People v. Marks

• Decision Date: 24 July 2003
• Docket Number: No. S040575.,S040575.
• Citation: 31 Cal.4th 197,72 P.3d 1222,2 Cal.Rptr.3d 252
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Delaney Geral MARKS, Defendant and Appellant.

2 Cal.Rptr.3d 252

72 P.3d 1222

31 Cal.4th 197

The PEOPLE, Plaintiff and Respondent, v. Delaney Geral MARKS, Defendant and Appellant.

No. S040575.

Supreme Court of California.

July 24, 2003.

Rehearing Denied October 1, 2003.

Certiorari Denied May 3, 2004.

Richard Power, under appointment by the Supreme Court, Shingle Springs, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass and Dane R. Gillette, Assistant Attorneys General, and Sharon R. Wooden, Deputy Attorney General, for Plaintiff and Respondent.

Certiorari Denied May 3, 2004. See 124 S.Ct. 2101.

BROWN, J.

A jury convicted defendant Delaney Geral Marks of two counts of first degree murder (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated) and two counts of attempted premeditated murder (§§ 664, 187). With respect to all counts, the jury found true the allegation that defendant personally used a firearm (§ 12022.5). With respect to the attempted murders, the jury found defendant personally inflicted great bodily injury upon the victims (§ 12022.7). It found true the special circumstance allegations that defendant committed multiple murders (§ 190.2, subd. (a)(3)), committed murder in the commission, attempted commission or flight from a robbery (§ 190.2, subd. (a)(17)(A)), and committed murder against a transportation worker (§ 190.25). At a subsequent proceeding, it found beyond a reasonable doubt defendant had suffered four prior felony convictions and served two prior prison terms. The jury set the penalty for the capital crimes at death. The trial court denied defendant's motion to modify the sentence (§ 190.4, subd. (e)). This appeal is automatic (Cal. Const., art. VI, § 11; Pen.Code, § 1239).

For the reasons stated below, we affirm the judgment in its entirety.

I. Facts

A. Guilt Phase

1. The People's Case

a) The Taco Bell Shooting

On October 17, 1990, at approximately 7:30 p.m., defendant entered the Taco Bell on Jackson and 14th Streets in Oakland. He appeared normal to Sherman Boyd, a Taco Bell employee who had seen him on several occasions inside the Taco Bell and elsewhere in the community. The two men acknowledged each other. Defendant ordered two encharitos and Boyd began preparing the order.

Defendant pulled out a gun, pointed it at the head of Taco Bell employee Mui Luong, and fired. As blood flowed from her face, she fell. Defendant did not appear upset or excited; he displayed "no remorse, no feelings whatsoever." It seemed to customer Grace Haynes that defendant acted as if the shooting were "something that is done every day." Defendant quickly left through the restaurant's exit onto Jackson Street, where he walked toward Lake Merritt.

Boyd, Haynes, customer Diane Griffin, and Taco Bell assistant manager Maria Harris all identified defendant in court as the shooter. All four had also selected defendant from a lineup without hesitation.

Ms. Luong survived the shooting, but suffered brain damage because the shooting blocked the flow of oxygen and blood to her brain. She also suffered spinal shock, in which the spinal cord "basically ... shuts down." In the three and one-half years between the shooting and the trial, Luong had never returned home. Her brother visits her at the rehabilitation center and speaks to her, but she never responds, and it appears as if she does not recognize him at all.

b) The Gourmet Market Shootings

At approximately 7:40 p.m. that same evening, Peter Baeza and John Myers were working, and Denise Frelow was shopping, in the Gourmet Market, a convenience store located on Jackson Street, 795 feet from the Taco Bell. Myers observed a male enter the store but did not pay him any attention. The male raised his arm as if to point to one of the bottles in the liquor section. He fired a gun and Myers fell backwards. Baeza, the store owner, crouched behind the deli cooler, holding a cordless telephone, with which Myers expected him to call 911. Defendant fired another shot, prompting Baeza to drop the phone, fall to the floor and cough blood. Defendant "breezed out" of the store, "real cool and calm, like nothing had happened...."

Baeza died at the scene. Myers was rushed to the hospital, where he arrived "in shock and in a coma." To save his life, Myers required massive transfusions. Doctors also removed a kidney and a majority of his liver. Myers was released from the hospital on November 9, but continued to suffer sporadic pain.

An autopsy on Baeza revealed the cause of death was a bullet wound to the side of the chest. Forensic evidence further revealed the shooter fired the gun from a distance of approximately 18 inches.

