People v. Friend

• Decision Date: 20 July 2009
• Docket Number: No. S027264.,S027264.
• Citation: 211 P.3d 520,97 Cal.Rptr.3d 1,47 Cal. 4th 1
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jack Wayne FRIEND, Defendant and Appellant.

211 P.3d 520

97 Cal.Rptr.3d 1

47 Cal. 4th 1

The PEOPLE, Plaintiff and Respondent, v. Jack Wayne FRIEND, Defendant and Appellant.

No. S027264.

Supreme Court of California.

July 20, 2009.

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Denise Anton and Evan Young, Deputy State Public Defenders, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Bruce Ortega, Glenn R. Pruden and Gregg E. Zywicke, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

On January 12, 1989, an Alameda County jury found defendant Jack Wayne Friend guilty of first degree murder and robbery. (Pen.Code, §§ 187, 189, 211.)¹ The jury also found true that he had inflicted great bodily injury in connection with the robbery and that he had personally used a knife in committing both crimes. (§§ 12022.7, subd. (a), 12022, subd. (b).) The jury was unable to reach a verdict on the robbery-murder special-circumstance allegation. (§ 190.2, subd. (A)(17)(i).) After a retrial on the robbery-murder special-circumstance allegation, a new jury found it true on March 20, 1992. After the penalty phase, the jury returned a verdict of death on April 17, 1992. The trial court denied defendant's motion for new trial and modification of the penalty (§ 190.4, subd. (e)), and sentenced him to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We will affirm the judgment in full.

INTRODUCTION

Around midnight on Labor Day 1984, Herbert Pierucci, a bartender at the Golden West Bar in downtown Oakland, was fatally stabbed and cash was stolen from the bar. Defendant acknowledged at trial that he and an acquaintance, Gene Hollowhornbear, were the last two people in the bar that night, and the last ones to see the victim before the robbery.

The prosecution's main witness was Kevin Kelley, who had been with defendant and Hollowhornbear at the bar earlier in the evening but who left before the crime. Kelley testified that he saw defendant and Hollowhornbear emerge from the bar with defendant holding a knife, and that defendant later admitted to Kelley that he had committed the robbery murder. Another prosecution witness, Thomas Moody, also testified that defendant had admitted he committed the robbery murder.

The defense contested Kelley's credibility, especially whether Kelley could have seen defendant from the distance at which he claimed to be standing. Defendant took the stand in his own defense and testified that Hollowhornbear and the victim had gotten into a fight, that defendant had tried to break it up, but Hollowhornbear pulled a knife and fatally stabbed the victim.

I. FACTS

A. First Trial: Guilt Phase

1. The Prosecution's Case

a. Discovery of the Victim and Nature of the Wounds

The victim, Herbert Pierucci, worked as a bartender at the Golden West Bar, which was located at 368 12th Street between Franklin and Webster Streets in downtown Oakland. Around midnight on Labor Day, September 3, 1984, two acquaintances of the victim discovered him alone, lying in a pool of blood at the back of the bar. The front cash register was open, the cash drawer was pulled out, and its contents, later estimated to be approximately $300, were missing. Four bottles of liquor were also gone.

A police officer summoned to the scene found the victim semiconscious with a four-inch gash to his neck and a three-inch gash to his wrist. Asked what had happened, Pierucci answered that he had been stabbed. The officer asked, "how many people were there?" and Pierucci held up two fingers in response.

Pierucci was taken to the hospital, where emergency surgery was performed, but he died four days later from loss of blood. The surgeon who operated on Pierucci testified that, in one of the front wounds, the knife completely severed the sternomastoid muscle in the neck and came to rest on the cervical spine. Three wounds at the back of the neck completely severed the trapezius muscle. The surgeon testified that a fair amount of pressure was required to inflict such wounds. The pathologist testified that there were at least six distinct sharp cutting wounds to the victim's neck and defensive wounds to his left arm and right and left hands.

b. Testimony of Kevin Kelley

On September 3, 1984, Kevin Kelley, defendant, and Thomas Moody were among a group of homeless alcoholics who were allowed by owner Dina Mladinich to stay at the Thomas Janitorial Supply Warehouse (the warehouse) on the corner of Ninth and Alice Streets.² About 10 p.m., Kelley and defendant left the warehouse and headed towards downtown Oakland. Defendant wore a black nylon "security-type" jacket, blue jeans, and black shoes. They went in search of Mladinich's van, which Moody had borrowed. On the way, they met Gene Hollowhornbear, who was carrying a black nylon gym bag that was half full of clothes.³ The group discussed getting a six-pack of beer at a nearby convenience store, the Oasis, but defendant did not want to go there because he had gotten into trouble there in the past. Instead, they decided to go to the Golden West Bar, where they initially sat in the front section of the bar and defendant ordered a round of beers.

