People v. Weaver

• Decision Date: 20 August 2001
• Docket Number: No. S004665.,S004665.
• Citation: 29 P.3d 103,26 Cal.4th 876,111 Cal.Rptr.2d 2
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ward Francis WEAVER, Jr., Defendant and Appellant.
• Court: California Supreme Court

111 Cal.Rptr.2d 2

26 Cal.4th 876

29 P.3d 103

The PEOPLE, Plaintiff and Respondent, v. Ward Francis WEAVER, Jr., Defendant and Appellant.

No. S004665.

Supreme Court of California.

August 20, 2001.

Marvin Rous, San Francisco, and Mark Farbman, San Rafael, under appointments by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, W. Scott Thorpe and Jane N. Kirkland, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, J.

Ward Francis Weaver, Jr., was convicted in 1984 in Kern County Superior Court of the first degree murders of Robert Radford and Barbara Levoy. (Pen.Code, ? 187; all further statutory references are to this code unless otherwise indicated.) The jury also sustained a multiple-murder special-circumstance allegation (? 190.2, subd. (a)(3)) and two kidnapping-murder special-circumstance allegations (? 190.2, former subd. (a)(17)(ii), now redesignated (17)(B)). In addition, the jury convicted defendant of kidnapping Levoy (? 207) and sustained an enhancement allegation that defendant had used a deadly weapon in murdering Radford (? 12022, subd. (b)). Defendant subsequently admitted he had served a prior prison term (? 667.5, subd. (b)). After finding defendant sane following a separate sanity hearing, the jury considered evidence presented at the penalty phase of the trial. On March 7, 1985, the jury set the penalty at death under the 1978 death penalty law. (? 190.1 et seq.) This appeal is automatic. (? 1239, subd. (b).)

After considering the claims raised on appeal, we affirm the guilt, sanity, and penalty judgments in their entirety.

I. Guilt Phase

A. Facts

Robert Radford, 18 years old, was assigned to basic training for the United States Air Force in Colorado. While there, he met 23-year-old Barbara Levoy. When Radford completed his training, he traveled to his home in Edmonds, Washington, and Levoy accompanied him to meet his parents. The couple then drove south to Pinedale, California (near Fresno) to meet Radford's grandmother. The couple's ultimate destination was Las Vegas, Nevada, where Radford would begin his first tour of duty at Nellis Air Force Base. Levoy planned to fly home to Colorado from Las Vegas.

Radford and Levoy arrived in Pinedale on the afternoon of February 5, 1981, and visited with Radford's grandmother. They left Pinedale around 7:00 p.m. the same day, anxious to get to Las Vegas. Unfortunately, their car broke down one mile east of Tehachapi. James Powell was coming home from work around 11:00 p.m. and encountered Radford, his disabled car on the side of the road with its emergency lights flashing. Powell saw a young woman in the car. He offered the couple a ride back to Tehachapi, but Radford declined because it was in the opposite direction from which he was traveling. Powell left.

Our knowledge of what happened next derives from defendant's admissions to a cellmate, Ricky Gibson, defendant's tape-recorded interviews with police, and defendant's testimony at trial. Around 10:00 p.m., defendant, who was working as a long-haul trucker, saw Radford's car on the side of the road as he drove by in the opposite direction.¹ Defendant exited the highway and circled back to offer his assistance. Radford and Levoy accepted his offer to drive them to Mojave. After driving about five miles, defendant pulled over and asked Radford to help him shift the load on the flatbed of his truck. Levoy stayed in the cab. While Radford was bent over with his back turned, defendant struck him on the back of the head with a "cheater pipe," a three- to four-foot length of metal pipe truckers use to gain leverage when tightening the bindings that restrain a load on the truck. A later autopsy revealed 11 separate lacerations to Radford's head.

Defendant rejoined Levoy in the truck cab, displayed a knife, and had her sit with her head between her legs and her hands behind her, a technique defendant had learned when transporting prisoners during his military service in Vietnam. Defendant reversed direction and drove to Bakersfield; near Kettleman City, he stopped and raped Levoy. He then drove towards San Francisco, pulled off the highway once more and again raped Levoy.

