People v. Dyer

Decision Date28 April 1988
Citation246 Cal.Rptr. 209,45 Cal.3d 26
CourtCalifornia Supreme Court
Parties, 753 P.2d 1 The PEOPLE, Plaintiff and Respondent, v. Alfred DYER, Defendant and Appellant. Crim. 23374.

W. Reece Bader, Anne G. Bookin, Jon B. Streeter, Arnold A. Pinkston and Orrick, Herrington & Sutcliffe, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Dane R. Gillette, Kristofer Jorstad, Blair W. Hoffman and Aileen Bunney, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

LUCAS, Chief Justice.

INTRODUCTION

On June 18, 1981, an information was filed in Alameda County Superior Court charging defendant Alfred Dyer with two counts of first degree murder--each count alleging a multiple-murder special circumstance (Pen.Code, § 190.2, subd. (a)(3))--two counts of attempted murder (id., §§ 187, 664) and four counts of kidnapping (id., § 207). (All further statutory references are to the Penal Code unless otherwise indicated.) In addition, all eight counts of the information alleged that defendant was armed with, and used, a firearm, and that he intentionally inflicted great bodily injury. (§§ 1203.06, 1203.075, 12022, subd. (a), 12022.5, 12022.7.) The information also alleged three prior felony convictions: one armed robbery and two burglaries. (§ 667.5, subd. (b).) Defendant pleaded not guilty to all eight counts and denied the special circumstances, the enhancements, and the prior convictions. He subsequently admitted the prior convictions.

A jury found defendant guilty of each crime charged, and found the special circumstance allegations to be true. The jury also found true all of the enhancements, except for two allegations of intentionally inflicting great bodily injury. The jury fixed the sentence at death for both counts of murder. Defendant's appeal is automatic. (§ 1239.) As will appear, we have concluded that the judgment should be affirmed.

FACTS

On November 8, 1980, defendant and two other men--Michael Jackson (defendant's brother) and Cleveland Ario--drove in Jackson's two-door Cadillac to the apartment of their friend, Belinda Murray, located in the San Antonio Village housing project in Oakland, California. Belinda shared the apartment with her two children, her brother Floyd, her friend Nora Fluker, and Nora's four children. The two-level apartment had a kitchen and living room on the first floor, and two bedrooms and a bath on the second floor.

Defendant (armed with a .38 caliber handgun), Ario (armed with a .45 caliber semiautomatic pistol), and Jackson arrived at Belinda's apartment around 9 p.m., bringing with them some cocaine and an open bottle of wine, which they drank. Shortly after their arrival, Belinda's friend Bennie Warren arrived at the apartment. Bennie had met Jackson before, but he had never met defendant or Ario before that night. Belinda introduced Bennie to the others, and they talked for awhile. Bennie found defendant to be "stable-minded" and "intelligent." Later, Belinda, defendant, Jackson and Ario went upstairs to Belinda's bedroom. Bennie started to follow them but Jackson told him to wait and that they would be right back. Once upstairs, Ario injected Belinda, defendant and himself with a mixture of heroin and cocaine, and Jackson injected himself with the drug. Nora joined them and also had some of it. Belinda received a small dose, which she recalled caused a brief pleasant feeling. The dose defendant received, which appeared to be the same size as the one given Belinda, had no apparent effect on him.

Defendant, Jackson and Ario then left the apartment. Belinda and Bennie also left, returning with gum, cigarettes, and another bottle of wine. They talked with Nora in the kitchen; Floyd was upstairs with the sleeping children.

Around midnight, defendant, Ario and Jackson returned to the apartment. Defendant appeared in the same condition as when he had left. The three men went upstairs with Belinda and Bennie to Belinda's bedroom where they again injected themselves with drugs; Belinda did not inject this time, nor did Bennie. Defendant then lay down on Belinda's bed, covered his eyes with his arm and rested. He answered questions while lying down and heard Ario ask Belinda to keep his gun for him. Ario then gave his gun to Belinda and she placed it in her closet. Bennie left the apartment soon thereafter, followed by Jackson and Ario.

Defendant "awoke" about five minutes later. He appeared startled and asked Belinda if his brother (Jackson) had removed his rings from his fingers. Belinda said she did not know. Defendant concluded that Bennie must have taken his rings. Defendant told Belinda to give him Ario's gun, which he stuck inside his pants along with his own .38 caliber gun. He then asked Belinda to accompany him through the housing project in search of Bennie; he especially wanted to check out a few places where Bennie might attempt to pawn the rings.

