People v. Morse

• Decision Date: 09 January 1992
• Citation: 2 Cal.App.4th 620,3 Cal.Rptr.2d 343
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Donald Lee MORSE, Defendant and Appellant. B042786.

Page 343

3 Cal.Rptr.2d 343

2 Cal.App.4th 620

The PEOPLE, Plaintiff and Respondent, v. Donald Lee MORSE, Defendant and Appellant.

B042786.

Court of Appeal, Second District, Division 7, California.

Jan. 9, 1992.

Concurring and Dissenting Opinion Modified Feb. 7, 1992.

Review Denied April 16, 1992.

[2 Cal.App.4th 630] Phillip I. Bronson, Sherman Oaks, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., William T. Harter, Jr., Supervising Deputy Atty. Gen., and Kristofer Jorstad, Deputy Atty. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

A jury convicted appellant of two counts of first degree murder (PEN.CODE, §§ 187¹, 188, 189), one count of reckless or malicious possession of a destructive device (§ 12303.2), and found true both alleged special circumstances: multiple murder (§ 190.2, subd. (a)(3)) and murder by destructive device (§ 190.2, subd. (a)(4)). Appellant was sentenced to state prison for life without possibility of parole.

Appellant claims myriad errors. Principally: the trial court wrongfully excluded evidence of victim negligence relevant to proximate cause; and the trial court erroneously instructed the jury that if they found defendant had committed second degree murder, by law it becomes first degree murder.

We reject all appellant's claimed errors except one. We conclude the trial court erred in instructing the jury that they could use the crime of possession of a destructive device twice, first to find appellant had committed second degree murder, and second to convert that murder into murder of the first degree.

FACTUAL BACKGROUND

Summary

Two Los Angeles police officers were dismantling a bomb in appellant's garage when it exploded and killed them.

The prosecution theory was that appellant had made, possessed, and intended to use the bomb and thereby proximately caused the death of the two officers. There was no evidence appellant intended the death of the police-victims.

The defense challenged the sufficiency of the prosecution's evidence. Appellant did not testify.

Evidence appellant made, possessed, and intended to use the bomb

We synopsize the evidence with a perspective favoring the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110.)

Appellant lived in North Hollywood at 6849 Vanscoy. In the late 1970's he became friends with one of his neighbors, Al Ward. They went on bicycle rides together and visited each other at their homes. Their wives were also good friends.

Sometime in October 1978 Mr. Ward went to appellant's house to go for a bike ride. Appellant showed Mr. Ward a used Xerox machine he had just bought and while they were in appellant's garage also showed him a book with descriptions of how to make a bomb. The book was gray with black binding, had sketches but was not "The Anarchist Cookbook" (a bomb-making book later recovered in appellant's In 1985 William Enoch was married to appellant's sister, Ernestine, and was living in Orlando, Florida with her and their three children. In September 1985 Ernestine left Mr. Enoch, took the children, and came to California. They stayed with appellant at his Vanscoy home.

house). Appellant told Mr. Ward, "I can make a bomb."

On Sunday, January 24, 1986, appellant telephoned Mr. Enoch, identified himself, spoke for a few minutes, and said he'd call back. About 20 minutes later, appellant again called Mr. Enoch. This conversation lasted about 5 minutes. Appellant told Mr. Enoch "to send him some money to take care of [his] children." At first, Mr. Enoch refused. At the end of the conversation appellant said: "Well, I don't appreciate people messing with my family. I have connections in Orlando and I can make your life miserable and I'll blow you up in your car."

Mr. Enoch immediately hung up, told a fellow worker about the threat, called the local police, and then at their suggestion, telephoned the North Hollywood, California police station and reported the threat.

About two weeks later, on February 8, 1986, at 7:30 a.m. a group of eight or nine Los Angeles police officers arrived at appellant's house to execute a search warrant on an unrelated matter. They entered, found appellant in a rear bedroom, and searched the house.

On the top shelf of the closet in appellant's bedroom an officer found a box wrapped with tape. Inside the box were shotgun shells bound with tape, several .22 caliber and some .38 caliber rounds.

When attempting to search appellant's garage and his van, parked at the rear of the garage, the police noted that both were locked. They asked appellant for the keys. Appellant went to his closet and removed the keys from his pants and gave them to an officer.