The group moved to the rear of the bar and played pool. Kelley and Hollowhornbear drank two more beers, and defendant drank three more. Kelley went to the bathroom and defendant followed him in. Defendant proposed to Kelley that they rob the bar by hitting the bartender with a bottle, stating it would be an easy three-on-one robbery. Defendant also mentioned using one of defendant's knives for the robbery. Earlier at the bar, Kelley had noticed that defendant had two knife sheaths on the back of his belt. Kelley recognized one of the knives as a Buck-type knife that Kelley had sold to defendant about three weeks earlier.⁴ Defendant's other knife looked like a Benchmark-type knife and had the word "raccoon" engraved on it.⁵

Kelley said he did not want to have anything to do with a robbery. He went back to finish his drink, and then headed out of the bar. As Kelley was stepping out the door, defendant again tried to convince him to join in the robbery, but Kelley reiterated that he wanted no part in it. At the time Kelley left the bar, defendant and Hollowhornbear were the only ones there besides the bartender.

After leaving, Kelley walked eastbound on 12th Street towards Webster Street. He crossed this intersection and continued east on the south side of 12th Street towards the next cross-street, which was Harrison. He passed the Cochran and Celli automobile dealership, and was about three-quarters of the way down this block of 12th Street between Webster and Harrison when he stopped to look back. He saw that defendant and Hollowhornbear were on the sidewalk in front of the Golden West Bar. The street was well-lit by several street lights. Defendant was holding a shiny object in his hand, which Kelley thought was a knife. Hollowhornbear was holding his black nylon gym bag. They proceeded to the nearby corner of 12th and Webster. Defendant wiped the knife on his pants and on a bag he took from the gutter.⁶

Kelley started walking towards them, but then decided he wanted to get away, and turned the corner and began walking down Webster Street toward 13th Street. After turning right on 13th Street, he reached Harrison Street and crossed a parking lot. Defendant and Hollowhornbear followed and caught up with him in the parking lot, where Hollowhornbear handed Kelley a bottle with a pour spout on it, and asked him to hold it for a second. Kelley held it for a while and then threw the bottle into some nearby bushes. Kelley noticed that Hollowhornbear's gym bag contained between four and six bottles, some of which had spouts on them and appeared to be bar bottles. After tossing the bottle, Kelley jogged back to the warehouse on his own.

Five to 10 minutes after Kelley returned to the warehouse, defendant arrived. Someone else was using the bathroom sink, so defendant started washing his hands in the toilet bowl. Defendant began changing clothes, and asked where his glove was. Kelley later saw a clear surgical glove lying on the floor near the toilet.⁷ The lights were on in the warehouse and Kelley noticed some dark splotches on defendant's jeans, between his waist and his knees, which had not been there before they went to the Golden West Bar.

Five minutes after defendant, Hollowhornbear also arrived at the warehouse. Kelley did not notice any stains or splotches on Hollowhornbear. Hollowhornbear had his black gym bag, which was still full of bottles. He removed approximately six bottles from the bag, three of which had spouts on them and began drinking from one. Defendant told Hollowhornbear to change his clothes, but Kelley never saw Hollowhornbear change.

After defendant changed his clothes, he said he wanted to get rid of his old clothes by dumping them in "the deep, deep water." Defendant made a bundle of the clothes by tying the arms of the black security-type jacket around them. With defendant carrying the bundle, defendant and Kelley went outside. Defendant said he wanted to stash his knife, threw the bundle of clothes to Kelley, and then departed for five minutes. Defendant returned and retrieved the bundle, and they went to the estuary. They came to a large restaurant located on the water at Jack London Square.⁸ Kelley waited at one corner of the building while defendant went around the building the other way carrying the bundle. Kelley could not see where defendant went. Three to five minutes later, defendant returned without the bundle.

They went to another restaurant in Jack London Square, the Jack London Inn, where defendant ordered a round of beers. A man was singing and playing piano at the bar. Defendant went to the restroom, and Kelley...