People v. Nadey

• Docket Number: S087560
• Decision Date: 17 June 2024
• Citation: 321 Cal.Rptr.3d 788,549 P.3d 804
• Parties: The PEOPLE, Plaintiff and Respondent, v. Giles Albert NADEY, Jr., Defendant and Appellant.
• Court: California Supreme Court

321 Cal.Rptr.3d 788

549 P.3d 804

The PEOPLE, Plaintiff and Respondent,

v.Giles Albert NADEY, Jr., Defendant and Appellant.

S087560

Supreme Court of California.

June 17, 2024

Alameda County Superior Court, 129807, Alfred A. Delucchi, Judge

Christopher Johns, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Rob Bonta, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Alice B. Lustre, Jeffrey M. Bryant and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Corrigan, J.

DefendantGiles Albert Nadey was convicted of one count of unlawful sodomy and one count of first degree murder for the killing of Terena Fermenick.(Pen. Code, §§ 187,286, former subd. (c).)¹The jury found that both offenses were committed with the use of a knife (§ 12022, subd. (b)) and the murder occurred during the commission of unlawful sodomy (§ 190.2, subd. (a)(17)(D)).After the first jury deadlocked on penalty, a second jury returned a verdict of death.This appeal is automatic.(§ 1239, subd. (b).)We affirm the judgment.

I.BACKGROUND

A.Guilt Phase

1.Prosecution Evidence

Terena Fermenick was sexually assaulted and killed on January 18, 1996.Her husband, Donald, had just been named a minister for the Church of Christ in Alameda.²The couple were planning to move from Donald’s parents’ home into the minister’s residence.On the day of the murder, Terena had arranged for Skyline Chem-Dry to clean the carpets before the move.The job was assigned to defendant.

The cleaning was scheduled to begin between 2:00 and 4:00 p.m. Terena left the parents’ home in Pleasanton around noon and brought the couple’s five-month-old daughter, Regan, with her.Terena called Donald’s mother around 1:30 p.m. to say she had arrived safely but the carpet cleaner was not there.When she expressed concern about being alone in the house with a stranger, Donald’s mother suggested she leave while the cleaner worked and come back later to pay him.Terena went to browse at a nearby antiques store but left around 2:05 p.m., saying she was late to meet with a carpet cleaner.A Skyline Chem-Dry work order states that the job began at 2:16 p.m.A check indicated Terena purchased diapers at a nearby grocery store at 3:32 p.m.The carpet cleaning work order, completed by defendant and signed by Terena, indicates that the cleaning concluded at 3:54 p.m.

Donald had worked a night shift at his second job and did not wake that day until 4:00 p.m.He called the minister’s residence around 4:30 p.m. but received no response.He called unsuccessfully several more times that evening.When Terena had not arrived by 8:45 p.m., Donald borrowed his father’s car and drove to Alameda, arriving around 9:15 p.m.He saw Terena’s car parked nearby and found Regan asleep in her car seat.Regan’s diaper was very soiled, suggesting it had not been changed for some time.Donald grabbed the baby and walked around the outside of the house, looking for Terena.He peered through a window and saw Terena lying on the floor.Having no key, he kicked in a window to gain entry.He screamed upon finding Terena’s "cold, lifeless" body and called 911.Police arrived around 9:30 p.m.They removed the baby, handcuffed Donald, and secured the scene.Donald was taken to the hospital for a sexual assault examination and then questioned at the police station.

Terena’s body lay face down on the family room floor.She was nude except for blue jeans and a pair of underpants positioned around her ankles.In the primary bedroom, the bed was stained with human feces and a large amount of blood.The mattress foam displayed bloody swipe marks, suggesting an implement had been wiped on it.Terena’s wallet, a credit card, and a pen lay on top of the bedding.Her nursing bra, undershirt, and sweatshirt had been removed and left in a heap on the bed.Her purse, a tennis shoe, and the Skyline Chem-Dry work order lay on the floor next to the bed.A blood trail led from the bed, through a hallway, to her body in the family room.A sheathed hunting knife was found behind a set of blinds in the primary bedroom.No fingerprints were found on the knife, which bore no visible bloodstains.Donald testified he had previously found the knife when he and Terena were cleaning out the house, and he had placed it on the windowsill.A serrated paring knife was recovered from a different bedroom, but it was not tested for fingerprints.

