People v. Nicolaus

• Decision Date: 24 October 1991
• Docket Number: No. S004766,S004766
• Court: California Supreme Court
• Parties: , 817 P.2d 893 The PEOPLE, Plaintiff and Respondent, v. Robert Henry NICOLAUS, Defendant and Appellant.

Page 628

286 Cal.Rptr. 628

54 Cal.3d 551, 817 P.2d 893

The PEOPLE, Plaintiff and Respondent, v. Robert Henry NICOLAUS, Defendant and Appellant.

No. S004766.

Supreme Court of California,

In Bank.

Oct. 24, 1991.

Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, Dee Hayashi and Nancy Gayno, Deputy State Public Defenders, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Dane R. Gillette, Ronald S. Matthias and Sharon G. Birenbaum, Deputy Attys. Gen., for plaintiff and respondent.

BAXTER, Justice.

Defendant Robert Henry Nicolaus appeals from a judgment of death imposed under the 1978 death penalty law. (Pen.Code, § 190.1 et seq.) ¹ He was convicted of the first degree murder of his ex-wife, Charlyce Robinson. (§ 187.) A firearm-use enhancement was found true. (§ 12022.5.) The murder was committed in Sacramento County; defendant successfully moved for a change of venue and the case was ordered transferred to Santa Clara County for trial.

Upon his conviction, defendant admitted the truth of the three alleged prior-murder special circumstances, having been previously convicted of the murders of his three children in 1964. (§ 190.2, subd. (a)(2).) The jury fixed the penalty at death; this appeal is automatic. (§ 1239, subd. (b).)

For the reasons set forth hereafter, we conclude that the judgment should be affirmed in its entirety.

I. FACTS

A. Guilt Phase

The Murder

At 4 p.m. on February 22, 1985, Ron Landrith and his father Leon were in a lot adjacent to their residence on Eleanor Street in Sacramento. A turquoise Rambler parked in the alleyway next to their property suddenly pulled into an adjoining lot and came to a stop in front of, and blocking, a red Volkswagen. Defendant got out, walked over to the Volkswagen, and began screaming at a woman seated therein, stating words to the effect of, "How could you do this to me?" He reached into the Volkswagen and started beating the woman, then retrieved a handgun from the Rambler and shot her in the chest. Ron ran inside to call the police. Leon observed defendant walk back to his car, stand there several seconds, then return to the Volkswagen and shoot the victim, who had exited or fallen from the car to the ground, a second time at point blank range.

As defendant drove off, the Volkswagen rolled across the alley and came to a stop against a pole. A young child was in the back seat. Moments later defendant drove back into the alley, pulled up alongside the victim who was lying on the ground, looked at her for several seconds, then drove off again.

The Landriths furnished defendant's license plate number to police who arrived on the scene within minutes. Officer Scott testified that the victim was found lying on her back in the parking lot, her face covered with blood and a gunshot wound to her chest, crying, "Oh my God, my baby, where's my baby?" The victim was later identified as defendant's ex-wife Charlyce (Lisa) Robinson. When asked who shot her, Lisa replied, "Robert Nicolaus." She repeated defendant's name, spelled it, and stated he lived on Erickson Street, apartment 1. The officers took custody of Lisa's three-year-old son who was in a hysterical state. Defendant's address was obtained through a Department of Motor Vehicles check; officers arrived at his apartment less than 20 minutes after the shooting but did not find him there.

The victim died en route to the hospital. An autopsy performed the following day revealed extensive facial injuries consistent with her having been beaten with fists. She had been shot twice; once through the lower chest, and once through the buttock. Both bullets were retrieved. The cause of death was hemorrhage from a severed aorta caused by the gunshot wound to her lower chest. Ballistics tests established that the fatal gunshot had been fired from a distance of four to eight inches.

The next day, police located defendant's Rambler in a public parking lot. A .25-caliber semiautomatic handgun was observed in plain view on the front floorboard and seized, and the car was impounded. A second handgun in a bag was later recovered from the vehicle during the execution of a search warrant. Ballistics tests established that the .25-caliber handgun was the murder weapon.

Events Leading up to the Murder

The subsequent investigation revealed defendant's bitter and long-standing grudge against his ex-wife.

Wilber "Deke" Bennett had known defendant since 1955. Defendant had repeatedly told Bennett that Lisa had stolen money from him. Defendant was angry and bitter about this, and would get upset when he talked about Lisa. Prior to the murder he sought Bennett's assistance in locating Lisa. Bennett denied defendant told him he wanted to kidnap, torture, or kill Lisa, or that he (Bennett) had told his girlfriend, Jillette Kruhalski, that defendant wanted to kidnap Lisa.

