People v. Thompson

• Decision Date: 08 February 1990
• Docket Number: No. S004603,S004603
• Court: California Supreme Court
• Parties: , 785 P.2d 857, 58 USLW 2554 The PEOPLE, Plaintiff and Respondent, v. Robert Jackson THOMPSON, Defendant and Appellant. Crim. 23452.

Page 309

266 Cal.Rptr. 309

50 Cal.3d 134, 785 P.2d 857, 58 USLW 2554

The PEOPLE, Plaintiff and Respondent, v. Robert Jackson THOMPSON, Defendant and Appellant.

No. S004603.

Crim. 23452.

Supreme Court of California,

In Bank.

Feb. 8, 1990.

Rehearing Denied March 29, 1990.

Hugh Anthony Levine, Hallinan, Poplack & Levine, under appointment by the Supreme Court, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., John W. Carney, Jr., Jay M. Bloom, Robert M. Foster and Raquel M. Gonzalez, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

KAUFMAN ^*, Justice, Assigned.

Defendant Robert Jackson Thompson was convicted of the first degree murder of 12-year-old Benjamin Brenneman, committed on August 25, 1981. He was also convicted of forcible sodomy (Pen.Code, § 286, subd. (c)), ¹ lewd conduct with a child under the age of 14 (§ 288, subd. (a)) and felony child endangerment (§ 273a, subd. (1)), presented to the jury as a lesser included offense to a charge of kidnapping. The jury found true two special circumstances: murder during the commission of sodomy (§ 190.2, subd. (a)(17)(iv)), and murder during the commission of a lewd act with a child under 14 (id., subd. (a)(17)(v)). It found untrue a charged special circumstance of murder during the commission of kidnapping.

The original jury was unable to agree on the penalty. (A poll indicated that the jury was divided nine to three in favor of death.) Upon retrial of the penalty phase, a second jury returned a verdict of death. Defendant's appeal under the 1978 death penalty law is automatic. We affirm the convictions and penalty.

I. SUMMARY OF FACTS

Benjamin Brenneman, the victim, was a 12-year-old newspaper carrier for the Orange County Register. His entire route consisted of the Oakwood Apartments, a complex of several hundred units. Defendant rented apartment 106 in building L.

When Brenneman failed to return home the evening of August 25, 1981, police began a search and discovered his bicycle near building K. One tenant mentioned that she had seen defendant talking with Brenneman earlier in the evening. Police went to defendant's apartment, but discovered no one there. ² One officer entered the apartment with a key obtained from a security guard, but initially found nothing of help.

About 1 a.m. defendant arrived at his apartment. Defendant acknowledged talking to the newsboy, saying that Brenneman had asked him to subscribe to the newspaper but that defendant did not have the money needed. Defendant consented to a second search of his apartment. This time the police saw a pair of sandals in defendant's bedroom. The police suspected the sandals belonged to Brenneman, a suspicion later verified by Brenneman's mother, who pointed out a special orthopedic lift on the left sandal. Defendant, however, first said they belonged to his girlfriend, Lisa. Told they matched the description of Brenneman's sandals, defendant then said he had found them in the hallway. He denied that Brenneman had been in the apartment, but when officers spoke of checking the apartment for fingerprints, defendant said that Brenneman had waited in the apartment while defendant looked for money for the subscription.

Defendant told the officers that after Brenneman left the apartment, defendant had gone to Huntington Beach to pick up a woman, but had not found one. On the return trip, the muffler fell off his station wagon, and he had spent an hour fixing it. The officers examined the wagon and noticed the muffler firmly in place. They also observed a large empty blue trunk in the back of the wagon.

Defendant voluntarily went to the police station and gave a more complete statement of his activities. He said he had planned to subscribe to the newspaper and left a note in the mailbox to tell the newsboy he could be found in apartment K-104, where he was visiting friends. Brenneman found him there, and the two returned to defendant's apartment. Brenneman noticed that defendant already had that evening's newspaper; defendant said he had bought it at a newsrack earlier. Defendant went to the bedroom to get a $5 bill while Brenneman waited in the kitchen. Brenneman, however, had no change for the bill so defendant went to his neighbor, Barbara Ieudy, and borrowed $3. Discovering that the subscription cost $4, defendant asked Brenneman to return another day.

