People v. Murtishaw

• Decision Date: 08 June 1989
• Docket Number: No. S004521,No. 23039,S004521,23039
• Citation: 258 Cal.Rptr. 821,48 Cal.3d 1001,773 P.2d 172
• Court: California Supreme Court
• Parties: , 773 P.2d 172 The PEOPLE, Plaintiff and Respondent, v. David Leslie MURTISHAW, Defendant and Appellant. Crim.

Page 821

258 Cal.Rptr. 821

48 Cal.3d 1001, 773 P.2d 172

The PEOPLE, Plaintiff and Respondent, v. David Leslie MURTISHAW, Defendant and Appellant.

No. S004521.

Crim. No. 23039.

Supreme Court of California,

In Bank.

June 8, 1989.

Rehearing Denied Aug. 31, 1989.

[773 P.2d 173] Hill, Schwartz & Stenson, David H. Schwartz, Michael P. Guta and Ernest L. Graves, San Francisco, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Ward A EAGLESON, Justice.

Campbell and Eddie T. Keller, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

A jury convicted David Leslie Murtishaw of three counts of first degree murder and one count of assault with intent to commit murder. (Pen.Code, § 187; former § 217.) ¹ The jury also sustained one firearm-use allegation ( § 12022.5) and one multiple-murder special circumstance allegation. (Former § 190.2, subd. (c)(5).) After a penalty trial, the jury set the penalty at death under the 1977 death penalty law. (See former § 190.1 et seq.; Stats.1977, ch. 316, §§ 7-13, pp. 1257-1262.) This court affirmed the guilt and special circumstance findings but reversed the penalty judgment. (People v. Murtishaw (1981) 29 Cal.3d 733, 175 Cal.Rptr. 738, 631 P.2d 446 (Murtishaw I ).) After a penalty retrial, a jury once again determined that defendant should suffer the ultimate punishment. This appeal is automatic. ( § 1239, subd. (b); former § 190.4, subd. (e).)

We reject defendant's attempt to reopen the validity of the guilt judgment. Furthermore, we find no error at the second penalty trial which warrants reversal of the verdict. We therefore affirm the judgment in full.

FACTS

A. Guilt trial.

As our original opinion discloses (Murtishaw I, supra, 29 Cal.3d at pp. 743-749, 175 Cal.Rptr. 738, 631 P.2d 446), defendant killed three college students near Mojave on April 9, 1978. That morning, defendant and his brother-in-law Gregory Laufenberger acquired two .22-caliber rifles, purchased beer and cartridges, and went shooting in the desert. When defendant's car broke down, defendant fired several shots at the vehicle in frustration.

Later, the two men encountered four University of Southern California students, Lance Buflo, Martha Soto, James Henderson, and Ingrid Etayo, who were making a film for Buflo's cinema class. The film's plot involved a stranded motorist who shoots at a hooded figure of death (Etayo) before succumbing to thirst and heat. The students were using a .38 revolver with blank cartridges as a prop.

Defendant and Laufenberger asked the students for a ride to town to arrange car repairs; the students said they would comply when the day's filming was done. During the afternoon, the two men drank beer steadily and watched the film production. According to Laufenberger, defendant suggested several times that they shoot the students; "he wanted to steal [their] car or something."

About 5 p.m., the students completed filming, placed the prop revolver in a satchel, and prepared to leave. Defendant followed them toward their car and then began shooting at them from a range of 80 feet. Soto fell immediately with a head wound from which she died two days later. A bullet struck Henderson in the shoulder. The firing continued despite pleas to stop and shouts that people were injured. Henderson was killed by a hail of bullets when he dashed for help from behind the students' car. Laufenberger saw defendant reload and resume shooting. Buflo was wounded in the hand. The still-hooded Etayo, already wounded in the arm, came toward defendant and begged for mercy. He told her to stop or he would shoot; she received a fatal head wound at close range. Buflo, running for the highway, looked back and saw defendant standing over Etayo, who was sitting next to the prone Soto. Buflo escaped, flagged down help, and notified the police.

Defendant told Laufenberger he did not know why he had shot the students. The two men threw away their guns and hitchhiked home.

