People v. Johnson, s. A051239
| Decision Date | 20 October 1993 |
| Docket Number | Nos. A051239,A052254,s. A051239 |
| Citation | 19 Cal.App.4th 778,23 Cal.Rptr.2d 703 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 62 USLW 2308 The PEOPLE, Plaintiff/Respondent, v. Andre JOHNSON, Lawrence Woodward, Defendants/Appellants. |
Cliff Gardner, Robert Derham, Gardner & Derham, San Francisco, for defendant/appellant Andre Johnson.
Kathy M. Chavez, Berkeley, appointment under the First District Appellate Project, for defendant/appellant Lawrence Woodard.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Aileen Bunney, Gerald A. Engler, Supervising Deputy Attys. Gen., San Francisco, for plaintiff/respondent People.
After a prison guard, Sergeant Dean Burchfield, was speared to death inside San Quentin Prison, three inmates affiliated with the Black Guerilla Family (BGF) were charged with conspiracy to murder (PEN.CODE, § 182)1 and murder (§ 187). A special circumstance, the murder of a peace officer, was also alleged. (§ 190.2, subd. (a)(7).)
Appellant Andre Johnson was found guilty, and the jury recommended the death penalty; however, the trial judge reduced the penalty to life imprisonment without possibility of parole, together with a consecutive sentence of 25 years to life for conspiracy to commit murder. The trial court imposed the same sentence on appellant Lawrence Woodard, after the jury was unable to agree on the penalty. Their codefendant, Jarvis Masters, was also found guilty and was sentenced to death; his automatic appeal has been pending before our Supreme Court since 1990 (People v. Masters (S016883)).
In the published portions of this opinion, we hold: (1) The trial court did not abuse its discretion in rejecting appellants' attempts to offer expert testimony, which tended to show that other witnesses may have a tendency to tell untruths; and (2) the trial court did not err when it allowed the jury to recess its deliberations over the Christmas holidays, pursuant to the prior agreement of all parties acting through their counsel.
I. APPELLANTS' CONTENTIONS **
II. FACTS AND PROCEDURAL HISTORY
We summarize the evidence adduced at trial, in order to provide background to the legal issues raised by appellants.
A prosecution witness testified that in 1985 he was an inmate serving a sentence at San Quentin, and was the intelligence officer, or "Akili," of the BGF gang in the Carson, or "C," section of the prison.
The BGF gang was organized along paramilitary lines, with titles or ranks, Swahili names, and code names. Appellant Woodard was a lieutenant in the BGF gang, and was also called "Old Man Askari," with the code name "M-II." Appellant Johnson was a lower-ranking member of the BGF, with the nicknames "Little Askari" and "Somo." Their codefendant, Masters, was the security officer, or "Usalama," and was also called "Askari," with the code name "U-I."
The gang decided to plan the killing of four or more prison guards, in order to "start a war ... by striking police." The plan was for the BGF gang to kill two guards, and their allies in the Crips gang would also kill two; then the BGF gang and the Crips would attack other inmates associated with rival prison gangs.
Woodard met a number of times with Masters and other BGF gang members, during their regularly scheduled exercise periods, to plan the attacks. It was decided that Burchfield would be the first victim of the conspiracy, since the BGF members believed Burchfield had been bringing weapons and ammunition into the prison for a rival gang, the Aryan Brotherhood or AB's.
An inmate testified he suggested that appellant Johnson, one of the inmate's students in a BGF political study class, would be the best person to perform the first killing, since he was housed in a cell on the second of the vertical "tiers" of C-section, where the poor lighting conditions would allow him to carry out the murder unobserved by the victim or other guards. There were discussions regarding monitoring Burchfield's movements around the tiers and his contact with inmates; it was also reported that Burchfield was wearing an armored vest to protect himself from attack. A plan was made to cut up part of a metal bedstead and turn the pieces into sharpened knives.
Masters directed that Johnson should carry out the killing, since it was dark outside Johnson's cell on the second tier. Burchfield would be attracted to the area of Johnson's cell, and then would be stabbed.
