People v. Kelly

• Decision Date: 16 January 1992
• Docket Number: No. S005092,S005092
• Court: California Supreme Court
• Parties: , 822 P.2d 385, 60 USLW 2543 The PEOPLE, Plaintiff and Respondent, v. Horace Edwards KELLY, Defendant and Appellant.

Page 677

3 Cal.Rptr.2d 677

1 Cal.4th 495, 822 P.2d 385, 60 USLW 2543

The PEOPLE, Plaintiff and Respondent, v. Horace Edwards KELLY, Defendant and Appellant.

No. S005092.

Supreme Court of California,

In Bank.

Jan. 16, 1992.

Rehearing Denied March 11, 1992.

Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, Therene Powell, Richard Avila, Los Angeles, and Sandra L. Goldsmith, Deputy State Public Defenders, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Keith I. Motley and Rudolf Corona, Jr., San Diego, Deputy Attys. Gen., for plaintiff and respondent.

ARABIAN, Justice.

This is an automatic appeal from a judgment of death. Defendant Horace Edwards Kelly was found guilty of two counts of first degree murder (Pen.Code, § 187) ¹, one count of rape (§ 261, subd. (a)(2)), one count of attempted rape (§§ 664/261, subd. (a)(2)), and one count of robbery (§ 211). The jury found that defendant used a firearm in the commission of each count (§§ 12022.3, subd. (a), 12022.5), and found true four special circumstance allegations: murder during the commission or attempted commission of rape as to both murders (§ 190.2, subd. (a)(17)(iii)), murder during the commission or attempted commission of robbery as to one murder (§ 190.2, subd. (a)(17)(i)), and multiple murder (§ 190.2, subd. (a)(3)). The jury also found defendant was sane at the time of the crimes, and then imposed the death penalty. ²

FACTS

The jury found that defendant murdered and attempted to rape Sonia Reed on November 16, 1984, and murdered, raped, and robbed Ursula Houser the next day. Both murders were committed in San Bernardino.

I. Guilt Phase Evidence

A. Prosecution Evidence

Sonia Reed spent part of the early morning hours of November 16, 1984, with Gary Venable. Venable last saw her around 4 to 4:30 a.m. when he dropped her off at the corner of Waterman and Orange Streets, near an area called the Waterman Gardens. Around 4 a.m. that morning, Linda Millette, who lived in the area, heard a scream. A little later, around 4:20 to 4:30, she heard a gunshot followed, about 30 seconds later, by a second gunshot. Around the same time another area resident, Irene Gamboa, heard a "bang" that sounded like the "backfire of a car," and a voice saying, "Oh, God," or "Oh, my God." Gamboa was not certain whether she heard the voice or the bang first. She thought the voice sounded like a male. Gamboa heard a second bang about four to five minutes after the first.

Later that morning, Reed's body, nude from the waist down, was discovered behind a headstone at a memorial business at Tenth and Waterman Streets. Various items of female clothing were strewn about the body. The victim's bra was unfastened.

An autopsy revealed Reed had been shot twice. The first shot was through the back, severing the spinal cord and penetrating the heart. The bullet was recovered inside the victim's jacket, indicating it hit a hard object such as concrete which stopped its flight. This wound would have caused immediate paralysis from the waist down. The second shot, fired about one to three minutes after the first, went into the back of the head and out through the right lower eyelid. It would have caused instant death. The nature of the wound indicated the head had been bent backwards at the time of the shot. Both wounds were "contact wounds"; the "muzzle of the gun [was] held tightly against the body." There was no vaginal trauma. A small amount of semen was found that did not come from defendant.

Ursula Houser was with Gerrard Timper and others the morning after the Reed murder. She was wearing a leopard skin design dress. Timper left Houser around 4 to 5 a.m. in an alley behind a bowling alley near Highland Avenue and D Street. Houser's body, also nude from the waist down, was discovered in the alley later that morning. Some distance from the body was a pool of blood, with drag marks leading from the blood to the body. Near the blood were some makeup articles and women's shoes. Plastic bags, a purse, pantyhose and panties were close to the body. It appeared that Houser had been shot by the pool of blood, then dragged face down by the feet to where the body was found.

An autopsy revealed that Houser died of a single gunshot wound that entered the back of the head and traveled through the brain. As with Reed, the muzzle of the gun had been pressed against the head. Brain death would have occurred almost instantly, although the heart might have continued to pump for a short time. The body was thus essentially dead before it was dragged away. A black hair not from the body was found among the victim's pubic hair, and another on her back under the dress. There was no evidence of vaginal trauma. A very small amount of sperm was found. Sexual contact connected to physical evidence probably occurred about 24 hours before death, although there could have been more recent sexual contact that left no trace.

