People v. Holloway

• Decision Date: 17 June 2004
• Docket Number: No. S029550.,S029550.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Duane HOLLOWAY, Defendant and Appellant.
• Court: California Supreme Court

14 Cal.Rptr.3d 212

91 P.3d 164

33 Cal.4th 96

The PEOPLE, Plaintiff and Respondent, v. Duane HOLLOWAY, Defendant and Appellant.

No. S029550.

Supreme Court of California.

June 17, 2004.

Rehearing Denied September 1, 2004.

Certiorari Denied February 22, 2005.

Mark D. Greenberg, Oakland, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson, Ward A. Campbell and Raymond L. Brosterhous, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied February 22, 2005. See 125 S.Ct. 1302.

WERDEGAR, J.

A jury convicted defendant Duane Holloway of first degree murder (Pen.Code, § 187, subd. (a))¹ in the deaths of Debra Ann Cimmino and Diane Renee Pencin, attempted rape (§§ 261, 664) of Cimmino, and burglary (§ 459) of the victims' joint residence. The jury found true special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)), murder (of Cimmino) in the commission of attempted rape (§ 190.2, subd. (a)(17)), and murder (of Pencin) in the commission of burglary (ibid.). The jury also found defendant had personally used a knife (§ 12022, subd. (b)) in the murder of Pencin. After a penalty trial, the jury returned a verdict of death. The court denied the motion for modification of the penalty verdict and entered judgment accordingly.²

This appeal from the resulting judgment is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

FACTS

Guilt Phase Evidence

Prosecution

Debra Cimmino and Diane Pencin, half sisters who shared a Sacramento townhouse, were killed in the early morning hours of Sunday, March 20, 1983. Diane was found the next day in her bedroom, dead of stab wounds and strangulation. Debbie, also strangled, was found in her car, which was parked outside the townhouse. The principal evidence against defendant consisted of his fingerprints inside the townhouse and Debbie's car; pubic and other hairs found at the crime scene that were consistent with defendant's hairs and inconsistent with the victims'; defendant's initial false exculpatory statements to police, including an attempt to manufacture an alibi; and his eventual partial admission to presence at the crimes.

At the time of their deaths in 1983, Diane Pencin was 32 years old and Debbie Cimmino was 20. Both were single, Diane having been married and divorced, and they lived alone in the townhouse, which Diane owned. Lorie Cimmino, their mother, and Michael Cimmino, Debbie's father and Diane's stepfather, lived about a block away. A third sister, Janet Williams, also lived in Sacramento, and her 10-year-old daughter, Michelle, visited Diane and Debbie frequently, including on the weekend of their deaths. Diane and Debbie were security conscious, locking their front door even when they were home and setting their burglar alarm at night.

On Saturday, March 19, Michelle Williams, who had spent Friday night at Diane and Debbie's townhouse, helped Debbie wash her car. They cleaned the automobile thoroughly, inside and out, wiping the back window with Windex and the interior surfaces with Armor All. Diane took Michelle home around 3:00 p.m., then went to a movie with Michael Cimmino. Diane dropped Michael off after the film and spoke to him by telephone around 6:00 p.m., saying that instead of having dinner with him as planned, she would rather stay home and watch some videos.

Sherilyn Hoye, a friend of Debbie's, spent around two hours on Saturday, March 19, from 9:00 p.m. to 11:00 p.m., at the townhouse with Debbie, mostly in her bedroom. Debbie, who was wearing beige shorts and a red and white top, had just finished cleaning the bedroom before Hoye's visit. About 11:30 p.m., Lorie Cimmino telephoned the townhouse and spoke with Debbie, who said she had polished her nails and cleaned the townhouse that evening, that she was tired and going to bed, and that Diane was already in bed; Lorie could also hear Diane's voice in the background.

On Sunday, March 20, Hoye and two other friends of Debbie's tried repeatedly to reach Debbie at home by telephone, but no one answered the phone. Debbie's body was discovered in her car, which was parked in a carport next to the townhouse, on the morning of Monday, March 21, by a concerned friend of both sisters who learned Debbie had not shown up at work and could not be reached by telephone. The friend also noticed two newspapers, including a Sunday paper, on the front doorstep. Police were called and dispatched about 10:00 a.m.; the first officer on the scene discovered Diane's body inside the townhouse and saw Debbie's in her car.

