People v. Diaz

• Decision Date: 31 August 1992
• Docket Number: No. S004637,No. 23834,S004637,23834
• Court: California Supreme Court
• Parties: , 834 P.2d 1171 The PEOPLE, Plaintiff and Respondent, v. Robert Rubane DIAZ, Defendant and Appellant. Crim.

Page 353

11 Cal.Rptr.2d 353

3 Cal.4th 495, 834 P.2d 1171

The PEOPLE, Plaintiff and Respondent, v. Robert Rubane DIAZ, Defendant and Appellant.

No. S004637.

Crim. No. 23834.

Supreme Court of California In Bank.

Aug. 31, 1992.

As Modified on Denial of Rehearing Oct. 21, 1992.

Robin B. Johansen, under appointment by the Supreme Court, Charles C. Marson, Julie M. Randolph, Steven D. Dopkin and Remcho, Johansen & Purcell, San Francisco, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., Harley D. Mayfield and Gary W. Schons, Asst. Attys. Gen., Pat Zaharopoulos Robert M. Foster, Frederick R. Millar, Jr. and Peter Quon, Jr., Deputy Attys. Gen., for plaintiff and respondent.

KENNARD, Justice.

This is an automatic appeal from a judgment of death. (Pen.Code, § 1239, subd. (b).) ¹ After defendant Robert Rubane Diaz waived his right to a jury trial, the trial court convicted him of 12 counts of first degree murder (§ 187), and found to be true 12 multiple-murder special-circumstance allegations (§ 190.2, subd. (a)(3)). We shall order 11 of the 12 special-circumstance allegations stricken as duplicative, but otherwise affirm the judgment.

I. FACTS

On March 29, 1981, defendant, a registered nurse, began work on the night shift in the cardiac care/intensive care unit (ICU) at Community Hospital of the Valleys (CHOV) in Perris, California. In the next three and one-half weeks, at least thirteen patients on the night shift suffered violent seizures, which were generally followed by cardiac and respiratory arrest. Nine of these patients died. The nurses who had observed the seizures described them as being similar to grand mal seizures suffered by epileptics; none of the nurses had ever seen such symptoms in cardiac patients. Following the closure of the ICU at CHOV, defendant accepted employment at San Gorgonio Pass Hospital. Within three days, while defendant was on duty, a patient died at that hospital after displaying the same symptoms as those observed in the patients who had died at CHOV. Within a day or so, defendant was arrested and charged with murdering a total of 12 patients (including 2 in whom seizures were not observed).

At trial, the prosecution contended that defendant had killed the 12 patients by injecting them with massive overdoses of lidocaine, a drug commonly used in hospitals to control rhythm disturbances in the heart. All but one of the deceased patients had been given therapeutic doses of lidocaine while in the hospital's ICU. The prosecution's evidence showed that defendant assisted in the care of the patients before their seizures, and thus was in a position to administer fatal doses of lidocaine; that on several occasions defendant exhibited unusual behavior on nights when patients died; that the patients' symptoms were consistent with having been given large overdoses of lidocaine; that the patients' tissues or blood had unusually high concentrations of lidocaine; that syringes containing high concentrations of lidocaine were found in the hospital; and that lidocaine was found in defendant's home.

The defense theorized that some of the deaths resulted from natural causes, while others were caused by adverse reactions to medications administered for therapeutic purposes.

Although the deceased patients had suffered from serious medical problems, many of them were not regarded as terminally ill. The evidence presented at trial does not suggest that the deaths were "mercy killings"; the prosecution did not argue such a theory at trial, nor did it suggest any other motive for the slayings.

II. GUILT ISSUES

A. Motion to Suppress Evidence

On May 1, 1981, after obtaining a search warrant, police officers searched defendant's house and seized a number of items, some of which (syringes, an empty lidocaine box, and a vial containing lidocaine) were used against defendant at trial. Defendant unsuccessfully moved to suppress the seized items on several grounds, one of which was that the affidavit supporting the search warrant contained material misrepresentations and omissions. Defendant renews that argument here.

The affidavit supporting the search warrant was prepared by Marshall Tolford, an investigator with the Riverside County District Attorney's office. A summary of the 10-page affidavit follows:

A confidential informant told the Riverside County District Attorney's Office that 17 patients had died at CHOV between March 8 and April 14, 1981, and that the circumstances surrounding the deaths were "identical in many respects." As described in the affidavit: "[A]ll patients suffered severe seizures prior to death. The patients suffered respiratory arrest, blood drawn prior to death was acidic and ... the patients were extremely blue from the chest area up."

