People v. HOVARTER

• Decision Date: 17 September 2008
• Docket Number: No. S018637.,S018637.
• Citation: 189 P.3d 300,81 Cal.Rptr.3d 299,44 Cal.4th 983
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jackie Ray HOVARTER, Defendant and Appellant.

44 Cal.4th 983

189 P.3d 300

81 Cal.Rptr.3d 299

The PEOPLE, Plaintiff and Respondent,

v.Jackie Ray HOVARTER, Defendant and Appellant.

No. S018637.

Supreme Court of California

Aug. 11, 2008.

Rehearing Denied Sept. 17, 2008.

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Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the Supreme Court, and Denise Kendall, Assistant State Public Defender, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Ronald S. Matthias and David H. Rose, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, J.

A Humboldt County jury convicted Jackie Ray Hovarter in 1988 of the first degree murder of Danna Elizabeth Walsh. (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated.) It also convicted defendant of kidnapping and forcibly raping Walsh (§§ 207, subd. (a), 261, former subd. (2), now see id., subd. (a)(2)) and sustained special circumstance allegations that he murdered Walsh while engaged in the commission of a kidnapping and rape (§ 190.2, former subd. (a) (17)(ii) & (iii), now subd. (a)(17)(B) & (C)). The jury was unable to reach a verdict as to penalty, and the trial court declared a mistrial. Defendant, with the agreement of counsel, waived his right to a jury for the penalty retrial, and in 1989, the trial court, sitting as the trier of fact, returned a verdict of death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).)

As explained below, we conclude the guilt and penalty judgments should be affirmed in their entirety.

I. Guilt Phase

A. Facts

1. Discovery of Danna Walsh's Body

A young teenager and three friends went fishing along the Eel River in Scotia, Humboldt County, on August 24, 1984. Afterwards, they stopped near the Scotia/Rio Dell Bridge and discovered the body of a young woman. Finding no pulse, they summoned the police. The police examined the body, which lay along the river about 150 yards from the water. The victim was fully clothed except for shoes and socks. Her panties were inside out, and although they were damp at the bottom, they were dry at the top. Some yellow nylon rope was wound several times around her neck. Subsequent investigation determined the victim was Danna Elizabeth Walsh, who had been reported missing in Willits.

2. Circumstances Surrounding Walsh's Disappearance

Louisiana Pacific operated a pulp mill in Samoa, California, near Eureka. The mill began loading trucks with wood pulp around 7:00 a.m., but truckers arrived early to get in line, as the first truck in line was the first to be loaded and thus the first to leave. Employees at the mill's front gate noted in a log the name of the driver, the trucking firm, either the vehicle registration number or license plate number of the truck, and the time each truck entered the mill. After receiving their load of wood pulp, the truckers departed and a gate employee noted in the same log the departure time of each truck.

Defendant lived in San Pablo in the Bay Area and drove a truck for a living. On a typical day he would leave his home around 10:00 p.m. and drive north on Highway 101 to the Louisiana Pacific pulp mill, generally arriving shortly after 4:00 a.m. He would then wait until 6:30 or 7:00 a.m., have his truck loaded, and drive it down to the container yard in Oakland. Jack Davis, the shipping foreman, testified defendant was usually one of the first truckers in line and was generally already in line when Davis arrived at the mill at 6:00 a.m. On the two days prior to Walsh's murder, the log sheets showed defendant had arrived at the mill at the usual time, 4:07 a.m. and 4:09 a.m., respectively. On August 24, 1984, the day of the murder, however, he did not arrive until 6:28 a.m.

Before the murder, Walsh visited her older brother, Randy Robertson, in San Ramon. She came to the Bay Area with a friend named Melinda in order to buy school clothes. She took a bus back to Willits around 8:30 or 9:00 a.m. on Thursday, August 23, 1984.

Dennis Haun, 21 years old in 1984, lived in Willits in a house approximately one-quarter mile from Highway 101. He admitted to having had a sexual relationship with Walsh. On August 23, 1984, Haun encountered Walsh with some of her friends around 6:00 or 7:00 p.m. in the parking lot of the Safeway grocery store. The group decided to go to Haun's house for a party. The group was drinking, and when he and Walsh went into the bedroom together he was “pretty well drunk.” He passed out and was “not positive” whether or not he had had sex with Walsh. When he awakened later that night, naked, he found Walsh gone.

