People v. Heard

Decision Date28 August 2003
Docket NumberNo. S035769.,S035769.
Citation31 Cal.4th 946,4 Cal.Rptr.3d 131,75 P.3d 53
CourtCalifornia Supreme Court
PartiesThe PEOPLE, Plaintiff and Respondent, v. James Matthew HEARD, Defendant and Appellant.

Rehearing Denied October 22, 2003.1

Jonathan P. Milberg, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied 124 S.Ct. 1618.

GEORGE, C.J.

A jury found defendant James Matthew Heard guilty of first degree murder (Pen.Code, §§ 187, subd. (a), 189),2 one count of a forcible lewd act upon a child under the age of 14 years (§ 288, subd. (b)), two counts of anal or genital penetration with a foreign object (§ 289, subd. (a)), and two counts of assault with a deadly weapon causing great bodily injury (§ 245, subd. (a)(1)), all perpetrated against 11-year-old Katrina Brown. The jury further determined the defendant had inflicted great bodily injury in the commission of the sex offenses (§ 12022.8) and had personally inflicted such injury in the commission of the assaults (§ 12022.7). The jury also found true the three special circumstance allegations: that the murder occurred while defendant was engaged in the commission of a lewd and lascivious act upon a child (§ 190.2, subd. (a)(17)), that the murder occurred while defendant was engaged in the commission of vaginal rape by an instrument (§ 190.2, subd. (a)(17)), and that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). At the conclusion of the penalty phase, the jury returned a verdict of death. This appeal is automatic. (Cal. Const., art. VI, § 11; Pen.Code, § 1239, subd. (b).)

As we shall explain, we conclude no reversible error occurred with regard to the judgment of guilt and the special circumstances findings, and we shall affirm the judgment as to these determinations. We conclude, however, that the trial court conducted a seriously deficient examination of a prospective juror during the jury selection process and, in the absence of adequate justification, erroneously excused the juror for cause based upon the juror's ostensible views regarding the death penalty. The controlling decisions of the United States Supreme Court establish that, under federal constitutional principles, this type of error is not subject to harmless-error analysis, but rather must be considered reversible per se with regard to any ensuing death penalty judgment. (See Gray v. Mississippi (1987) 481 U.S. 648, 664-666, 668, 107 S.Ct. 2045, 95 L.Ed.2d 622; Davis v. Georgia (1976) 429 U.S. 122, 123, 97 S.Ct. 399, 50 L.Ed.2d 339.) Accordingly, under compulsion of these applicable federal decisions, we shall reverse the judgment as to the sentence of death and remand the matter for a new penalty trial before a properly selected jury.

I. FACTS
A. GUILT PHASE EVIDENCE
1. The prosecution's case

Defendant became romantically involved with Marilyn Brown in 1987, experienced an on-again off-again relationship with her, and then began residing with Marilyn and her daughter, the victim Katrina Brown, in May 1990, about seven months prior to the murder. At that time, defendant also began working as the manager of the apartment complex in which they resided, performing repairs in the other units. From all appearances prior to the murder, Katrina and defendant shared a father-daughter relationship, and there was no evidence he had ever made sexual advances or engaged in any other inappropriate behavior toward her. It is apparent from the testimony and photographic exhibits that, despite her youth, Katrina had a very maturely developed body.

On December 18, 1990, defendant worked in one of the apartments during the morning and afternoon with his friend, Chris Hodges. The two individuals began drinking gin and 40-ounce bottles of malt liquor, and then commenced smoking crack cocaine with a number of other persons into the evening. About 8:00 p.m., defendant announced that he "wanted a woman." He continued consuming alcohol and smoking cocaine, but at approximately 10:00 p.m. angrily complained he had purchased some "bunk" drugs and went out to "beat up" the dealer unless he got his money back.

In the meantime, Katrina prepared for bed and listened to music while Marilyn slept before preparing to leave for work shortly before 3:00 a.m. Marilyn saw defendant sometime between 10:30 and 11:00 p.m., at which time she did not notice anything unusual about his speech or demeanor. When Marilyn went to work, Katrina was asleep in her bed, the telephone was set by Katrina's closed bedroom door, and all the exterior doors were locked.

