People v. Duncan

• Decision Date: 23 May 1991
• Docket Number: No. 25416,C,No. S004710,S004710,25416
• Citation: 53 Cal.3d 955,281 Cal.Rptr. 273,810 P.2d 131
• Court: California Supreme Court
• Parties: , 810 P.2d 131 The PEOPLE, Plaintiff and Respondent, v. Henry Earl DUNCAN, Defendant and Appellant. rim.

Page 273

281 Cal.Rptr. 273

53 Cal.3d 955, 810 P.2d 131

The PEOPLE, Plaintiff and Respondent, v. Henry Earl DUNCAN, Defendant and Appellant.

No. S004710, Crim. No. 25416.

Supreme Court of California In Bank.

May 23, 1991.

Rehearing Denied Aug. 14, 1991.

Mitchell Zimmerman, under appointment by the Supreme Court, Sally M. Abel, Wayne D. Skigen, Stacie L. Solari, Fenwick & West and Fenwick, Davis & West, Palo Alto, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Raymond L. Brosterhous III, Ward A. Campbell and Lisbeth Bellet, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

PANELLI, Justice.

Defendant Henry Earl Duncan was convicted of the first degree murder of Josephine Eileen DeBaun (Pen.Code, § 187), ¹ robbery (§ 211), and grand theft (§ 487). The jury found true a special circumstance allegation that the murder was committed in the course of a robbery (§ 190.2 subd. (a)(17)(ii)) and that defendant "intended to and did kill" the victim. The jury also found that defendant personally used a knife in the commission of the murder and robbery (§ 12022, subd. (b)). The jury fixed the penalty at death; this appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

GUILT PHASE FACTS

Prosecution Case

The victim, Josephine Eileen DeBaun, was the night supervisor at the International Host Restaurant in the Pan Am Terminal at Los Angeles International Airport. As the night supervisor, Mrs. DeBaun collected, counted, and deposited the money from the cash registers into a Brink's safe located in a small caged area within the office, known as the money room.

Defendant worked as a night cashier at the restaurant and was on duty on November 13, 1984, the night DeBaun was killed. The time clock records show that defendant punched out that night sometime between 11:01 and 11:06. The other remaining employees, Rafael Felix, Francisco Castro and Daryl Jackson, punched out between 11:30 and 11:42 p.m.

Defendant was seen by custodian Bernice McCarty lingering on the mezzanine level at 11:30 p.m. McCarty had never before seen defendant hang around after hours. Defendant told her he was waiting for someone.

DeBaun was last seen alive by Harvey Morgan of Ace Pest Control, who had arrived at 10:50 that night, after closing, to spray. DeBaun remained there alone after Morgan left about 11:50 p.m. DeBaun telephonically recorded some sales figures about midnight.

DeBaun's body was found early the next morning by the morning shift restaurant supervisor. The body was lying in a pool of blood in the money room. The grate was down on the public door, and the office door was locked. The cage door to the money room was partially open. The supervisor's "floating fund bank" was open, with the "boss key ring" dangling from the lock. About $2,100 was missing from the bank. The money room also held the Brink's bank in which the proceeds of each shift were deposited and the "nest banks" for each cashier in which $300 was kept. The Brink's bank required two keys to open it: one possessed by the supervisor and one by a Brink's agent.

Each supervisor had a personal key ring which held a key that unlocked the restaurant, the office door, the caged money room within the office, and the locked key panel in the money room. DeBaun's personal key ring was never recovered.

The restaurant employees were aware that only the "V.M.-19" key on the boss key ring could open the floating fund bank. At the end of each shift, the boss key ring was locked inside a wall box that contained a panel for keys. Although it was not generally known, a duplicate key with the serial numbers V.M.-19 facing inward (not readily visible) was kept inside the same key panel. After the murder no one thought to check and confirm whether this duplicate V.M.-19 key was still in the panel. Although other locks were recored after the murder, the lock to the floating fund bank was not changed because the original V.M.-19 key was found in the lock.

