People v. Schmeck

• Decision Date: 25 August 2005
• Docket Number: No. S015008.,S015008.
• Citation: 37 Cal.4th 240,33 Cal.Rptr.3d 397,118 P.3d 451
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mark Lindsey SCHMECK, Defendant and Appellant.

33 Cal.Rptr.3d 397

37 Cal.4th 240

118 P.3d 451

The PEOPLE, Plaintiff and Respondent, v. Mark Lindsey SCHMECK, Defendant and Appellant.

No. S015008.

Supreme Court of California.

August 25, 2005.

Cliff Gardner, San Francisco, under appointment by the Supreme Court, and Catherine White, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Ronald S. Matthias and Violet M. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

A jury found defendant Mark Lindsey Schmeck guilty of the first degree murder of Lorin Gwynne Germaine (Pen.Code, § 187, subd. (a), § 189)¹ and of second degree robbery (§ 211). The jury also found true the allegations that defendant killed the victim while engaged in the commission or attempted commission of a robbery (former § 190.2, subd. (a)(17)(i), now § 190.2, subd. (a)(17)(A)), and personally used a firearm in committing the murder and the robbery (§ 12022.5 as amended by Stats.1988, ch. 1249, § 3, p. 4161). The jury set the punishment at death.

The case is before us on defendant's automatic appeal. (Cal. Const., art. VI, § 11; Pen.Code, § 1239, subd. (b).) For the reasons that follow, we affirm the judgment.

I. FACTS

A. Guilt phase

The prosecution proceeded on the theory that defendant sought out a motor home to steal, and then robbed and murdered Lorin Germaine in the course of stealing his motor home. The defense theory was that Jamie Gronley (defendant's girlfriend), Donald Willis, and perhaps William Duffy committed the murder and robbery, and that following the murder, defendant unwittingly had merely attempted to sell the motor home.

1. Prosecution evidence

On the morning of May 30, 1986, Lorin Germaine left his Fremont residence to meet a prospective buyer for his motor home. On June 5, 1986, Germaine's body, with four or five bullet wounds in his head, was discovered on a road near Sunol.

In May 1986, Lorin and his wife Rebecca Germaine placed an advertisement in Auto Trader magazine to sell their 1978 22-foot Dodge Brougham motor home, which had mileage of 38,000, for $14,000. Approximately 8:30 p.m. on Monday, May 26, Rebecca answered a telephone call from a man who said he had seen the advertisement in that magazine and was interested in buying the motor home. Rebecca handed the telephone to Lorin. On Tuesday, May 27, at approximately 6:00 a.m., Rebecca received a telephone call from the same man about the motor home, and again handed the telephone to Lorin. Afterwards, Lorin told Rebecca that during his lunch hour Lorin was going for a test drive in the motor home with the man who had telephoned. Prior to May 30, Rebecca recalled that the caller's name was Mark, but her two children believed his name was Mike.

On the evening of May 27, Lorin told the family's babysitter, Carey Gilchrist, that the prospective buyer had mentioned that an aunt had died and left him $85,000, which was being managed by his sister. Later the same evening, Lorin told Rebecca that during the test drive the prospective buyer had commented that Lorin "looked really familiar and he asked him if he had a younger brother, that [the prospective buyer] thought that he knew [Lorin's] younger brother." Rebecca testified that in fact Lorin had a younger brother who looked "[e]xactly like him." Dennis Trede, a friend of the Germaine family, later testified that in April, 1986, defendant and Trede had been in the same holding cell in the municipal courthouse. Lorin's younger brother, John Germaine, appeared at the courthouse to visit Trede, and defendant made a comment about John Germaine to Trede.

On Wednesday, May 28, Rebecca emptied the motor home of all of their personal belongings, vacuumed the carpet, and washed the interior and exterior. On Thursday, May 29, Rebecca and Lorin went to the Department of Motor Vehicles (DMV) and obtained the necessary documents to transfer title to the motor home. At trial, Rebecca identified the release of liability form that she and her husband completed, but she did not recognize the printing of the name for the buyer, Martin R. Freitas, whom the form identified as the ostensible purchaser of the vehicle.

At approximately 6:00 a.m. on Friday, May 30, Rebecca answered another telephone call from the same man about the motor home, and she handed the phone to Lorin. This individual telephoned approximately one hour later, and Rebecca again handed the telephone to Lorin. Lorin drove their children to school. He returned to their home, spoke to Rebecca for a few minutes, and retrieved the DMV documents and keys to the motor home. Lorin also had a trifold wallet containing approximately $40 in cash and other items, including his Kaiser medical identification card. At approximately 8:30 a.m., Lorin departed in the motor home to meet the buyer at A Street and Grand in Hayward to finalize the transaction.

