People v. Harris

• Decision Date: 14 February 1989
• Docket Number: No. S004635,S004635
• Court: California Supreme Court
• Parties: , 767 P.2d 619 The PEOPLE, Plaintiff and Respondent, v. Von Maurice HARRIS, Defendant and Appellant. Crim. 23805.

Page 352

255 Cal.Rptr. 352

47 Cal.3d 1047, 767 P.2d 619

The PEOPLE, Plaintiff and Respondent, v. Von Maurice HARRIS, Defendant and Appellant.

Crim. 23805.

No. S004635.

Supreme Court of California, In Bank.

Feb. 14, 1989.

As Modified on Denial of Rehearing April 20, 1989.

[767 P.2d 623] Mark E. Cutler, Cool, under appointment by the Supreme Court, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Ivy K. Kessel, Susanne C. Wylie, Thomas L. Willhite and Juliet H. Swoboda, Deputy Attys. Gen., Los Angeles, for plaintiff and respondent.

EAGLESON, Justice.

Defendant was convicted by a jury in the Los Angeles County Superior Court of the first degree murder (Pen.Code, § 189), ¹ robbery ( § 213), and kidnapping for robbery ( § 209) of Stanley Fahey, with personal use of a firearm in the commission of those offenses. ( §§ 12022.5 & 1203.06, subd. (a)(1).) The jury also found true special circumstance allegations that the murder was committed in the perpetration of robbery and kidnapping ( § 190.2, subd. (a)(17)(i) & (ii)), and returned a verdict of death.

At the close of the penalty phase evidence the court granted the People's motion to reopen the guilt phase and instructed the jury regarding intent to kill as an element of the felony-murder special circumstances. The jury then returned a special finding that defendant had the intent to kill or to aid in the killing of the murder victim.

Following the return of the penalty verdict, the court denied motions for a new trial and to reduce the penalty, and sentenced defendant to death. This appeal is automatic. ( § 1239, subd. (b).)

The principal guilt phase issue is defendant's challenge to use of a dual jury procedure in which he was tried jointly with his alleged confederate Larry Alan Davison, but separate juries decided the guilt of each defendant. All special circumstance and firearm use allegations against Davison had been dismissed prior to trial, and he was alleged only to have been armed or a principal in the commission of an offense in which another principal was armed with a firearm. ( § 12022, subd. (a).)

Defendant claims the use of two juries was distracting, disruptive, and necessarily prejudicial because the jury that convicted him inevitably became aware that during periods when it was not present in the courtroom the jury trying Davison heard evidence inadmissible, but damaging, as to him. We conclude that defendant has failed to establish that the procedure was prejudicial to him. Although no statute sanctions the use of two juries, the procedure affords a practical and reasonable means by which to minimize the inconvenience and not inconsiderable burden on those witnesses who would otherwise have to testify in separate trials, and to conserve judicial resources.

Because there was no error prejudicial to defendant at the guilt phase of the trial, we shall affirm the conviction and special circumstances findings. Reversal of the death penalty is mandated by People v. Montiel (1985) 39 Cal.3d 910, 928, 218 Cal.Rptr. 572, 705 P.2d 1248, and People v. Ramos (1984) 37 Cal.3d 136, 150-159, 207 Cal.Rptr. 800, 689 P.2d 430, however.

I FACTS

On December 7, 1982, 17-year-old Stanley Fahey was robbed of $350 at Jessup's Dairy, ² a convenience store in the Palmdale area at which he was employed. He was then kidnapped, shot three times in the back, and left to die as the result of internal bleeding. His body was found in the desert outside Palmdale, but the physical evidence was inconclusive as to the location at which he was shot. One witness testified that he saw a car like that owned by Larry Alan Davison near the robbery site. It was one of very few cars there at the time of the robbery. Another witness, who had seen the car at that location earlier in the evening, identified defendant and Davison who, she said, appeared to be signaling to a third person. A third witness saw a car similar to that owned by Davison near the place at which the victim's body was found. Three witnesses testified regarding extrajudicial statements made by defendant and Davison, one of which suggested that defendant shot the victim after Davison had told him not to shoot.

A. The Prosecution Case.

The theory of the prosecution case was that defendant Harris, with Davison and Elton Juniel, had kidnapped Stanley Fahey in the course of a robbery and taken him to a desert dump area where defendant shot Fahey three times in the back as Fahey ran away with hands tied behind his back. The following evidence was offered in support of that theory.

