People v. Mckinnon, No. S077166.

CourtUnited States State Supreme Court (California)
Writing for the CourtBAXTER, J.
Citation130 Cal.Rptr.3d 590,52 Cal.4th 610,2011 Daily Journal D.A.R. 12711,259 P.3d 1186,11 Cal. Daily Op. Serv. 10667
PartiesThe PEOPLE, Plaintiff and Respondent,v.Crandell McKINNON, Defendant and Appellant.
Decision Date12 October 2011
Docket NumberNo. S077166.

52 Cal.4th 610
259 P.3d 1186
130 Cal.Rptr.3d 590
11 Cal.
Daily Op. Serv. 10,667
2011 Daily Journal D.A.R. 12,711

The PEOPLE, Plaintiff and Respondent,
v.
Crandell McKINNON, Defendant and Appellant.

No. S077166.

Supreme Court of California

Aug. 22, 2011.Rehearing Denied Oct. 12, 2011.


[130 Cal.Rptr.3d 606] Michael J. Hersek, State Public Defender, under appointment by the Supreme [130 Cal.Rptr.3d 607] Court, and C. Delaine Renard, Deputy State Public Defender, for Defendant and Appellant.Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ivy Fitzpatrick, Douglas P. Danzig and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.BAXTER, J.

[52 Cal.4th 620]

[259 P.3d 1200]

A jury found defendant Crandell McKinnon guilty of the first degree murders (Pen.Code, § 187) 1 of Perry Coder and Gregory Martin and two counts of possession of a firearm by a convicted felon (§ 12021.1). The jury also found true (1) the allegation that defendant personally used a firearm in the commission of the murders (§ 12022.5) and (2) the multiple-murder special-circumstance allegation ( § 190.2, subd. (a) (3)).

After a penalty trial, the jury returned a verdict of death. The court denied defendant's motion for new trial (§ 1181) and automatic application to modify the penalty verdict (§ 190.4, subd. (e)) and sentenced him to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in full.

I. Facts
A. Introduction

On January 4, 1994, defendant, a member of the Crips street gang, walked up to Perry Coder behind the Desert Edge Motel, in Banning, and for no apparent reason, placed his gun against Coder's head, and shot him. Coder died almost instantly. About five weeks later, at the nearby Meadowbrook Apartments, defendant and Gregory Martin, a member of the Bloods street gang, argued briefly before defendant fatally shot Martin in the head.

The prosecution presented eyewitness testimony and forensic evidence consistent with these accounts. The Martin murder weapon was found a week after that murder in a car driven by defendant's girlfriend and in which defendant was a passenger. About a month after the murders, while incarcerated in Chino

[259 P.3d 1201]

State Prison, defendant told Harold Black, a fellow inmate, that he had shot Martin and a “white boy” at the Desert Edge Motel.B. Prosecution Guilt Phase Case
1. The murder of Perry Coder

On the evening of January 4, 1994, defendant, whose nickname was Popeye, was driving a Cadillac with his friend, Orlando Hunt, in the passenger seat. They drove to the Desert Edge Motel in Banning. The motel was located in a high-crime area rampant with drug activities and operated as an apartment-type complex. There was a dirt field behind the motel, to the west.

[52 Cal.4th 621] Gina Lee, who lived at the motel, saw defendant and Hunt arrive. She had seen defendant in her room earlier that day with a black handgun. When he arrived with Hunt that evening, defendant parked on the side of the motel, at the north end of the lot, and he and Hunt got out of the car. Hunt spoke with Lee 2 and her cousin, Johnnetta Hawkins, who was with Lee. Defendant and Hunt then walked to the back of the building. A short, White male, subsequently identified as 23–year old Perry Coder was walking on Ramsey Street. Defendant told Hunt “hold on, wait right [here].”

Hunt did not know Coder and thought that defendant might know him or that the [130 Cal.Rptr.3d 608] two were dealing drugs. He was unaware of any problems between defendant and Coder. Hunt stood by a tree, approximately 47 feet from where Coder's body subsequently was found, and saw defendant walk up to Coder. Without saying anything to Coder, defendant pulled a gun from his coat, extended his right arm “straight out” in front of his chest and shot Coder “for no apparent reason.” Coder immediately fell to the ground. Hunt ran from the scene.

During the same evening, Kerry Scott, who lived in Banning, was walking westbound on Ramsey Street when he reached a field adjacent to the Desert Edge Motel and saw Coder,3 who was walking eastbound on the same street. 4 Coder was alone and walking unsteadily. Scott walked approximately 50 yards into the field and stood next to a tree, approximately 50 yards from where police subsequently found Coder's body. Scott saw defendant 5 approach Coder and stand approximately two to three feet in front of him, “face to face.” Without exchanging any words with Coder, defendant extended his right arm straight out, turned his arm in and his gun to the side, and fired four shots. Coder fell to the ground and exhibited no further movement. Scott “took off running.”

