People v. McCurdy
| Decision Date | 14 August 2014 |
| Docket Number | No. S061026.,S061026. |
| Citation | 331 P.3d 265,176 Cal.Rptr.3d 103,59 Cal.4th 1063 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Gene Estel McCURDY, Defendant and Appellant. |
| Court | California Supreme Court |
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Gary D. Garcia, Deputy State Public Defender, for Defendant and Appellant.
Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross, Acting Assistant Attorney General, Carlos A. Martinez, Patrick J. Whalen and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Gene Estel McCurdy of the first degree murder ( Pen.Code, § 187, subd. (a) ),1 kidnapping ( § 207, subd. (a) ), and kidnapping with the purpose to commit a lewd act on a child under 14 years old ( § 207, subd. (b) ) of Maria Piceno. The jury found true the special circumstance allegation of kidnapping murder. (§ 190.2, subd. (a)(17)(B).) The jury returned a verdict of death. The trial court denied defendant's automatic motion to modify the penalty verdict (§ 190.4, subd. (e)), sentenced him to death on the murder count, and suspended the imposition of sentencing on the remaining counts.
This appeal is automatic. ( § 1239, subd. (b).) We affirm the judgment.
Eight-year-old Maria Piceno disappeared on March 27, 1995,2 and her body was discovered approximately two weeks later. At trial, defendant admitted being in the vicinity of Piceno's last known whereabouts, but denied kidnapping or killing her.
Around 3:00 p.m. on March 27, Arcelia Ferrel sent her eight-year-old daughter Maria Piceno to buy some food at Food King, a store two blocks away from their Lemoore apartment. About 20 minutes later, Ferrel went to look for Piceno, but could not find her. A receipt from the store indicated Piceno had bought some food at 3:18 p.m.
Eric Douglas saw Piceno in the Food King aisle where ice cream products were displayed. He recalled it being around 3:43 p.m. About 15 minutes later, Douglas saw Piceno in another store in the same shopping center as Food King.
Mychael Jackson saw defendant talking to Piceno and holding her hand outside of Food King. Jackson walked to his car, which was approximately 15 feet from defendant's truck. Jackson saw defendant open the truck's passenger door and "somebody short" got inside. Defendant then closed the door and walked around the truck to the driver's side. As Jackson drove off, he could no longer see Piceno in the parking lot. Although his car's clock indicated this happened around 4:00 p.m., he estimated it was actually 3:50 p.m. because he had set the clock to be 10 minutes fast.
Jackson admitted he had suffered a felony fraud conviction while defendant's case was pending. He denied receiving any benefit for his testimony or knowing that a reward had been offered for information regarding the murder. Jackson denied any involvement in Piceno's disappearance.
A receipt from a video store in the same shopping center as Food King indicated defendant rented three unrated "adult" videos at 3:28 p.m. that day.
A receipt from another video store in Lemoore indicated that defendant rented three "X-rated movies" at 3:34 p.m. A third receipt indicated defendant rented three "[p]ornographic films" around 4:10 p.m. from another video store in Lemoore. The jury heard the titles of the nine movies.
Mary Smith lived next to defendant and previously had been in a brief romantic relationship with him. Smith's mother, Mary Lazaro, was visiting Smith on the day of Piceno's disappearance. That evening Lazaro heard through the common wall shared with defendant's apartment what sounded like a child's soft whimpering. There were no children in the movie they were watching. Because Lazaro thought the whimpering was coming from defendant's apartment, Smith told her he did not have any children.
The next day, defendant and Smith were watching television together in her apartment when a news bulletin came on about Piceno's disappearance. Defendant sat up, faced the television, and shifted uncomfortably.
A few days after Piceno's disappearance, Smith told defendant she felt bad that the girl was missing. Defendant, who normally was an attentive listener, interrupted Smith in a hostile manner while not making eye contact with her.
Sometime during the last week of March defendant shaved off his mustache.
Defendant, who was in the United States Navy, was scheduled for a six-month deployment at sea starting around April 11. In the week preceding the deployment and while at sea, one of defendant's squadron mates noted he appeared to be unusually agitated, frustrated, and distant.