Myers and Frelow testified the shooter was a Black male with braids in his hair; Myers recalled he wore a brown jacket. Both in court and in his October 22, 1990, statement to police, Myers described the shooter as being approximately five feet eight inches tall, with a medium build. Frelow testified the shooter was between five feet six inches and five feet nine inches tall, weighing approximately 155 or 160 pounds. In an earlier statement to police, she described the shooter as being about five feet six or seven inches tall. Defendant's self-described measurements were five feet five inches tall and 150 pounds. On October 22, 1990, Frelow observed a lineup of suspects, from which she selected defendant as the person she thought shot Baeza and Myers, although she was not sure.

c) The Taxicab Shooting

Austin Williams, a Nigerian emigre, worked for the same taxicab company as Daniel McDermott. On October 17, 1990, both drivers were lined up at a taxi stand on 13th Street near Broadway in Oakland. A man and a woman walked hurriedly toward Mr. Williams's taxi; the man went to the front passenger door and the woman went to the rear passenger door. The man was wearing a brown jacket, and the woman was wearing a multicolored dress that had diamond shapes in its pattern. She also had a scar on her face. Williams informed the couple that his was not the next taxi available. The couple then entered McDermott's taxi, which drove them away from the stand.

Susan Yi was living at her parents' home on Eagle Avenue in Alameda. At approximately 8:30 p.m. that night an automobile drove up that she thought might be her father's car but was a yellow taxicab. She saw a Black male standing outside the front passenger door, leaning in, as if paying the driver. The man was yelling at a woman, who Yi saw walk away from the taxi. She was Black, heavyset, and wore a multicolored dress. The couple appeared to be boyfriend and girlfriend. A "couple of minutes later" Yi heard what sounded like firecrackers, except louder, coming from the area where the taxicab was parked. She then heard the "skid of tires backing up real fast," and she saw the taxi was moving in reverse very fast.

Robin Menefee had been defendant's girlfriend for about a year. As of October 17, they were living together in the park under a train. Defendant had a .38-caliber gun that he had possessed for a couple of days. That evening, neither had money, so they "panhandled," and then bought beer and wine. As Menefee sat on a platform near Lake Merritt, defendant told her to stay there and wait for him. He returned 30 to 60 minutes later and told her that he had shot two people. He acted "like his normal self."

Menefee accompanied defendant to a taxi stand at 13th and Broadway because she was scared that defendant would shoot her too if she left him. Defendant and Menefee attempted to enter one taxi, but the driver, who had an African accent, told them he was not moving. They then entered McDermott's taxi, with Menefee sitting in back and defendant sitting in front. Defendant and McDermott discussed the World Series game that was being broadeast on the radio at the time. McDermott drove them to a parking lot near Eagle Avenue, where defendant's grandmother lived. Neither defendant nor Menefee had any money to pay for the ride.

When the taxi stopped, defendant told Menefee to leave the taxi. She went into an alley to urinate. She heard a gunshot coming from where the taxi was parked. Defendant ran toward Menefee and told her that he had shot the driver. Defendant continued to act normally. The taxi's horn began honking.

The couple knocked on the door of defendant's grandmother's home, but no one answered. They then hid under an apartment house for about 25 minutes, after which the couple walked to a store and defendant bought some groceries. As they later sat waiting for a bus, police arrested defendant. Menefee has a scar on her cheek.

The autopsy on McDermott revealed he had no injuries indicating any kind of struggle. The cause of death was a bullet wound to the face.

It was McDermott's long-standing habit to bring five $1 bills to work so he could make change. Defendant had seven $1 bills and 43 cents on his person at the time of his arrest; 75 cents but no paper currency was found on McDermott's body. No money was found in the taxi.

Sergeant Mark Landes brought Austin Williams to where defendant was being detained to see whether Williams could identify him. Williams told Sergeant Landes that defendant looked very similar to the man who attempted to enter his taxi, but he could not be certain. He noted the defendant's skin color and complexion were the same as that of his would-be passenger, and the hairstyle was also very similar, but Williams had not had a good enough look at the man to make a positive identification.

Sergeant Landes retrieved a jacket from the alley near the home of defendant's grandmother. Defendant refused to put on the jacket in court to determine whether it fit. The court instructed the jury it could consider that refusal as reflecting a consciousness of guilt d) Evidence Pertaining to All Counts

Sergeant Mark O'Connell of the Alameda Police Department examined defendant's...