People v. McWhorter

• Decision Date: 06 August 2009
• Docket Number: No. S068536.,S068536.
• Citation: 212 P.3d 692,47 Cal. 4th 318,97 Cal.Rptr.3d 412
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard Allen McWHORTER, Defendant and Appellant.

212 P.3d 692

97 Cal.Rptr.3d 412

47 Cal. 4th 318

The PEOPLE, Plaintiff and Respondent, v. Richard Allen McWHORTER, Defendant and Appellant.

No. S068536.

Supreme Court of California.

August 6, 2009.

David S. Adams, Hood River, OR, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Stan Cross, Acting Assistant Attorney General, Patrick J. Whalen and Brook Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

A jury convicted defendant Richard Allen McWhorter of the first degree murders of Shirley and Joey Jordan (Pen.Code, § 187),¹ and first degree residential robbery (§ 212.5, subd. (a)). Special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and robbery murder (§ 190.2, subd. (a)(17)(A)) were found true in connection with each count of murder.² After a penalty trial, the jury returned a verdict of death. The trial court denied the automatic motion to modify the penalty verdict (§ 190.4, subd. (e)) and imposed the death sentence. This appeal is automatic. (§ 1239, subd. (b).) We shall order one of the two multiple-murder special circumstance findings and an erroneously imposed parole revocation fine stricken from the judgment, and affirm the judgment as modified.

I. FACTS

A. Guilt Phase

The victims in this case, Shirley Jordan and her 10-year old son, Joey, were murdered in their Bakersfield apartment on September 11, 1995. Their badly decomposed bodies were discovered approximately one week later by friends and neighbors suspecting foul play. The prosecution's evidence, including admissible portions of defendant's taped confession, established that defendant and his wife Billie were friends and neighbors of the Jordans and had moved away from Bakersfield one week before the murders, hoping to find work in Las Vegas. Defendant, who was broke, returned alone to Bakersfield on September 11, went to the Jordan's apartment, killed mother and son, stole $3,000 from Shirley's bedroom dresser drawer, then fled the area, returning to Las Vegas that same evening.

1. Prosecution Evidence

a. Defendant and his wife Billie leave Bakersfield

In early September 1995, defendant and his wife, Billie McWhorter, lived in a small duplex at 1016 Wilson Avenue, unit B, in Oildale, a town near Bakersfield. Billie testified that Shirley Jordan and her 10-year-old son, Joey, whom they had known for several years, lived in the adjoining unit A. While neighbors they had become good friends and would often socialize together.

Billie testified neither she nor defendant was employed at that time. Their sole sources of income were unemployment and Social Security benefits, totaling $650 per month, which had run out. At the beginning of September 1995, Billie had a checking account with approximately $1 on deposit. She had been out of work since April 1994; defendant had been unemployed since early 1995.

While neighbors, Shirley told the McWhorters she had saved $7,000, and could even buy a new car if she wanted to. On July 4, 1995, Shirley lent defendant $1,500 so that he could start a landscaping business. The loan was memorialized in a written agreement signed by Shirley, defendant, and Billie, with the money to be repaid in 90 days. Defendant bought a truck and some landscaping equipment with the money but could not find any work.

In early September 1995, defendant and Billie decided to move to Las Vegas to try to find work there. As the McWhorters were broke, Shirley lent them another $350. On Monday, September 4, 1995, defendant and Billie drove to Tehachapi and spent the night with Billie's daughter and son-in-law, Brenda and James Doty. The following day, Billie stayed behind while defendant drove alone toward Las Vegas in his truck with all his landscaping equipment to look for work.

Defendant's truck broke down outside of Mojave. He called James Doty and arranged to have Doty pick up his belongings and equipment from the disabled truck. Defendant hitchhiked to Las Vegas, arriving at the home of Billie's son, Eric Roesler, in the late afternoon.

Defendant had no change of clothes when he arrived, so Roesler lent him a T-shirt with distinctive markings. Several days later, defendant told Roesler he was going back to Bakersfield to meet his mother so he could borrow money to get his truck fixed. Prior to defendant's leaving Las Vegas, Roesler gave defendant a large, white-handled knife, saying he wanted it returned.

On Sunday, September 10, 1995, defendant hitchhiked from Las Vegas to Mojave. James Doty drove to Mojave from Tehachapi and picked him up. Defendant told Doty he came back to get a loan from his mother so he could buy another vehicle. That evening, Billie called her ex-mother-in-law, Rosalie Self, and asked Self to pick them up from the Doty residence the next morning and drive them back to Bakersfield so defendant could meet with his mother.