Donna Rigby stopped at Jessup's Dairy to buy milk about 6 p.m. on December 7, 1982. Fahey, who was wearing a Palmdale High School letterman jacket, waited on her. As she waited in a line of cars she noticed a very oxidized, large car, like a Cadillac, with an aged and cracked vinyl or naugahyde top. Two men who were standing by the car appeared to be signaling a man who was walking around inside the dairy. Rigby watched the men for between five and ten minutes, occasionally losing sight of the man inside. She was upset by the suspicious behavior of the men, mentioning her concern to her sister-in-law who had accompanied her and, when she reached her home, to her husband.

Rigby contacted the police two months after Fahey's body was found, and on February 25, 1983, identified a photo of Davison as one of the men outside the store and a photo of defendant as the person who was inside the store. Rigby also identified Davison's car, which had been impounded, as the car she had seen at the dairy. She later inspected a recent Palmdale High School yearbook in her home and concluded that the third man present at the dairy on December 7, 1982, had been Elton Juniel, whose photo was in the yearbook. Rigby identified both defendants at trial, again stating that defendant Harris had been the person she had seen inside the store.

Beverly Hallowell stopped at the dairy about 8:46 p.m. on December 7, 1982. A white, older car with boxy, square tail lights was at the gas pump. She saw the driver, a cleanshaven White man about five feet nine inches tall, wearing a light blue windbreaker, with the gas pump in his hand, give the attendant, Fahey, what appeared to be money. At the time she stopped at the dairy it was very cold and the wind was approximately 35 miles per hour. The bakery racks were still outside. Fahey, who was wearing Levis and a Palmdale letterman jacket, told her he was ready to close as soon as the man in the white car was done.

Hallowell also saw an older model yellow-gold Cadillac at the curb at the edge of the dairy lot. The car was badly oxidized and had a light top. She identified a photo of Davison's car as apparently the car she had seen. A short Black man with an Afro was standing on the passenger side of the car. A taller Black man with darker skin and slicked black hair was standing on the driver's side. She believed that defendant and Davison were the same height and race as the men she had seen. As Hallowell continued on toward her home she was passed by the Cadillac going Michael Gudim, a customer, stopped at Jessup's Dairy shortly before the usual closing time of 9 p.m. on December 7, 1982. It appeared that the market was closing. The portable bread and cake racks that were kept just outside the door when the market was open had been taken in. The lights were on, but no clerk was present. The cash register drawer was open, but held only checks, no cash. The money tray was not in the drawer. Another person arrived and called the sheriff. Deputy Budge arrived at the dairy at 9:18 p.m., three minutes after receiving the call. At that time there was a cold, blustery wind. It had been quite cool in the afternoon when Fahey arrived at work to replace the owner who had worked the morning shift. Budge and Deputy Taplin, who had also responded to the call, found half of a dollar bill and two pennies in the parking lot. The deputies suspected a robbery and possible homicide. They searched for shell casings, but none was found at that time. Three shell casings that may have been from .22-caliber bullets were found in the parking lot several days later. Searches of the same area in the interim had been unproductive, and, when found, the shell casings were lying in the open.

very fast. A person in the passenger seat had his back pressed against the window as he faced the driver or the back seat.

Fahey had worked at the store for only two and one-half weeks, but was known to his employer, for whom he had worked at another location for two months, as a reliable employee. His employer's wife had spoken to Fahey on the telephone at 7:30 p.m. The alarm company notified the employer at 9 p.m. that the store was open and the clerk gone. Some steps toward closing the store, steps normally taken about 8:30 p.m., had been accomplished. The south gasoline pumps had been shut down and readings taken. The south and east side gates had been closed. The south gate could be closed only by unfolding a portable rail or track on which it was pulled after unlocking a lock for which only the owner and the clerk had a key. The bread racks had been taken inside, one of the last steps before closing. Fahey had put bundled cash into a drop safe, a task that was performed periodically during the day so that the register would not contain large amounts of cash. Comparison of the cash register tape and the money found in the safe indicated that $356.63 was missing. Fahey's truck was still in the parking lot, the key hanging on a pegboard inside the store.

At 8 a.m. on December 9, Fahey's body was found, lying face down, in the desert about two miles from Jessup's Dairy. Two of three bullets that entered his body from the back could have caused his death. A fourth bullet had passed through the victim's jacket without causing injury. The bullets, small to medium size or between .22 and .38 caliber, had...