People v. Fudge

• Decision Date: 30 June 1994
• Docket Number: No. 26424,No. S004790,S004790,26424
• Citation: 875 P.2d 36,7 Cal.4th 1075,31 Cal.Rptr.2d 321
• Court: California Supreme Court
• Parties: , 875 P.2d 36 PEOPLE, Plaintiff and Respondent, v. Keith Tyrone FUDGE, Defendant and Appellant. Crim.

Page 321

31 Cal.Rptr.2d 321

7 Cal.4th 1075, 875 P.2d 36

PEOPLE, Plaintiff and Respondent, v. Keith Tyrone FUDGE, Defendant and Appellant.

No. S004790.

Crim. No. 26424.

Supreme Court of California In Bank.

June 30, 1994.

Rehearing Denied Aug. 24, 1994.

[7 Cal.4th 1086] [875 P.2d 41] Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, and Monica Knox, Deputy State Public Defender, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Asst. Atty. Gen., Susan Lee Frierson, Linda C. Johnson and Roy C. Preminger, Deputy Attys. Gen., for plaintiff and respondent.

LUCAS, Chief Justice.

Keith Tyrone Fudge was charged in an amended information in Los Angeles County with five counts of first degree murder (Pen.Code, § 187; all further statutory references are to this code unless otherwise stated), five counts of attempted murder (§§ 664/187), various enhancement allegations, and a multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)). The charges stemmed from the October 12, 1984, shooting that resulted in the deaths of Darryl Coleman, Diane Rasberry, Percy Brewer, Shannon Cannon, and Phillip Westbrook, and the wounding of five additional persons. After 56 hours of deliberations, the jury was deadlocked in the first trial and the trial court declared a mistrial.

On retrial, the People dismissed the attempted murder charges. The jury convicted defendant of five counts of first degree murder, and also found true five enhancement allegations that defendant personally used a firearm in the commission of the murders (§ 12022.5). In addition, the jury sustained the multiple-murder special-circumstance allegation. At the conclusion of the penalty phase of the trial, the jury determined the defendant should suffer the death penalty. This appeal is automatic. (§ 1239, subd. (b).) We affirm the guilt and penalty judgments in their entirety.

FACTS

The brutal crimes that underlie this case find their genesis in the long-standing feud between two major street gangs in Los Angeles, the Bloods and the Crips. Members of these gangs consider themselves mortal enemies and will go to great lengths to avenge acts of disrespect, both real and perceived, toward their respective gangs.

Both gangs have several subgroupings or sects. Two sects of the Crips are the Five Deuce Hoover Crips and the Broadway Crips. The Van Ness Gangsters are a sect of the Bloods. Defendant, whose street Guilt Phase

[875 P.2d 42] name is Ase Kapone, ¹ was one of the leaders of the Van Ness Gangsters. At least two of the five murder victims, and several of the witnesses, were members of the Crips.

On October 12, 1984, Leon Chislom was at a high school football game with Alexander Sanders and Tracy Harris. Both Sanders and Harris were members of the Five Deuce Hoover Crips. The three left the game in Chislom's car and drove down 54th Street toward Western Avenue. As they drove past a gray Chevrolet, the occupants of the Chevrolet held up their little finger, index finger, and thumb. Chislom, Sanders, and Harris recognized this gesture as indicating the Bloods gang. They made a U-turn to return to the gray Chevrolet. As they passed the Chevrolet again, Chislom recognized defendant and exclaimed, "There go Ase." Chislom, Sanders, and Harris were aware that defendant was a member of the Van Ness Gangsters.

It appeared that someone in defendant's car was reaching under the dashboard for something. Chislom retrieved a firearm from his glove compartment and gave it to Harris. As they approached the gray Chevrolet again, Harris jumped out with the gun, causing defendant and his two companions to flee on foot. Harris then stole the gray Chevrolet and drove it into an alley, followed by Chislom in his car. Darryl Herbert, another member of the Five Deuce Hoover Crips, was walking down the street when he saw Harris drive into the alley. Chislom told Herbert they had just stolen the car from Ase Kapone of the Van Ness Gangsters. They proceeded to remove the speakers from the car and Herbert wrote "52 VNG Killer" ² on the trunk of the car. Herbert later said he wanted defendant to know the Five Deuce Hoover Crips had taken his car. Sanders then drove the car away, but soon abandoned it when it overheated.

Defendant went to speak with Virgil Allen, who lived in Crips territory but was not himself associated with the Crips. Defendant told Allen that Allen's "homeboys" had stolen his car, meaning the Crips had taken it. Defendant told Allen he wanted the car back, and Allen promised to try to secure its return. Later that afternoon, Martin Ware overheard defendant tell "Fat Freddie" that he (defendant) was upset about his car being stolen, and that he wanted to get it back. "Fat Freddie" was the street name for Fred Knight.

