People v. Davenport

• Decision Date: 31 December 1985
• Docket Number: Cr. 22356
• Citation: 41 Cal.3d 247,710 P.2d 861,221 Cal.Rptr. 794
• Court: California Supreme Court
• Parties: , 710 P.2d 861 The PEOPLE, Plaintiff and Respondent, v. John Galen DAVENPORT, Defendant and Appellant.

Page 794

221 Cal.Rptr. 794

41 Cal.3d 247, 710 P.2d 861

The PEOPLE, Plaintiff and Respondent, v. John Galen DAVENPORT, Defendant and Appellant.

Cr. 22356.

Supreme Court of California.

Dec. 31, 1985.

Rehearing Denied Jan. 30, 1986.

[710 P.2d 864] Quin Denvir, State Public Defender, under appointment by the Supreme Court, Donald L.A. Kerson and William Blum, Deputy State Public Defenders, for defendant and appellant

George Deukmejian and John K. Van de Kamp, Attys. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield, Keith I. Motley and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.

REYNOSO, Justice.

Appellant stands convicted by a jury of murder in the first degree with the special circumstance that the murder was intentional and involved the infliction of torture. The jury fixed the penalty at death. The appeal to this court is automatic.

Appellant makes three challenges to the finding that the murder was committed under special circumstances. (Pen.Code, § 190.2 et seq.) ¹ First appellant urges that the torture-murder special circumstance enacted by the initiative measure of 1978 is not sufficiently rational, precise and limited to provide a constitutional basis for imposition of the death penalty. (Smith v. Goguen (1974) 415 U.S. 566, 572-573, 94 S.Ct. 1242, 1246-1247, 39 L.Ed.2d 605; Godfrey v. Georgia (1980) 446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398.) Secondly, appellant contends that the instructions to the jury defining the special circumstance were inconsistent with the definition of first degree murder by torture, and that the combination was likely to have misled the jury on the vital matter of the truth of the special circumstance. (People v. Dail (1943) 22 Cal.2d 642, 653, 140 P.2d 828.) Finally, appellant argues that the special verdict returned by the jury failed to meet the requirements of sections 190.2 and 190.4, subdivision (a).

We conclude that the special circumstance is reasonably susceptible of a construction which is consistent with constitutional mandates, that the trial court correctly instructed the jury, and that the special verdict met statutory requirements. We therefore affirm appellant's conviction of murder with special circumstances.

Under cases decided by this court and by the United States Supreme Court, however, three instructional errors at the penalty phase of the trial require reversal of the judgment of death and remand for new penalty proceedings. (People v. Robertson (1982) 33 Cal.3d 21, 188 Cal.Rptr. 77, 655 P.2d 279; People v. Easley (1983) 34 Cal.3d 858, 196 Cal.Rptr. 309, 671 P.2d 813; Lockett v. Ohio (1978) 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973; People v. Brown (1985) 40 Cal.3d 512, 220 Cal.Rptr. 637, 709 P.2d 440.)

FACTS

The uncontradicted evidence showed that the victim, Gayle Lingle, spent the evening of March 26, 1980, at the Sit 'N Bull Bar in Tustin, where she talked with appellant and with Larry Richards, both of whom she knew. At one point in the evening she asked Richards to give her a ride home. Richards put her off and appellant offered her a ride. She did not then accept the offer. Later in the evening she telephoned her boyfriend telling him that she had a six-pack of beer and a ride and would be home soon. A few minutes later between The area where the body was found is bounded by Myford and Michelle Streets; a dirt berm two to three feet high lies between Myford Street and the field. Between the road and the berm was an area in which items from a woman's purse were scattered among random, twisting footprints. This evidence suggested a struggle had occurred in that location. Behind the berm, about 20-30 feet from the body, was a large pool of bloodied water, a pair of woman's pants, a woman's underpants, and a pair of boots. There were two sets of motorcycle tracks in the area. One set left and re-entered Myford in the area of struggle. The second set of tracks led from Myford, over the end of the dirt berm within four to five feet of the body, and back to the street.

approximately midnight and 1 a.m., she and appellant both left the bar. The victim's body was found the next morning lying in a [710 P.2d 865] large, uncultivated field south of the I-5 freeway near Tustin.

