People v. Kennedy

• Decision Date: 25 July 2005
• Docket Number: No. S037195.,S037195.
• Citation: 115 P.3d 472,31 Cal.Rptr.3d 160,36 Cal.4th 595
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jerry Noble KENNEDY, Defendant and Appellant.

31 Cal.Rptr.3d 160

36 Cal.4th 595

115 P.3d 472

The PEOPLE, Plaintiff and Respondent, v. Jerry Noble KENNEDY, Defendant and Appellant.

No. S037195.

Supreme Court of California.

July 25, 2005.

Michael Satris, Bolinas, CA, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Eric L. Christoffersen and Janis Shank McLean, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

A jury convicted defendant Jerry Noble Kennedy of one count of murder (Pen. Code, § 187, subd. (a))¹ and one count of robbery (§ 211). The jury found true an allegation that defendant used a firearm in committing the crimes (§ 12022.5, subd. (a)) and a special circumstance allegation that the murder was committed during a robbery (§ 190.2, subd. (a)(17)). The jury returned a verdict of death. The trial court denied defendant's motions for a new trial and for modification of the death verdict, and it sentenced defendant to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239.)

I. FACTS AND PROCEEDINGS

A. Guilt Phase

1. Prosecution's case

Around 4:30 a.m. on March 15, 1993, Janet Madsen and her friend Jay Blaylock were in a car parked under a light at Maxwell's Rest Stop off Interstate 5 in Colusa County. Madsen, who was asleep in the passenger seat, was awakened by the sound of a gunshot coming from the restrooms located 50 to 60 feet from the car. She saw a man come out from the men's side of the restroom, walk briskly down a sidewalk directly towards her, get into a car two parking spaces away from her on her right, and leave. During this time, Madsen was "locked in eye-to-eye contact with this man . . . ."

Madsen then saw a man stagger out of the men's restroom and collapse. As she ran towards the man to try to help him, Blaylock called the police on his cellular phone. Sheriff Deputy Randy Morton arrived five minutes later. Morton ran over to the victim, who was breathing but unable to speak, and radioed for help. When the emergency rescue team arrived approximately 10 minutes later, the victim had stopped breathing.

Deputy Morton interviewed Madsen at the scene. She described the person she saw came out of the restroom as a dark-skinned White male in his early 20's with bushy hair "almost like an Afro." He was wearing Levis and a dark jacket. He left in a brown compact car, which had dents and also had red and possibly blue primer paint. Madsen also gave a description to Deputy Sheriff Hameed Kahn, the second officer to arrive at the scene. Madsen told Kahn that the man who fled was a curly-haired White adult male about five feet eight or nine inches in height, weighing approximately 150 pounds, and wearing a dark-colored sweat shirt with dark-colored pants.

Madsen and Blaylock then left the scene and continued their trip. Later that morning, they stopped in Yreka at the Siskiyou County Sheriff's Department to see if they could be of further help. There, Madsen explained that she had been an eyewitness to a murder and she offered her cooperation in preparing a composite sketch of the man who fled the murder scene. Sergeant Gary Perry worked with Madsen in preparing the sketch. Her responses to a series of questions regarding the suspect's facial features included statements that the suspect's eyes were "large and wide-eyed" and that there "was no facial hair at all." Because Madsen was not satisfied with the depiction of the hair, eyes, and nose on the composite drawing produced by the computerized process, she tried to improve the sketch by drawing on it herself. She remained dissatisfied with the composite drawing, however.

Colusa County Sheriff's Detective David Markss, who had also responded to the scene of the murder, learned that the victim was Glenn Chambers from Linn County in Oregon. Markss obtained from the victim's family a list of his credit cards and their numbers and arranged for them to be "flagged," a procedure by which banks and credit companies would notify the police if someone used the credit cards. On the night of March 16, 1993, the day after the murder, a bank notified Detective Markss that one of the victim's credit cards was being used to hire a limousine in Sacramento. When Markss learned from the limousine service that it was sending a limousine to an address on Dawn Court in Sacramento, he contacted the Sacramento Police Department.