Defendant said that a short while later he discovered the sandals in the hall, picked them up, and left them in his bedroom. He then drove to Huntington Beach. He explained that he lived with his girlfriend, Lisa Hinkle, at an apartment in Redondo Beach; he was very happy with her but wanted to find another woman because he was tired of sex with Lisa every night. Upon returning, defendant had problems with the car's muffler, as he had explained earlier.

The police questioned defendant about drugs or alcohol. Defendant said that he had consumed two drinks that morning and one beer in the afternoon. He occasionally smoked marijuana, but had not done so in the last three to four weeks. The interrogation concluded, and defendant returned to his apartment after promising to call Police Detective Tuttle at noon the next day.

The next morning, three farmworkers discovered the body of the 12-year-old victim at the base of a road embankment in a rural area of the Palos Verdes Peninsula. Brenneman was wearing shorts and a T-shirt. A rope was looped tightly around his neck four times. One end of the rope passed down the back of his body to bind his ankles, which were pulled up to the base of his buttocks. The other end passed down the front of his body to encircle the ankles. One end of the rope then looped seven times around the victim's wrists, fastening them near the groin.

Medical testimony established the cause of death was ligature strangulation. The testifying doctor stated that the victim was alive when bound. Because each of the strands around the neck was equally tight, he believed strangulation was caused by someone pulling on the rope, but flexion of the body (movement of the legs so as to pull on the rope extending to the neck) could have contributed to the death. The doctor also observed marks caused by manual choking. In his opinion the manual choking preceded the rope strangulation, and was not a cause of death. Sperm was discovered in the victim's anus. ³

At noon on August 26, 1981, defendant called Detective Tuttle as promised. At the officers' request, defendant rode in a police car with Tuttle and Detective Inns, and took them over the route defendant claimed to have driven the night before. When defendant pointed out the place where he had stopped to fix the muffler, Inns took soil samples and Tuttle told defendant that by microscopic comparison of the samples with soil from defendant's tires they could tell if the vehicle had been at that location. Upon their return to the police department, Detective Tuttle asked defendant to telephone him the next day at 4 p.m. Defendant then left the police station. Defendant promptly drove back to the site of the supposed muffler repair and pulled his car off onto the dirt shoulder. He then made a U-turn and returned to his apartment.

The next day, August 27, the police spotted defendant's car in Santa Monica. Lisa Hinkle got in and drove evasively, eluding the police tail. Police suspected, and later confirmed, that defendant was also in the car, crouched down so he could not be observed.

When defendant failed to phone Tuttle at 4 p.m. as agreed, Tuttle called defendant at his place of work. Defendant answered, but when Tuttle identified himself, defendant dropped the phone and left. Tuttle then ordered defendant's arrest. Defendant and Lisa were found at a Santa Monica shopping mall and taken into custody.

Defendant was advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and requested an attorney. He was placed in a cell without interrogation. Three days later, on August 30, defendant learned from a jail trusty that Lisa was ill, and might have had a miscarriage. He then asked to speak to Tuttle about getting Lisa out of jail. Defendant's request led to a discussion and interrogation of several hours' duration, during which defendant admitted committing lewd acts with the victim and leaving him bound at the site where his body was discovered. However, he denied killing Brenneman. Facts bearing upon the admissibility of these admissions of defendant are discussed in part III-E of this opinion, post, where we consider defendant's challenge to their admission into evidence. We have summarized here only the substance of the admissions.

After several hours, during which defendant became increasingly agitated, defendant asked Detective Tuttle to step out into the hall because defendant believed (correctly) that conversations in the interrogation room were recorded. In the hall, defendant began to cry, and said, " 'I didn't mean to do it. When I left him, he was alive.' "

Back in the interrogation room, defendant asked to see Lisa and expressed concern he would lose her when she learned what he had done. While waiting for Lisa to arrive, defendant said he had "fixed" earlier in the evening of August 25, and that when the victim came into the apartment defendant proposed a sexual relation. Defendant put his arm around Brenneman's shoulders and started to fondle him, but stopped when Brenneman protested. Defendant said he then put the victim in the trunk and carried it to the car, then returned to the apartment to smoke two marijuana joints. He then drove around aimlessly. At some point during the ride defendant got Brenneman out of the trunk and tied him. Later he stopped the car again. Brenneman said " 'don't kill me.' " Defendant said he would not, and set Brenneman down in some bushes. Defendant denied...