People v. Stitely

• Decision Date: 21 March 2005
• Docket Number: No. S028970.,S028970.
• Citation: 26 Cal.Rptr.3d 1,108 P.3d 182,35 Cal.4th 514
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard STITELY, Defendant and Appellant.

26 Cal.Rptr.3d 1

35 Cal.4th 514

108 P.3d 182

The PEOPLE, Plaintiff and Respondent, v. Richard STITELY, Defendant and Appellant.

No. S028970.

Supreme Court of California.

March 21, 2005.

Certiorari Denied October 3, 2005.

Joel Levine, Costa Mesa, and Jo Anne Keller, Berkeley, under appointments by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Peggie Bradford Tarwater, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied October 3, 2005. See 126 S.Ct. 164.

BAXTER, J.

A jury convicted Richard Stitely (defendant) of the first degree murder of Carol Unger. (Pen.Code, § 187, subd. (a).)¹ A related special circumstance of murder during the commission of unlawful sodomy was found true. (§ 190.2, subd. (a)(17)(D).) The jury also convicted defendant of the separate crime of forcible rape against Valery C. (§ 261, subd. (a)(2).)

After a penalty trial, the jury returned a death verdict. The trial court declined to modify the verdict (§ 190.4, subd. (e)), and sentenced defendant to death for the sodomy murder. The court also imposed and stayed a determinate term on the noncapital rape count. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).)

We find no prejudicial error at defendant's trial. The judgment will be affirmed in its entirety.

I. GUILT PHASE EVIDENCE

A. Murder of Carol Unger and Related Sex Crimes

1. Carol's Disappearance

Carol Unger and her husband, Delbert, frequented the White Oak Inn, a bar located near their home.² They went there both together and separately. The couple had one child, Joey, during their marriage. Carol had other children from a prior relationship, including her son Billy.

At 8:30 p.m. on January 19, 1990, Billy called Delbert, who was alone at the White Oak Inn. Delbert left the bar and went to a restaurant with Billy. They came home at 11:00 p.m. Joey was there, but Carol was gone. Delbert stayed awake until 1:00 a.m. He heard nothing strange outside the house, which was well lit in front by a streetlight.

Meanwhile, beginning at 9:30 the same night, several witnesses saw Carol at the White Oak Inn.³ Defendant, a semi-regular patron, was there too. Carol sat at the bar, and defendant sat at a table. According to both the bartender, Anthony Russo, and the waitress, Hazel Parrott, Carol and defendant each drank two or three beers. Neither seemed intoxicated.

Another regular patron, Shirley Cooper, saw Carol ask two or three men, including defendant, to dance with her. Carol often danced with men who frequented the bar, even when her husband was present. After one dance, defendant returned to his table and Carol sat on a bar stool. Cooper then saw defendant looking or staring at Carol. Carol eventually asked the bartender, Russo, to call a taxi because she wanted "to go home." Defendant intervened by offering her a ride and asking where she lived. She accepted the offer, and canceled her cab request. At some point, Carol asked Russo whether he knew defendant well. Russo said "no," but saw no reason to decline the ride. By all accounts, Carol and defendant left the bar together around midnight. This was the last time she was seen alive.

When Carol failed to return home, Delbert called and visited the White Oak Inn. He also reported her missing to police.

2. Discovery of Carol's Body

Around 11:00 a.m. on January 20, 1990, the day after Carol left the bar with defendant, Edward Berg found her body in an alley behind his workplace. It was lying partially underneath the corner of Berg's company van. He called the police. The police found no purse or wallet. They identified Carol through Delbert's report.

Detective John Coffey and a coroner's investigator, Debrah Kitchings, described the scene, as follows: Carol was lying on her back with her legs spread apart, naked from the waist down. Her jeans and underpants were gathered around one ankle, her shirt was bunched at the breast line, and her jacket was resting underneath the hip area. Carol's numerous injuries included scrape marks on the back and choke marks on the neck. Pieces of foam rubber were found on her neck and head, in her underwear, and on the ground. It appeared Carol had been sexually assaulted, dragged into the alley, and dumped under the van.