Officer Asvonanda took the keys, unlocked the garage, entered, and began a search. After about 5 minutes he went to a small, freestanding wood cabinet in the center of the garage. He opened its door, saw some cans on a shelf, moved them aside, reached behind them, felt a metal pipe, and pulled it out. He then saw that he was holding a 3-4 inch diameter pipe, nine inches long, capped at both ends, with wires and an attached battery. The wires led from the pipe back into the cabinet. Officer Asvonanda carefully put the pipe on a carpet in front of the cabinet, left the garage, and advised Detective Harley what he had found.

Detective Harley entered the garage, saw the wired pipe on the carpet and also saw that the wires were connected to a similar but longer pipe on a shelf in the cabinet. Detective Harley knew the pipes looked like bombs but didn't know if they were real. He asked his partner to bring appellant to the garage. Pointing to the wired pipe on the carpet, Detective Harley asked appellant what it was. Appellant said he had never seen it before. Detective Harley replied, "What do you mean? This is your garage. You gave me the keys." Appellant said, "I let a man and a woman store their property in the garage."

Appellant, under arrest, was transported to the station, the house was evacuated, and the Los Angeles police bomb squad was called.

At about 10 a.m. the head of the bomb squad, Officer Arleigh McCree, arrived, followed 20 minutes later by his partner, Officer Ron Ball. Officer Ball photographed both pipe bombs. They then dismantled the smaller bomb.

Detective Leone entered the garage and showed Officers McCree and Ball the box of shells found in appellant's closet. The green Remington Peterson 12-gauge shotgun shells and Winchester Western .38 caliber rounds were the same as that just removed from the 9-inch pipe bomb. The shotgun shells removed from the pipe bomb, like those in the box, had been taped together.

Officer Ball took a small portion of the powder that had been removed from the one dismantled pipe bomb, went outside, put the powder in a large flower pot, and put a match to it. It burned rapidly.

Detective Douglass arrived at the scene about 10:45 a.m., after the one bomb had been dismantled. He went into the garage and was told by either Officer McCree or Ball that they were about to dismantle the second bomb. He left, with Officer Ball closing the garage door behind him. Ten or fifteen seconds later he heard an explosion, "a deafening noise," and "felt a blast pressure wave." He ran to the front of the garage and shouted to patrol officers to call for two ambulances. He then ran to the side garage door, forced it open with his shoulder, and entered. He checked Officer Ball for a pulse but felt none. Officer McCree's condition did not permit checking for a pulse. Detective Douglass then got a garden hose and put out several fires in the garage.

Paramedics removed Officer Ball who soon died. The coroner removed Officer McCree.

Officers McCree and Ball each died from a massive number of shrapnel wounds. Deputy medical examiner Susan Selser, who performed both autopsies, had begun counting and identifying each shrapnel wound. When she got to wound number 115 on Officer McCree she stopped counting. Officer McCree suffered 25 shrapnel wounds to his right forearm, 8 to his left hand and lower forearm, his lower right leg and foot had almost been severed, there was near amputation of his right forearm, near complete amputation of his left hand, total amputation of his right hand, a gaping laceration severing most of the left side of his neck, a skull fracture, and multiple injuries to his face.

Officer Ball sustained shrapnel injuries to his head, face, neck, chest, and extremities. A skull fracture involved the top quarter of his head, his right leg was nearly severed, both hands had been amputated, his right eye had been punctured, and shrapnel had penetrated his brain.

About an hour after the explosion Detective Weller, second in command to the deceased Officer McCree, arrived at the scene and took charge of the investigation. Noticing Officer Ball's camera among the garage rubble, he had the film flown to Parker Center, developed, and the prints returned to him. Based upon these photographs and the evidence recovered at the scene, Detective Weller made replica bombs.

Detective Weller described the bombs as follows: the master bomb was 12 inches long and the secondary, or slave bomb, 9 inches long. Inside of each were four 12-gauge Remington Peters number six-shot cartridges, taped together. Pyrodex, a low grade explosive, filled the pipe cavity. A small light bulb filament was inserted in the Pyrodex. A wire from the bulb fed through a drilled hole and connected to two nine-volt batteries taped to the outside of the master bomb. The pipes were capped at each end. A wood block affixed to the master bomb had the triggering mechanism, a folded piece of metal and a soldered wire. Wire connected the triggering mechanism to the batteries. A safety device consisting of a piece of rubber tubing covered part of the...