People v. Freeman

• Decision Date: 24 October 1994
• Docket Number: No. S004787,S004787
• Citation: 34 Cal.Rptr.2d 558,882 P.2d 249,8 Cal.4th 450
• Court: California Supreme Court
• Parties: , 882 P.2d 249, 31 A.L.R.5th 888 The PEOPLE, Plaintiff and Respondent, v. Fred Harlan FREEMAN, Defendant and Appellant.

Page 558

34 Cal.Rptr.2d 558

8 Cal.4th 450, 882 P.2d 249, 31 A.L.R.5th 888

The PEOPLE, Plaintiff and Respondent, v. Fred Harlan FREEMAN, Defendant and Appellant.

No. S004787.

Supreme Court of California In Bank.

Oct. 24, 1994.

Rehearing Denied Jan. 5, 1995.

Alvin H. Goldstein, Jr., under appointment by the Supreme Court, Mark L. Musto, Kelly B. Valen and Goldstein & Phillips, San Francisco, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Asst. Atty. Gen., Ronald S. Matthias and Morris Beatus, Deputy Attys. Gen., for plaintiff and respondent.

ARABIAN, Justice.

In January 1984, Donald Koger was killed during the robbery of a bar in Berkeley. Following trial of defendant and a coparticipant, Paul Gutierrez, the jury convicted defendant of several crimes arising out of the incident, including murder, five counts of robbery and three counts of attempted robbery, all with the personal use of a firearm. The jury also found true the special circumstance that the murder was committed in the commission of robbery. Outside the presence of the jury, defendant admitted three prior felony convictions. After the penalty trial, the jury imposed the death penalty. The court denied defendant's automatic motion to modify the verdict, and sentenced defendant to death. This appeal is automatic. We affirm.

I. FACTS

A. Guilt Phase

1. Prosecution Evidence

The Gilman Street Exit, a neighborhood bar in Berkeley, was open for business as usual the evening of January 11, 1984. Paul Urone was the bartender, and Julie Gray was in charge of the kitchen. Most of the patrons were regulars. That night they included the victim, Donald Koger, a gardener nicknamed "Cowboy." Seated next to Koger was a psychiatrist, Darol Rice. Also in the bar were Dottie Hansen, a friend of Urone's, and, seated next to her, Norwood Square. At one end of the bar were Verna Ratterman, Bob Rideout and Jean Lipari.

Around 11:00 p.m., a man identified as the codefendant at trial, Paul Gutierrez, entered the bar wearing a baseball cap, and sat down about three stools away from Koger. Gutierrez ordered a beer. About 10 or 15 minutes later, 2 other men entered and sat down at the far end of the bar. One, identified as defendant, ordered a beer. The other, who has never been identified, went to the men's room, then returned and also ordered a beer. After serving these two, Urone continued his bartending duties, and walked in front of Gutierrez.

Suddenly, Gutierrez stood up and "put a gun" on Urone. Urone understood that it was a "hold up." He told the others to be "cool," and told Gutierrez not to hurt anyone. He then saw the two men who had just entered the bar also stand up wielding guns and realized that "it was a party of three." He started to go to the cash register to get the money, but Gutierrez said, "Not yet, freeze."

Defendant approached Koger. Rice and Ratterman heard Koger say, "Fuck you." Defendant shot Koger in the left side of the head, killing him. Koger "keeled over" onto the floor.

Just before or just after defendant shot Koger, Gutierrez fired a shot into the bar. Gutierrez then demanded that Urone put the money from the cash register into a shoulder bag. Urone complied. Gutierrez and the unidentified gunman then left.

Defendant remained behind. He stepped over Koger's prone body and took a wallet out of Koger's pocket. Then, one by one, he stole property, generally wallets, from other patrons at gunpoint, placing it into a small plastic garbage bag. He took $1,500 from Norwood Square. When he finished, he too left the bar. As he was leaving, Ratterman heard him say, "Anybody move, you're dead." After defendant left, Urone called the police.

Carmen Maria Horton testified after being granted immunity that as of January 1984, she had known Gutierrez a long time and defendant a few months. The night of the robbery, she saw both defendant and Gutierrez in her motel room in Richmond. Defendant told her that they went to the bar to "rob" it. He said he shot the victim, and showed her the gun he used. Horton later sold the gun. Gutierrez and Horton were together in a motel room when Gutierrez was arrested.