Defendant lived in the Waterman Gardens area, near the scene of the Reed murder. Records showed that he purchased a Dan Wesson .357 magnum handgun on September 11, 1984. Between 4 and 5 a.m. on both November 16 and 17, 1984, that is, around the time of the murders, defendant drove his stepson, Thomas Fields, Jr., to work in defendant's van. On both occasions, defendant dropped Fields off on East Highland Avenue and drove away alone.

Defendant was arrested while driving his van on November 22, 1984. Eight rounds of unexpended .357-caliber ammunition were in his left trouser pocket. His .357 magnum was found hidden behind the left rear taillight of the van. Forensic tests conclusively established that the handgun fired the bullets into Reed's back and Houser's head. The bullet fired through Reed's head was never recovered.

The police searched defendant's home pursuant to a search warrant. They seized a ring that defendant's wife pointed out in their bedroom. The police obtained a second ring which defendant had sold to his mother-in-law shortly after the Houser murder. John Brown, Houser's boyfriend, testified that the two rings belonged to her. She routinely wore them when "she went out," although she would take them off when she was doing chores at home. When Brown last saw Houser the evening before she was murdered, she was not wearing the rings. She was dressed in blue jeans, and had been working in the garden.

Defendant was interviewed after his arrest. An edited tape of the interview was played to the jury. Defendant denied the murders at first, but then confessed to them. He stated repeatedly that he had had vaginal sex with both victims before he shot them. He said he was not in his "right state of mind," and was having "headaches." He admitted obtaining the two rings, and giving one to his wife and selling the other to his mother-in-law. He said, however, that Houser was not wearing the rings; he found them in a trash can.

B. Defense Evidence

Christine Kelly testified she married defendant, who is 18 years younger than she, in April 1984. Defendant obtained a job as a security guard and applied for another job with the sheriff's department. He told Christine he had bought the gun to make more money in his work and to protect her. Defendant complained of "headaches all the time." She never knew him to be violent.

II. Sanity Phase Evidence

The defense presented two expert witnesses, Dr. Jerry Hoyle, a clinical psychologist, and Dr. Richard Rappaport, a psychiatrist. Dr. Hoyle had examined defendant regarding his claims of extreme facial pain, which was apparently related to a dental problem. After examining defendant, reviewing records, and administering a standard MMPI (Minnesota Multiphasic Personality Inventory), Dr. Hoyle opined that defendant had a "psychotic-like disturbance." He had "impaired intellectual ability of some kind," which caused him to "misinterpret[ ] and distort[ ] incoming information...." He suffered from an "attention deficit disorder" and a "schizotypal personality disorder." He was not psychotic. He had "dull normal" intelligence, and was brain damaged. Dr. Hoyle also opined, however, that defendant understood the difference between right and wrong and understood the nature and quality of his acts.

Dr. Rappaport examined defendant and reviewed various reports and tests. Defendant was born seven weeks prematurely. He told Dr. Rappaport about his difficult childhood, and said that his father had abused him. Dr. Rappaport concluded that defendant "is not a violent person." Some "kind of unconsciousness or unconscious impulse ... led him to violence." He was "brain damaged" and "impaired on a mental basis," but not necessarily psychotic. He had a dysfunction causing him to react spontaneously, in "almost a knee jerk reaction." His intellectual functioning was "borderline."

Dr. Rappaport also believed that defendant "has at times difficulty in knowing the nature and quality of his act[s] and at times [has] questions about whether or not things are right or wrong." Generally, however, defendant "does know right from wrong." Defendant knew what he was doing at the time of the murders, and knew the difference between right and wrong. Therefore, Dr. Rappaport believed that at the time of the murders, defendant was sane under the California definition of sanity.

The prosecution presented one witness, Dr. David Hinshaw, a radiologist who reviewed a CAT scan taken of defendant. The only "flaw" Dr. Hinshaw found was a slight dilation of the "temporal horns that pass through a portion of the fluid filled spaces of the brain" and a "few of the sulci spaces, that is the spaces between the folding of the surface of the brain." It was a "minor change," was "very common," and did not necessarily suggest mental illness.

III. Penalty Phase Evidence

A. Prosecution Evidence

The prosecution presented evidence of criminal activity...