People v. Hall
| Decision Date | 16 July 2003 |
| Docket Number | D038857. |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JAMES WILLARD HALL et al., Defendants and Appellants. |
APPEALS from judgments of the Superior Court of San Diego County, William H. Kennedy, Judge. Super. Ct. No. SCD148429.
Affirmed.
James Willard Hall and Ronnie Jermaine Sherrors appeal their convictions of murder with a special circumstance arising out of the stabbing death of Steven Foth. Hall argues that the trial court erred in instructing the jury with modified versions of CALJIC Nos. 2.15 and 8.81.17, the prosecution committed misconduct in offering testimony it knew was perjured, and the trial court erred in presenting the jury with an erroneous verdict form. Sherrors contends that the prosecutor committed misconduct in his argument to the jury about the DNA evidence and that there is insufficient evidence to support the verdict because the testimony of the prosecution's principal witness could not possibly have been true. We agree that the court erred in giving a modified CALJIC No. 2.15 instruction, but conclude that the error was harmless. We find the defendants' remaining arguments unavailing and affirm the judgments.
Foth was a songwriter-musician who lived in San Francisco and ran a record store there (Rocket Records). Having grown up in San Diego, Foth had close friends here, including Grace Ko, Steve Poltz and Ken Horne. By the late 1990's, Rocket Records' business began to decline; Foth began to experience financial problems and by 1999 had started using crack cocaine and "hanging around" with prostitutes. (All further dates are in 1999 except as otherwise noted.) After Ko became aware of Foth's problems, she convinced him to come to San Diego for a couple of months to stay with her and try to get his life back in order. In early September, Foth moved into Ko's home in Mission Hills; he was depressed and slept a lot.
On the afternoon of Wednesday, September 29, Ko and Foth drove to the Oceanside home of Louis and Christine Mello. Ko and Christine went shopping; Foth planned to spend time with Louis visit some other friends and then return to Ko's house to pick up Horne to join Ko and the Mellos for dinner at a Chevy's restaurant in Carmel Mountain Ranch. Ko left the keys to her car, a black Audi A4, and her cell phone with Foth, as well as her Visa card so that Foth could put some gasoline in the car.
Foth visited with Louis until sometime between 1:30 and 2:00 p.m. and then drove to Poltz's apartment. Although Foth professed that he was not using drugs anymore, Poltz declined to give Foth any money because he was unconvinced by Foth's statements, in part because Foth had spent a night away from Ko's home in the first week after his arrival in San Diego and lied to his friends about where he was. Poltz offered, however, to pay for Foth to see a therapist he knew to help Foth deal with his problems. Foth told Poltz that he would think about it, but was antsy because he wanted to "get laid." While Foth was with Poltz, he called a couple of women with whom he had been sexually intimate in the past. Foth left Poltz's apartment about 5:30 p.m. Foth was wearing faded black Levi's, a black T-shirt, Doc Marten wingtip shoes and a cheap plastic watch.
After Foth arrived back at Ko's house, he spoke on the phone with Horne, saying that he was going to see another friend to borrow some money but would be back. Foth had not returned by the time Horne arrived but had left a note. At 6:50 p.m. (according to cell phone records), Horne called Ko's cell phone, expecting to reach Ko, but Foth answered and told Horne that he would be back "in a bit." It sounded like Foth was driving at the time. After 15 minutes passed, Horne tried the cell phone again, but got no answer.
Ko and the others waited for Foth to arrive at Chevy's and, by 7:00 p.m., she became concerned about where Foth was. Ko called her cell phone number every 10 minutes or so for the rest of the evening but only got the voice mail. Someone unsuccessfully attempted to use Foth's ATM card at 8:56 p.m. and someone used Ko's cell phone to call a pager owned by Michael Washington, a friend of Sherrors's and Hall's.
In the late afternoon of September 30, a worker at the Pinery Tree Farms discovered Foth's naked body in a brushy area near a work site on Highland Valley Road and pointed it out to his manager, Laurence Prindle. Although Prindle had come by the site several times that day, he had not seen the body earlier. Prindle called 911. Responding officers determined that Foth was dead and found a number of items at the scene, including a shirt, a pair of size eight sneakers, a Seiko wristwatch with a metal face, a broken fingernail and a pair of bloodstained white socks. They also found a circular bloodstain, one foot in diameter and two inches deep, near the fence and marks on the ground leading from the stain to the place where they found Foth's body, suggesting that the body had been dragged. They also found a shoe print in the soil.
