People v. Horton
| Decision Date | 11 December 1995 |
| Docket Number | No. S004702,S004702 |
| Citation | 47 Cal.Rptr.2d 516,11 Cal.4th 1068,906 P.2d 478 |
| Court | California Supreme Court |
| Parties | , 12 Cal.4th 783A, 906 P.2d 478, 64 USLW 2480, 95 Cal. Daily Op. Serv. 9471, 95 Daily Journal D.A.R. 16,579 The PEOPLE, Plaintiff and Respondent, v. James F. HORTON II, Defendant and Appellant. |
Jay B. Gaskill, Public Defender (Alameda), Michael S. Ogul, Oakland, and John T. Philipsborn, San Francisco, as Amici Curiae, on behalf of Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Sanjay T. Kumar, Robert S. Henry, Joan Comparet, William T. Harter, Susan Lee Frierson and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
Following the guilt phase of a jury trial, defendant James F. Horton II was convicted of one count of first degree murder (Pen.Code, §§ 187, 189) 1 and one count of robbery (§ 211), and the jury found true the special circumstance allegations that the murder occurred in the course of a robbery (§ 190.2, subd. (a)(17)) and that defendant had suffered a prior murder conviction (§ 190.2, subd. (a)(2)). Following the penalty phase of the trial, the jury returned a verdict of death.
We conclude the prior-murder-conviction special-circumstance finding must be vacated and the sentence of death set aside. The judgment is otherwise affirmed.
On October 11, 1982, Herschel "Lobo" Bowser was discovered in his apartment located at 10459 Artesia Boulevard in the City of Bellflower, lying on the floor in front of the doorway, his head covered with blood and pieces of brain matter. A claw hammer, later marked for identification as the People's exhibit No. 3, was lying in a pool of blood within a foot of his body. He had suffered a fractured skull and 12 separate blunt injuries to his head, consistent with force applied by a hammer, as well as lacerations and bruises to his left hand. He was alive but later died following surgery.
The police arrived as paramedics were transporting Bowser in an ambulance from his apartment. Several canvas bank bags containing approximately $10 in coins were on top of the desk. An empty leather wallet was found under a pillow in the bedroom. A safe on the floor in the bedroom closet was closed and locked. Also found in the apartment were items associated with narcotic sales, including plastic "baggies," mannitol (a cutting agent), and a sifter. An empty plastic container was on the kitchen counter near the stove. A latent print investigation was conducted at the crime scene, but the only identifiable print (lifted from a tool box) matched that of the victim.
Carolyn Ebel lived in the same apartment building as Bowser and was his girlfriend. She first met him in early 1982 when he hired her as a driver for a truck in his catering business. Eventually she became his girlfriend and began living in his apartment, although she also maintained a separate residence and continued to work as a driver in the catering business.
Ebel testified that Bowser was a drug dealer and sold cocaine from his apartment. She had seen Bowser on a daily basis prepare for sale, and sell, cocaine. He stored the cocaine in three "ziploc" plastic bags in a plastic butter container, which he kept in a kitchen cabinet near the stove. One of the bags was marked with three "X's." She had seen defendant on six or seven occasions at Bowser's apartment buying cocaine. Bowser kept a large amount of cash in his apartment and usually carried approximately $500 on his person.
On October 11, at 9:30 in the morning, Ebel entered Bowser's apartment to pick up her paycheck. She used her key to unlock the two locks on the door, one of which was a deadbolt. Bowser was in bed asleep. She did not wake him when she retrieved her paycheck from the table next to the bed. When she departed, she left behind her catering truck wallet, which contained approximately $100.
Tracy Crisp, a resident of another apartment in the building, telephoned Ebel later that day to tell her that she had been unable to reach Bowser on the telephone. Ebel returned to Bowser's apartment at approximately 2:30 in the afternoon. Placing her key in the top lock, she found it was unlocked. Opening the door she found that it was partially blocked by Bowser's body, lying on the floor. The apartment had been ransacked. She called the paramedics and, while awaiting their arrival, walked around the apartment. She observed that her trucker's wallet and money bag were missing. In the kitchen, the plastic butter container was on the stove uncovered, and the plastic bags of cocaine that had been stored inside were gone. Ebel testified that, in an attempt to conceal the circumstance that Bowser had been dealing in drugs, she removed a scale, a plastic bag containing several hundred Quaalude pills, and Bowser's telephone directory listing the names of his drug customers.