During May, defendant made several statements that related to obtaining and selling a motor home. In that month, defendant sanded and painted the kitchen and dining area at the residence of Henria (Wanda) Wilson and Melba Valdez. Wilson saw defendant making telephone calls with an Auto Trader magazine in his hand. Between May 16 and May 27, defendant asked Wilson and Valdez whether they knew anyone who wanted to buy a mobile home for approximately $7,000, and offered to pay them $200 if they located a buyer. After his release from jail on May 16 and prior to May 30, defendant told Jamie Gronley, his girlfriend, that he wanted to acquire a motor home. Between those dates, defendant also told his friend William Duffy that defendant had a plan to make money, in which he would "pretend [to] buy a motor home out of a newspaper and he would put the gun to the owner's head and insist that the owner sign over the pink slip to him or he would blow him away." On May 27, defendant told an acquaintance, John Maartense, he was going to obtain a motor home. When Maartense inquired how defendant would purchase a motor home without having a job, defendant replied, "I have my ways."

At approximately 2:00 p.m. on May 27, a person identifying himself as Mark Schmeck telephoned Nohr's R.V. Center in Dublin. Phillip Sipes answered the telephone. The caller asked whether Nohr's was purchasing motor homes at that time, and whether they could make a quick deal. The caller stated that he was selling a 1978 22-foot Brougham motor home having approximately 39,000 miles. Sipes informed the caller that the Kelly Blue Book value of that vehicle was approximately $8,000 at wholesale, and $11,000 at retail, and that once Sipes inspected the vehicle, he could make a deal the same day. Sipes testified that his May 27 telephone log contained the following notation: "`78 22-foot Brougham 39,000 miles, Mark Schmeck."

Evidence was introduced concerning defendant's activities on May 30, the day of Lorin Germaine's disappearance. Between approximately 10:30 a.m and 11:30 a.m., defendant appeared at the parking lot of an apartment complex where Jamie Gronley was assisting her acquaintance, Edward Tanner, move. Defendant spoke to Gronley for approximately five to 10 minutes and appeared to be upset. Defendant told Gronley that he was attempting to sell a motor home, but first had to take it to be cleaned at a car wash.

On the same day between 10:30 a.m. and 11:00 a.m., a person identifying himself as Mr. Schmeck telephoned Phillip Sipes at Nohr's R.V. Center, reporting that he was running a bit late and would be in later. Sipes's telephone log of May 30 contained the notation: "Mark — Be In Around 1:00 Brougham." At approximately 1:00 p.m., a person telephoned Sipes, identified himself as Mark, stated he was running late because he had run out of gasoline, but would be there in another hour or so.

Between 2:00 p.m. and 2:30 p.m. on May 30, Sipes noticed a 1978 22-foot Brougham in the Nohr's RV Center parking lot. A man identified at trial as defendant asked to see Phillip Sipes, identifying himself as Mark Schmeck. Sipes recognized defendant's voice as that of the man who had telephoned him on May 27 and earlier that day, May 30. Defendant was shirtless but soon donned a jacket. Sipes looked inside the motor home and noticed that a section had been cut out of the carpet. Defendant stated he had cut out that part of the carpet because it was in poor condition. Defendant acted very "hyper, jumping around, wiping the walls down." Although defendant said he would "take any kind of offer" for the motor home, Sipes was not interested in it at any price. Sipes suggested defendant try Lee Peterson's Motor Home Sales.

At approximately 3:00 p.m., a man identified at trial as defendant told a salesman at Lee Peterson's Motor Home Sales that he had a motor home to sell "cheap." Defendant stated the motor home had a book value of $8,000, but he would take $2,000 for it right then. Paul Weber, who was at the dealership purchasing propane, overheard this conversation. Weber followed defendant, who said his name was Martin Freitas, and asked him about buying the motor home. Defendant asked Weber whether he had cash in the bank, and allowed him to inspect the motor home. In Weber's truck, they drove to two different automatic teller machines, and Weber gave defendant $300 in cash. Weber agreed to pay defendant a balance of $1,200. Defendant gave Weber the motor home and several documents, including the pink slip, a bill of sale, a certificate of nonoperation, and a registration renewal form.

Later on May 30, Weber made efforts to determine whether defendant was the legitimate owner of the motor home. Weber subsequently met with Rebecca Germaine and accompanied her and her friends to the Alameda County Sheriff's Department, San Leandro Office, where Weber assisted in the preparation of a composite drawing of defendant. On Saturday, May 31, Dennis Trede saw the composite drawing,...