People v. Cole, No. S027766.

• Court: United States State Supreme Court (California)
• Writing for the Court: WERDEGAR, J.
• Citation: 17 Cal.Rptr.3d 532,33 Cal.4th 1158,95 P.3d 811
• Parties: The PEOPLE, Plaintiff and Respondent, v. Stephen COLE, Defendant and Appellant.
• Docket Number: No. S027766.
• Decision Date: 16 August 2004

17 Cal.Rptr.3d 532
95 P.3d 811
33 Cal.4th 1158

The PEOPLE, Plaintiff and Respondent,
v.
Stephen COLE, Defendant and Appellant

No. S027766.

Supreme Court of California.

August 16, 2004.

Rehearing Denied September 29, 2004.¹

Certiorari Denied April 25, 2005.

17 Cal.Rptr.3d 543

Richard P. Siref, under appointment by the Supreme Court, San Diego, for Defendant and Appellant

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Victoria B. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied April 25, 2005. See 125 S.Ct. 1931.

WERDEGAR, J.

INTRODUCTION

Defendant Stephen Cole was convicted by a jury in Los Angeles County Superior Court of the first degree murder of Mary Ann Mahoney (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated) and arson (§ 451, subd. (b)). The jury also sustained a special circumstance allegation that the murder was intentional and involved the infliction of torture. (§ 190.2, subd. (a)(18).) A mistrial was declared on a further special circumstance allegation that defendant committed the murder while engaged in the commission of arson. (Former § 447, now § 451, subd. (b); § 190.2, former subd. (a)(17), now subd. (a)(17)(H).) The jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).)

I. FACTS

A. Guilt Phase

1. People's Case-in-Chief

Mary Ann Mahoney and defendant moved to California from the East Coast in 1986. They lived with Mary Ann's mother, Gertrude Mahoney, in her North Hollywood apartment for two weeks and then moved to their own apartment nearby. Shortly thereafter, Mary Ann's brother, Richard Mahoney, having observed physical injuries on Mary Ann that he presumed defendant had caused, asked defendant to leave Mary Ann. Defendant left California, and Mary Ann moved back in with Gertrude. Approximately one month later, defendant returned to California and apparently began living on the street in front of Gertrude's apartment. Shortly thereafter,

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defendant and Mary Ann moved together two more times and then, in April 1987, representing themselves as Mr. and Mrs. Mahoney, rented a house from William Gornik on North Whitnall Highway in North Hollywood

Mary Ann and defendant had a tumultuous relationship. They bickered and argued, and their regular screaming matches, punctuated by profanities, were often heard by family and neighbors. During this period, defendant was twice convicted of cohabitant abuse, a misdemeanor, based on his conduct towards Mary Ann. Defendant was very possessive of her.

On August 13, 1988, Mary Ann told her mother's neighbor, Jacquelyn Blakely, that she planned to give notice to Gornik within three days that she would be moving out without defendant and moving back in with her mother. Mary Ann also indicated that defendant had seen a list of shelters for battered women that Blakely had previously given to her.

On August 14, 1988, Nicholas Snyder, a friend of defendant and a patron of the Red Rooster—a neighborhood bar where Mary Ann worked—saw defendant and Mary Ann walk into that bar shortly before the start of Mary Ann's 10:00 a.m. shift. Snyder left the bar at 11:00 a.m. When he returned at 4:00 p.m., defendant was there. Defendant asked Mary Ann if he could take her car to the Silver Moon, another bar located approximately one-half to three-quarters of a mile from their house. Mary Ann said no. Defendant then asked for a ride from Snyder, who agreed to give him one. When Snyder dropped defendant off at the Silver Moon about 4:30 p.m., defendant was "high" but not drunk.

At approximately 9:00 p.m., the Los Angeles Fire Department received a report of a fire at the North Whitnall Highway residence. Los Angeles Firefighter Zane Testerman and Chief Wilford Bisson were the first to arrive on the scene. Soon after Testerman parked the fire department's sedan in front of the house, defendant knocked on the driver's side window. When Testerman rolled down the window, defendant said, "I'm the one you're looking for. I lit the house on fire." Bisson radioed for the police, and Testerman got out of the car to detain defendant.

