People v. Smith

• Decision Date: 10 March 2005
• Docket Number: No. S026223.,S026223.
• Citation: 25 Cal.Rptr.3d 554,35 Cal.4th 334,107 P.3d 229
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gregory Scott SMITH, Defendant and Appellant.

25 Cal.Rptr.3d 554

35 Cal.4th 334

107 P.3d 229

The PEOPLE, Plaintiff and Respondent, v. Gregory Scott SMITH, Defendant and Appellant.

No. S026223.

Supreme Court of California.

March 10, 2005.

As Modified on Denial of Rehearing April 27, 2005.

Certiorari Denied October 31, 2005.

Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointments by the Supreme Court, and William Hassler, Deputy State Public Defender, San Francisco, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey, William T. Harter and Susan Sullivan Pithey, Deputy Attorneys General, Los Angeles, for Plaintiff and Respondent.

Certiorari Denied October 31, 2005. See 126 S.Ct. 550.

KENNARD, J.

On October 9, 1991, defendant Gregory Scott Smith pled guilty to (1) first degree murder in violation of Penal Code section 187, subdivision (a);¹ (2) kidnapping in violation of section 207, subdivision (a); (3) arson in violation of section 451, subdivisions (c) and (d); (4) commission of a forcible lewd act upon a child in violation of section 288, subdivision (b); and (5) forcible sodomy in violation of section 286, subdivision (c). Defendant admitted the charged special circumstances that the murder was committed during the commission of a kidnapping, a lewd act upon a child, and an act of sodomy. (See § 190.2, subd. (a)(17).) After the penalty trial, the jury returned a verdict of death. The trial court denied defendant's motions for a new trial and for modification of the verdict, and it sentenced defendant to death. The court imposed concurrent sentences of 11 years on count 2, four years on count 3, six years on count 4, and six years on count 5, but it stayed execution of noncapital sentences pending execution of the death sentence.

This appeal is automatic. (§ 1239, subd. (b).)

I. The Prosecution Evidence

A. Defendant's Prior Relationship with the Victim

From April of 1989 to March 6, 1990, defendant, then 21 to 22 years old, worked for the 31st District Latchkey Project, serving as a teacher's aide at Darby and Chatsworth elementary schools in the San Fernando Valley in Southern California. His behavior as a teacher's aide was inappropriate; he would play with the children as if he were a child, but would get too rough. Defendant was particularly mean to eight-year-old Paul Bailly, a student at Darby Elementary School. On two occasions he tied Paul up with jump ropes. Once Paul asked the school's daycare director to fire defendant. Defendant overheard the request, and said he was going to "get [Paul] back."

On March 6, 1990, Hal Kuhn, executive director of the Latchkey Project, fired defendant because defendant lacked maturity and played too roughly with the children. Defendant was upset and often talked about "getting even."

B. The Investigation of the Murder of Paul Bailly

About 6:30 a.m. on March 23, 1990, Mary Bailly, Paul's mother, dropped him off at Darby Elementary School. At 11:50 a.m., Captain Fred Baugher of the Ventura County Fire Department responded to a fire in the Black Canyon area near Simi Valley and discovered Paul's body in the fire. Paul had been gagged with a cloth gag and duct tape. A set of handcuffs was found at the scene. According to supervising investigator James Allen, the burn pattern on the ground and the condition of the body showed that someone had poured fire accelerant on the corpse and set it on fire. Dr. Frederick Lovell, the Chief Medical Examiner for Ventura County, attributed the cause of death to asphyxiation due to strangling and to aspiration of vomit. In his opinion, the victim had also been forcibly sodomized. The victim was dead before his body was set afire.

On March 24 and 25, 1990, Ventura County sheriff's deputies searched defendant's residence. They found, among other items, a pair of keys that fit the handcuffs found near Paul's body, several rolls of duct tape, and several newspapers. The newspapers, which were about two months old, featured an article about a well-publicized child molestation case in which the defendants were acquitted and another case where the victim had been set on fire by his father.

C. Other Violent Acts by Defendant

1. During 1988-1989, shortly before the March 1990 murder of Paul Bailly, Daniel Kavalsky worked with defendant at the Fallbrook Theater in the San Fernando Valley. He and defendant disliked each other. On one occasion defendant came up to Kavalsky and started choking him. Another person pulled defendant off Kavalsky.

