People v. Quartermain

• Decision Date: 21 August 1997
• Docket Number: No. S009924,S009924
• Citation: 66 Cal.Rptr.2d 609,941 P.2d 788,16 Cal.4th 600
• Court: California Supreme Court
• Parties: , 941 P.2d 788, 97 Cal. Daily Op. Serv. 6682, 97 Daily Journal D.A.R. 10,886 The PEOPLE, Plaintiff and Respondent, v. Drax QUARTERMAIN, Defendant and Appellant.

Page 609

66 Cal.Rptr.2d 609

16 Cal.4th 600, 941 P.2d 788, 97 Cal. Daily Op. Serv. 6682,

97 Daily Journal D.A.R. 10,886

The PEOPLE, Plaintiff and Respondent, v. Drax QUARTERMAIN, Defendant and Appellant.

No. S009924.

Supreme Court of California.

Aug. 21, 1997.

As Modified Sept. 17, 1997.

Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, Wilbur H. Haines III and R. Brewster Thompson, Deputy State Public Defenders, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias and Sharon G. Birenbaum, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, Justice.

A jury convicted defendant Drax Quartermain of conspiring to murder and murdering Ronald Ewing. (Pen.Code, §§ 182, 187.) It also found true the special circumstance allegation of murder for financial gain (id., § 190.2, subd. (a)(1)) and the allegation that defendant had personally used a firearm in the commission of the murder (id., § 12022.5). At the penalty phase, the jury returned a verdict of death. Defendant's appeal to this court is automatic. (Id., § 1239, subd. (b).)

Before trial, defendant waived his constitutional right to remain silent and gave a statement to the prosecutor after the prosecutor agreed not to use the statement in court. At trial, however, the prosecutor breached this agreement and used the many contradictions between defendant's statement and his testimony to impeach defendant's credibility. Under the controlling United States Supreme Court precedents, the prosecutor's use of the statement in breach of the agreement with defendant was fundamentally unfair and a violation of defendant's federal constitutional right to due process of law. U.S. Const., 14th Amend.) Because we cannot conclude beyond a reasonable doubt that the error was harmless, we reverse the judgment in its entirety.

FACTUAL AND PROCEDURAL HISTORY

I. GUILT PHASE--PROSECUTION'S CASE

The prosecution presented evidence of the following events leading up to the May 8, 1984, death of Ronald Ewing. In late 1983, Ewing had established a business in Sausalito selling worthless Alaskan oil and gas leases over the telephone to unsuspecting investors.

Sometime in late 1983 or early 1984, Michael Anthony, who was previously acquainted with Ewing, contacted Ewing concerning a business Anthony had started to sell gold and other precious metal investments over the telephone. Anthony's business, which he had started with Ronald McIntosh, was called First International Trading Company (FITC). During this time, Anthony and McIntosh were on parole after being convicted of federal crimes.

Ewing provided Anthony with a loan to fund FITC's operations, subleased office space to FITC, and transferred some of his salespersons to work for FITC. Ewing received a percentage of FITC's sales in return. FITC grew rapidly in the first half of 1984, while Ewing's business declined and had closed by April 1984.

Ewing and Anthony were chronic cocaine users, as was much of FITC's staff with the exception of McIntosh. Ewing and Anthony had a contentious relationship and frequently argued about money that Ewing believed Anthony owed him. Anthony in turn wished to discontinue paying a percentage of FITC's sales to Ewing. In their arguments, they threatened each other with physical violence. At some point, Ewing began to threaten that if his demands were not met he would inform the Wall Street Journal and otherwise publicize the involvement of Anthony and McIntosh, as convicted felons, in FITC. Anthony told his girlfriend that Ewing was blackmailing him; once when Anthony and his girlfriend were high on cocaine and imagined that Ewing was prowling around the house they were in, he told her that before Ewing Defendant Drax Quartermain and David Younge met at the Federal Correctional Institution (FCI) in Pleasanton, California. Defendant and Younge were both convicted federal felons in the federal witness protection program, had extensive criminal records, and had testified as prosecution witnesses in federal criminal proceedings. By 1984, defendant and Younge had been paroled; Younge had established a company called Devereaux Capital Corporation with drug money that he was permitted to retain as part of his federal plea agreement. Younge was president of Devereaux Capital and he hired defendant as a consultant. Younge also became a principal witness against defendant.

[941 P.2d 792] had the chance to do anything to him he would kill or "take care of" Ewing.