On Monday morning, September 11, 1995, Rosalie Self and her partner, Bob Amos, picked up defendant and Billie from Tehachapi and drove them back to their home in Oildale, which was not far from the Wilson Avenue apartment complex where the Jordans lived. Defendant left the Self/Amos residence, alone and on foot, at approximately 10:00 a.m. that same morning. He told Self and Amos his mother was going to lend him money to purchase a vehicle, and that he was going to meet her at the Yum-Yum Donut shop a short distance from their home. Billie asked to go with him, but did not.

Defendant returned at approximately 4:00 p.m. that afternoon. Billie, Self, and Amos were sitting on the porch eating hamburgers. Defendant walked over to Billie and handed her $3,000 in cash in large denomination ($100 and $50) bills. Billie asked defendant why he had been gone so long; defendant claimed his mother had to go to the bank for the money.

Defendant's mother, Mary Headrick, testified that she never met with defendant on Monday, September 11, 1995; she lived in Tulare and had not traveled to Bakersfield on that date; and defendant never discussed borrowing money from her.

As the group sat on the porch, Self suggested that defendant and Billie buy a van to live in. Defendant commented that it would be cheaper to buy a van in Las Vegas and announced he and Billie were leaving for Las Vegas on a bus that same evening. Prior to leaving, Billie washed the clothes defendant was wearing while defendant took a shower and changed into clean clothes. Defendant also produced Roesler's white-handled knife, which he gave to Amos. Self and Amos then drove defendant and Billie to the bus station, where they left for Las Vegas on the 7:00 p.m. bus. Billie testified they arrived sometime after midnight and checked into a hotel. Billie's son, Eric Roesler, testified that upon their return to Las Vegas, defendant told him he had borrowed money from his mother.

b. Discovery of the victims' bodies

Early on the morning of Monday, September 11, 1995, 13-year-old Chris Barton called Joey to see if he wanted a ride to school. Joey and Chris were friends and schoolmates; Chris's grandmother usually drove them to school every day. Joey told Chris he was not going to school that day because he was feeling sick. That was the last time Chris ever spoke to Joey, and she never saw Joey or his mother, Shirley, again.

Upon returning from school that afternoon, Chris called Joey and left a message on the Jordans' answering machine. A few days later, Chris went to Joey's house and knocked on the door but no one answered. Both she and her grandmother called and left additional messages on the Jordans' answering machine, but never received a return call.

Joey was absent from school on Monday, September 11, 1995, and never returned. The last day he attended school was Friday, September 8, 1995. He had been present at school every day for the two weeks prior to that date. The school attendance officer called the Jordan home each day Joey was absent, leaving messages inquiring about his absences. The calls were never returned.

On Monday, September 18, 1995, Brian LaPeer, a neighbor of the Jordans, went to their apartment after his sister-in-law noticed a bad smell emanating from the unit. He found a window open two to three inches, pried off the screen, pulled the blinds apart and saw a body lying on a bed in the bedroom. LaPeer and his sister-in-law called the police. He also noticed the Jordans' lawn was dying, which was unusual because Shirley was known to frequently water it to keep it green. LaPeer testified his young son and Joey often played together, with the last time having been three days to a week before the bodies were discovered.

Fire Captain Tom Pulcher and other fire personnel arrived at the Jordan's residence in response to the 911 call. They found the front door locked, with a window on the northwest side of the residence open several inches. The inside of the window screen was covered with flies, and a strong odor was emanating from within which Captain Pulcher associated with death. The front door was forced open and Captain Pulcher entered the apartment alone. Upon entering the apartment, he found it noticeably warmer inside than outside. He looked into the bedroom, saw the decomposing bodies of Shirley and Joey, secured the crime scene, and waited for law enforcement officers to arrive.

Kern County Sheriff's Deputy Steven Comstock was the first officer to arrive at the scene, followed by Kern County Homicide Detectives Rosemary Wahl, John Soliz, and Sergeant Glenn Johnson. Detective Wahl noticed several advertising-type newspapers had collected on the steps at the front door. She and Detective Soliz entered the apartment and observed a backpack on the living room floor with what appeared to be its contents—a purse, a pile of coupons, a notebook, two coin purses, and Shirley Jordan's checkbook register—strewn about the...