People v. Musselwhite

• Decision Date: 07 May 1998
• Docket Number: No. S017868,S017868
• Citation: 17 Cal.4th 1216,74 Cal.Rptr.2d 212,954 P.2d 475
• Court: California Supreme Court
• Parties: , 954 P.2d 475, 98 Cal. Daily Op. Serv. 3452, 98 Daily Journal D.A.R. 4745, 98 Daily Journal D.A.R. 7181 The PEOPLE, Plaintiff and Respondent, v. Joseph MUSSELWHITE, Defendant and Appellant

Page 212

74 Cal.Rptr.2d 212

17 Cal.4th 1216, 954 P.2d 475, 98 Cal. Daily Op. Serv. 3452,

98 Daily Journal D.A.R. 4745,

98 Daily Journal D.A.R. 7181

The PEOPLE, Plaintiff and Respondent, v. Joseph MUSSELWHITE, Defendant and Appellant.

No. S017868.

Supreme Court of California

May 7, 1998.

As Modified on Denial of Rehearing June 24, 1998.

Michael B. McPartland, under appointment by the Supreme Court, and Carl A. Gonser, San Rafael, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, W. Scott Thorpe and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

BROWN, Justice.

After 26 days of trial, a capital jury convicted defendant of 1 count of murder of the first degree. (Pen.Code, § 187, subd. (a); all undesignated statutory references are to the Penal Code.) It also found defendant guilty of three counts of burglary, two counts of robbery, and one count of attempted murder. (§§ 459, 211, 664/187.) Two special circumstances alleged in the information -- that the murder occurred in the course of the commission of a robbery and a burglary, two of the felonies enumerated as special circumstances in our capital statute (see former § 190.2, subd. (a)(17)(i), (vii); now § 190.2, subd. (a)(17)(A), (G)) -- were also found true, as were allegations that defendant had personally used a knife in the commission of all but one of the burglaries, had personally used a hammer in the commission of a burglary, a robbery, and the attempted murder, and had personally inflicted great bodily injury upon the victim of the robbery and the attempted murder. (§§ 12022, subd. (b), 12022.7.)

Following a nine-day penalty trial, the jury sentenced defendant to death on the first degree murder count; the trial court imposed the upper term of nine years on the attempted murder count, a one-year enhancement for the use of a knife, and a three-year enhancement for the infliction of great bodily injury for a total determinate term of thirteen years; sentencing on the remaining counts was stayed under section 654. The superior court subsequently denied a motion to reduce the death sentence to life in prison without possibility of parole, and directed that judgment be entered on the jury's verdicts. The direct appeal to this court is automatic. (Cal. Const., art. VI, § 11; Pen.Code, § 1239, subd. (b).)

We affirm the judgment in its entirety.

I. FACTS

A. Guilt Phase

1. The prosecution's case: The robbery and attempted murder of Shawn May.

On November 30, 1987, Shawn May, then 18, was working alone as a sales clerk at the Video Mart in Sacramento. Around midafternoon, defendant entered and began looking through the videotape rentals. As May walked out from behind the front counter, she noticed a dollar bill lying on the floor. She picked it up, returned behind the counter to the cash register, and asked defendant if the bill belonged to him. Told that it did not, May placed the money in the store's register, remarking that it would save her from being short at the end of the day. Defendant then said, "Well, it's going to be a lot shorter than you think," and grabbed May by the neck from behind. Holding the blade of a small knife to her throat with one hand, he reached into the cash register with the other and removed about $100 in cash.

Defendant then told May to lock the front door to the store. After getting her keys, May did so, turning over the "OPEN" sign so that it read "CLOSED" to passersby. Defendant then demanded that May tell him where more money was hidden. The telephone rang; defendant answered it. "Video store," he said. The store was busy, he told the caller; he had to go. Hanging up the telephone, defendant again demanded to know where additional money was kept. May led him to a back room and showed him $100 in bills in a metal file cabinet which he pocketed. By now, customers had begun to gather outside the locked entrance to the Video Mart.

Placing May on a chair in the back room, defendant grabbed a nearby roll of duct tape, bound her hands and feet with it and placed tape over her eyes and mouth. May told defendant he could leave by the back door. Defendant rummaged around, May testified at trial, before suddenly ripping the tape from her eyes, mouth and arms. He needed the key in the cash register, he told her. Walking May to the front counter by holding onto her shirt, kneeling down so that he could not be seen by the customers waiting outside, defendant directed May to take the key and give it to him. She did so, and the two returned to the back room. Defendant said little as he taped May to the chair, and retaped her eyes. He told her to be quiet, all he wanted was the money.

