People v. Elliot, No. S057063.

CourtUnited States State Supreme Court (California)
Writing for the CourtMoreno
Citation35 Cal.Rptr.3d 759,122 P.3d 968
PartiesThe PEOPLE, Plaintiff and Respondent, v. Michael Lee ELLIOT, Defendant and Appellant.
Decision Date28 November 2005
Docket NumberNo. S057063.

Page 968

122 P.3d 968
35 Cal.Rptr.3d 759
The PEOPLE, Plaintiff and Respondent,
v.
Michael Lee ELLIOT, Defendant and Appellant.
No. S057063.
Supreme Court of California.
November 28, 2005.

Page 969

COPYRIGHT MATERIAL OMITTED

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Barry L. Morris, under appointment by the Supreme Court, Hayward, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Patrick J. Whalen, Julia Bancroft and Stephanie

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A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.

MORENO, J.


Michael Lee Elliot was convicted in 1996 in Sacramento County Superior Court of the first degree murder (Pen.Code, § 187, subd. (a))1 of Sherri Gandy. The jury also found defendant guilty of attempted robbery (§§ 211, 664) and found true two special circumstances, that the murder was committed during an attempted robbery (§ 190.2, subd. (a)(17)) and that the murder was intentional and involved torture (§ 190.2, subd. (a)(18)). The jury also found true allegations that defendant personally used a firearm (§ 12022.5, subd. (a)) and a knife (former § 12022, subd. (b) [now § 12022, subd. (b)(1)]) in the commission of the crimes. At the penalty phase, the jury determined that defendant should receive the death penalty. This appeal is automatic. We affirm the judgment in its entirety.

I. STATEMENT OF FACTS

A. Guilt Phase

1. Prosecution Case

a. The Crime

Sherri Gandy was killed at her workplace, the Black Stallion bar in Orangevale, California, between 2:00 a.m. and 3:00 a.m. on June 1, 1994. Gandy was the evening bartender at the Black Stallion. She worked the 6:00 p.m. to 2:00 a.m. shift, and was responsible for closing the establishment. The Black Stallion was located in a strip mall. Its front door opened into a small vestibule, which led to a bar and seating area. A storeroom, with a safe mounted in its floor, was situated toward the back of the establishment. This safe was hidden from patrons' view, being located behind the door separating the bar area from the storeroom, and Gandy would place the receipts from her shift into the safe at the end of each work night. She did not know the combination to the safe, so the safe was left open for her and she would close and lock it at night after she made her deposit.

Several patrons who were at the Black Stallion during the evening of May 31, 1994 and the morning of June 1, 1994 testified at defendant's trial. Anthony Stewart, Gandy's boyfriend, arrived at the Black Stallion around 9:30 p.m. Stewart testified that defendant was at the bar when he arrived. Another patron, Scott Atkins, also arrived at the Black Stallion around 9:30 p.m. and saw defendant there. Atkins testified that defendant seemed friendly, but "not too sober." Stewart testified that although it appeared as if defendant had consumed "a lot" of alcohol, defendant seemed alert and had no difficulty walking or playing darts. At one point, defendant asked Gandy to take her shirt off, but Gandy did not respond.

Defendant made several trips in and out of the Black Stallion that night. Defendant left the Black Stallion sometime before midnight, leaving behind most of his beer, some money, and his sunglasses. Gandy put defendant's items in a cup which she placed on the bar's back counter. Defendant returned to the bar sometime later and requested a drink. Gandy was occupied and told defendant to wait. Defendant cursed and proceeded to leave. Gandy chased after defendant, apologized to him and said she would get him a drink. Gandy placed defendant's personal items in front of him along with his drink.

Another bar patron, Richard Donohue, overheard Gandy scolding defendant. Gandy told defendant, "Don't you do that any more or I'll have to take you over my knee and spank you." Without explanation, defendant asked Donohue if Donohue was going to hurt Gandy. Donohue testified that defendant seemed "awful nervous and jittery" and "very unstable."2

Defendant left the bar again not long thereafter. Defendant left behind some money and most of his drink. Gandy told defendant to take his personal items with him because she did not want to be responsible

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for them, but defendant said he would return. After he returned with some cigarettes a few minutes later, defendant walked to the back of the bar and pushed and pulled on a locked back door. Defendant saw a patron looking at him, stopped pushing the door and went into the men's bathroom. Defendant left the bar yet again shortly before it closed. Defendant again left behind his drink and some money.