Debbie Cimmino's body lay on the backseat of her car, clothed only in a red and white top. Various other items, including a parka, a robe and a blanket, covered the body. Debbie's purse and its contents were scattered on the front passenger floor. On the back floor were a pair of jogging shoes, a pair of socks, jeans, and black panties. Near the victim's feet, a plastic piece of the seat structure was cracked through.

According to the autopsy pathologist, the cause of Debbie's death was manual strangulation. This was shown, inter alia, by petechia on her eyelids and the whites of her eyes, external marks on her neck, and internal hemorrhaging in her neck and tongue. Though no sperm were detected in swabs taken from Debbie, there was a quarter-inch tear in the skin at the opening of her vagina and adjacent bruising, consistent with sexual assault and inconsistent with ordinary personal hygiene. The pathologist also found defensive wounds and a torn fingernail on Debbie's hands and a bruise on her forearm.

Diane Pencin was found lying on her back on her unmade bed. She was nude, though her mother testified she always slept in a nightgown or long shirt. A bloodstained pillow, a torn pillowcase, and one part of a telephone without its cords lay on the bed as well. Under Diane's body were several identification cards belonging to Debbie. A pair of red panties was tucked between the mattress and the bed frame. Elsewhere in the room were found another piece of the torn pillowcase, this one knotted; the remaining portion of the telephone, also without cords; two knives, one with visible blood on it; a damp bloodstained dishcloth; and blood spots on the wall.

The pathologist opined Diane had died of both stabbing and strangulation. In Diane's case, strangulation was with a ligature, which could have been a straight telephone cord. Ligature strangulation was shown by petechia, her dark and puffy face, and the pattern of straight, narrow wounds to her neck. Apparent ligature marks were also on her wrists and ankles. Diane had been stabbed with a knife or similar weapon at least five times in the upper abdomen, including wounds to the heart and liver; some of the wounds were apparently aggravated by the weapon having been partially withdrawn and thrust back in at different angles in the same area. There was no physical evidence of sexual assault.

The telephone in the townhouse kitchen was on the floor, missing its flat cord. In the bathroom, several wet towels were lying around the sink, a condition uncharacteristic of Debbie and Diane's housekeeping. Debbie's bedroom disclosed no sign of a struggle, though a knife was found under the pillow. The telephone was in working order. Two telephone cords were later found under the bottom sheet on Debbie's bed: one a flat cord with a small amount of blood on it, the other coiled, with fibers matching those on the floorboard of Debbie's car. The front door to the townhouse was unlocked, and there were no signs of forced entry.

Defendant's latent fingerprints were found on the telephone body and receiver in Diane Pencin's bedroom, as well as on the doorjamb of that room. Defendant's prints were also found at several places on the exterior of Debbie Cimmino's car (along with latent prints belonging to others, identified and unidentified) and on the interior backseat surface, above the victim's body, with the fingers of the print pointing towards the victim's head, which was on the driver's side of the seat. Three pubic hairs, one combed from Debbie's pubic hair and two found on a robe found in her car, showed characteristics consistent with the microscopic appearance and structure of defendant's pubic hairs but inconsistent with Debbie's. Two scalp hairs the criminalist described as "Negro" were found on a blanket covering Debbie's body; Debbie was excluded as the donor of these hairs, but defendant (who is African-American) could not be excluded. When arrested on March 22, 1983, defendant had several scratches on his abdomen, which he said he had incurred playing handball the previous day.

On Monday, March 21, 1983, in the initial police investigation of the deaths, Debbie Cimmino's friends and mother mentioned defendant as an acquaintance of Debbie's. Officers Hash and Dean contacted defendant that evening. He was cooperative, giving the officers a taped interview and supplying them with fingerprint samples. According to defendant's statement on March 21, he knew Debbie Cimmino from high school, where they had been friends. They corresponded during a period he spent away from Sacramento and on his return renewed their friendship. Defendant was not Debbie's lover, though he would have liked to have been. He had been in Diane and Debbie's townhouse many times, including both bedrooms. Defendant's father lived very close to the townhouse, but defendant himself lived with his mother elsewhere in Sacramento.

In the March 21 interview, defendant said that he spent Saturday night, March 19, with a friend, Robert Cruz, and Cruz's friends, watching television at Cruz's home, drinking (though defendant abstained), and driving around Sacramento. He slept on Cruz's couch from around 4:00 a.m. to 6:30 a.m. Sunday, then Cruz dropped him off at his mother's...