Lee was outside her motel room when she heard a gunshot and saw defendant and Hunt running through the field. She left the area to buy drugs and returned to her room about 30 minutes later. She saw defendant and Hunt at the motel. Defendant “looked kind of strange” and his eyes were “just big [52 Cal.4th 622] and stuff.” He appeared to be very agitated, upset, and hyper. When Lee asked defendant, “what's up,” he put his finger to his lips, said “Shhhhh,” and told her somebody was dead outside. Before they left the motel, Lee told Hawkins that when she saw defendant outside the motel after hearing the gunshot, he threatened to kill her if she said anything.

Thereafter, at approximately midnight, City of Banning Police Officer Bill Caldwell, Jr., arrived on the scene and found Coder's body lying adjacent to the field between the roadway and the sidewalk. Coder apparently had been clutching a jacket. The police did not recover any shell casings near the body and never found the murder weapon.

The next day, Hunt was sleeping and rolled over to find defendant standing in the doorway of his bedroom. Defendant told Hunt that if he said anything, “this could happen to you.”

[259 P.3d 1202]

On December 29, 1994, Caldwell and City of Banning Police Sergeant Marshall Palmer interviewed defendant at Ironwood State Prison in Blythe, regarding the Coder murder.6 The prosecution played a tape recording of the interview for the jury. During the interview, after defendant initially denied being in Banning in January 1994, he admitted he had passed through the town that month to see his daughter. When Caldwell and Palmer informed defendant that three individuals witnessed him shoot Coder, defendant denied knowing Coder and having shot him.

Daryl Garber, Chief Forensic Pathologist for Riverside County, performed an [130 Cal.Rptr.3d 609] autopsy on Coder's body. Coder suffered a single gunshot wound to the head and a black eye associated with the wound. The wound was a “tight contact,” meaning the muzzle was actually pressed tightly against Coder's skin when the gun was fired. The wound traversed the brain front to back, with a slightly left-to-right and upward trajectory. The wound caused a rapid death, and there was no other cause of death. There was no exit wound. Dr. Garber opined that the gun inflicting the wound would have been “pretty much level with the ground.” Dr. Garber testified that although Coder probably had some detectable life signs for a few minutes, he would have immediately lost consciousness, gone into a coma for a few minutes, and then quickly died. Coder would have become immediately incapacitated, or if he were walking at the time he was shot, he might have continued taking at most one or two steps before falling down. Dr. Garber recovered a bullet from Coder's head during the autopsy.

[52 Cal.4th 623] 2. The murder of Gregory Martin

During the evening of February 12, 1994, Gregory Martin was shot twice in the head in front of the Meadowbrook Apartments in Banning. His wounds were fatal. It was common knowledge that Martin, whose nickname was “Moto,” was a member of the Bloods street gang.

Palmer 7 and other Banning police officers arrived at the crime scene, secured the area, and searched unsuccessfully for relevant physical evidence. Officers knocked on doors to see if they could locate any witnesses. Lloyd Marcus was identified as a potential witness and was interviewed by Palmer at the Banning Police Department, within one to one-and-a-half hours of Palmer's arrival at the murder scene.

Marcus told Palmer that during the evening hours of February 12, 1994, he was standing under a carport at the apartment complex when he saw two people arguing in the street, “something about money.” Marcus said he was able to see them well because they were standing directly under a streetlight. Marcus identified one of the men as “Moto.” Initially, he could not identify the other man, but subsequently told Palmer that his name was “Popeye.” Marcus said Moto asked Popeye, “Where's my money?” The two men began pushing each other, and Popeye pulled a gun from his waistband and fired two rounds at Moto.

Marcus described Popeye as an adult Mexican or Asian male, “six-two, six-three, dark shoulder-length hair, weighing about 190 to 220 pounds.” Palmer associated defendant with the name Popeye and knew that Martin was a Blood and defendant was a Crip.

Palmer “put the word out” that he needed to talk to Popeye and wanted him brought in for questioning. Palmer and patrol officers searched for defendant at various locations where he was known to hang out, but were unable to locate him until months later, when defendant was in Ironwood State Prison in Blythe, on an unrelated matter.

Riverside County Forensic Pathologist Joseph Choi conducted an autopsy on Martin's body. Martin suffered two gunshot wounds to his head, one just below the eyebrow of his right eye, and the other on the back right side of his head. The presence of gunpowder tattooing on Martin's forehead and between his eyelid and eyelash indicated his eye was open and the lid was [52 Cal.4th 624] folded up when the first wound was inflicted. Dr. Choi estimated the

[259 P.3d 1203]

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