People v. Harrison

• Decision Date: 03 March 2005
• Docket Number: No. S035367.,S035367.
• Citation: 35 Cal.4th 208,25 Cal.Rptr.3d 224,106 P.3d 895
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Cedric HARRISON, Defendant and Appellant.

25 Cal.Rptr.3d 224

35 Cal.4th 208

106 P.3d 895

The PEOPLE, Plaintiff and Respondent, v. Cedric HARRISON, Defendant and Appellant.

No. S035367.

Supreme Court of California.

March 3, 2005.

Rehearing Denied May 18, 2005.

Certiorari Denied October 3, 2005.

Thomas Kallay, Burbank, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias and Jeffrey M. Laurence, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied October 3, 2005. See 126 S.Ct. 201.

KENNARD, J.

An Alameda County jury convicted defendant Cedric Harrison of two counts of first degree murder. (Pen.Code, § 187.)¹ The jury found true a multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)) and further found that defendant personally used a handgun to commit both murders (§ 12022.5, subd. (a)). Defendant admitted allegations that he had five prior convictions: for rape (§ 261), oral copulation (§ 288a), kidnapping (§ 207), assault with intent to commit a felony (§ 220), and robbery (§ 211). On the prosecution's motion, the court struck two other prior-conviction allegations. The jury deadlocked at the penalty phase, and the court declared a mistrial. After retrial of the penalty phase, a different jury returned a verdict of death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

I. FACTS

A. Guilt Phase

In the early morning hours of April 27, 1987, Betty Thompson and Leroy Robinson were shot to death in Oakland. The prosecution presented evidence that defendant killed them over a purchase of a small rock of what was supposed to be crack cocaine, but apparently was not.

1. Prosecution's case

In the spring of 1987, defendant lived in Oakland, California. He used drugs and sold cocaine with his friend and neighbor, Olin Davis. Defendant and Davis sometimes exchanged cocaine for sexual favors from women. Defendant always carried a .38-caliber revolver.

Murder victim Betty Thompson also lived in Oakland with her 16-year-old son and her seven-year-old daughter. She was a habitual cocaine and heroin user. Shortly before her murder, she began dating murder victim Leroy Robinson, another drug user and the other murder victim in this case.

On March 20, 1987, Oakland Police Officers Richard Hassna and Michael Yoell saw defendant standing in a parking lot known for drug problems and shootings. Defendant looked toward the patrol car and began running. As he ran, defendant pulled out a revolver and threw it in a nearby planter box. He eventually stopped and was arrested. Officers recovered six unexpended .38-caliber rounds from defendant's front pants pocket, and retrieved a blue-steel .38-caliber revolver with a two-inch barrel and a brown plastic grip from the planter box. The revolver had six unexpended rounds in its cylinder.

On April 25, 1987, defendant and Davis saw Thompson in front of Thompson's house on 85th Avenue. Defendant introduced Thompson to Davis, who invited Thompson to his house. That evening, Thompson visited Davis's house with her young daughter. While Davis's roommate watched Thompson's daughter, Thompson and Davis went into the bedroom; Thompson performed oral sex on Davis in exchange for rock cocaine. About 9:00 p.m., Davis walked Thompson and her daughter home. Later that night, defendant stopped by Davis's house with Richard ("Shorty") Johnson, and Davis related what had occurred earlier with Thompson.

Around 11:00 o'clock the next evening, Ralph Rivera, a heroin addict who had known Thompson for years, visited Thompson at her home. At some point, Leroy Robinson came to the house, and Thompson introduced him to Rivera. After 30 minutes, two male friends of Thompson's joined them. Rivera described one of the men (Richard Johnson) as about five feet six inches tall, about 150 to 160 pounds in weight and of stocky build, with shoulder-length hair in jheri curls. The other man, whom Rivera later identified in a live lineup as defendant, was about six feet tall, had a thin mustache and a nearly shaved head, and was older and lighter skinned than Johnson.

Rivera heard Johnson talking to Thompson. Although he did not understand the slang they used, he believed Thompson was agreeing to get drugs for Johnson. Johnson then left, followed shortly thereafter by Thompson and later by defendant.

Ten minutes later Thompson returned, and after about five minutes defendant and Johnson also came back. Thompson spoke to Johnson and handed him a small white pebble. As defendant stood near the door, Johnson, who appeared upset, asked: "What's this?" Thompson replied: "Well, that's what they gave me." Johnson asked where she got it, and she said she got it "around the corner." Defendant, who also appeared upset, loudly asked Johnson: "Well, what do you want to do?" Johnson angrily said: "Well, let's go and see about getting the money back." Everyone except Rivera left.

