People v. Smithey

• Decision Date: 01 July 1999
• Docket Number: No. S011206,S011206
• Citation: 20 Cal.4th 936,86 Cal.Rptr.2d 243,978 P.2d 1171
• Court: California Supreme Court
• Parties: , 21 Cal.4th 845A, 978 P.2d 1171, 99 Cal. Daily Op. Serv. 5271, 1999 Daily Journal D.A.R. 6757 The PEOPLE, Plaintiff and Respondent, v. George Hatton SMITHEY, Defendant and Appellant

Page 243

86 Cal.Rptr.2d 243

20 Cal.4th 936, 21 Cal.4th 845A, 978 P.2d 1171,

99 Cal. Daily Op. Serv. 5271,

1999 Daily Journal D.A.R. 6757

The PEOPLE, Plaintiff and Respondent, v. George Hatton SMITHEY, Defendant and Appellant.

No. S011206.

Supreme Court of California

July 1, 1999.

Time for Granting and Denying Rehearing Extended July 21, 1999.

Rehearing Denied Sept. 15, 1999.

As Modified Sept. 15, 1999.

Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, R. Brewster Thompson, Mary McComb, Kate Johnston, Jay Colangelo, Donald Bull and Albert W. Brodie, Deputy State Public Defenders, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Robert R. Anderson, Assistant Attorney General, Stan Cross and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

Following the guilt phase of the trial, a jury found defendant George Hatton Smithey guilty of one count of first degree murder (Pen.Code, §§ 187, 189), ¹ first degree robbery (§§ 211, 212.5), attempted rape (§§ 261, former subd. (2), ² 664), and first degree burglary (§§ 459, former 460.1). ³ The jury found true the allegation that defendant used a deadly weapon (a knife) during the commission of these crimes. (§§ 12022, subd. (b), 12022.3, subd. (a).) The jury also found true three special-circumstance allegations -- that the murder was committed while defendant was engaged in the commission of a robbery, the attempted commission of a rape, and the commission of a burglary. (§ 190.2, former subd. (a)(17)(i), (iii) & (vii).) ⁴ Following the penalty phase of the trial, the jury returned a verdict imposing a sentence of death.

This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We affirm the judgment in its entirety.

I. FACTS

A. Guilt Phase Evidence

1. The Prosecution Case

The murder victim, Cheryl Nesler, lived in a trailer in Glencoe, California, with her six-year-old daughter, Rachel, and her four-year-old son, Ross. Her husband, Mark Nesler, had been in jail since January 1988. There was evidence she was in possession of cash at the time of the offense: Wayne Bunnell drove Cheryl to cash a welfare check on or around April 5, 1988. Cheryl also had cashed a welfare check at Laverne Fischer's store, a short distance from Cheryl's trailer, on or before March 15. During the first week of April, Fischer gave Cheryl smaller denominations in exchange for a $100 bill.

At approximately 4:00 p.m. on April 8, defendant asked to buy some methamphetamine from his friend Linda Esposito-Swetts (Swetts), but she said she had none to sell. Defendant argued with Swetts regarding $200 he owed her. Defendant offered her approximately $44 as partial payment, but Swetts told defendant that if he did not have all her money, she did not want any of it. Defendant then left, stating: "I'll be back with the rest of your money." He was known always to carry a large pocketknife, which on this occasion was lying open on the front seat of his automobile, a yellow and white Dodge.

At approximately 4:30 p.m. on that day, Renee Blondeau drove for approximately four miles behind a yellow automobile with a white top. The driver was male and was driving erratically. Blondeau observed the vehicle stop near the driveway to Cheryl's home.

Cheryl's daughter Rachel observed defendant drive his vehicle up to their trailer. Cheryl came outside and talked with defendant as he sat in the vehicle. At some point, defendant exited from the automobile with a knife in his hand and went into the trailer with Cheryl. Rachel went inside and saw defendant and Cheryl in Rachel's bedroom. Cheryl was on the bed with her feet on the floor, and defendant was on top of Cheryl. Defendant told Rachel to leave. After defendant left the Nesler property, Rachel went into her bedroom and observed her mother with blood on her neck.

At approximately 5:15 p.m., Rachel came running toward Linda Contreras's beauty shop, next door to Fischer's store, and said: "A man had a knife and he killed my mama." Contreras called 911 and reported this information, as well as Rachel's description of the perpetrator's yellow and white automobile that was headed in the direction of Mokelumne Hill, eight to ten miles away. A deputy sheriff arrived at the Nesler home at approximately 5:30 p.m. and found Cheryl Nesler dead, lying on her back on a bed, with her feet on the floor and throat slit. An autopsy indicated that death was caused by three knife wounds to the neck, causing loss of blood, aspiration of blood into the airway, and interruption of blood supply to the brain. The knife cut through the carotid artery, jugular veins, larynx, and muscles of the neck.

