People v. Burns

• Decision Date: 16 December 1987
• Docket Number: No. B016545,B016545
• Citation: 242 Cal.Rptr. 573,196 Cal.App.3d 1440
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Horace Edwin BURNS, Defendant and Appellant.

Page 573

242 Cal.Rptr. 573

196 Cal.App.3d 1440

The PEOPLE, Plaintiff and Respondent, v. Horace Edwin BURNS, Defendant and Appellant.

No. B016545.

Court of Appeal, Second District, Division 4, California.

Dec. 16, 1987.

Review Denied March 31, 1988.

Ball, Hunt, Hart, Brown and Baerwitz and Donn Dimichele, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John R. Gorey and Lauren E. Dana, Deputy Attys. Gen., for plaintiff and respondent.

GEORGE, Associate Justice.

Appellant was convicted, following a jury trial, of four counts of first degree murder (Pen.Code, § 187) with a finding of a multiple-murder special circumstance based on the foregoing convictions (Pen.Code, § 190.2, subd. (a)(3)). In accordance with the jury's determination at the penalty phase of the trial, the court after denying appellant's motion for new trial sentenced appellant to life imprisonment without possibility of parole. Appellant challenges his conviction on the following grounds: (1) the trial court erred in instructing the jury that an accomplice must be shown to have shared the intent of the perpetrator of the offense; (2) his Fourth Amendment rights were violated by the admission in evidence of a letter seized by a deputy sheriff who observed appellant passing it to his confederate Tiequon Cox while both were inmates in the county jail, and additionally the trial court erred in not excluding the letter as unduly prejudicial under Evidence Code section 352; (3) his right to counsel was violated by the admission in evidence of testimony of another inmate relating statements made by appellant at the jail, and additionally the trial court erred in not excluding this testimony as inherently unreliable; and (4) the trial court erred in not instructing the jury sua sponte (a) that in order to convict they were required to agree whether appellant entered the premises where the murders were committed or instead remained inside the vehicle parked in the vicinity of the premises and (b) that in the event the jury found appellant to have been intoxicated at the time of the

offenses, it should consider this circumstance in determining whether appellant had the ability to harbor malice aforethought. For the reasons discussed below, we affirm the judgment.

FACTS

On the morning of August 31, 1984, Ebora Alexander, her daughter Dietria Alexander, and two of Ebora Alexander's visiting grandchildren, Damani Garner (age 13 years) and Damon Bonner (age 8 years), were shot to death in the Alexander home located in the City of Los Angeles. There was evidence indicating that appellant, Tiequon Cox, and Darryl Williams committed the murders out of a desire to retaliate for a shooting that had resulted from the robbery of a drug dealer; however, appellant and his companions went to the wrong house and thus killed the Alexander family instead of their intended victims. The following evidence implicated appellant in the commission of the murders.

On the day in question, Ida Moore and Lisa Brown were at Ms. Moore's house when Darryl Williams arrived with appellant. The women had known Williams for some time and were acquainted with appellant. Williams asked Ms. Moore to take him in her van to "pick up some money from this girl." She agreed but told Williams she needed to get gas. Williams made a telephone call and then, at Williams's direction, appellant left the house but returned a short time later accompanied by Cox.

Williams and Cox went into the kitchen to talk and then reappeared and announced that they were ready to go. They entered the van with Ms. Moore driving, Ms. Brown in the passenger seat, and Williams, Cox and appellant in the back. They first went to appellant's house, which was right around the corner, to get money for gas but appellant was unsuccessful. Ms. Moore then said she had one or two dollars, and they all proceeded to a gas station, where appellant pumped the gas and Ms. Moore paid for it.

When they left the gas station, Williams told Ms. Moore where to drive, and they looked for a certain address which had been written on a piece of a paper bag. On the way, Ms. Brown heard one of the men in the back of the van say they were going to kill everyone in the house. She did not know which one of the three made that statement.