On April 9, Piceno's fully clothed body was discovered in Poso Creek, which was located in the greater Bakersfield area. Defendant's parents' house was in Bakersfield. Defendant's sister testified defendant was familiar with this creek because it was a well-known local landmark. A shower curtain similar to one that had been given to defendant would later be discovered partially buried approximately 500 yards upstream from Piceno's body.
Carole Cacciaroni, a criminal investigator employed by the Navy and stationed on the same ship as defendant, interviewed him on April 18. When Agent Cacciaroni asked defendant if he knew why she wanted to speak to him, he referred to Piceno's disappearance. Defendant explained he was renting adult-oriented videotapes at the video store in the shopping center around the time when Piceno was abducted. Defendant offered to be hypnotized to see if it would help him remember anything. Defendant denied knowing what had happened to Piceno. Defendant told Agent Cacciaroni that prior to his deployment he regularly visited his parents' home. When Agent Cacciaroni informed defendant that Piceno was found dead, he became very upset, started to cry, and asked if Piceno had been molested. Defendant explained he was upset because he had recently quit smoking and had been under some stress.
The next day, defendant told Agent Cacciaroni that he was feeling "very disturbed" and "paranoid" because "everybody was pointing fingers at him and that he was sick to his stomach." Defendant appeared visibly upset, had red and teary eyes, tightly clenched fists, and "shaky" movements. Defendant told Agent Cacciaroni that he did not know if he should "get a lawyer." When Agent Cacciaroni asked him why he thought he might need an attorney, defendant continued to cry and rock in his chair. Defendant left Agent Cacciaroni's office, but returned a short while later and appeared to be much more relaxed. Agent Cacciaroni ran into defendant a few days later, and he acted "standoffish" and distant.
Police searched defendant's storage unit in Lemoore and found a box of approximately 30 adult-oriented magazines, several of which had sexually explicit titles and content focusing on teenaged women who were staged to appear younger than their actual age. A list of titles of some of the recovered magazines was admitted into evidence, but the magazines themselves were not.
Defendant later told Bruce Ackerman, a federal deputy marshal assigned to the United States Postal Service and an expert on child pornography, that he had purchased the magazines. He also acknowledged the women in them looked younger than 18 years old. At defendant's trial, Deputy Ackerman testified that, in his experience, in every case in which a person had possessed similar magazines, that person had expressed a sexual interest in minors. Deputy Ackerman conceded he usually investigated only people who had expressed such an interest.
Deputy Ackerman also testified at trial that, when asked about the day of Piceno's disappearance, defendant said he could not remember what he had done after renting the videotapes.
Defendant's younger sister testified that he molested her when they were children. The molestations continued intermittently for over a decade. Several years after the abuse had ended, defendant apologized to his sister for molesting her, and told her that one of the reasons why he never married was "he was really afraid that he might molest his own children."
A forensic pathologist conducted an autopsy, determined Piceno did not die from a heart attack
or other natural causes, and concluded she had died from suffocation. Piceno also had non-life-threatening blunt force injuries. The pathologist could not locate Piceno's hymen, which was consistent with either molestation or decomposition. Based on the creek's temperature and the state of decomposition, the pathologist estimated Piceno's body could have been in the water for as long as two weeks.
Claudeen Jackson, who was married to Mychael Jackson but had filed for divorce, believed him to be an "impulsive liar" because he "constantly" lied to her during their marriage. On cross-examination, she admitted she had suffered a felony fraud conviction while defendant's case was pending. Annie Snowden, Jackson's ex-wife, testified he was Two of Jackson's ex-girlfriends both also were of the opinion that he generally was dishonest.
A Lemoore police officer testified about discrepancies in Mychael Jackson's testimony. For example, at trial Jackson testified that he looked at his car's clock when
he entered Lemoore, but he had not mentioned to the interviewing officer the clock was fast.
At trial he described the T-shirt defendant wore on the day of Piceno's abduction, but when initially interviewed by the police Jackson had not provided any details about defendant's T-shirt. Jackson's testimony also included other details about defendant's apparel and vehicle that were not mentioned during his initial interview.
A Lemoore police sergeant testified he interviewed Smith, defendant's...
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