The BGF gang leaders met with leaders of the Crips gang, to tell them of the plan to kill Burchfield and to secure confirmation of the Crips's agreement to carry out a subsequent slaying of another guard after Burchfield was killed. The BGF members agreed to help the Crips by sending them a hacksaw blade which could be used to cut up metal beds into knives.
An inmate, a BGF member, agreed to make a shaft for a spear so that the sharpened knife could be attached to the spear shaft, in order to allow Johnson to reach out of his cell and kill Burchfield as he walked past on the second tier. BGF members worked on cutting up the metal bed in the cell of a BGF member and preparing a knife to go on the spear shaft.
Johnson's cell, from which he would spear Burchfield, is called 2-C-2, meaning it was the second cell on the second floor or tier in the Carson section. Due to the lighting conditions in the Carson section at that time, the second tier was dark and largely unlighted at night, so that the spearing of Burchfield would not be visible. In order to remove the evidence from Johnson's cell after he speared Burchfield, it was arranged that a "fishline" should be used to carry the evidence off to the nearby cell of another BGF member who would dispose of the evidence.
The killing took place on June 8, 1985, a Saturday. Burchfield worked a night shift on Saturday night, taking an inmate count around eleven o'clock. Masters had arranged that another inmate would call out the words " 'Solid Gold' " as a warning, when Burchfield began moving from the lower, or first tier, up to the second tier where Johnson was waiting with his spear.
Burchfield had begun to make rounds and count the inmates slightly after eleven o'clock; the tiers were unusually noisy that evening. He did not carry a firearm, and took with him only a flashlight and a cigarette lighter, so that he could give a light to inmates who asked for one. While Burchfield walked along the tiers outside the cells, he was covered by an armed guard, Officer Rick Lipton, walking the separate gunrail or gun walk behind him.
Lipton moved along the gunrail and watched Burchfield's course as he walked the tiers. Lipton generally stayed parallel to Burchfield and a step or two behind him. Due to the poor lighting under the second tier, Lipton could only see Burchfield's legs. Burchfield was walking close to the bars of the cells, flashing his flashlight into the cells to check on the inmates.
Next, Lipton saw that Burchfield was "hit" when he was standing outside cell number 2-C-2, the cell of appellant Johnson. Lipton testified he had originally thought, had reported at the time, and had testified at the preliminary hearing, that instead the "hit" occurred two cells down, near cell 2-C-4, the cell of a Crips gang member. However, he testified at trial that his prior testimony was erroneous; and he suggested the discrepancy arose as a result of the fact that Lipton himself had been standing parallel to cell 2-C-4, since he had gotten ahead of Burchfield, who appeared to stop or turn to talk to someone at around cell 2-C-2; then he was "hit" and staggered forward toward cell 2-C-4 before collapsing. Lipton did not have a clear view of the killing and did not fire his gun; he blew his whistle to summon help.
Forensic testimony established that Burchfield had died of a single relatively small, sharp-edged stab wound to the upper chest; the wound had severed his pulmonary artery, causing him to collapse and bleed to death.
After the stabbing, officers recovered a sharpened piece of metal from the area beneath the level of appellant Johnson's cell. Shortly after the crime, officers also discovered nearby a homemade spear shaft, made of rolled-up newspapers bound together with cloth. Also after the murder, Officer Thomas Arzate was removing another inmate from his cell near the cell of appellant Johnson. Johnson told Arzate that if anything happened to the other inmate, " 'you ... will be the next one speared.' "
The day after the murder, and for some days thereafter, an inmate began trying to contact the authorities with an offer of his knowledge and testimony regarding the murder, in exchange for early release from prison. He also provided copies of incriminating documents--messages passed by inmates called "kites"--which an expert in handwriting testified had been written by appellant Woodard and his codefendant Masters, and which discussed their roles in the murder in some detail. An investigator interviewed the inmate and promised him he would be released early in return for his testimony, but the prosecutor refused to honor that deal. Instead, the inmate testified for the prosecution under a grant of immunity for all the crimes he had committed in prison; and with a guarantee that, for his own safety, he would serve the remainder of his term outside California.
There was also evidence of subsequent statements made, by appellants and others, which implicated appellants in the murder. For instance, an inmate testified that he had been a member of the Central Committee of the BGF at San Quentin during the relevant 1985 time period, but had not been informed of...
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