Defendant took some cash and May's automated teller machine card from her purse. After asking for her personal identification number (May made up one), he again fell silent. May could still see defendant's feet through the gaps in the tape, however, and after a few moments said, "I know you're still here." She felt a blow to her head, followed by something sharp striking the side of her neck. Defendant had picked up a hammer lying nearby and struck May, then stabbed her in the neck. After defendant left by the back door, May was able to remove the loose tape from her hands and feet and, bloodied, open the store entrance to the waiting customers who came to her aid.

2. The robbery and murder of Norma Painter.

On the afternoon of December 7, a week after the Shawn May incident at the Video Mart, defendant walked into the office of Norma Painter, the 53-year-old manager of the Cottonwood Apartments in Sacramento, and asked to see an apartment. After leaving briefly (he was observed, a tenant later testified, standing next to a nearby laundry room), defendant returned to Painter's office and asked for a rental application. Painter pointed to a pad of blank applications and told him to help himself. He did so, sitting in Painter's office and filling out the application form using a fictitious name. After he had completed the rental application, Mrs. Painter showed defendant unit No. 24, a model apartment kept vacant for that purpose. Alone with Mrs. Painter in the apartment, defendant struck her -- probably with his fist, according to a forensic pathologist at trial -- on the left eye and left temple, the mouth, the right arm and wrist, and her thighs. He then bound her ankles by knotting her pantyhose, and her hands by looping the maroon-colored belt from her dress and tying it. Shawn Coleman, a tenant in apartment No. 22, next door to No. 24, testified at defendant's trial that she had been folding freshly laundered clothes on the afternoon of December 7, when she heard a woman cry out, "No, no, leave me alone, don't do that." The subsequent police investigation of the crime scene at the Cottonwood Apartments revealed that a length of white cord from a venetian blind covering one of the windows of apartment No. 24 had been cut, tied around Mrs. Painter's neck and pulled taut. In addition to this ligature, Painter had been stabbed with a pocket knife four times on the right and left side of the neck, opening the jugular veins at both locations. She had died, according to the pathologist's testimony, "as a result of ligature strangulation, along with incised injuries of the neck." The prosecution's evidence at trial indicated that defendant then left apartment No. 24, returned to the Cottonwood rental office, and took Mrs. Painter's wallet from her purse, along with cash and checks from the office desk. After removing the handset from the telephone cradle, he left.

3. The defense case.

The defense conceded that defendant was responsible for the death of Norma Painter. It asserted, however, that he suffered from organic brain damage which, compounded by extended crack cocaine abuse, prevented him from forming the mental state required for the commission of murder of the first degree. Defendant had not, the defense contended, premeditated, deliberated or acted out of malice in killing Norma Painter because he was incapable of forming those mental states. Defendant was acting randomly when he killed Painter, the defense asserted, and her homicide did not occur during the commission of a felony. The defense opened by calling Ann Schade, a medical technician. Schade testified that she had administered EEG (electroencephalogram) and BEAM (brain electrical activity mapping) tests on defendant and forwarded the results to Dr. Arthur Kowell, a neurologist, for analysis and interpretation.

Dr. Kowell testified that defendant's EEG trace appeared to be within normal limits. The BEAM test results, however, revealed abnormalities in the right temporal region of defendant's brain. According to Dr. Kowell's testimony, people with such brain abnormalities may have memory and attention deficits. Impairments in speech, emotion, and impulse control are also common in such people, who tend to be easily irritated. The defense also relied on the testimony of witnesses who had observed defendant around the time of Mrs. Painter's murder and described his behavior as nervous or "hyper." It called Dr. Fred Rosenthal, a psychiatrist who is board certified in neurology. Rosenthal had reviewed the results of the BEAM test on defendant and interviewed him and family members. It was on that basis that Dr. Rosenthal concluded defendant had sustained organic brain damage to the right temporal and perhaps the frontal lobes, damage that had been exacerbated by the extended use of drugs and alcohol since defendant's early teens.

In Dr. Rosenthal's opinion, habitual abusers of cocaine are emotionally unstable and irritable. They tend to overreact, even after ceasing drug use for a period of weeks; extended use may produce symptoms of psychosis and hallucinations. Defendant's history, according to Dr. Rosenthal's testimony, was...