When they found the address, Williams directed Ms. Moore to park the van down the street but leave the engine running. Williams and Cox got out but, according to the testimony of Ms. Moore and Ms. Brown, Williams directed appellant to remain in the van and appellant did so. Williams was holding a handgun and Cox was holding a rifle wrapped in a blue jacket. This rifle was later identified as an M1, .30 caliber, carbine semi-automatic weapon, a gun used by paratroopers in combat. Neither woman had seen anyone carrying a weapon or any other object prior to this time. As Williams and Cox walked away, Ms. Moore asked appellant what they were going to do. Appellant replied they were going to " 'shoot it up.' "

Williams and Cox entered the Alexander home and shot to death Ebora Alexander, her daughter, and two of her grandsons. Another young grandson, Ivan, escaped by hiding in a closet. The remaining person in the house, Ebora's son Neal, awoke when he heard someone call his name. He ran to his sister's room, where he saw a man holding a rifle. They wrestled until Neal was struck by something, got up, and ran out of the house.

Williams returned to the van followed by Cox, who was still holding the rifle but no longer had the blue jacket that had covered it. Both men told Ms. Moore to "drive fast." Cox added, " 'I just blew the bitch's head off.' " The men, including appellant, directed Ms. Moore where to drive. She stopped the van when she was told to, and all three men exited. The two women drove back to Ms. Moore's house.

At about 9 a.m., Ms. Brown, at Williams's request, brought him his car. She then observed Williams hand Cox the rifle, which he put in the trunk. Ms. Brown and Cox drove to an apartment complex About a month later a police officer saw 17-year old James Kennedy standing in the courtyard of that apartment building holding the rifle. The weapon, which was loaded, was seized and Kennedy was arrested. Kennedy testified that he had received it from Cox, and ballistics tests confirmed that some of the bullets found in the Alexander home had been fired from this rifle. Cox's palm print was found in the house.

where Cox wrapped the rifle in another jacket, went into the building, and returned without the weapon.

A woman who lived across the street from the Alexanders heard the shooting and saw a person who "looked like" Williams leave the house, followed a short time later by a person carrying a rifle whom she positively identified as Cox. Another young woman who lived across the street confirmed the identification of Cox as the man with the rifle.

Cox was arrested, and a news story was broadcast concerning his arraignment. Appellant, watching a television report of the court appearance, told Linda Lewis that he did not have to worry about his fingerprints being found in the house because he did not touch anything. He added that he did not have to worry about Cox "snitching" on him "[b]ecause he knew his homeboy wouldn't do him like that." Appellant then went outside and discussed the crime with a group of people. He said that Cox was "just like a time bomb that exploded and when he entered the house he just started shooting everybody everywhere." He explained they were involved in a dispute arising from the robbery of a drug dealer but by mistake went to the wrong house. When someone asked appellant how he felt about killing the children, he responded, " 'That's just something that just happened.' "

Cassandra Haynes also overheard a conversation in which appellant in the company of a group of people discussed the crime. Appellant said that Cox did the shooting and appellant "stood there and watched."

Prior to trial, David Mangola occupied a county jail cell next to appellant's. Appellant told Mangola that a drug dealer who was owed some money had paid appellant $25,000 to $30,000 to commit the murders but that they had gone to the wrong house. Appellant stated that he had entered the house with Cox but that Cox had done all the shooting while appellant watched.

Approximately one month into the trial, a deputy sheriff at county jail seized a letter, written by appellant, just after appellant had handed it to Cox in a hallway while Cox was being escorted to the visiting area. The letter, which was introduced into evidence, proposed a plan by which Cox and Williams would exonerate appellant by testifying that he had nothing to do with the crime and was not in the van. After his release, appellant would sue the city for false arrest and use the money recovered to take care of the families of all three men. The letter contained repeated references to their membership in a street gang called the Rolling 60's Crips and complained that other gang members had done nothing to help them and "did not even try to stop" certain of the witnesses from appearing in court. Appellant also promised that if he were released the families of some of the witnesses were " 'going to suffer for all this.' " Finally appellant wrote, " 'When you come back own [sic ] appeal I make sure know [sic ] witnesses shows [sic ] up.' " Appellant wrote that Cox would not get the death penalty because he did not plan the crime but was doing only what he was ordered to do. Appellant finished the letter with a reference to the gang, "Notorious W/S Rollin Sixties," and the phrase "Richan Rollin Mafia Style."

Appellant testified in his own defense that the night before the murders he had been out drinking and had gone to bed about 3 a.m. At around 6:30 a.m. Williams came to his door and asked to be shown where Cox lived....