Defendant continued speaking spontaneously. He stated, "I lit the house on fire and I tried to kill my old lady." Defendant said he was angry at his landlord because the landlord was planning to build a new apartment building at the site of the burning house, and that he was angry at his "old lady" and wanted to kill her. Defendant repeatedly said that he was angry at both Mary Ann and his landlord, and that he wanted to kill Mary Ann and burn the house down. When Testerman asked how defendant had lit the fire, defendant responded, "Well, I poured gasoline on [Mary Ann] and in the house and lit her and the house on fire." Defendant appeared to be coherent, did not seem to be excited or injured, and did not smell of alcohol. The police arrived shortly thereafter and took custody of defendant.

When the arson investigator arrived at the scene at approximately 9:40 p.m., Mary Ann was being placed into an ambulance. She had suffered severe burns to her upper torso and head area and was having difficulty breathing. She was also agitated, angry, and afraid. The arson investigator spoke with Mary Ann during the short ambulance ride to Riverside Hospital and in the emergency room. Mary Ann said that she and defendant had argued earlier that evening, that defendant was extremely jealous of her, that he had followed her around all day, and that he thought she was cheating on him. She

17 Cal.Rptr.3d 545

said she was asleep in bed but woke up when she smelled gasoline. When she did, defendant was standing over her and pouring gasoline on her. Defendant then lit the gasoline on fire. Mary Ann said that defendant tried to kill her and that she thought she was going to die

After speaking with Mary Ann at the hospital, the arson investigator returned to the scene and began his investigation. He determined that approximately one gallon of a flammable liquid had been poured in two distinct areas in the front bedroom— near the bedroom door and at the foot of the bed—and ignited separately with an open-flame device. There was no way to determine which of the two areas was ignited first. A five-gallon container smelling of gasoline was found but determined not to have been used in the fire.

The arson investigator interviewed defendant at the police station shortly after midnight, and an audiotape recording of the interview was played for the jury. At the beginning of the interview, defendant insisted on taking an intoxilizer test, which the police administered. At trial, the parties stipulated that two readings from the test indicated defendant had blood-alcohol levels of 0.25 and 0.26 grams of alcohol per 100 milliliters of blood. During the interview, defendant admitted setting Mary Ann and the house on fire, and he described the events leading up to that point.

Defendant told the police that at approximately 10:00 a.m. on the day of the crimes, he drove Mary Ann to work at the Red Rooster and drank one beer there. He then drove home and spent most of the day cleaning the house and car, during which time he drank four more beers. Defendant picked up Mary Ann from work sometime after 6:00 p.m.—the end of her shift—and she dropped him off at home before heading back out with the car to the Silver Moon. Defendant got a ride to the Silver Moon from his friend Nick, who dropped him off there about 8:00 p.m. At the Silver Moon, defendant drank another beer. Defendant spoke to Mary Ann, but she refused to leave the bar, cursing and calling him a "no good bastard." Defendant left the Silver Moon shortly before 9:00 p.m. and walked home.

Defendant also told the police that, when he walked inside the house, Mary Ann was "passed out" on the bed. She woke up, called him a "no good mother fucker," and asked him where he had been. According to defendant, she said, "one of these fuckin days I'm going to burn you to fuckin bits and I'm going to cut your goddamn heart out." Mary Ann also said, "if you lay down on that goddamn couch, . . . I'll put a butcher knife in your ass." Defendant went "berserk," cursed and called Mary Ann a "no good bitch." He then retrieved a plastic carton containing nearly one-half gallon of gasoline from the patio, walked to the bedroom with it, poured approximately a quart of gasoline on the bedroom floor, threw the carton toward the bed where Mary Ann lay, spilling gasoline on Mary Ann in the process, and threw a burning cigarette lighter, igniting the fire. According to defendant, "the fuckin thing just went." Defendant told police that he left through the back door to make sure his pet dogs and cats escaped, and then returned and helped Mary Ann out of the house through the front door.

Defendant told police he was "pissed off" at Mary Ann but that his mind was also on his landlord, who had offered him money if he burned the house down. He also mentioned that his rent was due the next day and that his landlord had recently remodeled other nearby properties.

William Gornik, defendant and Mary Ann's landlord, testified that defendant told him shortly before the fire that he was going to have a difficult time paying the

17 Cal.Rptr.3d 546

rent, which was due on the 15th of every month. Defendant did not, however, ask for an extension. Gornik told defendant to "do the best" he could. Gornik testified that he never asked defendant to burn down the North Whitnall Highway property or any other property.

Mary Ann was transferred to the Torrance Burn Center in Los Angeles County in the early morning hours of August 15. She had suffered burns over approximately 50 percent of her body, including third degree burns to her hair, face, neck, upper arms, chest, back, and...