People v. Wilson

• Decision Date: 12 November 1992
• Docket Number: No. S006546,S006546
• Citation: 838 P.2d 1212,13 Cal.Rptr.2d 259,3 Cal.4th 926
• Court: California Supreme Court
• Parties: , 838 P.2d 1212 The PEOPLE, Plaintiff and Respondent, v. Robert Paul WILSON, Defendant and Appellant.

Page 259

13 Cal.Rptr.2d 259

3 Cal.4th 926, 838 P.2d 1212

The PEOPLE, Plaintiff and Respondent, v. Robert Paul WILSON, Defendant and Appellant.

No. S006546.

Supreme Court of California,

In Bank.

Nov. 12, 1992.

Bradley S. Phillips, under appointment by the Supreme Court, and Ruth E. Fisher, Munger, Tolles & Olson, Los Angeles, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting Asst. Atty. Gen., Margaret Garnand Venturi and Harry Joseph Colombo, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

GEORGE, Justice.

Following the guilt phase of a jury trial, defendant Robert Paul Wilson was found guilty of one count of first degree murder (Pen.Code, §§ 187, 189) ¹ and one count of robbery ( § 211). The jury also found that defendant used a firearm in the commission of each offense ( § 12022.5, subd. (a)), and found true a special circumstance allegation that he committed the murder during the course of a robbery ( § 190.2, subd. (a)(17)(i)). Following the penalty phase of the trial, the jury imposed the death penalty.

In the companion habeas corpus proceeding, we conclude that the judgment must be vacated in its entirety. (In re Wilson, 3 Cal.4th 945, 13 Cal.Rptr.2d 269, 838 P.2d 1222.) Accordingly, we dismiss the appeal as moot but, in an attempt to avoid the recurrence of error on retrial, we discuss certain issues for the guidance of the parties and the trial court on remand.

FACTS

I. GUILT PHASE EVIDENCE

A. The prosecution's case.

1. The crimes.

The victim, Roy Swader, resided in Tucson, Arizona. He would purchase tools in California and sell them at a "swap meet" in Tucson, regularly travelling to California every Monday and returning to Arizona the following day. He often carried substantial amounts of cash on his person in a "trucker's wallet" affixed to his belt with a chain.

In 1984, defendant worked for Swader and resided with him temporarily. He often accompanied Swader on his trips to California. In late August 1984, approximately one week before the commission of the crimes, defendant was at the Tucson residence of Wayne Anderson and Sonia Craven (with whom defendant then was living), counting the sales proceeds from the swap meet. He told an acquaintance, Kimberly Christian (who also worked at the swap meet and knew Swader), that there were "four fucking thousand dollars" on the table, and that "he was tempted to knock Roy off and take the money because he could live good on four fucking thousand dollars."

In early September 1984, Swader bought a handgun at the swap meet and brought it home.

On the morning of September 4, Swader loaded his van and trailer to drive to California, and that evening drove them into a Shell service station in Indio, California. Robert Berrie, the station attendant, recognized Swader, who had stopped at the station on previous occasions. Another man, whom Berrie described as "skinny," was with Swader. Swader entered the station mini-mart and told Berrie he wanted to purchase gas and a carton of milk. He then went out to refuel the van. The other man came into the mini-mart and filled a paper cup with Pepsi. Swader returned to pay for the various items, and Berrie gave him a receipt for the gas purchase. Swader was carrying a large black wallet with a chain attached.

On September 5, approximately noon, Swader's body was discovered in his van in the parking area of a park in Long Beach, California. He had been shot twice in the head; his belt was undone, and his wallet was missing. Swader's left front pants pocket was pulled out, and a $20 bill was in a rear pocket. A pillow and a blanket were next to the body. The gas receipt from the Indio Shell service station was in Swader's shirt pocket. There was no evidence of forced entry into the van, and the two back doors were unlocked. A black T-shirt and a pair of jeans were found inside the van. The T-shirt subsequently was identified as one that defendant had worn. The jeans were much smaller than Swader's size.

A latent impression of defendant's left middle fingerprint was taken from the inside portion of the driver's door below the window of Swader's van.