In October 1982, Michael Graham resided at the Shangri-Lodge apartment complex in Compton, as did defendant. Graham and defendant were employed by the manager of the complex, Willie Dorn, and performed odd jobs. One morning defendant asked Graham for a hammer that belonged to Dorn. After obtaining the hammer for defendant, Graham never saw him again.
On the morning of October 10, 1982, defendant knocked on Dorn's bedroom window and told Dorn that "he had something he was going to do," and that "if it worked out okay," defendant would be moving out the next day. On October 11, defendant told Dorn he was leaving, and departed in his automobile, accompanied by James Cunnigan and another man (established by other evidence to be Anthony Wilson). A few days later, defendant telephoned Dorn and inquired whether anyone had been looking for him, and specifically whether the police had been looking for him. Defendant subsequently telephoned Dorn on approximately four occasions, making the same inquiry. Defendant requested that Dorn instruct Graham that in the event anyone asked whether Graham had given defendant anything, Graham should deny having done so.
At trial, Dorn identified People's exhibit No. 3 as the hammer he had owned for 12 years. He recalled that in October 1982, Graham had been using the hammer, and Dorn thereafter noticed it was missing. The police asked Dorn for a sample of the paint that was used on the Shangri-Lodge buildings. One of the five kinds of white paint on the hammer matched the paint sample provided by Dorn.
The prosecution's principal witness was Donald "Foo" McLaurin. McLaurin had known defendant since 1980. Both men used cocaine. On a number of occasions, defendant had taken McLaurin to an apartment building on Artesia Boulevard (identified as the building where the victim, "Lobo" Bowser, resided) to purchase cocaine. McLaurin never entered the building, but on each occasion when defendant returned, defendant was in possession of cocaine and told McLaurin he had purchased the drugs from a man named "Lo."
In October 1982, McLaurin also resided at the Shangri-Lodge apartments. He testified that on the morning of October 10 (the day before Bowser was killed), he (McLaurin) walked from his apartment to defendant's apartment, where he joined defendant, defendant's friend Anthony Wilson, and defendant's brother William Horton. In the afternoon, the four men drove in defendant's automobile to the apartment building on Artesia Boulevard. Defendant entered the building while the other three men waited outside. When defendant returned, he had a bag of cocaine with him. The men proceeded to Ray's Motel, where they smoked the cocaine. They were freebasing and consumed five or six grams, worth $500 to $600. McLaurin got "high" and proceeded with defendant to another motel, where the two men freebased additional quantities of cocaine. Eventually McLaurin, defendant, and Wilson returned to the Shangri-Lodge. James Cunnigan (known as "Doonie") joined the three of them at defendant's apartment, where they all consumed additional cocaine. In the late evening hours, when their supply of cocaine was depleted, defendant suggested "hustling," i.e., robbing, a drug dealer as a means of replenishing their supply. Defendant On the following afternoon, October 11, a Monday, defendant called McLaurin at his workplace. He asked McLaurin to meet him at Ray's Motel and stated "he did the number he was talking about last night." When McLaurin arrived there, defendant, Wilson, and Cunnigan were inside a motel room. 2 McLaurin saw they had three bags of cocaine--two with powder and one with cocaine rocks. One of the bags was marked with black "X's." He also observed a large roll of money. As the men began to smoke the cocaine, Cunnigan stated that "everything went down pretty smooth." Defendant explained that he entered the apartment and, as the dealer turned his back to close the door, defendant clubbed him on the head with a hammer. Defendant then went to the kitchen cabinet and removed the cocaine. After leaving the crime scene, defendant's vehicle overheated on the freeway, and he and his companions abandoned it. At a later point, defendant requested that McLaurin pick up the vehicle. McLaurin and Cunnigan returned to the automobile and retrieved "a couple of bags of weed" and a gym bag, proceeding to the Shangri-Lodge without the vehicle. Upon rejoining defendant, they consumed an additional quantity of drugs. Later, McLaurin drove defendant to the bus depot.
began [906 P.2d 487] to discuss a plan to rob his dealer on Artesia Boulevard. He said that he could not use a gun, because there would be too much noise, but that he could enter the apartment with a pipe, and as the dealer turned around to close the door, defendant would be able to "slug him a few times." Defendant said he knew his dealer kept cocaine in one of
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