Near closing time, Gandy told the three remaining patrons that she had to count out the day's receipts before closing the bar. When these patrons left, Gandy locked the door behind them. As Donohue exited, he observed that defendant had returned and was standing outside of his car in the strip mall's parking lot. Defendant told Donohue that he wanted to go inside the bar to collect his belongings. Donohue told him that he would have to return the next business day to gather them. On direct examination, Donohue testified that he thought defendant then drove away. On cross-examination, however, Donohue testified that he could not swear that defendant had left before he did.

After leaving the Black Stallion earlier that evening, Atkins had gone to his girlfriend's house approximately 100 yards up the street from the Black Stallion. While sitting outside of the house between 2:00 a.m. and either 2:30 a.m. or 2:40 a.m., Atkins heard a woman's screams. Atkins said that the screams were "blood curdling" and seemed to last for a long time.

Stewart also had left the Black Stallion before it closed, and was waiting at Gandy's house for her to return after she finished her shift. Gandy was supposed to return home at 2:15 a.m. When Gandy did not appear, Stewart returned to the Black Stallion to check on her. Stewart arrived at the Black Stallion shortly before 3:00 a.m. He found its front door unlocked and went inside. The bar was dark and appeared closed for the night. Stewart called for Gandy but received no response. Stewart noticed a light coming from the back storage area. When he attempted to open the door to this room, he discovered Gandy's dead body.

Police arriving at the scene pursuant to Stewart's 911 call found a keychain Gandy had used along with a set of keys on the ground outside the Black Stallion's entrance. One of the keys on the keychain was to the Black Stallion's front door. Just in front of the doorway was a bloody shoe print with a wavy pattern. Other bloody footprints led from the back storeroom toward the front door. There were no signs of a struggle in the main bar area.

Gandy's body lay in the back storeroom where the floor safe was located. The safe was closed and locked, and contained three bags of money. However, the lid that normally covered the floor safe had been removed. Black Stallion employees were supposed to keep this lid atop the safe, and the bartender who had worked the day shift at the Black Stallion on May 31 testified that she had placed the lid on top of the floor safe after putting her shift's receipts in the safe. Gandy's opened purse was also found on the storeroom's floor. Scattered about the storeroom floor were Gandy's identification and business cards, Gandy's checkbook wallet, and many coins. No paper money was found. Sometime after the murder, one of the Black Stallion's owners discovered that a bag containing $155 in start-up money for the bar's morning shift was missing from the back of the establishment. Gandy had not known where this money was kept.

Dr. Robert Anthony, the forensic pathologist who performed Gandy's autopsy, determined that Gandy died from multiple stab and incision wounds. Gandy suffered at least 82 knife wounds to her body. She also had been shot four times in the head. The gunshots came either from the gun Gandy carried, or from one with similar characteristics. All but one of the knife wounds had been inflicted before Gandy's death. The gunshot wounds were postmortem, but Dr. Anthony testified that a layman would not necessarily have been able to determine whether Gandy was alive or dead at the time the shots were fired. Gandy also had small bruises and cuts on her hands, consistent with defensive wounds. Postmortem tests showed that Gandy had a 0.11 percent blood-alcohol level. There was no evidence that Gandy had been sexually assaulted.

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The knife wounds were mainly, but not exclusively, to Gandy's head, neck, and torso. There were five wounds to the front of Gandy's neck, 22 to her chest, one postmortem wound to her abdomen, one wound to her thigh, 20 wounds in the region between the base of her skull and her upper back, 14 wounds to her arms, one wound to her side, one wound to her left cheek and 10 other wounds to her face, three wounds to her upper back, three wounds to her middle back, and one wound to her lower back. Of the knife wounds, only three could have caused death within a short period — slash wounds to her carotid artery and jugular vein, and a wound that pierced her chest wall and punctured her left lung. The other stab wounds did not involve any major organs.

The injuries to Gandy's neck included scratch-type wounds consistent with the tip of a knife having been dragged across her skin. Among the wounds to Gandy's face were superficial cuts to her left and right eyelids. The wound to her upper right eyelid essentially severed the lid in half. The cuts to the eyelids did not damage Gandy's eyeballs. Other than the one postmortem wound, Dr. Anthony could not ascertain the order in which the knife wounds were inflicted, if Gandy was conscious during the infliction of all of the injuries, or how long it took to inflict all of the wounds.

The authorities never recovered any knife associated with the attack. Defendant owned a small Swiss army knife. Shortly...

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