People v. Erskine
| Decision Date | 23 May 2019 |
| Docket Number | S127621 |
| Citation | 7 Cal.5th 279,440 P.3d 1112,247 Cal.Rptr.3d 86 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Scott Thomas ERSKINE, Defendant and Appellant. |
| Court | California Supreme Court |
Kimberly J. Grove, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens and Robin Urbanksi, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Scott Thomas Erskine was sentenced to death in 2004 for the first degree murders of Charles Keever and Jonathan Sellers. This appeal is automatic. ( Pen. Code, § 1239, subd. (b).) We affirm the judgment in its entirety.
Erskine was charged with two counts of first degree murder and personal use of a deadly and dangerous weapon in the March 27, 1993 deaths of Charles Keever and Jonathan Sellers (referred to by the parties and herein as Charles and Jonathan). ( Pen. Code, §§ 187, subd. (a), former § 12022, subd. (b).) With respect to Charles, Erskine was charged with the special circumstances that the murder was committed while engaged in the commission or attempted commission of the crimes of performance of a lewd and lascivious act upon a child under the age of 14 in violation of Penal Code section 288 and oral copulation in violation of former section 288a. ( Pen. Code, § 190.2, subd. (a)(17)(E), (F).) With respect to Jonathan, Erskine was charged with the special circumstances that the murder was committed while engaged in the commission and attempted commission of the crime of the performance of a lewd and lascivious act upon a child under the age of 14 in violation of section 288. ( Pen. Code, § 190.2, subd. (a)(17)(E), (18).) As to both counts, Erskine was further charged with the special circumstances that the murder was intentional and involved the infliction of torture, and that he has in this proceeding been convicted of more than one offense of murder in the first or second degree. ( Id. , § 190.2, subd. (a)(3), (18).)
Erskine pleaded not guilty to all allegations, and a jury trial commenced on August 29, 2003. Erskine did not present any evidence in defense. The jury found Erskine guilty of both counts of first degree murder and personal use of a deadly weapon, and found true each of the charged special circumstances. The jury deadlocked, however, at the penalty phase, and the court declared a mistrial. On retrial of the penalty phase, the second jury returned death verdicts on both counts. The court imposed a sentence of death on both counts and further imposed a determinate term of two years, comprised of a one-year term of enhancement on each count pursuant to former section 12022, subdivision (b) of the Penal Code, to be stayed pending execution of the death penalty.
The morning of Saturday, March 27, 1993, nine-year-old Jonathan and thirteen-year-old Charles set out on a bike ride from which they never returned. Witnesses described seeing the two boys that morning at an arcade and pet adoption center, and at a Rally’s hamburger stand where they purchased lunch. Two other witnesses spoke briefly with the boys while biking in the Otay riverbed near a washed out bridge. One of those witnesses also recalled seeing a man driving a car across the field and blocking the bike path, which "seemed very unusual." She identified a photograph of a blue Volvo used by Erskine at the time of the murders as similar in color and shape to the one she saw that day.
When the boys failed to return home that evening, their families began to search the neighborhood. Jonathan’s brother told their mother about the riverbed trail where they liked to bike; he did not think to tell her about the "fort" in the riverbed that the boys would crawl into "like a little cave." He and his mother went to the trail but stopped short of the fort. It rained that night and the following day while people continued to search for Jonathan and Charles.
Two days later, Peter Winslow was biking and running on the path through the Otay riverbed when he stopped to look at a "camp-like thing" in the bushes. As he looked inside, he saw two boys, one hanging from a rope by his neck on a tree branch, one lying on the ground, and both naked from the waist down save for socks. Both boys appeared deceased.
Homicide Detective David Ayers described the "fort" where the bodies were found as an area approximately 10 feet wide, 12 feet long, and between five and six feet high, comprised of a trampled down floor covered with crushed tumbleweeds, a perimeter of tumbleweeds, and a canopy of castor bean plants that formed a partial roof over the structure. The entrance was a two-foot opening located approximately 12 feet along a small path leading from the main bike path.
