People v. Kimble

• Citation: 44 Cal.3d 480,749 P.2d 803,244 Cal.Rptr. 148
• Court: United States State Supreme Court (California)
• Decision Date: 25 February 1988
• Parties: , 749 P.2d 803 The PEOPLE, Plaintiff and Respondent, v. Eric B. KIMBLE, Defendant and Appellant. Crim. 21962.

Page 148

244 Cal.Rptr. 148

44 Cal.3d 480, 749 P.2d 803

The PEOPLE, Plaintiff and Respondent, v. Eric B. KIMBLE, Defendant and Appellant.

Crim. 21962.

Supreme Court of California.

Feb. 25, 1988.

As Modified.

Rehearing Denied April 21, 1988.

Donald Kerson, Deputy Public Defender, State Public Defender, San Francisco, for defendant and appellant.

Robert F. Katz, Deputy Atty. Gen., Office of the Atty. Gen., Los Angeles, for plaintiff and respondent.

LUCAS, Chief Justice.

This is an automatic appeal (Pen.Code, § 1239, subd. (b)) ¹ from a judgment of death imposed under the 1977 death penalty law. (Former § 190 et seq., Stats.1977, ch. 316, § 4 et seq., pp. 1256-1262.) Defendant raises numerous claims of error relating to the guilt, special circumstance and penalty phases of the proceedings. We conclude that the judgment should be affirmed in its entirety.

I. FACTS

In the afternoon of August 12, 1978, Harry and Avone Margulies were killed in their home in the Doheny Estates neighborhood in Los Angeles. That same evening, Beverly Stereo Electronics, a retail stereo equipment store owned by Harry, was burglarized and numerous pieces of stereo equipment were taken. The crimes of which defendant was convicted relate to these two incidents. We briefly summarize the facts as disclosed by the record.

A. The Crimes at the Victims' Residence

About 1:30 p.m. on the day of the murders, the Margulies' next door neighbor discovered a young man with a black briefcase hiding in the bushes outside of the Margulies' residence. The man told the neighbor that he was hiding from some people who were after him, but the neighbor did not see anyone around. The neighbor told him to leave the area and the man walked around the corner and out of view. At trial, the neighbor identified defendant as the person he had seen outside of the Margulies' home that day.

The day in question was a Saturday, and, as was his custom, Harry worked in his store in the morning and returned to his home in the early afternoon. His son testified that he telephoned his father at home between 3 and 4 p.m. and that nothing during their conversation suggested that anything unusual had occurred or was occurring at the house.

Both the Margulies' home and their stereo store had burglar alarm systems which had been installed and were monitored by Pacific Alarm. Sometime after 4 p.m., the burglar alarm at the Margulies' residence went off; the alarm was set to sound both in the house and at Pacific Alarm's offices. Shortly thereafter, the Margulies' daughter, who worked at her father's store, received a call from the alarm company informing her that the alarm at the house had been triggered. After telephoning the residence but receiving no answer, she drove to the home. She found the front door ajar, and, as she started to enter the house, saw her mother's dead body on the floor. She ran to a neighbor's home and called the police.

On their arrival, the police found the dead bodies of Avone and Harry in the front hallway. The eyes and mouths of both victims had been covered with adhesive tape, and both had had their hands secured behind their backs--Avone with cord and Harry with a pair of handcuffs. Harry's body was found fully dressed but Avone's was nude. Each victim had died from a single gunshot wound to the chest area fired from a .45 caliber handgun. Later laboratory tests found semen in Avone's vagina.

The police found a number of items in the house that other family members testified had not been there before the commission of the crimes: a black briefcase with a box of ammunition on the kitchen floor, and a bicycle cable and lock in one of the bedrooms.

Neither Avone's purse nor Harry's wallet had been stolen during the incident. One of the investigating officers testified, however, that he could not recall whether any money had been found in Harry's wallet at that time. Family members reported that a set of Harry's keys--which included all of the keys to his stereo store--had apparently been taken because they were not in their usual location on the top of a buffet in the dining room.

B. The Stereo Store Burglary

The sales manager at Beverly Stereo testified that on that same day, August 12, he locked the store at 6 or 6:15 p.m. and set the burglar alarm. At 8:05 p.m., a police officer received a radio call directing him to investigate the activation of a silent burglar alarm at Beverly Stereo that had apparently been reported by the alarm company. When he arrived at the store, the officer found all of the doors locked and observed nothing out of the ordinary; after investigating for five or ten minutes, he left.