Appellant's nickname was "Honda Dave." Police learned that he had left the Sit 'N Bull with the victim on the night of her death and that he rode a 350 cc Honda motorcycle. On March 28 the officers, who had a warrant to arrest appellant for an unrelated traffic offense, entered the open carport at appellant's home where they examined and photographed the tires on appellant's bike. The examination indicated a possible match between the tracks at the murder scene and the tread on appellant's tires. The officers went to the house and arrested appellant.

The prosecution produced three eyewitnesses who placed a motorcycle similar to one owned by appellant at the murder scene between 12:30 and 1:30 a.m. on March 27. The first witness had left his workplace on Myford Road shortly after 1 a.m. As he passed by the intersection of Michelle and Myford he saw a motorcycle parked beside the road which looked similar to a 350 cc Honda that his son owned. The second witness testified that she also had driven past the intersection about 12:30 a.m. and that she had seen a motorcycle parked off the road near a telephone pole. She had seen a man crouched on the far side of the dirt berm. The man wore a plaid shirt and had shoulder length hair. She could not ascertain the nature of his activity. The motorcycle was dark in color, and of a foreign, probably Japanese, make. This witness did not identify appellant. A third witness testified that she had driven around that corner at 12:35 a.m. As her headlights swept the field she saw a parked motorcycle and a man who was crouched over and appeared to be digging. The motorcycle resembled the bike belonging to the appellant which was in the courtroom as a prosecution exhibit. The man was white and had collar length hair. She saw his face when he briefly looked into her headlights. Prior to trial this witness had picked appellant's photo as one of three which could have been the man she saw. She was unable to select appellant from a live lineup. At trial the district attorney displayed the photographic line-up from which the witness had originally selected several pictures. She selected a photograph of appellant and testified that she thought that was the person she had seen in the field although she could not be positive that it was.

Three expert witnesses testified to facts that connected defendant's motorcycle to the crime. Bonnie Driver, a criminalist employed by the Orange County Sheriff's Department, testified that she had examined vegetable matter taken from appellant's motorcycle and compared it with vegetation taken from the area where the victim's body was found. Driver found the gross morphology of the plants in both samples to be consistent with each other. A forensic microscopist, Skip Pallinick, examined and compared the heavy mineral content of soil samples taken from appellant's bike with samples taken at the murder scene. He testified that the samples were generally consistent with each other. One of the samples from the motorcycle contained sufficient similarity to the murder scene samples that the witness concluded they were virtually indistinguishable. Both of these witnesses admitted they had not compared Jack Leonard, the production manager for the International Sport and Rally Division of Dunlop Tire Company, testified that appellant's motorcycle could have made the tracks at the scene. Mr. Leonard had examined plaster casts of the tracks found near the victim's body and the actual tires on appellant's motorcycle. He found that the tracks of the rear tire had the same highly unique and distinctive characteristics as the rear tire of the motorcycle. Both were Dunlop brand motorcycle tires, size 4.00-18 with a K-70 tread pattern. Both were characterized by a defect in a portion of the tread pattern known as the cross-slot. The defect was caused by damage to the upper half of the manufacturing mold. Mr. Leonard testified that tires with such blemishes are routinely removed from the regular production line. They are sold as "blems" at a reduced price but pursuant to trade restrictions are not shipped to the U.S. It was Leonard's opinion that not more than two or three tires with this defect which were manufactured at the same time and place as the tire on appellant's bike would have eluded inspectors and been shipped to the U.S. Similar tires are currently manufactured in the U.S., but the steel utilized for the molds here is stronger than the aluminum used in Britain and not subject to the kind of breakage which caused this defect. The witness also explained that it was unusual for a nine-year-old tire to show only 40 percent wear, as did the tire on appellant's motorcycle. ² The vast majority (95 percent) of similar tires are completely worn out after five or six years of use. This degree of wear was consistent with the tracks at the scene. Finally, Leonard testified that the track of the front motorcycle tire at the scene showed a tread pattern which he recognized as a Bridgestone tire, similar to the front tire on appellant's motorcycle.

the samples taken from appellant's bike with samples taken from other parts of Orange County. Dr. Stephen Dana, a geologist[710 P.2d 866] retained by the defendant, examined the same soil samples and found similarities and differences in all of them. Based on his knowledge of the geology of the area Dr. Dana opined that the samples could have come from anywhere in Orange County.

The nature of the charge against appellant requires that we describe the grotesque details of the condition of the victim's body and the cause of her death. The body, nude except for a sweater draped over the...