People v. Leach

• Citation: 710 P.2d 893,221 Cal.Rptr. 826,41 Cal.3d 92
• Decision Date: 31 December 1985
• Docket Number: Cr. 21586
• Court: California Supreme Court
• Parties: , 710 P.2d 893 The PEOPLE, Plaintiff and Respondent, v. Michael Todd LEACH, Defendant and Appellant.

Page 826

221 Cal.Rptr. 826

41 Cal.3d 92, 710 P.2d 893

The PEOPLE, Plaintiff and Respondent, v. Michael Todd LEACH, Defendant and Appellant.

Cr. 21586.

Supreme Court of California.

Dec. 31, 1985.

Rehearing Denied Jan. 30, 1986.

Quin Denvir, State Public Defender, under appointment by the Supreme Court, Harriet Wiss Hirsch and Kathleen Kahn, Deputy State Public Defenders, Gail R. Weinheimer, San Francisco, and Melissa W. Johnson, Palo Alto, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Thomas Y. Shigemoto and Edmund D. McMurray, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, ^* Justice.

Defendant Michael Todd Leach was convicted of one count of first degree murder (Pen.Code, § 187) ¹ and of one count of robbery ( § 211). The jury found that Leach personally used a deadly weapon in the commission of the murder and robbery ( § 12022, subd. (b)). Special circumstance allegations that the murder was intentional and involved the infliction of torture ( § 190.2, subd. (a)(18)) and that the murder was committed while Leach was engaged in or was an accomplice in the commission of robbery ( § 190.2, subd. (a)(17)(i)) were found to be true. The judgment of death was entered under the 1978 death penalty law ( § 190.1 et seq.). The appeal is automatic. (Cal.Const., art. VI, § 11; Pen Code, § 1239, subd. (b).)

For reasons hereafter stated, we affirm the judgment of guilt and reverse the penalty.

I. Facts

On October 11, 1979, Michael Messer's body was found in a fig orchard near Fresno. It had suffered 48 stab wounds. The prosecution's case, presented mainly by the testimony of friends of Leach who witnessed or participated in events just before and after the murder, painted the following picture: ² On October 10, Messer, who was 17 years old, and friends pooled money for the purchase of hallucinogenic mushrooms and approached Leach. Leach arranged to sell Messer the drugs at Leach's apartment ³ at a specified later time. Leach then prevailed on his friends to rob Messer at the prescribed time. ⁴ Somehow, Messer escaped and, with funds ($600) intact, returned to his own apartment. Fifteen minutes later, Leach and Jones visited Messer to convince him to go ahead with the drug purchase. Despite warnings from his friends that he had been "set up," Messer returned to Leach's apartment. He brought along a knife that one of his friends had given him for self-protection.

In Leach's apartment, the three youths discussed the mushroom purchase. Messer was told it would take 30 to 45 minutes to set up the deal. He went back to his apartment, on the floor above, to wait. After Messer left, Leach told Linda that he and Jones were going to "take him out and beat the shit out of him" and take his money. Leach and Jones then left the apartment and drove, in a pickup truck owned by Jones' father, to the apartment of Eric Olson, one of the participants in the earlier attempted robbery.

There Leach told those present that he intended to take Messer out to the country, rob him, and kill him. ⁵ In return for $100 from the proceeds of the anticipated robbery, Michael Deseguirant agreed to help Leach carry out his plan. Deseguirant was to assume the role of a go-between in the purchase and, on his motorcycle, was to lead Messer, who would be with Leach and Jones, out to the country on the pretense of completing a drug purchase.

Leach and Jones returned to their apartment building to get Messer and brought him back to Olson's where he waited in the truck while Leach and Jones reentered Olson's apartment. As they left, Leach again told those present that he and Jones were going to rob and kill Messer. Witnesses testified that Leach was carrying a knife in a sheath inside his leather jacket.

Deseguirant testified that he led the truck to the outskirts as planned. He turned off at some point and watched as the truck went ahead for a short distance and then pulled into a fig orchard. Deseguirant returned to Olson's apartment.

What happened at the fig orchard was related primarily by Linda Grant who had been given a detailed description by Jones and Leach. Linda testified that Jones told her that he and Leach faked engine trouble to give them an excuse to stop. While ostensibly waiting for help to arrive, the three began throwing knives at a tree stump. (There were only two knives--Leach's and Messer's. Apparently they took turns.) At some point, Jones picked up Messer's knife and hid it in his pocket. He then pretended to help Messer look for it. Leach told Linda that, shortly thereafter, Jones took Messer's knife out of his pocket and stabbed Messer in the back of the head or neck. Messer stood up "like on tiptoe, like it hit nerves or something." Leach began stabbing Messer from the front. Leach ordered Messer to give him the money. Messer complied, pleading, "There it is, don't kill me." Leach and Jones continued to stab Messer while Messer begged them to spare his life and promised not to turn them in. Messer eventually fell to the ground and Leach slit his throat.