Paul Urone, the bartender, worked with the police to prepare an "Identi-Kit" composite of the suspects, and later helped a police artist to sketch them. He made no selection from a photographic lineup that did not include either Gutierrez or defendant. About a month after the crime, Urone selected Gutierrez's photograph from a lineup as that of the gunman wearing the baseball cap. A few days later, he chose defendant's photograph as that of the "shooter." The next day, he identified defendant from a physical lineup. He put a question mark on the card because, he explained at trial, "I just felt that at the time, the seriousness of the crime, I didn't know, he might have had a look alike, a twin, so I just put a question mark...." Urone later attended another physical lineup that included Gutierrez. He initially identified a person other than Gutierrez, but then felt he had made a mistake, and changed his identification to Gutierrez. He identified both Gutierrez and defendant at trial.

Julie Gray told police that one photograph in a lineup that did not include Gutierrez or defendant resembled, but was not, the shooter. Later she identified defendant from a physical lineup as the one who shot Koger. She placed an "X" and a question mark by her identification, the latter because defendant wore a hearing aid at the lineup and his hair appeared darker at the time of the shooting. She also placed a question mark by another person (not one of the suspects) as similar to the gunman with the baseball cap. Later she identified Gutierrez from another lineup. She also identified defendant and Gutierrez at trial.

Verna Ratterman, who was a security manager at the time of the crime, helped the police prepare the artist's sketch of the suspects. At the first physical lineup that included defendant, all the suspects wore hats. Because of this, Ratterman assumed they were looking for the gunman who wore a hat, not the shooter. She chose a person other than defendant with an "X" and a question mark as looking like Gutierrez. Later, she positively identified Gutierrez from another lineup. She identified Gutierrez and defendant at trial.

Norwood Square could not identify anyone at trial, but his memory had been adversely affected by illness and surgery that postdated the robbery. He attended a physical lineup that included defendant, and placed question marks by two positions, including that of defendant. Right after the lineup, he made the following statement to the police explaining his selections: "I'm 95 percent sure that number four [defendant] in the lineup was the one of the two robbers that I saw at The Gilman Street Exit and possibly the one that got my wallet. In parenthesis, not sure. This is based on his facial features, coloring of his hair, his physical size, but particularly his face. [p] I placed a question mark on number three because he appeared to be the right size and complexion for one of the robbers, possibly the one with the hat. He had the same general demeanor. His face seemed similar, but I am less certain about him being one of the robbers than I am about number four."

No one else in the bar the night of the robbery identified either defendant or Gutierrez.

Berkeley Police Officer Alec Boga investigated the crime. At one point a warrant had issued for the arrest of Gutierrez, but the police did not know who the other two gunmen were. While searching for Gutierrez, Officer Boga spoke with defendant at a home in Richmond. Defendant said he had met Gutierrez about a month earlier and had helped bail "him out of the Martinez jail." During the interview, Officer Boga noticed a black holster. Defendant said "the holster was his, but he no longer owned the gun." After defendant's arrest, and possessing a search warrant, Officer Boga searched a car parked in front of a residence where defendant said he stayed part of the time. Horton testified the car belonged to defendant. Inside the car, Officer Boga found a white plastic garbage bag.

2. Defense Evidence

Counsel for defendant elicited on cross-examination of Horton that defendant told her he did not intend to shoot the person at the bar during the robbery; the shooting was an accident.

Defendant called two witnesses. Jean Lipari viewed the lineup that included defendant. She placed question marks after the numbers of two of the subjects, neither of them defendant. She testified that she "didn't put a X on anybody because I wasn't sure and they said if there was anybody who looked something like them, you thought it reminded you of him, to put a question mark on them." During the robbery, she saw only the hand of one of the persons with a weapon.

Carol Mickey testified that she had lived with Koger from time to time. Koger often got into bar fights. When he drank, Koger would "get mad or angry at the slightest little thing. He misinterpreted somebody's talking with him and punch him out."

The codefendant, Gutierrez, also called several witnesses, including David McGuire, who testified among other things that he was with defendant at a Mexican restaurant at the time of the robbery, and Dr. Elizabeth Loftus, who testified about factors affecting the reliability of eyewitness identifications.

B. Penalty Phase

James Peters testified for the prosecution that in 1961, defendant and another person robbed him at gunpoint while he worked as a gas station attendant in Berkeley. The prosecution introduced records showing that defendant was convicted of robbing Peters and that defendant was also convicted of another armed robbery in 1968.

The defense called four witnesses. Sharon Freeman, defendant's former wife, introduced their two daughters to the jury. Mary Freeman, defendant's mother, identified some...