People v. Farnam

• Decision Date: 10 June 2002
• Docket Number: No. S010808.,S010808.
• Citation: 121 Cal.Rptr.2d 106,47 P.3d 988,28 Cal.4th 107
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jack Gus FARNAM, Defendant and Appellant.
• Court: California Supreme Court

121 Cal.Rptr.2d 106

28 Cal.4th 107

47 P.3d 988

The PEOPLE, Plaintiff and Respondent, v. Jack Gus FARNAM, Defendant and Appellant.

No. S010808.

Supreme Court of California.

June 10, 2002.

As Modified on Denial of Rehearing July 31, 2002.

Certiorari Denied January 13, 2003.

Samuel D. McVey, under appointment by the Supreme Court, Salt Lake City, UT, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, John R. Gorey, Robert Henry and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied January 13, 2003. See 123 S.Ct. 861.

BAXTER, J.

Defendant Jack Gus Farnam was convicted by a jury of one count of first degree murder (Pen.Code, § 187, subd. (a)),¹ one count of rape (§ 261), and one count of sodomy (§ 286). The jury found true the special circumstances that defendant committed the murder while engaged in burglary, robbery, rape, and sodomy (§ 190.2, subd. (a)(17)), and that defendant previously had been convicted of first degree murder (§ 190.2, subd. (a)(2)). After a penalty trial, the jury returned a verdict of death and the trial court imposed that sentence. Appeal to this court is automatic. (§ 1239, subd. (b).)

We find no prejudicial error at the guilt or penalty phase of defendant's trial, and affirm the judgment in its entirety.

I. Facts

A. The Guilt Phase

On November 19, 1982, Lillian Mar, a 55-year-old Asian widow, was brutally murdered in her home. The prosecution theorized that defendant, then 18 years old, used a knife to cut an opening in a locked screen door and thereby gained access to the downstairs living room through an open, adjacent, sliding glass door. He attacked Mrs. Mar in her upstairs bedroom, bludgeoning her head before raping and sodomizing her. Mrs. Mar then moved or was moved to the hallway, where defendant struck her and then strangled her with a scarf he had brought. Defendant ransacked the bedrooms, taking various items, and escaped through a side door in the living room.

The prosecution sought to establish the special circumstances that defendant murdered Mrs. Mar while engaged in burglary, robbery, rape, and sodomy, and that defendant was previously convicted of murder. Pursuant to a stipulation between the parties, the court informed the jury of defendant's admission that he previously had been convicted of the first degree murder of Barbara Griswold on or about September 10, 1985.

1. The Prosecution Case

At the time of the crimes, Mrs. Mar owned a seven-unit apartment building in Los Angeles, where she lived with an adult son, Harry Mar. The ethnic composition of the neighborhood was predominantly Asian, mainly Chinese, with a few Latinos. Mrs. Mar socialized with very few people—her close-knit family and a small group of older Chinese women from the neighborhood. No Caucasians visited her.

On November 19, 1982, sometime between 7:00 and 7:15 p.m., Harry and his fiancee, Patricia, left the apartment together for an evening outing. Mrs. Mar remained at home alone. Around midnight, Harry found his mother's bloodied body in the upstairs hallway.

Police investigators made the following observations at the apartment. The downstairs of the Mar apartment was relatively undisturbed, with the exception of an L-shaped slit in a locked screen door outside a sliding glass door and a severed cord to the telephone on the floor next to the couch in the living room. There were no pry marks on the front door or the sliding glass door. None of the entertainment equipment in the living room had been tampered with, and envelopes containing large sums of money were in plain view in the adjoining den. The deadbolt on a side exit door in the living room, which was always kept locked, was unlocked.

At the top of the stairs, Mrs. Mar was lying facedown in a pool of blood in the hallway. She was naked from the waist down, and several buttons were missing from her blouse. A bloody scarf was knotted around her neck, and it appeared she had been bludgeoned, strangled, and possibly raped. A loose, light brown-blondish hair was found on the right side of Mrs. Mar's neck.

A woman's panty and pants, with what appeared to be bloodstains, were rolled together in a ball on the floor at the foot of the bed in Mrs. Mar's bedroom. Nearby were buttons similar to those missing from Mrs. Mar's blouse, broken hair curlers, blood drops, and milky or clear fluid stains resembling semen on the carpet. Blood drops were on the bedspread, and impressions apparently left by buttocks, the lower portion of a body, and elbows were at the foot of the bed. Blood drops trailed from Mrs. Mar's bedroom to where her body was found in the hallway.