Detective Ayers testified that Jonathan was found wearing a blue and white sweatshirt and socks but otherwise nude from the waist down. His body was suspended by a branch approximately three and a half feet above the ground via a rope tied around the neck, and with his knees and knuckles on the ground. A second rope was tied around his ankles, and there was a gag comprised of a towel and tape around his chin. Ayers described adhesive marks on his cheeks where the gag had been attached at some point over his mouth. Ayers also identified a white cord found lying free at the scene that appeared to have been previously attached to Jonathan’s wrist.
Charles was found lying facedown, wearing a hooded sweatshirt and socks but also otherwise nude from the waist down. The body had a yellow rope and a white cord around the neck, similar to those found on Jonathan. Ayers described what appeared to be dried blood on Charles’s genital area. Unlike the rope on Jonathan’s neck, which Ayers described as "somewhat loose," the rope and cord on Charles’s neck were drawn up tight and the skin was swollen underneath. Ayers also described tape residue and adhesive marks on Charles’s cheeks. Underneath Charles’s head, officers found a pile of "neatly" folded clothing, including the boys’ shirts, jeans, and shoes.
Other evidence collected at the crime scene included two cigarette butts on the path connecting the fort to the main bike path. The two boys’ bicycles were found chained together and covered with tumbleweeds approximately 30 feet north of the fort.
Dr. John Eisele, the pathologist who reported to the scene and performed both autopsies, testified that the two boys had been dead for at least one day and possibly up to two or three days before the bodies were found. His autopsy of Charles revealed evidence of premortem strangulation, injury to the anus consistent with penetration by a foreign object, and bruising and abrasions on the penis and scrotum. Dr. Eisele testified that these injuries appeared to have occurred while Charles was still alive and would have been painful. Dr. Eisele concluded that the cause of death for Charles was asphyxia consistent with ligature strangulations, which he testified could have taken as long as five minutes.
The autopsy of Jonathan also revealed evidence of strangulation. Dr. Eisele described two different ligature marks on the neck: The first was accompanied by small vertical scratches consistent with a person trying to pull the ligature off his neck. The second was much darker and deeper because it resulted from the force of the top half of the body being suspended from the ligature from the time of death until the body was found. Dr. Eisele concluded that the cause of death for Jonathan was asphyxia consistent with ligature strangulation.
The police collected sexual assault swabs from both bodies. An initial analysis in April 1993 revealed a single sperm cell from a swab of the skin on Jonathan’s scrotum but did not yield any other material inconsistent with the victims. A subsequent analysis in 2001 using more advanced differential extraction revealed sperm samples on the scrotum and anal exterior swab from Jonathan, and the oral swab from Charles. Profiles of the sperm samples were transmitted to California’s Department of Justice for a search against Combined DNA Information System, which returned a match to a known sample from Erskine. Further analysis by the San Diego crime lab, and confirmed by an outside analyst, concluded that Erskine was very likely the source of the predominant DNA from the sperm fraction of the oral swab sample from Charles and the epithelial sample from one of the cigarette butts found at the scene.
In March of 1993, Erskine was living in San Diego. His roommate, Lori Behrens, confirmed that Erskine carried a four-to five-inch buck knife at that time, smoked, and drove two different cars, one of which was an older model blue Volvo consistent with the description of the car observed at the crime scene the day the boys disappeared. She testified that she and Erskine had at times visited his mother’s home in Imperial Beach and a nearby bar — locations that were approximately two and a half and two miles from the crime scene, respectively.
Evidence of two other crimes was introduced: the October 1993 sexual assault of Jennifer M. in San Diego and the June 1989 sexual assault and murder of Renee Baker. This evidence is discussed below.
Erskine did not offer any evidence in defense at the guilt phase.
After the first jury hung at the penalty phase, the prosecutor presented a second penalty phase jury with the same evidence regarding the circumstances of the crime as was presented at the guilt phase. In addition, the prosecutor presented the following evidence of other criminal activity involving force or violence and evidence of victim impact.
Erskine’s younger sister, Judy C., testified that on more than one occasion when she was seven years old and Erskine was ten, Erskine and two of his friends took Judy...
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