At approximately 2:00 a.m., defendant left the apartment and encountered Mattie McAlister, who was on the way to her house nearby, where a birthday party for her was taking place. McAlister noticed that defendant appeared "[b]ombed.... He was out of it.... He was loaded.... He was mad, but he was high. But he was a mad high.... He was high, but he wasn't happy. He was mad about something." At the party, McAlister observed defendant drink about three glasses of whisky, continue to smoke cocaine, and become increasingly belligerent. Defendant followed McAlister around the house, continuing to threaten that he was "going to kill a bitch." McAlister told defendant that he frightened her, and she insisted that he leave the premises.

At one point during the party, defendant pushed Cheryl Bailey up against a wall and chastised her for being at a party and drinking alcoholic beverages while pregnant. Bailey's boyfriend, Johnny Joe Robinson, intervened, and defendant responded, "Nigger, you don't know me. I will kill you." In response, Robinson and others drew knives and razors and convinced defendant to retreat. According to Robinson, defendant repeatedly exclaimed, "I ain't going to be satisfied until I kill somebody." Defendant thereafter asked Bailey to leave with him. When she refused, he shoved her and said, "Bitch, I am going to kill you. I am going to kill you."

Defendant departed with Steve Lamar Elkins about 4:00 a.m., stating he wanted to go someplace to "get high." On the street, they encountered Marlo Plump, and defendant demanded money that he said Plump owed him. Elkins attempted to intercede, but defendant angrily turned on him. Elkins returned to McAlister's house and did not see defendant the rest of the night.

Later at the apartment building where defendant resided with Marilyn and Katrina, beginning about 5:00 a.m., Guillermo Garcia and his sister, Lucy Elena, who lived in the upstairs unit, heard the sounds of a man and a young woman fighting; the noise emanated from Marilyn Brown's apartment. The woman screamed and moaned, and made sounds "like a cat crying," and the man told her to "shut up." The sound of the voices continued intermittently for approximately one hour; during the intervals, the Garcias heard the woman crying quietly. Lacking a telephone, the Garcias were unable to call anyone from their apartment. After the fighting sounds stopped, the Garcias fell back asleep. Between 5:30 and 6:00 a.m., Marilyn called home but received no response.

About 7:30 a.m., Katrina's first cousin, Samuel Lee, who lived directly across from the Browns' apartment, came by to pick up Katrina for school. When he received no response at the front door, he went to the bedroom window and knocked, but no one responded. He returned to the front door, which he found unlatched, and entered. In Katrina's bedroom, he saw her naked body on the floor. He returned to his own apartment and told his Uncle Doyle and his grandfather Charles Lee what he had seen. Charles found Katrina's body sprawled on the floor with a bloody cloth wrapped around her head and two wooden objects between her legs.

Responding to Charles's 911 call, paramedics determined that Katrina was dead, and sheriff's deputies secured the apartment. Katrina's bedroom showed evidence of a struggle, and bloodstained clothing and other items lay around the body. Investigators also found blood, later identified as consistent with both defendant's and Katrina's, on three bedroom walls, the carpeting, and the bathroom floor and sink. In addition to the blood-soaked garment wrapped around Katrina's head, investigators found an empty bottle of rubbing alcohol in her mouth. There were bite marks on her chest area and, according to one of the Sheriff's investigators, a "dusty print on her chest" that appeared to have been "left by some sort of shoe as if someone stomped her in the chest." A baseball bat wrapped with a curtain protruded from her vagina. Another bat, stained with blood and feces, lay between her legs.

Charles Lee told the deputies that defendant lived with Katrina and her mother and gave them a description of him.3 About that time, William Ardizzone, a Long Beach firefighter paramedic, in response to a call made from a liquor store parking lot, encountered defendant, who had blood dripping from his mouth and covering his face and bare chest. Ardizzone inquired whether defendant had been struck, perhaps with a two-by-four, and defendant responded affirmatively. Examining defendant's mouth, Ardizzone noticed that part of defendant's tongue was missing. The wound did not appear self-inflicted, nor did defendant's chin have any injury.

Ardizzone took defendant to the emergency room at Lakewood Doctors Hospital, where the attending physician, Dr. Max Lebow, determined that approximately one-third of defendant's tongue had been amputated. Defendant, who was spraying blood as he spoke, explained that he had been in a fight and had been struck with an object on his chin, causing defendant to bite off his tongue with his own teeth. Lebow, as well as another emergency room physician, Dr. Robert Flashman, found the...

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