People v. Memro, No. S004770

• Court: United States State Supreme Court (California)
• Writing for the Court: MOSK; LUCAS, C.J., and ARABIAN; KENNARD; WERDEGAR
• Citation: 12 Cal.App.4th 783,905 P2d 1305,47 Cal.Rptr.2d 219,11 Cal.4th 786
• Parties: , 12 Cal.4th 783D, 905 P.2d 1305, 95 Cal. Daily Op. Serv. 9091, 95 Daily Journal D.A.R. 15,919 The PEOPLE, Plaintiff and Respondent, v. Harold Ray MEMRO, Defendant and Appellant.
• Decision Date: 30 November 1995
• Docket Number: No. S004770

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47 Cal.Rptr.2d 219 11 Cal.4th 786, 12 Cal.4th 783D, 905 P.2d 1305, 95 Cal. Daily Op. Serv. 9091, 95 Daily Journal D.A.R. 15,919 The PEOPLE, Plaintiff and Respondent,
v.
Harold Ray MEMRO, Defendant and Appellant. No. S004770 Supreme Court of California,
In Bank. Nov. 30, 1995.
As Modified on Denial of Rehearing Feb. 14, 1996.

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[11 Cal.4th 810] [905 P.2d 1314] Thomas J. Nolan, Nolan & Armstrong, Palo Alto, Andrew H. Parnes, Ketchum, ID, for Appellant.

Edward T. Fogel, Office of the Attorney General, Los Angeles, for Respondent.

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MOSK, Justice.

In People v. Memro (1985) 38 Cal.3d 658, 214 Cal.Rptr. 832, 700 P.2d 446 (Memro I), we reversed a judgment imposing a death sentence [11 Cal.4th 811] under the 1977 death penalty statute. The district attorney filed a new information in Los Angeles County Superior Court on May 13, 1986, charging defendant with the murders of Scott Fowler and Ralph Chavez, Jr., in July 1976, and of Carl Carter, Jr., in October 1978. The information also contained a multiple-murder special-circumstance allegation.

A jury heard the evidence and found defendant guilty of the first degree murders of Carter and Chavez and of the second degree murder of Fowler. It found the special circumstance true. After a penalty trial, it returned a verdict of death and judgment was entered accordingly. This appeal proceeds automatically.

For reasons that will appear, we affirm the judgment.

FACTS

A jogger found the bodies of Scott Fowler and Ralph Chavez, Jr., sprawled 178 feet apart near a pond in John Anson Ford Park in Bell Gardens early on the morning of July 26, 1976. Fowler was 12 years old, Chavez 10. Each victim's throat had been cut with a sharp instrument. Witnesses testified that the boys had been fishing for hours the day before, staying well into the evening. They were placing their catch in a plastic gallon-size milk jug with the top excised so as to keep the handle intact. The police found the jug nearby, along with bologna wrappers, which were evidence of the boys' picnic. A trail of blood suggested that Chavez had tried to run after the attack. The medical examiner fixed the time of death at about midnight.

Carl Carter, Jr., was reported missing in South Gate on October 22, 1978. He was seven years old. His body was found some five days later amidst dense scrub alongside a road. He had been strangled to death--a cord was still bound around his neck. An enzyme found in his anal area suggested an attempt at sodomy.

I. Guilt Phase

A. The Prosecution's Case

The prosecution's case was based almost entirely on defendant's confession, which he gave during the last of three interrogations at the South Gate city jail.

The police became aware of defendant when they were interviewing individuals who might have information regarding Carter's whereabouts. [11 Cal.4th 812] They went to his apartment, and he introduced himself by saying, in the words of Officer William Sims, " 'I knew you were coming.... I['ve] been in Atascadero [State Prison] ....' " At the time, there was wide awareness in South Gate that Carter was missing.

At the apartment, defendant and the police discussed Carter's disappearance. Defendant either said nothing about Carter at all or provided no useful information. The police returned to the Carter residence, and while they were there, defendant came over to drop off a part for his Volkswagen with Carl Carter, Sr., an occasional automobile repairer. Officer Sims testified that he asked him where he had been and what he might have seen on the night he dropped off his car. Officer Sims testified that he told him, " 'I remember now.... I took--I came to the Sizzler for dinner.' ... He said it was just before dark, and he had come up to the Carter residence ... to talk to Carl Carter, Sr., about working on his Volkswagen. [p] Stated that when he got to the rear of the house that Carl Carter, Jr., was at the rear and they had a short conversation, and he ... had taken him for a Coke."

Officer Sims then arrested defendant for kidnapping.