2. In 1984, when Brian Due was about five or six years old, defendant, who was then 16 or 17 years old, approached Brian with one hand in a glove. Defendant said the glove had a mind of its own and defendant could not control it. Defendant then choked Brian with the glove, but released him when he cried.

3. During the summers of 1988 and 1989, Darren Goodman and defendant were counselors at the Griffith Park Boys Camp. Once, when Goodman was a referee at a hockey game, he penalized defendant for holding his hockey stick too high, an act that endangers other players. Defendant responded by striking Goodman in the shins with the hockey stick.

4. Brian Francis was 12 years old when he attended the Griffith Park Boys Camp during the summer of 1988. On one occasion a basketball accidentally hit defendant. When Brian laughed, defendant became angry and threw the ball at Brian as hard as he could. Defendant then chased Brian and tried to pull him into a cabin. When Brian resisted, defendant pulled Brian into the camp office. One of the camp directors observed the incident and fired defendant.

D. Expert Testimony of Dr. Chris Hatcher

Dr. Chris Hatcher, a clinical psychologist, was an expert witness for the prosecution. He described the characteristics of persons who commit crimes such as the sodomy and murder of Paul Bailly.

Dr. Hatcher testified that persons who commit abductions similar to the abduction in this case are carrying out a fantasy in which children are abducted, bound, and sexually assaulted. Characteristic components of the fantasy include forcible sodomy, strangulation, and disfigurement of the victim's body. Dr. Hatcher did not examine defendant or give an opinion on defendant's mental state. (We describe Dr. Hatcher's testimony further when we discuss issues regarding its admissibility and use. See post, 25 Cal.Rptr.3d at 564-567, 107 P.3d at 237-240 et seq.)

II. The Defense Evidence

A. Defendant's Background

Defendant's mother described defendant as developmentally delayed and hyperactive from a very early age. He was six years old before he could put words together in coherent speech. Defendant's mother was affectionate but overprotective toward him. Defendant's father was ashamed of defendant's retardation and verbally abused defendant; the father physically abused defendant's mother. Janice Foster, an education therapist hired by defendant's parents to help him with learning disabilities, said that at age 16 defendant had the attitude of an eager, friendly eight year old, and intellectually he was like an eight year old. Defendant's mother and his sisters also described defendant's mental retardation.

Defendant had few friends. His closest relationship was with his dog Blue, who was given to him when defendant was four months old. Blue died when defendant was 16 or 17 years old, shortly after defendant and his mother moved from the family home and left Blue behind. Defendant's mother said defendant never recovered from Blue's death, for which he felt responsible.

B. Psychological Expert Testimony

Dr. David Benson, a professor of neurology, tested defendant's IQ at 85-86. He observed signs of brain abnormalities. He diagnosed defendant as mildly to moderately mentally retarded.

After administering a PET scan (positron emission tomography scan) to defendant, Dr. Monte Buchsbaum, a psychiatrist, testified that defendant suffers from brain damage in areas of the brain controlling memory and learning.

In the opinion of Dr. Francis Crinella, a clinical psychologist specializing in developmental neurology, psychological test results confirmed brain damage and were consistent with defendant's life history of "immaturity, explosiveness, conduct disorders, and difficulties in getting along." Defendant's IQ test scores ranged from 51 to 85. Generally, defendant did better on tests that required little abstract reasoning. In Dr. Crinella's view, defendant's brain damage affected his ethical and moral judgment.

Dr. Jerome Evans, a clinical psychologist, said defendant was mentally disabled in various ways throughout his life, and as he got older the disability became worse. Defendant's performance never passed that of an eight to 10 year old. According to Dr. Evans, defendant is incapable of acting remorseful, because he "doesn't know when to try to look good" for others. Persons with defendant's "family background and ... emotional problems ... never succeed at anything.... [E]verything that they try turns out to be a mess or a problem." On cross-examination by the prosecution, Dr. Evans said he had diagnosed defendant as manifesting a schizotypal personality disorder; such persons have peculiar ideas, odd beliefs, magical thinking, and paranoid thoughts.

Dr. John Irwin, a professor of sociology, testified about the conditions of confinement in maximum security prisons.

III. Issues Relating to Jury Selection

A. Juror Removal by Peremptory Challenge

During voir dire, the prosecutor exercised peremptory challenges to excuse Prospective Jurors Donna T. and Donna V. Defendant objected, claiming that the prosecutor was systematically excluding Black jurors, in violation of People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d 748.² We will uphold a trial court finding that the defendant has not established a prima facie case if it is supported by...