About one and one-half to two hours after Deseguirant left them near the fig orchard, Leach and Jones arrived at Olson's apartment. Leach was covered with blood; Jones had blood on his hands. Leach announced only that they had stabbed someone and then the two went into the bathroom to wash up. When they had finished, Leach gave Deseguirant $80. He described to those present--a group which included Deseguirant, Western, and Olson--what had happened in the orchard; how he "stabbed [Messer] and stabbed him and stabbed him."

Leach then pulled out Messer's blood-stained knife and asked, "Does anybody want this?" Deseguirant took it and, later, turned it over to the police. Leach and Jones then left "to go get cleaned up and return the pickup truck."

Once back at his apartment, Leach, who still had blood on himself, pulled a wad of 20-dollar bills from his pocket and told Linda that he had killed Messer. Leach and Jones got "cleaned up." Leach, Jones, and Linda left the apartment with the blood-stained clothes and Leach's knife and got rid of the evidence in various ways. ⁶ It was during this excursion that the details of the murder and robbery were explained to Linda.

On the following day, October 11th, there was a gathering at Olson's apartment. Leach again described stabbing Messer and cutting his throat. Leach said he had stabbed Messer about 50 times. He also said that he and Jones had kicked dirt over the body so that it would not be found and that Jones had kicked Messer's teeth out.

The body was found in the early morning of October 11th. A pathologist testified to its condition: The wounds were in six groups--three in the front and three in the back. Those in front were inflicted by one knife (later identified as Leach's hunting knife) and were grouped in the neck, the heart, and the abdomen. Two of the neck wounds had penetrated the jugular vein and, alone, could have caused death. The actual cause of death, however, were the stab wounds to the heart. ⁷ The autopsy revealed that Messer was alive when he received all 48 stab wounds. The pathologist testified that he thought that there was more than one assailant.

The police arrested Leach on October 12th and Jones, who had fled to Clovis, on October 21st. Linda was with Jones and was arrested as an accessory. She initially refused to make a statement, but later exculpated herself, Jones, and Leach. Still later, on being informed that "anyone caught lying could be prosecuted for perjury," she made statements inculpating Leach and Jones to get her "own ass out of it." The following day, October 22d, Linda led officers to the canal, where the officers recovered the buried sheet as well as the inner sole and upper part of a boot, later identified as Jones'. One Darrow English observed the officers digging near the canal and gave them a knife which his 10-year-old son Richard had discovered near the embankment on October 11th.

Leach testified in his defense. He denied complicity in the attempted robbery at his apartment. He denied that a robbery occurred at the fig orchard, testifying that Messer voluntarily gave Deseguirant the money for the drug purchase and Deseguirant then left on his motorcycle. The three passed the time by throwing knives. To assuage Messer's fears of a "set up," Leach drove off in search of Deseguirant. When he returned, Messer threatened them, and Leach left once again in search of Deseguirant. When he returned the second time, Jones and Messer were fighting. Each had a knife. Messer was killed.

Jones, who was called as a witness by Leach, refused to testify on Fifth Amendment grounds.

The People proceeded on the theory that Leach was the instigator and planner. The jury was instructed on two theories of first degree murder--deliberate and premeditated murder and felony murder. It was instructed on the lesser included homicide offenses, as well as on conspiracy and on aiding and abetting. As to the felony-murder special circumstance, the jury was also instructed that to find the allegation true, the robbery had to be more than merely incidental to the killing. (People v. Green (1980) 27 Cal.3d 1, 59-62, 164 Cal.Rptr. 1, 609 P.2d 468.)

Leach was convicted of robbery with personal use of a deadly weapon--a knife--and of first degree murder with personal use of a deadly weapon--again a knife. The jury also found true the allegations of special circumstances, i.e., (1) that the murder was committed in the commission of a robbery and, (2) that it was intentional and involved the infliction of torture.

II. Guilt Phase Issues

1. Representative Jury

Leach contends that the exclusion of eight prospective jurors because of their opposition to the death penalty denied him a representative jury. A majority of this court rejected the contention in People v. Fields (1983) 35 Cal.3d 329, 342-353, 197 Cal.Rptr. 803, 673 P.2d 680 (plur. opn.), 374 (Kaus, J., conc.). (Cf. ...