That night, Traci Berry and her friend Latasha were having a party at Berry's house. To help cover the cost of the food, drink, and the disc jockey, the women decided to charge a $1 entrance fee. Although Berry's house was in the middle of the territory claimed by the Five Deuce Hoover Crips, Berry decided not to admit any "gangbangers" (i.e., gang members). Nevertheless, many members of the Crips showed up and those known to Berry were turned away. Those refused entrance, as well as others, congregated on the sidewalk area outside the fence that ran the width of Berry's property. Cars were parked up and down the street.

From the vantage point on her porch, Traci Berry estimated there were 10 to 20 people in the area in front of her house outside the fence. Juanita Walton, who came to the party with Darryl Coleman, estimated there were 70 to 80 people in front of the house. Diane Rasberry, a guest, was in the front yard talking to some people on the sidewalk. Phillip Westbrook rode up on his bicycle to see how the party was progressing. Another guest, 13-year-old Shannon Cannon, was on the sidewalk as well. Karl Smith, a member of the Five Deuce Hoover Crips, was also on the sidewalk talking with fellow Crips members Coleman and Percy Brewer. Sometime between 9 and 9:30 p.m., Smith noticed Fred Knight enter the front yard, walk around, and then leave.

Around 9:30 p.m., one or two cars arrived and double-parked in front of Berry's house. Two young men emerged, one carrying a Bridgette Hollomon was talking with Brewer and Rasberry when the shooting started. All three fell to the ground. Hollomon looked up at defendant and screamed, "Please don't shoot, don't shoot, why are you shooting?" When defendant kept shooting, she put her head down and cried.

                [875 P.2d 43] rifle, one a shotgun, and approached the front yard.  The man with the rifle, later identified as defendant, wore his hair in "jheri-curls."   Someone called out Percy Brewer's street name ("Buddha") and Brewer replied "Ah, Cuzz."   A hail of bullets and shotgun pellets then began to rain down on the party-goers
                

Karl Smith was talking to a party guest when he saw two cars stop in front of the house. He recognized Fred Knight as the man with the shotgun and defendant as the man with the rifle and the jheri-curls. Smith ducked and ran down the street when the shooting started.

Clarence Watson was also a member of the Five Deuce Hoover Crips. He was standing outside the fence at Traci Berry's party when he saw the two cars stop. He recognized defendant as a member of the Van Ness Gangsters. Watson ran across the street when the two men began firing.

When the shooting began, Traci Berry ducked and covered her head. When the shooting stopped, she saw the man with the rifle jump back into a car and drive off. Tracy Harris (who had participated in the theft of defendant's car earlier that day) was at the party and ran after the cars, shooting at them with a handgun. Berry ran inside the house and called 911.

The shooting left Darryl Coleman, Phillip Westbrook, Shannon Cannon, and Percy Brewer dead. Diane Rasberry was rushed to a hospital where she was pronounced dead on arrival. Five other victims suffered wounds.

A few days after the shooting, Sidney Garrett was at the corner of 54th Street and Arlington where he overheard defendant tell Dwayne Reed that "I got them Hoovers" and had "sprayed 'em real good VNG style." Garrett was a member of the Black Peacestone Bloods, who enjoy a peaceful relationship with the Van Ness Gangsters. Garrett informed police of these statements when he was interviewed in December 1984. At trial, he testified he could not remember these statements and police officers testified to the statements.

Five or six days after the shooting, defendant spoke to Angela Miller, whom he had known only a brief time. He appeared nervous and, when Miller asked him if anything was wrong, he said he had killed some members of the Five Deuce Hoover Crips and was afraid of both them and the police as a result.

On November 10, 1984, defendant was arrested with Fred Knight at a rock house ³ less than two miles from the scene of the crime. The house apparently belonged to a middle-aged man named Perkins, although a police search revealed a receipt from a cleaners with defendant's name on it. A box of shotgun shells was found in a closet.

From April to June 1985, defendant was confined in C-Row in module 3100 of the Men's Central Jail in Los Angeles. The walkway outside the row of cells was known as the "freeway" and inmates were given "freeway time" for 30 minutes a day. During freeway time, an inmate could stroll up and down the walkway, conversing with other inmates. Only one inmate at a time was given freeway time.

Austin Willis was also on C-Row at this time, and he and defendant had conversations during this period of mutual confinement. Defendant was interested in possibly becoming an informant, and asked Willis about that possibility. Upon learning defendant was charged with murder, Willis asked if defendant was the shooter. Defendant then...