The autopsy revealed one deep incised wound to the left side of Terena’s neck, as well as seven superficial neck lacerations, defensive wounds on her fingers and hands, and two incised wounds to her torso.Her jugular vein had been completely severed, causing her death.A person generally dies within three to five minutes after infliction of such an injury.There were also five lacerations around Terena’s anus consistent with the insertion of a penis.These injuries were inflicted before death.There was fecal matter present around the anus.Its presence could have been caused by sodomy.

The prosecution theorized Terena was killed shortly after 3:54 p.m., when she signed the work order.A McDonald’s bag had been found in Terena’s car, and her stomach contents were consistent with having eaten a hamburger.The food did not appear digested and could have been eaten less than half an hour before her death.

Defendant’s supervisor testified that defendant left for the Fermenick cleaning job around 1:45 p.m.He was wearing white canvas shoes, blue pants, a white Skyline Chem-Dry work shirt, and an old yellow raincoat.A small job of this nature would typically take an hour to an hour and a half.Skyline employees were supposed to call the office when a job was finished.Defendant called around 4:15 or 4:30 p.m. with that report.He said he had stopped by a Jack-in-the-Box in Oakland and was calling from the area.The secretary asked him to pick up cigarettes for her on his way back.Defendant returned with the cigarettes between 4:30 and 4:50 p.m. and behaved normally.He turned in the completed work order for the Fermenick job and a $184 check signed by Terena.Defendant had noted on the work order that he started the cleaning job at 2:16 p.m. and completed it at 3:54 p.m.The supervisor noticed that defendant was missing his raincoat and asked about it.Defendant said he had left it in the Jack-in-the-Box restroom.Police went there the next day but found no raincoat.

The day after the murder, the police contacted Skyline Chem-Dry and asked that the person who had cleaned the Fermenick house come in for questioning.Defendant went to the station and gave a tape-recorded statement.The next day, police obtained a search warrant for defendant’s home and person.

A Plier’s Plus multifunctional tool was found in defendant’s bedroom.The testifying pathologist opined that Terena’s wounds could have been produced by the blade on this tool, though no bloodstains were detected on it.A writing tablet in defendant’s nightstand contained drawings of male and female genitalia and a letter describing defendant’s experience with anal sex.Pornographic magazines, handwritten material, and videocassettes were also found in defendant’s bedroom, along with a book of pornographic stories, including one related to sodomy.Telephone records from the Fermenick residence in Alameda revealed that calls had been placed from their phone to two 1-900 numbers at 3:07 and 3:08 p.m., while defendant was cleaning the carpets.The phone numbers corresponded to the Real Swingers Hot Line and the Info Service Entertainment Line.Each call lasted under a minute.

While his house was searched, defendant was taken to the hospital for a sexual assault examination.His genital area appeared dirty and encrusted with flaky material.There was a reddened abrasion on the head of his penis.A DNA expert later determined from two types of testing that semen present in swabs taken from Terena’s rectal area and stains on her jeans matched defendant’s DNA.From restriction fragment length polymorphism (RFLP) testing, the probability of this match occurring at random was one in 32 billion Caucasians.³Based on polymerase chain reaction (PCR) testing, the probability of the match identified was one in 150,-000 Caucasians.Sperm was also recovered from Terena’s vulvar area.Defendant was identified as the major donor of DNA in this sample, with a match probability of one in 1.6 million Caucasians.DNA recovered from one vulvar swab indicated an additional minor donor, who was neither defendant nor Terena’s husband Donald.Based on the unclean condition of defen- dant’s genital region, the prosecution theorized that defendant may have transferred the foreign DNA onto Terena’s body when he assaulted her.

After defendant’s sexual assault examination, he was placed under 24-hour police surveillance.At one point, defendant initiated a conversation with the officers stationed outside the home he shared with his mother.Saying he wanted to cooperate, he remarked, "I must be the lead suspect in the case because I was the last one at the house."He asked if police could arrest him at his workplace, rather than at home, to avoid embarrassing his mother.He also requested that they handcuff him in a way that would not strain his shoulders.Later, defendant told the officers he had spoken to an attorney and been advised not to talk to them.He went inside the house, then came back to the police car and said, "I’m starting to feel the weight of this, all this on my shoulders."

The prosecutor argued defendant forcibly sodomized and stabbed Terena in the bedroom shortly after she paid for the carpet cleaning and signed the work order.After the assault, she staggered to the family room in an attempt to use the phone and died there.

2.Defense Evidence

Terena’s father-in-law testified that she was apprehensive about...