Early the next morning, defendant turned himself in to the police. In his statement, he claimed he heard shots as he approached the students' car, became confused, and believed the students were firing at him with the revolver used in the Before trial, defendant withdrew his insanity plea and relied solely on a defense of diminished capacity. Three prosecution experts testified that defendant was able to premeditate, deliberate, and form the intent to kill. They noted he had no history of mental illness, was not severely inebriated, and acted rationally in many respects. Dr. Siegel, a psychopharmacologist, rejected claims that defendant, a chronic drug user, had acted in a PCP-induced "fugue state." The prosecution experts concluded defendant was under severe domestic stress and reacted violently to frustration without care for the consequences. The sole defense expert, Dr. Kelly, agreed with much of the prosecution's mental analysis. However, he claimed defendant acted in a dream-like "fugue state," in which time and reality were distorted and defendant lacked conscious control. The jury convicted defendant of all charges.

                film.  He then emptied his entire rifle clip in the students' direction.  He heard Laufenberger shout, "throw out your gun."   He reloaded and shot a hooded figure who [773 P.2d 175] approached despite his warning.  After the firing was over, he rejected Laufenberger's suggestion to take the students' car because gasoline was leaking from bullet holes in the tank.  Defendant denied telling Laufenberger earlier that he wanted to steal the vehicle
                

B. Penalty retrial.

In its case-in-chief at the penalty retrial, the prosecution again introduced evidence of the crime scene events and of defendant's culpable mental state. No other aggravating evidence was presented.

Defendant presented mitigating evidence falling into three categories: character, drug use, and organic brain dysfunction. His character evidence came largely from his wife and father, although his brothers, his coworkers, and his wife's ex-husband also testified. The evidence of drug use and brain damage came largely from four expert witnesses. Their testimony was rebutted by the testimony of several prosecution experts.

Defendant's father, Henry Murtishaw, recounted defendant's early years. Defendant was one of five children. While still a young child, defendant's mother Carol was committed to a state mental hospital for three months due to her profound depression. Henry recalled his wife would sit and do nothing for hours and then suddenly become very animated. Henry repeatedly abandoned the family but always returned. However, he left for good when defendant was eight years old, apparently unable to tolerate his wife's erratic behavior. He admitted he did not spend much time with his children and did not know how they managed when his wife was depressed. Defendant apparently became a loner, did poorly in school, and then dropped out after the ninth grade. Henry did not recall having any trouble with defendant and described him as an "average boy," "sometimes bullheaded," a "loudmouth," but "thoughtful."

Defendant's wife, Melody Murtishaw, testified she became friends with defendant when he was in his teens and she lived across the street from him. At the time, Melody was in her twenties, married, and the mother of three children. She divorced her husband and, despite opposition from defendant's family, eventually married defendant shortly before his 18th birthday. She described defendant as very good to her children; they called him "Daddy Dave." He provided for the family with his earnings from his job, enabling her to terminate her welfare benefits. However, in the weeks just before the crime, she said defendant was depressed over his recent hernia operation. In addition, for financial reasons, the family had been forced to vacate their apartment and move in with Melody's ex-husband, James Varnum. Although they got on fairly well with Varnum, she admitted the house was crowded and the situation was "strange."

Melody described defendant as a warm and gentle person who would walk away from a fight. She said he never struck her in anger, although he had struck her when, while intoxicated, she became violent. She admitted she drank heavily and recounted one incident when she was quite drunk and On the morning of the crime, Melody recalled she asked defendant to kill a deformed kitten to which their cat had given birth. He complied, burying the dead kitten in the yard. She noted he was crying when he returned from the yard.

was attempting to consume a handful of pills. Defendant then forcibly prevented her from eating the pills. Varnum testified and concurred in Melody's description of [773 P.2d 176] defendant, saying he had never seen defendant fight and that defendant was a "very level headed guy."

Defendant's history of drug abuse was recounted by two prosecution experts as well as some lay witnesses. Drs. Matychowiak and Siegel examined defendant and reported he told them he began experimenting with illicit drugs at age 13, including marijuana, various barbiturates and amphetamines, and sniffing gasoline. Several defense witnesses testified defendant often drank beer and smoked marijuana, and Melody asserted he regularly used LSD and Valium. In addition, she, Varnum, a coworker, and one of defendant's brothers all testified that they had observed defendant smoking PCP-laced cigarettes on occasion. Melody also averred that defendant smoked PCP-laced cigarettes up to three times a week during the period just prior to the crime. This three-times-a-week schedule was consistent with defendant's statements to Dr. Siegel. However, Victor Kumelin, a prison counselor who testified for the prosecution, stated that although defendant admitted an extensive abuse of other drugs, he told Kumelin he had only used PCP twice in his life, the second time being the day before the murder.

The...