Investigator Tolford, assisted by Riverside coroner's investigator Michael Worthington, obtained Riverside County Health Department records, which showed that 24 patients had died at CHOV between March 8 and April 20, 1981. Worthington told Tolford that CHOV usually had three deaths per month. Because the death records listed myocardial infarction (heart attack) as the cause of death for most of the patients, Tolford became suspicious.

The investigation revealed that the bodies of six of the patients who had recently died at CHOV had not yet been buried or cremated. Autopsies were performed on all six. Toxicological studies established lethal quantities of lidocaine in two of the six bodies. The pathologist who had performed the autopsies of the six patients told Tolford that an overdose of lidocaine would be accompanied by "several symptoms including seizures, respiratory arrest, a bluish tint to the upper torso of the body and acidic blood." ²

This led Tolford to examine 24 patient records that the police had seized from CHOV. Tolford discovered that defendant "did in fact attend every patient who died exhibiting these symptoms [seizures, acidic blood, respiratory arrest and a bluish tint to the upper torso] in the intensive care unit," and that all of these patients had died in the hospital's ICU. Tolford also learned that defendant had stopped working at CHOV on April 23, 1981, the day after police seized the patient records, and immediately found employment at San Gorgonio Pass Hospital. There, two patients died on the night of April 24-25, while defendant was on duty. Medical records showed that these two patients suffered seizures and respiratory arrest, and that they had a bluish tint to the upper torso.

Investigator Tolford then interviewed Donna MacDonald, a licensed vocational nurse (LVN) working at CHOV. MacDonald said she and defendant had become known as the "deadly duo," because a number of patients had died in the hospital's ICU while they were working the same shift. Because all of those patients exhibited similar symptoms at the time of death, MacDonald suspected a connection between the deaths and the medication defendant administered. MacDonald recalled one occasion when defendant handed her a syringe containing lidocaine and asked her to inject it into patient Castro. Because of her suspicions, MacDonald did not do so. The syringe was later sent to the manufacturer, Abbott Laboratories, which reported: the syringe "had been tampered with, with lab results indicating a concentration slightly below standard concentration"; ³ that two other syringes from CHOV containing lidocaine had also been tampered with, and had concentrations much higher than that stated on the packaging; and that the tampering occurred after all three syringes had left Abbott Laboratories, but before the lidocaine was administered to the patients.

In an interview with investigator Tolford, defendant mentioned he had kept notes concerning the deaths of the patients. Defendant referred to these notes during the interview, but retained possession of them. In a second interview the next day, defendant claimed he did not know where his notes were.

Tolford further stated in his affidavit that according to the medical records of four of the deceased patients (Boyce, Bayless, Patton and Swanson) whose blood samples contained lidocaine, these patients had "never" been prescribed lidocaine.

Defendant asserts that investigator Tolford's affidavit was deficient in four respects: (1) it inaccurately described statements that Nurse MacDonald made to Tolford; (2) it falsely stated that lidocaine was never prescribed to patients Boyce, Bayless, Swanson and Patton; (3) it falsely stated that CHOV had an abnormally high death rate between March 9 and April 20, 1991; and (4) it falsely stated that defendant attended all of the ICU patients who died after exhibiting symptoms of an overdose of lidocaine.

Under the law applicable to this case, ⁴ a defendant may seek to suppress evidence on the ground that the affidavit supporting the search warrant contained inaccurate statements. If, however, the affiant acted reasonably in including the misstatements in the warrant application, no sanction is imposed. If the affiant was negligent, or unreasonably believed the statements to be true, the reviewing court must correct the inaccurate information and "retest" the reformulated affidavit for probable cause. And if the affidavit contained reckless falsehoods or deliberate lies, the warrant must be quashed, regardless of whether the false statements were necessary to establish probable cause. (People v. Kurland (1980) 28 Cal.3d 376, 385-386, 168 Cal.Rptr. 667, 618 P.2d 213; People v. Cook (1978) 22 Cal.3d 67, 75, 148 Cal.Rptr. 605, 583 P.2d 130; Theodor v. Superior Court (1972) 8 Cal.3d 77, 100-101, 104 Cal.Rptr. 226, 501 P.2d 234.) With these rules in mind, we consider defendant's challenge to the affidavit.

1. Statements by Nurse MacDonald

Defendant contends that investigator Tolford inaccurately described in his affidavit certain information that...