On September 6, 1984, Detectives Miller and Collette of the Long Beach Police Department contacted Berrie at the Shell service station. Berrie identified Swader's van and trailer from photographs and confirmed that Swader had purchased gas at the station on September 4. On September 14, when the detectives returned to the service station, Berrie identified defendant from a photographic lineup as the man who was with Swader on September 4. Berrie told the detectives he could positively identify that man, were he to see him in person. At the trial in May 1988, when asked whether he could identify that man in the courtroom, Berrie testified he was not positive and then pointed to an individual (not defendant) in the spectator portion of the courtroom.

On September 7, 1984, the Long Beach detectives travelled to Tucson to the former residence of Wayne Anderson and Sonia Craven, which those individuals had abandoned. A search of the premises revealed paperwork bearing defendant's name, indicating that defendant was from the State of Kansas.

At trial, Kimberly Christian testified that a few days after Swader's murder, she saw defendant at the swap meet in Tucson. Someone then informed her that Swader's body had been found in California. The next day, Christian saw defendant with Anderson and Craven at their residence. Anderson had a van, which Christian assumed he had stolen, because Anderson had been "broke." When someone raised the subject of Swader's death, defendant became nervous and then left. Christian did not see defendant again prior to trial. She never again saw Anderson or Craven.

Defendant was arrested in Las Vegas, Nevada, in October 1984 and was returned to Los Angeles County. On January 23, 1985, he was arraigned in Los Angeles County Superior Court on charges of murdering and robbing Swader.

2. Testimony of Farrell Torregano.

In April 1987, Farrell Torregano was a fellow inmate with defendant at the Los Angeles County jail. On direct examination of this witness, the prosecution elicited the fact that Torregano had "suffered a felony or two...." Torregano testified that defendant, in the course of several conversations, confessed to committing the present crimes, stating that defendant had worked for a man named Swader, that defendant needed more money and had asked Swader for a loan, but that Swader would not lend him money. Defendant admitted to Torregano that he had shot Swader in the head twice as the victim slept. According to Torregano, defendant said he had left some money on the victim's person so that the killing would not appear related to a robbery, and then took the remaining money and fled.

3. Testimony of Donald Raymond Loar and Frank Kovacevich.

Donald Raymond Loar was a convicted felon who had testified at the request of the Los Angeles County District Attorney in other cases prior to his testimony in the present case. He testified that in October 1987 he was in the protective custody unit of the Los Angeles County jail. He first met defendant while attending church services at the jail, and then was defendant's cellmate for approximately six to eight weeks. While the two men were "discussing cases," defendant told Loar that he was charged with murder and wanted a witness in Indio eliminated. Loar testified: "Well, we was discussing the cases and people, relatives and all of that. [p] And my wife's godfather is Jimmy Hoffa, [sic] dad is secretary treasurer to the Teamster's union. [p] [Defendant] felt that I had Mafia ties, I guess, and he told me that there was a witness that was a thorn in his side that could do him a lot of harm if he testified, that could put him and a murder victim together. [p] And he wanted me to get somebody from back east or a hit man, so to speak, to get rid of the witness so he wouldn't have to worry about--about that guy in court. He would beat his murder case.... [p] ... He wanted the guy eliminated."

Loar testified that following this conversation, he telephoned the district attorney's office and spoke to Deputy District Attorney Hodgman about Loar's conversation with defendant. In doing so, Loar hoped that, in exchange for his cooperation, he would receive favorable treatment with regard to his own case.

Hodgman referred Loar to a district attorney's investigator, Frank Kovacevich, who in turn arranged to impersonate the "hit man" whom defendant sought to contact. Loar placed a telephone call to Kovacevich from the jail, told Kovacevich that defendant wished to speak with him, and handed defendant the telephone. Loar testified that following the telephone conversation defendant appeared relieved and happy, stating that the "problem is going to be resolved, that the guy he just talked to is going to take care of the witness for--for him." Loar testified that, at the request of Kovacevich, he arranged for a second telephone conversation between Kovacevich and defendant.

Kovacevich testified that on October 28, 1987, following a telephone call from Loar, he arranged to speak to defendant telephonically while impersonating a hired assassin. Kovacevich had two telephone conversations with defendant, both of which were tape-recorded. The tape recordings of the conversations (the transcriptions of which are set forth in relevant part in the margin below ²) were played to the jury at trial.

4. Evidence of defendant's indebtedness.

The prosecution offered into evidence the fact of defendant's prior conviction of felony theft in Kansas and the resulting condition of probation requiring that defendant make restitution in the amount of $13,007. The prosecution argued that evidence of a large restitutionary order, imposed nine months prior to the commission of the murder and the robbery, was probative of...