Defendant talked with Belinda while they walked. He appeared angry, but not intoxicated. He walked in his usual way and he "talked like he normally did when he's mad." He told Belinda that he was going to kill Bennie if he found him that evening and that if he could not find him, he was going to "whip his ass" when he did.

While walking, Belinda and defendant met Robert Fluker (Nora's brother-in-law) and his "common law" wife, Carol Tiexiera. (Belinda testified to this meeting at both the preliminary hearing and trial.) At all times, according to Belinda, defendant appeared to be in normal condition; he did not seem intoxicated or "spaced out." There was nothing unusual in the way defendant walked or talked during the search for Bennie. The two soon returned to Belinda's apartment.

On their return, Belinda and defendant found Nora writing a letter at the kitchen table. Defendant sat on the living room couch and Belinda went upstairs. Belinda heard a knock at her back door about five minutes later and, looking out her bathroom window, saw Bennie standing at the door. She rushed downstairs and found defendant pistol-whipping Bennie on the head; defendant had his gun in one hand and Ario's gun in the other and was beating Bennie on both sides of his head, drawing blood from each side. Bennie's face was bloody and he was almost unconscious. Bennie testified that when he returned to Belinda's apartment defendant appeared "angered but in control."

Defendant demanded that Bennie return his rings; Bennie insisted he did not know what defendant was talking about and that he did not have any rings. Nora intervened in an attempt to stop the pistol-whipping, but defendant told her that nobody was going to get hurt. He instructed Bennie to sit in a chair in a corner of the kitchen and told him, "You better pray that my brother has my rings." At all times during the beating, defendant appeared normal and in control of himself.

Within minutes, Jackson's car drove up. Belinda ran outside and asked him whether he had defendant's rings. She followed Jackson and Ario into the kitchen where Jackson asked defendant what was the matter. Defendant pushed him away with one hand; defendant still had a gun in each hand at the time. Jackson appeared upset by defendant's act and left the apartment. Belinda and Nora went outside and quieted him; he then went back inside. This time, when defendant saw Jackson he gave him one of the guns. Jackson immediately became violent. He pushed both Belinda and Nora and commanded them not to move. Defendant, his gun still trained on Bennie, told Ario to search him. Ario searched Bennie, taking off his shoes and socks, checking his pockets, removing his wallet, and taking his gold rope chain. No rings were found. During the search, defendant kept his gun pointed at Bennie and told him, "You're a dead man."

Upon hearing that remark, Ario told defendant that if he killed one of them he would have to kill the others as well. Defendant replied that he would not kill any of the children. Ario then said that Floyd was upstairs and he ran to get him. Floyd was then pushed and shoved down the stairs and into the kitchen. Ario went outside and turned the car around, and next exited the car and held the driver's door open while Jackson marched the four captives (Nora, Belinda, Bennie and Floyd) out to the car at gunpoint. Defendant remained at the kitchen doorway with his gun pointed at them. He then walked to the car and stood at the open driver's door. On the way to the car, one of Belinda's neighbors saw her and yelled from her next-door house, "Where in the hell are you going this time of night?" Before Belinda could respond, Jackson forced her into the car. Defendant likewise forced Bennie into the car.

The four hostages sat in the back seat; Ario was behind the wheel and Jackson was on the passenger's side of the front seat, with defendant between them. Bennie was behind Ario with Nora to his right; Floyd was to her right and Belinda was next to Floyd and behind Jackson. As Ario drove off, the four hostages began arguing with each other, urging whoever had the rings to return them; none of them, however, admitted having the rings. Jackson finally turned around, gun in hand, and ordered them to "shut up." Ario then said that they should "kill that bitch first," referring to Belinda. When Belinda asked why, Ario explained that she and her friend had sent his brother to prison. Also during the ride, Floyd asked defendant approximately three times, "Why do you want to take me out?" Defendant told him to "shut up" and stuck his gun in Floyd's face.

After riding about 10 minutes, someone in the front seat said, "Right here is cool." The car came to a stop and defendant said, "Get out." Ario exited the car, followed by defendant, who commanded Bennie to climb out. Bennie and Nora exited on the driver's side, and Belinda and Floyd left from the...

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