3. Medical Testimony about Carol's Injuries

Dr. Joseph Cogan, who performed the autopsy, testified that Carol was strangled to death, based on the following premortem injuries: Blood congestion and petechial hemorrhages in the jaw and face showed that pressure had been applied to the neck, and that circulation had stopped to the head, for a "long" time. Internal hemorrhaging from blunt force trauma appeared on both sides of the neck and around the eyes and ears. Carol's thyroid cartilage, or Adam's apple, was fractured —an injury consistent with manual strangulation. However, the fracturing of the cricoid cartilage, which sits deeper in the neck, required greater pressure from a choke-hold maneuver. Dr. Cogan also linked certain marks on the front of Carol's neck to a ligature pulled from behind.

Regarding nonlethal injuries, Dr. Cogan testified that two cuts on Carol's left hand were caused by a sharp instrument, and were consistent with defensive knife wounds. He also described abrasions and bruises on the extremities, two round marks or burns on the head, and bruising on the scalp. The skin on Carol's back had been scraped or dragged on a hard surface both before and after death.

Dr. Cogan found multiple signs of sexual activity. There were two tears in the anal opening, as well as tears, contusions, and hemorrhaging inside the anal cavity. The anal injuries were inflicted before death, were caused by blunt force trauma, and were consistent with penile penetration. Dr. Cogan found no vaginal tears. Because the vaginal opening was "marital," the lack of tearing was not inconsistent with forcible penetration. Some darkening or reddening of the labia could have been a contusion.

Investigator Kitchings testified that she saw "trauma" in Carol's vaginal and anal areas at the crime scene. Kitchings also estimated the time of death by comparing air and liver temperatures at 3:30 p.m. on January 20, 1990, a few hours after Carol was found. She had most likely been dead for 15 hours (i.e., since 12:30 a.m. on January 20, 1990). However, she could have died anywhere from 12 to 20 hours earlier (i.e., between 7:30 p.m. on January 19, 1990 and 3:30 a.m. on January 20, 1990).

The evidence included an autopsy report and attached toxicology report. The parties stipulated that Carol's toxicology tests revealed a .26 percent blood-alcohol content, a result indicating intoxication.

4. Physical Evidence and Forensic Tests

As discussed below, the police found torn seat cushions and foam debris during a search of defendant's car. Criminalist Susan Johnson testified that there was no difference in color, chemical composition, or cellular structure between the foam found on Carol's body and the foam seized from defendant's car. The origin could have been the same.

Criminalist Lloyd Mahanay made cotton swabs and microscope slides of the fluids in Carol's vagina and anus. Though he did not personally conduct such tests, he opined that any sperm found on these items would reflect ejaculation into each orifice. Mahanay ruled out the possibility that semen from the vagina could have contaminated the anal swab, or that ejaculation on or in the vagina could have leaked into the anus.

Serologist Alison Ochiae testified that Carol had type O blood, and that defendant was a type A secretor. A secretor is one whose blood type appears in other bodily fluids. Ochiae found sperm on the vaginal swabs and anal slides that Criminalist Mahanay had prepared. Using the ABO method, Ochiae identified defendant as a possible sperm donor. She also linked him to a stain on Carol's jacket.

The parties stipulated that Criminalist Mark Taylor performed DNA tests that could conclusively match the genetic materials in semen with the genetic materials in blood. The DNA pattern found on Carol's vaginal and anal swabs matched the DNA pattern obtained from defendant.

5. Defendant's Statements to Police

Based on information obtained at the White Oak Inn and other bars, detectives learned that defendant worked at a radiator repair shop. On February 2, 1990, Detective Coffey and his partner visited defendant at work. He agreed to accompany them to the police station. When Detective Coffey peered inside defendant's station wagon, he saw torn seats and foam debris similar to the foam found on Carol's body. Police impounded the car. They later searched it with defendant's consent.

Defendant received and waived his constitutional rights during the ride to the police station. Detective Coffey questioned defendant at the station, assisted by Detective Medina. Coffey recorded the interview without defendant's knowledge. The jury heard the interview and received the transcript.

Defendant first told detectives that he last visited the White Oak Inn on January 26, 1990, and had not been there in the preceding two months. Though he often went to bars on Friday nights, defendant recalled staying home on Friday, January 19, 1990, to save money. He denied knowing Carol. Detective Coffey asked about Valery C., a teenager who stayed with defendant and his daughter. Defendant said that Valery had falsely accused him of rape because he told her to pay rent or move.

Detective Coffey said that witnesses saw Carol leave the bar with defendant on January 19, 1990. Defendant then admitted that he drove her home. He recalled seeing both a red van and a shadowy figure outside her house.⁴ Supposedly, as Carol left the car, she took a steak knife from her purse. Though defendant was scared, Carol did not threaten him with the...