An autopsy showed that Foth, who was six feet, one-half inch tall and weighed 183 pounds, had bled to death. The body had approximately 83 stab wounds, many of which were in the upper chest and neck area, as well as abrasions on the back, defensive wounds to the right hand and wrist and a blunt force trauma to the head. It also had streaks of seminal fluid across the right thigh, an occurrence that is not unusual for a male homicide victim and that did not necessarily indicate the victim had been engaged in sex. The body tested negative for the presence of drugs.
On October 9, Lena Hixon told her close friend, Eric Bazile, that she had witnessed "something . . . pretty bad" and that two guys had threatened her life. Bazile and his friend Shahyid told Hixon to call the police. Hixon refused, so Shahyid made the call. Hixon left Bazile's apartment and Shahyid followed her. The two argued, attracting the attention of the police, and Shahyid told the officers what Hixon had said. The officers arrested Hixon, who was carrying a razor blade.
Hixon falsely told police that she had committed this crime with two men named Benjamin Wilson and Terrence Smallgreen and that Smallgreen had lost his watch and left his shirt at the scene. A few days later, Hixon told Bazile that Sherrors and Hall were involved in the murder and asked Bazile to notify the police. Hixon repeated her statements in her subsequent police interview.
At trial of the charges against Sherrors and Hall, Hixon testified as follows:
In the late afternoon or early evening of September 29, Foth approached Hixon near University and Euclid Avenues and asked if she knew where to buy some rock cocaine. Although Hixon initially hesitated because she suspected that Foth was an undercover agent, she ultimately told him she knew where to get some; they drove in Ko's Audi to an apartment on Wightman Street, where Sherrors and Hall were living. At the time, Sherrors, Hall and Hixon were handling drug sales for Hixon's boyfriend, Michael Washington.
When Hixon whistled loudly, Hall and Sherrors came out of the apartment. Hixon told Sherrors that Foth was looking for cocaine and Sherrors spoke briefly to Foth, who was still sitting in the car. Sherrors and Hall got into the vehicle with Foth. Sherrors told Hixon they would be right back and the three men drove off.
After 15 to 20 minutes, Sherrors drove up in the Audi with Hall sitting in the back seat; Foth did not appear to be with them. Sherrors and Hall told Hixon that they had "hooked [Foth] up" and he was letting them use the car in exchange for drugs, a practice that is not uncommon for drug dealers. Sherrors told Hixon to get in the car to go smoke some "weed" and Hixon complied.
Sherrors initially had difficulty driving with the car's stick shift but seemed to have it figured out by the time he got onto the I-15 freeway. After awhile, Hixon became concerned because it was unusual for a dealer to keep a customer's car for that period of time; Sherrors responded by explaining that he and Hall had robbed Foth, but Hixon thought he was kidding.
They continued to drive north until they neared Lake Hodges and exited the freeway onto a dark street. Sherrors parked the car in a dirt lot, told Hixon to stay there and said he and Hall would be right back. The men opened the trunk and Foth climbed out. Foth was clothed, but he was holding his hands as if they were tied. Hixon got out of the car and demanded to know what was happening; Sherrors grabbed her hands, breaking two of her acrylic fingernails. Sherrors told Hixon to "shut the f__ up" and threatened to kill her and everybody she knew.
Sherrors turned back toward Hall and Foth, who were tussling, and started to stab Foth. Foth did not appear to put up a fight but merely said, "Let me die." Sherrors continued to stab Foth for several minutes and then walked back to Hixon with the knife and told her to stab Foth. Hixon initially refused, but stabbed Foth once after Sherrors insisted they were not going to just let her walk away; according to her testimony, Hixon believed that Foth was already dead. Sherrors and Hall stripped Foth and threw his body into the bushes. Hall put Foth's clothes into the trunk and Sherrors, Hall and Hixon got into the Audi. Sherrors was wearing a different shirt than he had had on earlier.
With Sherrors at the wheel, the threesome got back onto the freeway and headed southbound. At some point, Sherrors muttered that he had dropped his watch at the scene. They drove for about five or 10 minutes and got off the freeway to stop at an AM-PM convenience store/gas station. Hall purchased some cigarettes at the store and attempted unsuccessfully to use Foth's ATM card. (Although Hall had used the correct PIN number for Foth's account, the bank had "frozen" the account six days...
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