People v. Kelly

• Decision Date: 31 July 1986
• Docket Number: No. A021335,A021335
• Citation: 183 Cal.App.3d 1235,228 Cal.Rptr. 681
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert E. KELLY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 681

228 Cal.Rptr. 681

183 Cal.App.3d 1235

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert E. KELLY, Defendant and Appellant.

No. A021335.

Court of Appeal, First District, Division 3, California.

July 31, 1986.

Review Denied November 19, 1986.

Paul D. Wolf, Clifford J. Baker, Oakland, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Eugene W. Kaster, Morris Lenk, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

WHITE, Presiding Justice.

Defendant and appellant Robert E. Kelly and codefendant Maurice J. Keenan were jointly tried before a death-qualified jury in the Superior Court of the City and County of San Francisco. Each was jointly charged on six separate counts, namely, murder (Pen.Code, § 187), burglary (Pen.Code, § 459), two counts of attempted robbery (Pen.Code, §§ 664/ 211), robbery (Pen.Code, § 211) and possession of a sawed off shotgun (Pen.Code, § 12020). Enhancement allegations were also charged for firearm use (Pen.Code, §§ 12022.5, 1203.06, subd. (a)(1)). Appellant was found guilty of all charges including first degree murder under the felony-murder doctrine. Codefendant Keenan was also convicted of the six common charges but was found guilty of first degree murder under special circumstances allegations (Pen.Code, § 190.2, subds. (a) 17(i) and (vii)), allowing for the imposition of the death penalty. Appellant was sentenced to a twenty-five years to life imprisonment term. The death penalty was imposed on codefendant Keenan.

Appellant contends on appeal that by denying his motions for severance of trial, the trial court (1) abused its discretion; (2) deprived him of a trial by a jury representing a cross-section of the community; (3) denied appellant equal protection and due process of law; and (4) led to a violation of appellant's right not to incriminate himself. Alternatively, appellant contends that the trial court erred in sentencing him to the term provided for first degree murder.

I

On July 8, 1979, at 9:00 p.m., appellant and codefendant Maurice J. Keenan entered Robert Opel's residence and art gallery in San Francisco. Present in the gallery were Opel and acquaintances Anthony Rogers and Camille O'Grady. After entering, Keenan opened a briefcase he was carrying and took out a pistol, appellant took out a sawed-off shotgun. Brandishing the weapons, first Keenan, then appellant demanded money or drugs from Opel who denied having either. Appellant then approached Rogers and O'Grady, pointed his gun at O'Grady and threatened to "blow her head off" unless they were given what they wanted.

Keenan subsequently ordered appellant to take Rogers and O'Grady to another area of the gallery with instruction to "take them out." Appellant moved the pair to the kitchen area and forced them to lie on the floor. Pointing the gun at their heads, he repeated his demand for drugs or money. Rogers surrendered $5, appellant then rifled through O'Grady's pocketbook and took Rogers' camera which lay nearby. Throughout, both O'Grady and Rogers were still able to hear Keenan and Opel arguing.

Either two or three gunshots were heard by the pair with the sound of a falling body following the last shot. Keenan then ordered appellant to "kill them both" before fleeing. Appellant did not kill them but only loosely bound their hands together with a telephone cord. Before leaving, appellant told the witnesses that if they ever identified either assailant, they would be dead. After Keenan and appellant left, the pair untied their hands and found Opel dead on the floor of the gallery bleeding from the head.

Appellant was arrested on July 10, 1979, and gave a tape-recorded confession to the police. O'Grady and Rogers positively identified Keenan and appellant at a police lineup on July 11, 1979.

At trial, appellant testified he had accompanied Keenan on the robbery as a "backup man." He also stated that he needed money at the time of the robbery but did not anticipate any physical violence occurring. Although admitting to holding O'Grady and Rogers at gunpoint, appellant stated he assisted in the robbery because he feared reprisal from Keenan if he refused. Appellant claimed he was afraid of Keenan but was never directly threatened by him.

Testimony revealed that appellant had undergone psychiatric treatment starting at age nine or ten for emotional problems and had also attempted suicide. At age thirteen, appellant started experimenting with drugs, eventually earning money by buying and selling marijuana. For a few weeks prior to the incident, Keenan and appellant together had regularly used large amounts of methamphetamine.

Expert psychiatric testimony portrayed appellant as exhibiting a borderline personality disorder. Symptoms of the disorder include generalized inadaptability, dependency, formation of intense but short-lived relationships, poor judgment and impulsivity. One psychiatrist found consistency between appellant's personality type and participation in a crime where he genuinely feared retribution from a "commanding personality."