Meanwhile, a citizen reported having seen Radford on the side of the road where defendant had left him. Police responded to the scene and attempted to keep Radford alive, but he died on the way to the hospital. Police found a large amount of blood at the crime scene. At the hospital, Radford's wallet, with his Washington State driver's license, was found, allowing police to link Radford to the disabled car a few miles away. The car contained a woman's purse and several pieces of luggage. Correctly surmising that Radford had been traveling with a woman, police forced open the car and discovered identification belonging to Levoy. Police then issued a missing person report and organized a search effort to find her. Their efforts came too late to save Levoy. After he deposited his cargo in San Francisco, defendant drove towards his home in Oroville. At a secluded spot outside that town, he stopped and asked Levoy to get out of the truck. He tied her hands and feet with electrician's tape, but when he attempted to gag her, Levoy struggled and bit defendant severely on the thumb. He then strangled her. He dug a grave and buried Levoy's body there before driving into town to meet his wife, who was working a late shift in a local restaurant. It was suggested defendant move the body, so defendant took his wife's car and returned to the grave, exhumed the body, put it in the trunk of the car and drove home. When he arrived, defendant's three children were awake and asked him about his bloody thumb. He told them he had gotten in a fight and that they should stay in the house because his assailant may come looking for him.

With the children in the house, defendant moved Levoy's body from the car to a shallow grave dug in his backyard. Defendant previously had begun digging trenches in his yard for a sewer line and had instructed his 10-year-old son and another boy to keep working on the digging project while he was away driving his truck. Some weeks later, defendant exhumed Levoy's body again and moved it to a deeper grave elsewhere in his yard. He then built a wooden platform over the grave so his wife could stand on it and hang out the laundry without getting her feet wet in the grass.

Police were stymied in their attempt to solve Radford's murder and Levoy's disappearance. Then, 17 months after the crimes, prison inmate Ricky Gibson contacted authorities and reported that defendant, who was serving time in prison for subsequent unrelated (but similar) crimes, had told him the story of how he killed Radford, and raped and killed Levoy.

Police went to defendant's home in Oroville, interviewed defendant's wife and son, and obtained consent to search the yard. Defendant's son directed police to the platform, which they removed and discovered Levoy's badly decomposed body. She was identified through her dental records. In addition, the body bore the same clothes Levoy had been wearing when she disappeared, with the exception that her panties were missing.

An autopsy of Levoy's body yielded no clues about the cause of her death due to the advanced state of decomposition. Some electrician's tape, however, was found stuck to the collar of her shirt.

Police proceeded to interview defendant at San Quentin State Prison. He agreed to waive his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) if he could first speak to his mother. Police agreed. After speaking with his mother, he agreed to talk to police. In two tape-recorded interviews, defendant admitted he had killed Radford and Levoy, and that he had raped Levoy. He drew a map of the place in rural Oroville where he had first buried Levoy. Following the map, police found an indentation in the ground where defendant said he had dug the first grave; police also found some black electrician's tape on the ground nearby.

Defendant testified at trial. He claimed he had heard the voice of a female named Ladell in his head since he was 17 years old. He first heard a competing unnamed male voice when he served in Vietnam in 1968 and 1969. He trusted the male voice because it had warned him of danger in Vietnam and saved his life. Defendant explained that he often used amphetamines to stay awake while driving his truck, had taken amphetamines the day of the crimes and, at the time he killed Radford, had not slept in a week and a half. When he picked up Radford and Levoy, he noticed how attractive Levoy was and became sexually aroused. The male voice started saying he should have sex with Levoy. Ladell told him to leave Levoy alone. The male voice assured him he would not get in trouble if he raped Levoy. Defendant testified, "I just couldn't go against him. I just couldn't help it. Had to go along with what sounded like the most logical thing to do." The male voice said to knock Radford out so he could be alone with Levoy. Defendant decided to follow the male voice, but did not think Radford would die because defendant had assaulted someone with the "cheater pipe" in 1977 and the victim did not suffer serious injury. Defendant said that if he had wanted to kill Radford, he would have used the knife he kept in the truck or used some other, more silent means of killing that he had learned in the military.

Defendant testified that when he hit Radford, the young man fell off the truck screaming. Defendant told him to "shut up" and when he did not, defendant struck him "a couple" of times with the pipe, taking full swings with both hands on the pipe. He did not check to see if Radford was alive or dead; he just assumed Radford was "out." He then rejoined Levoy in the truck, displayed his...