The Sacramento Police Department assembled a team of officers at an intersection near Dawn Court, where Colusa County Sheriff Gerald Shadinger joined them. When a car matching Madsen's description went by, they followed it to a convenience store, where they detained the car's three occupants, Doreen Westbrook, Jack Beach, and Melody Jean Phillips. Sheriff Shadinger asked Westbrook, "Who shot the guy in Maxwell?" She responded "Termite," defendant's nickname. She said that Termite was in an apartment at the Dawn Street apartments and that he was armed with a handgun and a machine gun.

As the police evacuated the neighboring apartments and surrounded the apartment building, a .38-caliber handgun wrapped in a white shirt was thrown from the balcony of the apartment where defendant was. The police announced their presence and ordered everyone out of the apartment. Ron Woods, also known as Ron Mead, was the first to emerge from the apartment, followed 11 minutes later by defendant, and then by Kimberly Crawford. Defendant was arrested. Defendant, then 37 years old, was six feet tall, and had a full mustache and goatee that covered the lower half of his face. Defendant's appearance did not resemble the composite sketch prepared earlier. Both Woods and Crawford informed the police that defendant told them of shooting someone at a restaurant and taking the victim's credit cards. The police later found the murder victim's credit cards in the yard of the apartment and on the balcony next door.

Doreen Westbrook, who had been granted immunity at the preliminary hearing, testified to the events leading up to and immediately after the murder. On the evening of March 15, 1993, after taking drugs with defendant, she and defendant left Sacramento in her car to drive to her mother's house in Rancho Tehama, near Redding, to sell drugs and take her niece to the hospital. They first stopped at the Dunnigan Rest Stop on Interstate 5, where they injected themselves with methamphetamine. As they continued north on Interstate 5, Westbrook and defendant talked about robbing people in restrooms. They next stopped at the Maxwell Rest Stop, where Westbrook went into the women's restroom to change clothes. When she came out of the restroom and returned to her car, she heard a gunshot. As Westbrook started the car so they could "get out of there quick," she saw defendant come out of the restroom pulling a ski mask off his head and walking fast, followed by the victim pleading for help. Defendant got in the car and told Westbrook "drive, girl, drive."

Westbrook drove out of the rest stop. As they continued north, defendant went through the victim's wallet. Commenting, "all of this for 11 bucks," defendant showed Westbrook a separate card case containing the victim's credit cards. When they arrived at her mother's house in Rancho Tehama, Westbrook suggested to her brother and his girlfriend that they use the credit cards. The four of them then drove to Corning and used the credit cards. They left for Chico, used the credit cards again, and finally headed to the Arden Fair Mall in Sacramento, where they again used the credit cards. Thereafter, Westbrook used one of the credit cards to rent a limousine to take herself, defendant, and some of their friends to breakfast at a restaurant. She paid with the murder victim's credit card.

That evening, Westbrook again used the victim's card in renting a limousine. When the limousine was late in arriving, she drove to a convenience store to telephone the limousine service; at that point, the police apprehended her. Later that night, she told Sacramento Police Officer Jim Bell that defendant was the killer. A couple of days later, Westbrook traveled to Colusa County, where she spoke to the police. She first told the police in the interview that a Billy Jinks, "one of the North Sac dope fiends," did the killing. She then told the police that defendant "killed the man." Westbrook initially blamed the killing on Jinks because defendant had called her the night before from the Colusa County jail and told her to lie and because her brother-in-law, George Westbrook, had threatened her by telling her: "If you don't ride the manslaughter you're not coming out of Colusa alive."

After defendant's arrest and arraignment, Janet Madsen, the eyewitness who had given the police a physical description of the killer, saw a newspaper article about the murder with a photograph of defendant's face with a beard. She was concerned that, having described the person she had seen at the rest stop to the police as having no facial hair, the police had arrested the wrong man. On April 7, 1993, Madsen and her friend Jay Blaylock drove to the City of Colusa to discuss the discrepancy with the police.

Madsen told Colusa County Sheriff's Detective Troughton that the newspaper photograph disturbed her because of the eyes and the beard. (Shortly after the murder, she had described the person at the rest stop as a clean-shaven man with large eyes.) Detective Troughton then showed Madsen a picture of defendant without a shirt on that disclosed tattoos on his chest of a swastika, a gun, and the name of his motorcycle gang. Madsen could not make an identification from this picture because it did not show defendant's eyes, which were downcast in the photograph. Madsen was then shown a videotape of defendant's arrest. When Madsen saw defendant's eyes as he looked up on the videotape, she said: "Oh, my God, that's...