At the murder scene there was blood splattered on the walls and nest banks. Bloody palm prints were found on a metal cabinet to the right of the body. A bloody shoe print was inside the money room, facing outward. Three bloody palm prints and one bloody fingerprint were photographed at the scene.

Defendant returned to work on November 15, his next regularly scheduled work day and continued working at the restaurant until February 8, 1985.

On February 8, 1985, defendant used a key marked V.M.-19 and stole $1,770 from the supervisor's floating fund bank and $300 from his own nest bank. The V.M.-19 key was found in defendant's car. Defendant never returned to work after this theft. At the beginning of trial on the murder and robbery charges, defendant pleaded guilty to one count of grand theft arising from this incident.

Defendant's palm prints were taken at the time of his arrest for the February 8 theft. They were identified as matching the bloody palm prints from the murder scene. In addition, defendant's Nike shoes had a sole pattern similar to the bloody shoe print found at the murder scene.

There were many cutting and stabbing wounds on the victim's body. Her head was nearly severed and there were a number of defensive wounds on her hands, palms, fingers and forearm. A broken knife handle was found on the floor, and there was a bloodstain on a record book that corresponded to the blade of a knife.

On November 14, 1984, the day DeBaun's body was found, one of the cooks noticed that a butcher knife and a broad-bladed meat slicing knife were missing from the kitchen.

Defense Case

The defense was two pronged. First, the defense contended there was a reasonable doubt as to whether defendant committed the crime and suggested there were other persons who could have been the killer. Defendant did not testify, and no expert witness testimony was presented. Several witnesses identified other employees and former employees who might have had a motive or who were around the restaurant the evening of the killing.

Second, the defense asserted a theory that the murder had been committed by outsiders to the restaurant. The support for this theory came from testimony elicited on cross-examination of the coroner that some of the victim's wounds could have been inflicted in an attempt to torture her. In closing argument, defense counsel asserted that the perpetrator had tortured Mrs. DeBaun to force her to open the Brink's safe, an effort which any employee would have known was futile because the Brink's guard's key was necessary to open the safe.

PENALTY PHASE FACTS

Prosecution Case

The People presented no testimony in the penalty phase. The only evidence they introduced was defendant's 1984 federal conviction for conspiracy to pass counterfeit money.

Defense Case

Defendant's mother, older brother, and two sisters testified that defendant had been an obedient and nonviolent child who had never been in trouble at school. He graduated from high school and attended junior college. Defendant's behavior began to change in 1984 when he began using cocaine. Defendant stole money from his family and pawned things; he was obsessed with money.

Defendant's mother collapsed on the stand during her testimony and was removed for medical treatment.

GUILT PHASE CONTENTIONS

1. Ineffectiveness of Counsel

Defendant contends that he received ineffective assistance from counsel in two respects. First, he contends counsel failed to engage in meaningful preparation for trial. Second, he contends that counsel misunderstood the law of felony murder.

To establish entitlement to relief for ineffectiveness of counsel defendant must show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings. (People v. Lewis (1990) 50 Cal.3d 262, 288, 266 Cal.Rptr. 834, 786 P.2d 892; see also Strickland v. Washington (1984) 466 U.S. 668, 687-696, 104 S.Ct. 2052, 2064-2069, 80 L.Ed.2d 674.)

Under Strickland v. Washington, our review of counsel's performance is to be highly deferential. As the court there noted: "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 343 (1983)." (Strickland v. Washington, supra, 466 U.S. at pp. 689-690, 104 S.Ct. at pp. 2065-2066.)

Based on counsel's fee request, defendant calculates that counsel spent no more than 35.1 hours on preparation for trial. What defendant overlooks, however, is that counsel represented him through the preliminary hearing as retained counsel. The time counsel devoted to preparation for and representation at the preliminary hearing is not...