scene. They found signs of a struggle and indications that the body had been dragged for some distance. Shoeprints in a herringbone pattern were found around the body and photographed. Susan's blouse was stained and swabs were taken from her vagina and abdomen.

The same night, officers were sent to the Texaco station at the corner of Arlington and Indiana. There, in a telephone booth, they discovered two Arlington High School identification cards belonging to Susan and a library pouch from a book. The pouch was stamped with the words "Arlington High School."

Meanwhile, Chaplain Morgan had obtained a tape recorder and hooked it up to the J.s' phone. About 9:30 p.m., the phone rang again. The same male voice said, "In the tenth row, you'll find the body."

Early next morning, the police set up roadblocks on the streets near the grove and questioned passersby. Several remembered seeing Susan the morning before, walking on a bike trail through the grove in the block of Victoria between Gibson and Van Buren Boulevard. Others had additionally seen a black man approaching Susan on the bike trail, standing in the grove as she walked by, or following her. The man was wearing jogging clothes; two witnesses more particularly described green running shorts and a green and white shirt.

A number of people also recalled seeing a late-model brown or copper-colored Pontiac Trans-Am parked nearby; it bore a distinctive paper license plate with the words "Made in USA" or "Made in America." Peter Rodriguez saw a black man emerge from the grove and open the trunk of the Trans-Am; the man kept staring at Rodriguez. Margery Johnston also saw a black man in running clothes come out of the grove. He appeared startled and his legs were dusty or dirty.

Police began a surveillance of defendant's Gertrude Street residence. On November 6, he drove up in a brown Trans-Am; he was arrested when he drove away again. A warrant to search the residence was obtained and executed that evening. Behind a water heater in the garage, police found a crumpled-up paper license plate which read "Made in America." Inside the house, a telephone directory was turned back to the page containing the J.s' listing. There were newspaper articles about Susan's death under defendant's bed, and two of her missing schoolbooks were found in the den. The library pouch found in the telephone booth had come from one of the books.

Defendant's locker at work was also searched. Police seized jogging clothes, including green running shorts and a green and white shirt. Undershorts found in the locker had semen stains. The locker also contained running shoes; the pattern of their soles closely matched the shoeprints found at the crime scene.

Tests determined that Susan had died by strangulation sometime between 7 and 11 a.m. on October 28. Analyses of the stains and swabs obtained from the body revealed the presence of semen.

Three witnesses positively identified defendant at trial as the man they saw in the vicinity of the grove on the morning of October 28. Wiley Eng, a high school student, said he was riding his bicycle on the bike trail in the grove. He overtook Susan, who was travelling on foot in the same direction, in the block between Van Buren and Gibson. He then passed the man, who was walking toward him, at a distance of two or three feet. Eng had some three seconds to see the man's face. He had picked defendant from a photo lineup, saying then he was 60 to 70 percent sure it was the same man. His identification at the preliminary hearing and at trial were unequivocal, though he admitted newspaper photos of defendant had helped him decide.

Julie Pim, another high school student, testified she was a passenger in her brother's truck, which had stopped for a red light at Victoria and Van...