People v. Wader

• Decision Date: 08 July 1993
• Docket Number: No. S004792,S004792
• Citation: 20 Cal.Rptr.2d 788,5 Cal.4th 610,854 P.2d 80
• Court: California Supreme Court
• Parties: , 854 P.2d 80 The PEOPLE, Plaintiff and Respondent, v. Michael Joseph WADER, Defendant and Appellant.

Page 788

20 Cal.Rptr.2d 788

5 Cal.4th 610, 854 P.2d 80

The PEOPLE, Plaintiff and Respondent, v. Michael Joseph WADER, Defendant and Appellant.

No. S004792.

Supreme Court of California,

In Bank.

July 8, 1993.

Rehearing Denied Sept. 1,1993.

David R. Pettit, Hedges & Caldwell, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Asst. Atty. Gen., Donald E. DeNicola, Carolyn D. Fuson, Sanjay T. Kumar and Susan Lee Frierson, Deputy Attys. Gen., for plaintiff and respondent.

KENNARD, Justice.

A jury convicted defendant Michael Joseph Wader of the first degree murder of Maxine Brown. (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated.) The jury made a special circumstance finding of robbery-murder (§ 190.2, subd. (a)(17)(i)), and found to be true an allegation that defendant had used a firearm in committing the crime. (§ 12022.5.) The jury also found defendant guilty of kidnapping for purposes of robbery (§ 209, subd. (b)) and robbery (§ 211), and found firearm use allegations and great bodily injury allegations (§ 12022.7) as to both these crimes to be true.

The jury fixed the penalty for the murder of Brown at death. The trial court denied defendant's automatic motion to modify the verdict of death (§ 190.4, subd. (e)), and imposed a two-year prison term for defendant's use of a firearm. On the kidnapping count, the court sentenced defendant to imprisonment for life with the possibility of parole, plus consecutive terms of two years for use of a firearm and three years for infliction of great bodily injury. For the robbery, the trial court sentenced defendant to imprisonment for three years, plus consecutive terms of two years for the firearm use and three years for infliction of great bodily injury. The court suspended the sentences on the noncapital counts. Defendant's appeal from the judgment is automatic. (§ 1239, subd. (b).)

We will affirm the judgment in its entirety.

I. GUILT PHASE FACTS

A. Summary of Facts Relating to Guilt

On the evening of November 15, 1984, defendant told his girl friend, Mary Kimble, that he was going to commit a robbery. He went to a parking lot in Alhambra and, as the victim was getting into her car, ran up to her, pulled out his gun, and commandeered the car. Over the course of several hours, defendant drove around the Los Angeles area with the victim in the car, looking unsuccessfully for a restaurant to rob. Defendant then drove the victim's car to a church parking lot, ordered her to get out, and shot and killed her.

The next day, defendant and Kimble used the victim's credit card to purchase a pair of boots for defendant. When the police apprehended defendant on an unrelated charge, his voluntary statements to police and a pair of boots in his possession linked him to the victim's murder.

Defendant essentially admitted kidnapping, robbing and fatally shooting the victim, but denied any intent to kill. The jury made a special finding that defendant intended to kill when he fatally shot the victim.

B. Prosecution Evidence

1. The Murder of Maxine Brown

On November 15, 1984, the victim, Maxine Brown, drove to the Chatterbox Beauty Salon in Alhambra, County of Los Angeles, where she had a 5:30 p.m. appointment. The victim left the beauty shop about 6:45 p.m.; later that evening she was found dead in a church parking lot.

Defendant lived at 705 Los Robles in Alhambra with his girlfriend, Mary Kimble, and a roommate, Helena Ringey. About 5:30 p.m. on the day of the killing, defendant borrowed Ringey's car. Kimble testified that before defendant left, he injected himself with cocaine, put his gun into his waistband, ¹ and told Kimble that he was going to commit a robbery.

That same evening, at approximately 9 p.m., Mark Velarde, who lived across the street from the First Baptist Church in Bassett, stepped out his front door when he heard sounds "like firecrackers" coming from the direction of the church parking lot. Velarde heard three shots that were "fairly close" together; there was a slightly longer delay, however, between the second and third shots than between the first and second shots. Crouched near the rear of a car parked in the lot was a shadowy figure, who then entered into the car's driver's side. The car "screeched" out of the parking lot. Velarde identified the victim's car that was depicted in court exhibit photographs as resembling the car that he saw leaving the church parking lot.