[905 P.2d 1315] There followed the three interrogations that evening at the jail. At the third, four officers were present: Sims, Lloyd Carter, Louie Gluhak, and Dennis Greene. Officer Sims treated defendant severely and Officer Carter more kindly. If this was a psychological tactic, it evidently worked, for Officer Carter, an experienced police investigator, won defendant's confidence. Officer Carter took notes of his confession, but it was not transcribed or taped--in fact defendant requested

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that all policemen except Officer Carter leave the room so that he could check it for bugs before making a statement.

After they returned, defendant told his story. Officer Carter testified that he "stated that he had known Carl Carter, Jr.'s, father for quite some time, that he was a personal friend of his, [and] that he was a mechanic....

"He decided it would be a good time to stop and talk to him about repairing his Volkswagen. That he pulled in the back of Carl [Carter], Sr.'s, house and was preparing to exit his car when little Carl, Jr., rode up on his bicycle...." Carter said he wanted a soft drink and defendant invited him into his car and drove him to his apartment. "He said the reason he wanted to take him over to his apartment was--that he liked to take pictures of little boys in the nude and he was hoping to take some pictures of Carl, Jr., in the nude. He said he went into his apartment and took him into his bedroom, and he turned on these real fancy strobe lights. And these lights began flashing [11 Cal.4th 813] [11 Cal.4th 812] on and on and he said that Carl, Jr., seemed to be fascinated with these lights."

Shortly thereafter Carl, Jr., said he wanted to leave. This made defendant angry. He "grabbed the clothesline that he had on the nightstand there and put it around Carl, Jr.'s, neck and choked him. He says he then threw him on the bed and that he took off his clothes and that Carl--then he took off Carl, Jr.'s, clothes, all except his T-shirt, and he said that sometime he taped his hands behind his back with masking tape that he had on the nightstand." He then tried to engage in anal intercourse with Carter's dead body.

After this, he knew that he needed an alibi, and he decided to use the victim's father for the purpose. "[H]e knew that he had to get his Volkswagen fixed so he tried to call Carl, Sr., to see if he could get his Volkswagen fixed and Carl said that he could."

Defendant arranged to have a friend drive with him to the Carter home. Before the friend arrived, a neighbor boy stopped by and with "Carl, Jr., ... still laying in on the bed, [defendant] conversed with [the neighbor boy] for quite sometime, and started showing [him] slide pictures of naked girls." The boy left after helping him jump-start his Volkswagen.

He drove the car over to the Carter residence and dropped it off. He returned to his apartment, "wrapped Carl, Jr.'s, body in a[n] army-type green blanket and rolled him up in it with his clothes. He said at this point he forgot to put the boy's shoes and socks in the blanket, but the rest of the clothing was in the blanket." He "dumped the body and the blanket over the side of" a rural road. The next morning, after a troubled sleep, he went to work. He "had heard about Carl missing because it had been in the newspapers...."

Officer Carter testified that defendant told him he had tied a square knot in the clothesline wrapped around Carl, Jr.'s neck, and that he had enclosed his shoes in a red suitcase in his garage and put it under a workbench.

Officer Carter further testified that he invited defendant to confess to any other crimes he might have committed.

Defendant then told Officer Carter that about two years before he had visited John Anson Ford Park in Bell Gardens on a red Yamaha motorcycle to take pictures of young boys. About dusk he saw two young boys walking toward a pond with fishing poles and what he believed to be a sack lunch. "He started conversing with them and taking pictures.... He says one of [11 Cal.4th 814] the boys was named Scott, and he was a male, white about 13 and blond-headed and good-looking. The other boy was a Mexican boy named Ralph that was a little younger, about 12[;] he said he was fat and ugly."

Defendant explained that they had a lunch of bologna sandwiches and that Fowler offered[905 P.2d 1316] him one. As he lingered with them "he was thinking about sucking Scott's dick because he liked blonds and just had a thing for young blonds. He says that it finally got real late and Ralph fell asleep on the bank while they were fishing." Defendant persuaded Fowler to walk to the other side of the pond. When they got there, he "just got real smart and said something about fucking faggots. He said this pissed him off, and he grabbed his 2 1/2-inch Barlow knife out of his

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pocket and bent Scott backwards and slit his throat and put his knee in his back.

"He says this caused quite a commotion and apparently it woke up Ralph who was asleep over on the other side of the pond. He says Ralph started [waking] up and screaming, that he ran around to where Ralph was and chased him and grabbed him from behind and he says he slit his throat and ran on--and was running across the grassy area to get on his motorcycle.

"And he says as he was getting on his motorcycle he looked back and Ralph ... had gotten up from where he had slit his throat and left him and was trying to walk. He said this scared him quite a bit and really made him sick, and he rode his motorcycle on home...." He discarded his knife at work the next day.

Officer Carter testified that defendant then "started crying and sobbing, and he said, 'Let's go find Carl, Jr.'s, body.' " The police escorted him to the area he had described and found the decomposing body, clad in underwear. A cord was still bound around the neck. Although defendant agreed to take the...