Kruhalski testified that, one year prior to the murder, defendant had asked her to befriend Lisa. At defendant's request, Kruhalski went to speak with Lisa at a store where Lisa worked; on another occasion she and defendant waited for Lisa to leave work and then followed her. Sometime thereafter, Bennett told Kruhalski that Lisa had stolen money from defendant, and that defendant was going to get even with her. Contrary to Bennett's testimony,, Kruhalski recalled that six months before Lisa was killed, Bennett informed her that defendant was going to kidnap Lisa.

Bennett's sister, Orra Thompson, testified that sometime in 1984 defendant told her Lisa and her mother had taken $5,000 from his savings account, which money was supposedly earmarked for funeral arrangements for defendant's children, and had spent it on themselves instead. Defendant also asked Thompson if she would like to "work" for him, offering her $1,000 plus expenses to "get to know" Lisa. Thompson was to obtain information for him on Lisa's daily activities and also find out what she could about the validity of defendant and Lisa's Mexican divorce. Defendant told Thompson he stood to inherit some money when his mother died and did not want Lisa to get any of it. Thompson never actually met Lisa. On two occasions defendant paid her $7 and $25 respectively for her attempts to contact Lisa. Although defendant never expressed a desire to harm his ex-wife, Thompson perceived that he harbored bad feelings about her, and that she would not cooperate with him.

"Deke" Bennett's brother Harry knew defendant and had introduced him to one Dick Winn in the spring of 1984. Winn testified that Harry Bennett and defendant asked him to obtain a couple of pistols for them. Winn was told "throwaways" would be fine. Defendant agreed to pay for the guns, and $150 was discussed as the purchase price. Winn understood that the guns were to be used in retaliation for a long-standing grudge which defendant bore against his former wife. Defendant claimed she had run off with his "defense money." When Winn suggested defendant consider whether he could get away with the plan, defendant replied that there would be no doubt about who did it, and that he did not care. Defendant and Bennett also wanted Winn to "grab" Lisa and take her someplace "where noise wouldn't make no difference" so that defendant could "spend some time with her." They offered Winn $2,000 to do the "grabbing," and he agreed. Winn specifically asked defendant whether he planned to kill Lisa, which defendant denied. When asked why he wanted to "grab" his ex-wife, defendant replied that "it wasn't for any picnic." Winn was unsuccessful in locating any handguns and ultimately lost interest in the plan.

Lisa had a 15-year-old daughter, Donna Johnson, who was residing with her in 1985. Donna testified that before her death her mother was involved in a religious organization called "The Saints." She recalled frequently seeing defendant at the grocery store, and in front of the apartment where they lived, during the months prior to her mother's death. Two weeks before the murder, defendant confronted Donna and Lisa in a laundromat and "stared" at them for a prolonged period. About that same time defendant appeared at a Saints' meeting, pounded on the door, and demanded to speak with Lisa, who refused to see him.

Donna testified she was acquainted with Pasquale D'Antonoli, who was an alcoholic. Shortly before the murder he had come to their apartment and told Lisa he needed to move from his apartment within a week. He returned on the afternoon of her mother's murder; Lisa was not home at that time.

D'Antonoli testified he had known defendant since 1954 and had met defendant's ex-wife Lisa while they were married. Three or four days prior to the murder, defendant sought his assistance in "contacting" Lisa. D'Antonoli agreed to offer Lisa some money to help him "move from his apartment." Defendant told D'Antonoli he could not contact Lisa himself because they were not too friendly, and that he wanted to discuss the legality of their Mexican divorce. D'Antonoli testified that defendant's desire and intent to harm his ex-wife "showed." Defendant promised D'Antonoli vodka and money in exchange for his assistance.

During the days prior to the murder defendant drove D'Antonoli to Lisa's apartment three times. On the first occasion she was not home; defendant gave D'Antonoli a bottle of whiskey for his efforts. On the second occasion D'Antonoli contacted Lisa and she agreed to help him move; defendant gave D'Antonoli some liquor and "a few bucks" for these accomplishments. According to plan, D'Antonoli was to meet Lisa at a Lucky's market and have her drive him to the alley off Eleanor Street. Defendant and D'Antonoli visited the location. The night before the murder D'Antonoli stayed at defendant's apartment, got drunk, and went over the plan.

On the afternoon of the murder D'Antonoli and defendant drove to the...