The other bedrooms bore evidence of ransacking. In Harry's bedroom, the drawers of his nightstand and desk had been pulled out and personal belongings were strewn about. The bedroom formerly belonging to his brother, Jerry, also had been disturbed. And like the downstairs telephone cord, the cord to the telephone outside Harry's bedroom had been cut. Harry later discovered that various items were missing from the residence, including a gold necklace, envelopes of money from the dresser in his mother's bedroom, some money from his coin bank, a handgun, a tie clip, a Timex watch, and two silver coins (balboas).

Dr. Joan Shipley conducted the autopsy and determined the cause of Mrs. Mar's death was asphyxia due to ligature strangulation. The victim exhibited blunt force injuries on the back of the head and a fairly large and severe wound on the right shoulder. The victim had additional wounds on the eyelids, the inside and outside of the lips, underneath the jaw, and the back of the ears. All of the wounds, including the head wounds, occurred prior to death.

Dr. Shipley observed no abnormalities during an external visual inspection of the victim's vagina. Although Dr. Shipley did not detect any visible signs of rape, she opined her examination was not inconsistent with a rape having taken place.

A sexual assault kit was used to gather evidence from Mrs. Mar's body. Swabs were taken from areas including the external genital area, the vagina, and three inches inside the anal cavity; slides and smears were then made from those swabs. The contents of this kit were examined twice—first in February of 1983 and then again in 1988. In her 1983 examination, police criminalist Alison Ochiae observed blood on the external genital swabs and the vaginal swabs, intact sperm on the vaginal slides, fragments of sperm (i.e., the heads) on the anal slides, and a small amount of sperm on the external genital slides. In his 1988 examination of these same items, Keith Inman, a private criminalist, observed an unusual abundance of columnar cells on the anal slides, which was indicative of trauma consistent with either sodomy or postmortem decompositional changes.

Evidence taken from Mrs. Mar's bedroom was also examined twice. In 1983, criminalist Ochiae detected intact sperm on carpet fibers at the foot of the victim's bed, but found no semen on the bedspread and no semen on the victim's panty or pants. Subsequently, in 1988, criminalist Inman discovered semen on the bedspread by utilizing a procedure not used by the Los Angeles Police Department in 1983.

The police lifted latent prints from ransacked objects in Harry's bedroom, but could not match them with any suspect for a couple of years. Ultimately it was discovered that defendant's right middle and right ring fingerprints matched the latent prints from Harry's coin bank with as many as 20 points of comparison. A print of defendant's right thumb matched the latent print taken from Harry's stethoscope box, with over 10 points of comparison.

Serological analysis disclosed that Mrs. Mar's blood was type AB and her PGM subtype was 2 minus 1 plus. Defendant's blood type was type A and his PGM subtype was 1 plus. Defendant was a secretor, which means his ABO blood type is found in body fluids other than blood, such as semen. Upon examining the carpet fibers from the foot of Mrs. Mar's bed and the items in the sexual assault kit, criminalist Warren Loomis reached the following conclusions: (1) since only a 1 plus PGM subtype was found on the carpet sample, it had to have come from a source other than the victim and from a group comprising 40-43 percent of the population, of which defendant was a member; and (2) since the vaginal, anal, and external genital swabs all exhibited AB and H activity, and since the victim's blood type AB would mask defendant's blood type A in the swabs, defendant could not be excluded as a possible donor of the semen on those items.

Hair analysis indicated that the loose, light brown-blondish hair found on Mrs. Mar's neck was a forcibly removed head hair with Caucasian characteristics that could not have originated from the victim, Harry, or Margaret Lee (the victim's adult daughter, who had curled the victim's hair the evening of the crimes). Comparing the appearance and microscopic characteristics of the loose hair with a sample of defendant's hair, prosecution experts concluded that the two could have a common origin given their similar pigmentation, similar pattern, the abundance and size of their pigment granules, and other characteristics including the cuticle and medulla, the straightness of the hair, and color.² One expert opined that violent bumping of the head against something or somebody could be sufficient to dislodge hair from the head.

A tool mark expert compared the cut ends of the two telephone cords at the crime scene with a wood-handled knife that had been found in defendant's possession in January of 1983, some two months after Mrs. Mar's murder.³ The expert testified that although the severed cords had no individual striations or marks associated with defendant's knife, the cords could have been cut by defendant's...