Younge testified that one day in January or February 1984, while defendant and Younge were lunching at a San Francisco restaurant, they encountered Anthony and McIntosh. Anthony told them of his involvement in the "gold business" through FITC. Younge concluded that FITC was a "scam" and he decided to try to persuade Anthony to use Devereaux Capital to transfer FITC's earnings to foreign bank accounts. Several weeks later, Younge and defendant met with Anthony and McIntosh at FITC's offices. During the course of their discussion, Younge proposed that Anthony and McIntosh use Devereaux Capital's foreign bank accounts.

Younge, defendant, Anthony, and McIntosh met again for lunch soon thereafter. Younge had concluded that FITC was taking money from investors for the purpose of purchasing gold but was not actually purchasing any gold. He proposed to Anthony and McIntosh that FITC use Devereaux Capital both to purchase gold on FITC's behalf and to obtain loans using the gold as collateral.

A week or two later, defendant told Younge that Anthony and McIntosh were not interested in using Devereaux Capital's foreign banking services but that they wanted to hire defendant to kill a man who was their partner. Younge replied that he did not want to get involved. Nevertheless, Younge accompanied defendant to a meeting with Anthony and McIntosh at the Cannery in San Francisco. When defendant and Younge arrived, defendant and McIntosh went off by themselves and talked for five or ten minutes. After defendant rejoined Younge, they departed. Defendant told Younge that McIntosh had offered him $55,000 to kill Ewing and that he had agreed to do so.

Sometime thereafter, defendant invited Younge and their respective girlfriends to a restaurant to celebrate defendant's receipt of a down payment of $20,000 or $25,000 on the contract to kill Ewing. Defendant paid for dinner, a fact confirmed by defendant's girlfriend and described by her as "unusual," although she understood the purpose of the dinner to be to celebrate Younge's birthday. Younge's girlfriend also confirmed that defendant paid for this dinner. After receiving the down payment, defendant bought an Alfa Romeo convertible automobile for $6,000 or $7,000 in cash and paid back a $6,000 loan from Younge.

Younge then accompanied defendant on two separate trips to a Mill Valley restaurant, Strawberry Mac's, to observe Ewing in preparation for the murder. Anthony and McIntosh were to bring Ewing to the restaurant so that defendant could observe his features and be able to identify him later. On the first occasion, April 25, 1984, only Anthony appeared at the restaurant, telling defendant and Younge that Ewing would not be coming.

Ewing's wife testified that he had her call Strawberry Mac's on April 25 and page Anthony to tell Anthony that Ewing would be late because Ewing was having car trouble. When Ewing returned home later that day, he showed his wife a $17,000 check from FITC.

Younge testified that he and defendant went to Strawberry Mac's a second time. On that occasion, Anthony and McIntosh appeared with Ewing and, without acknowledging defendant or Younge, gave them the opportunity to observe Ewing.

Ewing's former girlfriend testified that on May 7, 1984, the day before Ewing was killed, he told her that he had worked out an On the night of May 7, Ewing called his wife three times; in the last call, about midnight, he told her that he was at a bar in Mill Valley with Anthony and would soon leave for her apartment in San Francisco. He sounded to her like he had been drinking or using drugs. At 1:00 or 1:30 a.m. on May 8, Ewing and Anthony appeared at the Corte Madera apartment of an FITC employee, seeking cocaine. The employee gave them some cocaine, Anthony made a telephone call, and then he and Ewing left. Anthony told the employee that he and Ewing were going to meet some women and maybe get cocaine. The employee's telephone records showed that a telephone call was placed at 1:40 a.m. on May 8, 1984, from the employee's telephone to a Denny's restaurant in Pacifica.

[941 P.2d 793] arrangement with Anthony and McIntosh and they would be paying him $30,000 to end their business relationship and that he would be moving to Los Angeles. Ewing told her he would be meeting with Anthony and McIntosh that night to finalize the transaction.

Waiting at that restaurant that night was defendant. According to a waitress who went on duty at midnight, defendant arrived around 2:00 a.m. He ordered a cup of coffee and then went to the restroom. While he was in the restroom, the waitress received a telephone call for him from "Mike." When defendant returned from the restroom, she handed him the telephone. After taking the telephone call, defendant left the restaurant, telling the waitress he would be back to meet his friends.

About half an hour later, Anthony and Ewing came into Denny's. The waitress concluded from their behavior that they were under the influence of cocaine. They ordered some food at 3:10 a.m. At some point, Anthony made a telephone call. Thirty to forty minutes after the arrival of Anthony and Ewing, defendant returned to the restaurant. Defendant then went in and out of the restaurant several times and made a telephone call. Around 4:00 a.m., all three men departed.

Deborah Chandler, an acquaintance of defenda...