II

Appellant and codefendant Keenan were jointly charged and tried on six identical counts. Appellant contends the trial court abused its discretion by denying his motions for severance. Because of an allegation of special circumstances (Pen.Code, § 190.2, subds. (a)17(i) and (vii)) was charged against only Keenan, appellant claims "prejudicial association" was cast upon his case by the "spectre of the death penalty" inherent in Keenan's situation.

In People v. Massie (1967) 66 Cal.2d 899, 59 Cal.Rptr. 733, 428 P.2d 869, the California Supreme Court noted the trial court had discretion in granting or denying a motion for severance. Under Penal Code section 1098, the "Legislature has decreed joint trials to be the rule and separate trials the exception." (Id., at p. 923, 59 Cal.Rptr. 733, 428 P.2d 869.) Further, the right to a separate trial is not so fundamental that an improper denial of severance will automatically require a reversal. Instead, there must be a weighing of "the prejudicial impact of all the significant effects that may reasonably be assumed to have stemmed from the erroneous denial of a separate trial." (Ibid.) Reversal (of the denial) will occur only where there is shown "a reasonable probability that the [appellant] would have obtained a more favorable result at a separate trial." (Id., at pp. 922-23, 59 Cal.Rptr. 733, 428 P.2d 869; see also People v. Ortiz (1978) 22 Cal.3d 38, 46, 148 Cal.Rptr. 588, 583 P.2d 113.) Two major considerations are: (1) whether the separate trial would have been less prejudicial than the joint trial, and (2) whether there was clear evidence of defendant's (appellant's) guilt. (People v. Massie, supra, 66 Cal.2d at p. 921, 59 Cal.Rptr. 733, 428 P.2d 869; see also People v. Ortiz, supra, 22 Cal.3d at p. 46, 148 Cal.Rptr. 588, 583 P.2d 113.)

Appellant specifically claims the joint trial prejudiced him by (1) interfering with plea negotiations, (2) delaying trial, and (3) limiting his participation in jury selection. Relative to the first consideration of Massie, prejudice will never be presumed at the appellate level, it is incumbent upon appellants to affirmatively show they have been prejudiced by an alleged error. (Ravel v. Hubbard (1952) 112 Cal.App.2d 255, 258, 246 P.2d 88.) Further, if the purported prejudice is not evident on the face of the record, then the appellant must not only prove its existence but show that he was sufficiently prejudiced to justify reversal. (Tupman v. Haberkern (1929) 208 Cal. 256, 263, 280 P. 970; Buckley v. Chadwick (1945) 45 Cal.2d 183, 203, 288 P.2d 12.)

Using these criteria in the instant case shows appellant failing to fulfill his burden of proving, to a reasonable probability, that the granting of a separate trial would have resulted in a decision any more favorable to his case. The prejudice alleged appears in the record only as unsubstantiated speculation on the appellant's part. In sum, neither the prejudice nor its gravity is sufficiently proven by appellant.

An examination of the second Massie consideration--whether there was clear evidence of defendant's guilt--similarly reveals little error in the trial court's exercise of discretion. Even without considering appellant's testimony during trial or the tape-recorded statement made prior to trial, the testimony of eyewitness O'Grady in addition to all other evidence presented at trial appears conclusive as to the identity of the appellant and his participation in the crimes. Whether separate or joint trials were held, it is hard to conceive of any different result relative to the appellant.

This court does realize that in a joint trial of a multiple number of defendants a codefendant may suffer "associational prejudice." (People v. Massie, supra, 66 Cal.2d at p. 917, 59 Cal.Rptr. 733, 428 P.2d 869.) In light of the strong preference for joint trials (under Pen.Code, § 1098) and the discretion afforded the trial court in severance motions, relief can only be granted when, in a case-by-case analysis, clear evidence showing prejudice is offered. (People v. Clark (1965) 62 Cal.2d 870, 883, 44 Cal.Rptr. 784, 402 P.2d 856; People v. Eudy (1938) 12 Cal.2d 41, 46, 82 P.2d 359.) In the instant case, however, no tangible proof of prejudice has been offered, consequently, appellant cannot prevail on this point.

III

Appellant also argues the trial court's refusal to grant severance exposed him to a death-qualified jury, depriving him of his constitutional right to an impartial jury representative of the "full spectrum of community attitudes appropriate to [his] noncapital case[ ]."

The Supreme Court has consistently held that "exclusion of jurors opposed to capital punishment from the guilt trial [does] not deny the defendant a fair and impartial jury." (People v. Fields (1983) 35 Cal.3d 329, 343, 197 Cal.Rptr. 803, 673 P.2d 680; People v. Thomas (1967) 65 Cal.2d 698,...