Several hours later, between 11 and 12 that night, the store's burglar alarm system again activated a signal at the alarm company's offices. The alarm was tripped and reset a number of times, indicating that someone was walking around the premises, opening and closing the store doors. The police were again notified, and this time the report of a possible burglary at the store was directed to the detectives who were investigating the Margulies' murders. The detectives went to the store where they were met by an employee from the alarm company who had keys to the building. There was no sign of a break-in or forced entry, but when the detectives entered with the alarm company employee it was evident that the store had been ransacked. A later inventory revealed that many pieces of stereo equipment had been taken from the store that night.

C. The Investigation

On Monday, August 14, two days after the burglary, a couple who had been driving in the vicinity of Beverly Stereo between 11:15 and 11:30 p.m. on the night of the burglary, reported to the police that they had observed unusual activity outside the store at that time. The couple stated that they had seen a car driving slowly out of an alley behind the store, with someone running alongside the car holding several boxes that were resting on its hood. After turning out of the alley, the car stopped behind another car which was parked directly across from the stereo store. Because this activity appeared suspicious, the couple wrote down the license plate number of the car that had come out of the alley. They gave this information to the police on August 14.

By running a check on the license number, the police determined that the car was owned by Ortez Winfrey (Ortez). ² The police sought and secured a warrant to search Ortez' home, and executed it on the morning of August 16, arresting Ortez and finding a large number of stereo equipment components and boxes which had been taken from Beverly Stereo. Later that morning, while in custody, Ortez gave a statement to the police concerning his participation in the burglary.

According to Ortez' statement, defendant, a long time friend, had approached him late in the afternoon of August 12 to ask if Ortez would help defendant remove some stereo equipment from the Beverly Stereo store. Ortez said that defendant showed him the keys to the store and told him that he was employed at the store and was removing the equipment at the request of the owner; Ortez admitted, however, that at some point during the evening's activities, he realized that they were actually stealing the equipment. Ortez stated that the first time he and defendant drove to the store, defendant simply opened the front door with the store keys, to show him that the keys really were to the store; he then relocked the door and they went out to eat, planning to return later. Ortez stated that they later picked up William Grant, a mutual acquaintance. The three returned to the store and removed numerous boxes of stereo equipment. In response to the officers' questions, Ortez indicated that he had previously seen defendant with a black briefcase and with a handgun resembling a .45 automatic.

After learning of defendant's identity from Ortez, the detectives checked defendant's fingerprints--which were apparently available from existing criminal records--against the fingerprints that had been found at the murder scene. The tests indicated that defendant's prints matched prints found in several locations in the Margulies' home. On the strength of this match, Ortez' statement, the stereo equipment found in Ortez' possession, and the facts supporting the initial search warrant for Ortez' home, the detectives obtained warrants to search defendant's and William Grant's residences. The searches were conducted that same day, August 16, and stereo components that had been taken from Beverly Stereo were found in both homes. In addition, the keys that had been taken from the Margulies' house were found in defendant's residence. Grant and defendant were arrested.

After being advised of his Miranda rights, defendant initially agreed to talk to the police. He denied that he had committed burglary or murder, claimed that he had bought the stereo equipment several months earlier from a stranger on the street, disclaimed any knowledge of the Margulies' keys, and stated emphatically that he had never been in any house in the area of the city in which the Margulies' home was located. When the interrogating officers indicated that they did not believe him, he asked to see a lawyer and the interrogation ended.

On the basis of the foregoing matters, defendant was charged with two counts of murder (§ 187), two counts of burglary (§ 459), two counts of robbery (§ 211), and one count of rape (§ 261, subds. (2), (3)); use of a firearm (§§ 12022.5, 1203.06, subd. (a)(1)(i)) and great bodily injury (§ 1203.09) allegations were also alleged. With respect to the murder of Harry Margulies, three special circumstances were alleged: (1) robbery felony murder (former § 190.2, subd. (c)(3)(i)), (2) burglary felony murder (id., subd. (c)(3)(v), and (3) multiple murder (id., subd. (c)(5)). With respect to the murder of Avone Margulies, four special circumstances were alleged: the same three as alleged...