Francis McKinnon was working the graveyard shift-midnight to 8:00 a.m.-at the Circle K convenience store in Willits in August 1984. The store is located on Highway 101. She knew Walsh by name and by sight, but did not know her personally. McKinnon saw Walsh enter the store in the early morning hours-sometime after midnight but before 2:00 a.m.-on August 24, 1984. Walsh appeared to be alone, and she asked McKinnon if she had seen a boy in a red hat. McKinnon told her she had not. Walsh left the store, turned left, and walked in the direction of Highway 101. She appeared upset and could have been crying. After Walsh's murder, police showed McKinnon some photographs; she recognized defendant's picture as someone who previously had been in the store, but she could not be sure when.

3. Forensic Evidence

A medical examination determined Walsh had been killed by asphyxia due to strangulation, resulting in the deprivation of oxygen to her brain. Under such circumstances, the brain will die within five to eight minutes. The hyoid bone in her throat was fractured, and her larynx was bruised. She had apparently been thrown or dropped from the bridge, landing on her left side, and probably striking some trees on her way down. Some “faint red marks” on her ankles suggested the possibility she had been bound with some soft material. Her jeans and underwear bore evidence of urine. Her bladder was about half full; sometimes a person's bladder will empty partially or completely at death.

Walsh's body bore no evidence of sexual trauma to suggest that she had been raped. Vaginal swabs of the victim, however, revealed the presence of sperm, although testing of two separate vaginal swabs for blood type, PGM (phosphoglucomutase) enzymes, and secretor status of possible donors was inconclusive, partially because it could not be determined whether Walsh herself was a secretor or a nonsecretor, and partially because of the possibility that she had recently had sexual intercourse with Dennis Haun. Based on the fragmentary blood evidence, however, defendant could not be eliminated as the donor of the sperm.

Comparing the body's temperature and the ambient temperature, a pathologist estimated Walsh had been killed around 5:00 a.m. on August 24, 1984.

4. Crimes Against A.L.

Before the trial in this case, defendant was convicted of the rape, kidnapping, and attempted murder of A.L. The crimes against A.L. were committed four months after the murder of Walsh. The trial court admitted the evidence of these offenses in defendant's trial for the kidnap, rape, and murder of Walsh.

A.L. testified that on December 11, 1984, she was a 15-year-old 10th grader living in Fields Landing near Eureka, Humboldt County. She usually took an 8:00 a.m. bus to her school in Fortuna, but missed it that day so she started hitchhiking. Defendant, driving his brown truck and wearing a maroon shirt, stopped to give her a ride. He did not stop in Fortuna, however. He eventually pulled off the highway and pulled out a short, rusty pocketknife. A.L. grabbed for the knife, cutting her finger. When she attempted to get out of the truck, defendant pulled her back in and said he would not hurt her if she cooperated.

Defendant pushed A.L. into the sleeper compartment of the truck and told her to remove her clothes. She complied, and he bound her with black electrician's tape. He touched her vagina, but then decided to drive somewhere safer. As he drove, A.L. tried to bite off the tape binding her, but defendant told her to stop. She noticed a silver-colored revolver in the truck. Around this time, defendant told her he knew what he was doing. Defendant eventually stopped the truck and tied her hands with strips of cloth cut from a T-shirt. He then raped her before starting up the truck again.

A.L. saw a sign for Willits and realized they were driving south. Defendant told her he would find a safe place and then leave her blindfolded, tied to a tree. He also told her he could not live in jail and that he would die if sent to jail. At some point, defendant stopped the truck near the Russian River. He allowed A.L. to dress and then the two of them got out of the truck. A.L.'s hands were still bound, and she noticed defendant was carrying a pillow. Defendant led her down to the river and then tied her to a tree. He took the gun from his pocket and placed the pillow over it. A.L. asked him whether he was going to shoot her. He said he would not and then shot her in the head. She became dizzy, fell to the ground, and tried to remain motionless.

Defendant kicked her twice and asked her whether she was dead. He then shot her in the head again. Miraculously, neither bullet penetrated her cranium. Defendant untied her from the tree, dragged her to the river, and tried to roll her in. She got into the current and floated away, managing to untie her hands. She made her way to the other side of the river and obtained help. When police took her to the spot where defendant had...