Around 10 p.m., while on routine patrol, Deputy Donald Duffield of the Los Angeles County Sheriff's Department discovered the victim's body lying prone in the parking lot of the First Baptist Church. Deputy Duffield described the dead victim as "an elderly lady who was well dressed and [who] had a pool of blood on her chest."

Later that night, defendant returned to the Los Robles address. Ringey testified that when defendant returned driving a different car, he had a fresh red stain on his shirt. Defendant said that a robbery he had committed that night "didn't go" as planned.

Kimble testified that defendant told her that he "had to kill" a woman, and that he was alone at the time of the killing. Defendant later put a watch and a ring on the bed he shared with Kimble; Kimble pawned the ring and was wearing the watch when she was later arrested. The day after the shooting, defendant and Kimble used one of the murder victim's credit cards at Kinney's Shoe Store to buy a pair of boots for defendant.

2. Defendant's Arrest and Inculpatory Statements

On November 29, 1984, defendant was arrested on charges unrelated to this case and transported from the Alhambra police station to the San Bernardino County sheriff's station. Following his arrest, defendant made certain statements to sheriff's investigators relating to the November 15 killing of Brown.

a. Defendant's Statements of November 29 and 30, 1984

On November 29 and 30, 1984, defendant told Sergeant Rod Hoops of the San Bernardino County Sheriff's Department and Deputy Michael Griggs of the Los Angeles County Sheriff's Department that he was present when Maxine Brown was killed, but that he did not kill her. ²

Defendant told the deputies that at 6 p.m. on November 15, 1984, the night of the killing, one Frank Hillhouse picked him up at his Los Robles residence in the victim's car. Defendant thought that the victim, who was seated in the front passenger seat, was someone who owed Hillhouse money and that Hillhouse was trying to collect on his loan. Hillhouse picked up a third individual, whom defendant did not know but whom he described as a "bushy-haired biker." Hillhouse then drove to the First Baptist Church parking lot, where the biker began striking the victim on the head with a knife. Hillhouse dragged the victim out of the car and shot her. Hillhouse, the biker, and defendant left in the victim's car. The next day Hillhouse used the victim's credit cards.

b. Defendant's Statements of December 1, 1984

On December 1, 1984, Deputy Griggs returned to the San Bernardino County sheriff's station, accompanied by another deputy, and again interviewed defendant. The deputies tape-recorded the interview. ³

When Deputy Griggs confronted defendant with the inconsistencies between his prior statement and the evidence collected during the investigation, including the statements made by Ringey and Kimble, defendant said, "Well, I'm guilty. I did it to her." He then related the following:

He "went out to pull a robbery," and drove to a parking lot in Alhambra, where he saw the victim, Maxine Brown, leaving her car. Armed with a .357 magnum handgun, defendant ran up to her, ordered her back into the car, and drove away with her because he "couldn't leave her there to call the police."

Defendant drove to a North Hollywood pizza restaurant, which he intended to rob. He abandoned his plan when he saw a police officer sitting in the restaurant.

Defendant then tried to get money with Brown's automated bank teller card. At the first bank, defendant used a set of access numbers that Brown had given him for the automated teller machine, but the numbers did not work. Defendant and Brown then drove to another bank. This time defendant ordered Brown to get the money. While keeping Brown within easy shooting range, defendant watched her push the teller machine buttons. Brown returned and told defendant that she did not have enough money in her account. Defendant looked at Brown's checkbook, saw there was "$1,000 or $2,000" in her account and accused her of "playing games" with him.

Defendant drove off again with Brown, not knowing where he was going. He eventually stopped in the parking lot of the First Baptist Church in Bassett. Defendant again asked Brown for her bank card access numbers, but she replied that she had already given them to him. Defendant ordered her out of the car. She did so, then said she needed her house keys. Defendant took the keys out of the car ignition and handed them to the victim; she handed back to him two keys and a gold diamond ring.

Brown then got back into the car, saying she wanted her purse. Defendant replied that she could not have her purse because she would call the police. Brown said, "Well, I'm gonna call them anyway." Defendant responded by hitting her on the head with his gun. Brown started crying and defendant ordered her to get out of the car. As defendant told the deputies, "So she got out and she started walking and then she turned around and told me I'm gonna call the police and that's when I shot her. I jumped out and I shot her."

According to defendant, he fired the first shot in Brown's general direction "to scare her to try to get her to run." When the victim would not run, defendant, who was then outside the car, fired three or four more shots at her. Defendant told the deputies he "wasn't...