About 2:45 a.m. on April 27, 1987, Lisa McKaufman, who lived with her infant daughter and boyfriend Kenneth Burnside in her apartment in Oakland, was awakened by a knock on her kitchen window and the sound of voices. She woke Burnside. When someone then knocked on the front door, Burnside got up and asked who it was. A female voice answered: "Open the door, it's Betty." Burnside opened the door to find Thompson and Robinson. Thompson asked if Burnside was selling drugs, and Burnside said he was not. Robinson then pushed Thompson forward into the apartment. Scared, McKaufman spoke up and also denied selling drugs. When the baby started crying, Thompson said: "Okay, it's cool," and she and Robinson left. As they did so, McKaufman saw behind them a shadow of a man of average height wearing a beanie cap. As Burnside locked the front door, McKaufman heard Robinson say, "This is bullshit," and heard Thompson scream. McKaufman then heard three or four gunshots, apparently coming from behind the apartment complex. McKaufman called the police.

The gunshots were also heard by Oakland Police Officer Patricia Fuller, who was nearby in a parked patrol car. When she arrived at the scene, she saw Thompson near a car in the driveway, curled in a fetal position on the ground, gasping for breath, bleeding from the head, and holding her hands over her ears. Some six feet away from Thompson was Robinson, who was lying on the ground with his face up; he was bleeding from his head and ear. His dentures lay a foot away.

Thompson died of two gunshot wounds to the head. She also had a gunshot wound in a finger of her right hand. Stippling, or imbedded gunpowder grains, in the surface of the skin of that hand indicated that it was no more than four inches from the weapon that fired the fatal shots. Robinson died from a single gunshot through his mouth and into his head; the front of the barrel of the gun was inside his mouth when the shot was fired. The bloodstream of each victim contained cocaine metabolite, indicating they had ingested cocaine between six and 24 hours before their deaths. At the time of his death, Robinson had a blood alcohol level of .08 percent.

The lead core and the copper-colored jacket of a bullet, as well as several bullet fragments, were recovered from Thompson's head, while a solid lead slug was recovered from Robinson's head. A criminalist and expert in firearms identification testified that the slugs were either .38 special or .357 magnum caliber rounds. He further concluded that one of the bullet fragments recovered from Thompson's head and the solid lead slug recovered from Robinson's head were fired from the same firearm. The copper-jacketed bullet recovered from Thompson's head was fired from a .38 special or .357 magnum firearm having characteristics similar to that which fired the other slugs. But the criminalist could draw no conclusion as to whether it was fired from the same firearm as the other two slugs, because the presence of the copper jacket made further comparison impossible.

On the day after the two murders, defendant came to his friend Olin Davis's house and told him he had shot Thompson and "her old man." Defendant said that he had grabbed Thompson and shot her in the back of the head twice with his revolver, and that he had grabbed Robinson and shot him in the throat. Defendant said "Shorty" was with him at the time. After telling Davis to keep the information to himself, defendant left. The next day, early in the afternoon, defendant came by again and handed Davis a plastic-wrapped newspaper clipping of the double murder, saying: "Look, see."

Sometime between April 27 and May 4, 1987, Richard Johnson came to Davis's house and said he was present when defendant committed the murders. He also told Davis to keep "everything" to himself.

On April 29, 1987, two days after the murders, Robert Williams went to Davis's home and, while Davis was asleep in the bedroom, smoked cocaine. About 20 minutes later, defendant and Richard Johnson came in the house and injected heroin. Williams overheard Johnson tell defendant, "You know he told on him." Defendant said: "I ought to go kill him now," referring to Davis. Williams woke Davis and said: "You better get up and watch yourself." Williams then left.

On May 2, 1987, Davis went to the home of his drug supplier, Jesse Slaughter to get cocaine for several buyers. Slaughter gave Davis five or six rocks of cocaine worth about $100, a sum that Davis was to pay Slaughter after selling the rocks. Davis sold one rock from the package and later replaced it with another rock he obtained elsewhere. The next morning, Davis gave the package to Williams to give to Slaughter. But later that day, Slaughter sought Davis out and threatened to kill him if he did not pay him the $100 owed. Davis explained that he gave the package to Williams to return to Slaughter, but Slaughter denied receiving...