On his way to Glencoe to investigate the reported homicide, Deputy Sheriff William Nuttall spotted defendant's vehicle in a parking lot in Mokelumne Hill. Nuttall asked defendant for identification, and as defendant pulled a wallet from his rear pocket, a bloodstained $1 bill fell out of the same pocket. Nuttall also observed a bloody knife on the front seat. Approximately $70 and a towel consistent with others observed in Cheryl's bathroom later were seized from defendant's vehicle.

Nuttall arrested defendant. After being advised of and waiving his constitutional rights, defendant told Deputy Sheriff Randy Grasmuck that he had visited someone in Rail Road Flat, gone to the Glencoe store to buy some beer, picked up a hitchhiker, and drove to Mokelumne Hill. When asked about the knife on the front seat of his vehicle, defendant stated that he did not own a knife and did not know of any knife in his vehicle. Defendant further denied knowing Cheryl or Mark Nesler or being at Cheryl's home. Grasmuck could smell alcohol on defendant's breath or person, but defendant's speech was not slurred and Grasmuck noticed nothing in his demeanor to indicate that defendant was intoxicated.

Deputy Sheriff Norman Varain drove Rachel and Fischer to Mokelumne Hill to determine whether they could identify the suspect or his vehicle. Rachel identified defendant's vehicle as the one that had been at her house, and defendant as the man who killed her mother. Fischer recognized defendant as the man who had purchased beer at her store approximately 30 minutes before Rachel reported her mother's death.

Varain returned to Glencoe to investigate the crime scene. He found a wallet lying on top of the bedspread under Cheryl's left arm next to her body. The wallet contained some loose change but no paper money. Two identification cards and a business card in the wallet had bloodstains on them. Varain also found a $20 bill on the floor underneath a chair in the kitchen area. Draped across the back of a chair was a leather purse with the flap open; the only money in the purse was loose change. No other money was in the trailer.

A variety of forensic evidence linked defendant to the crime. Tire tracks in Cheryl's driveway matched a tire on defendant's automobile. The driveway gate appeared to have been rammed with a vehicle; the hinges were off and the bottom boards were broken. One board appeared to have been run over by a vehicle, and scrapes on the board matched marks on the underside of defendant's automobile. Blood on the knife seized from defendant's automobile was consistent with genetic markers in Cheryl's blood and could have been contributed by one in ninety individuals. Bloodstains on a $20 bill used by defendant to buy beer in Mokelumne Hill, the $1 bill that fell from his pocket, the cards from Cheryl's wallet, and a cigarette butt found outside Cheryl's trailer all contained genetic markers consistent with Cheryl's. Semen stains on Cheryl's shirt and on defendant's shirt were of the same genetic type as defendant's. Another stain on defendant's shirt contained genetic types that were the same as Cheryl's, but foreign to defendant.

2. The Defense Case

Defendant testified on his own behalf as follows. The day before Cheryl's death, defendant worked on his automobile all day and through the night. He injected methamphetamine three times and drank beer. When morning came, defendant went to visit someone who owed him money for a set of trailer axles and steel cable, and was paid $170. Defendant later used methamphetamine with Bunnell, and then with defendant's friend Betty Jo Allee. Around noon, defendant decided to find Swetts. He was upset because he and Swetts were very close friends, but they had been arguing because defendant owed Swetts money. When he encountered Swetts, she offered to obtain some methamphetamine so that defendant could sell it and pay Swetts the money he owed her. Defendant then injected methamphetamine he obtained from Swetts. Later that day, he tried to buy more methamphetamine from her, but she refused. Defendant offered to pay Swetts the money he owed, but she did not come to his automobile to get it.

Allee testified that she noticed "quite a few" rolled up bills stuffed beside the ashtray in defendant's automobile. When Swetts refused to sell him drugs, defendant was upset and was drinking wine. Allee and defendant met at her house a short time later, where defendant was distraught and crying. On cross-examination, Allee stated that before defendant left, he told her that he was going to get some money.

Defendant further testified that he decided to go to Cheryl's home that afternoon to explain why he had been unable to take Cheryl to visit her husband, Mark, in jail, as defendant had promised. While Mark was gone, defendant had helped Cheryl with chores and fixed her water line. He also had engaged in sexual relations with her on two previous occasions. That day, however, defendant was not thinking about having sex with Cheryl or obtaining money from her.

When defendant arrived, Cheryl invited him into the trailer. Defendant's knife was in his back pocket, and he did...