P. v. McGuire

Filed 7/25/07 P. v. McGuire CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. Affirmed.

Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Tommy Lee McGuire (defendant) was charged by information with the murder of Matthew Large (Large), in violation of Penal Code section 187, subdivision (a). A jury found defendant guilty of first degree murder. The court sentenced defendant to state prison for a term of 25 years to life. Defendant appeals.

Substantial evidence supports the finding that defendant committed murder in the first degree, that is, the willful, deliberate and premeditated killing of Large. (Pen. Code,  189.) Accordingly, we affirm.

I

FACTS

Large was a drug dealer, who sold marijuana, cocaine and ecstasy. He dealt in large quantities of these drugs. He was a strong and fit young man. He had been co-captain of his high school wrestling team and had been training hard for his first ultimate fighting match a combination of wrestling, martial arts and boxing. His first fight was scheduled for Sunday, December 9, 2001.

The morning of Thursday, December 6, 2001, Large worked out with his trainer as usual. The two men then had lunch. Large thereafter went missing. He was supposed to meet drug dealer Michael Peikert later that day to discuss a deal, but Large did not show.

Larges truck was found submerged in Humboldt Bay near Eureka on December 28, 2001. On January 3, 2002, David Dierking (Dierking), a detective sergeant for the City of Huntington Beach Police Department, searched Larges apartment. Dierking did not find any drugs in the apartment. However, he did find a bundle of $100 dollar bills, totaling $7,000, stuffed in a fold in the sofa. He also found a pay/owe sheet reflecting that defendants son, Travis McGuire (McGuire)^[1], owed Large $7,400.

Telephone records showed that from December 1, 2001 through December 6, 2001, there were 14 calls back and forth between Larges telephone and the telephone at the apartment shared by defendant and McGuire, located at 913 Monte Vista in Irvine. Dierking learned that, since the date of Larges disappearance, defendant and McGuire had moved from that apartment to another apartment in the same complex, located at 623 Monte Vista.

Dierking obtained a search warrant and the police searched both apartments. At the second apartment, located at 623 Monte Vista, the police discovered, in defendants bedroom, a meat cleaver wrapped up in a towel, a blue plastic tarp, a clear plastic tarp, a roll of duct tape, two loaded handguns, and extra ammunition. The meat cleaver had blood on it, as well as human tissue possibly skin or brain matter. A DNA analysis showed that the blood was defendants and the human tissue was Larges.

When the police questioned defendant as to why he was storing a meat cleaver in his bedroom closet, defendant explained that when you cut food with a meat cleaver it dulls the blade. When questioned about the tarps and duct tape found in the closet, defendant sort of hemmed and hawed and said that he [had] recently purchased them at Costco. Defendant later changed his story and told the police that he purchased the items at The Home Depot.

Larges body was found buried on a beach near Eureka on February 8, 2003. At about that time, Honeylove Davis (Davis), with whom defendant had had a romantic relationship at some point, provided the police with information as to what had transpired a year or so earlier.^[2] According to Davis, who lived in Eureka, defendant had contacted her unexpectedly. He phoned to say he had come up from the L.A. area and would be there in about 25 minutes. When he arrived, she noticed that he was driving a new pickup truck. He said that it belonged to a friend. Defendant took Davis to a motel, where the two of them spent the night.

After they were inside the room, defendant told Davis that he had a dead body in the back of the truck. He claimed that he had hit Large once hard enough to break his neck. Davis said defendant explained that McGuire owed Large money for pot and Large was going to kill McGuire. According to Davis, defendant further explained that he killed Large before Large could kill his son. As Davis put it, defendant said that son of a bitch was going to kill my son, so I just kill[ed] him first.

Davis told the police that she and defendant drove to a beach in the morning, before sunrise, to bury the body. Defendant dug a hole, carried a body wrapped in black plastic and thick duct tape out of the back of the truck, took the wrapping off, and dumped the body into the hole. Davis said that defendant looked happy, not upset. She also said that she did not believe defendants story about hitting Large once hard enough to break his neck, because she saw a hole in Larges head.

Defendant was convicted of first degree murder. He appeals.

II

DISCUSSION

A. INTRODUCTION:

Defendant admits that Large was killed in the apartment at 913 Monte Vista, though he claims he was not home at the time. He says he found Large dead in the hallway when he returned to the apartment the afternoon of December 6, 2001. Defendant claims he did not ask his son, who was frail and sickly, how he managed to kill Large, who was in peak condition for his upcoming ultimate fighting match. While claiming that he did not kill Large, defendant admits that he buried Large at the beach and dumped Larges pickup truck in Humboldt Bay, in order to protect his son. Defendant asserts that there is no substantial evidence to show that he killed Large with premeditation and deliberation, so as to support a conviction of murder in the first degree. We disagree.

We need not be convinced beyond a reasonable doubt that the murder[] [was] premeditated. Our inquiry on appeal in light of the whole record [is] whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] The standard of review is the same when the People rely mainly on circumstantial evidence. [Citations.] (People v. Sanchez (1995) 12 Cal.4th 1, 31-32.) [W]e apply the tripartite test of People v. Anderson (1968) 70 Cal.2d 15 . . . , in deciding whether the evidence is sufficient to support a finding of premeditation and deliberation based on these three factors: (1) planning activity; (2) motive (established by a prior relationship and/or conduct with the victim); and (3) manner of killing. [Citations.] (People v. Sanchez, supra, 12 Cal.4th at p. 32.) As we shall show, there is sufficient evidence for a rational trier of fact to find, beyond a reasonable doubt, that defendant committed the willful, deliberate and premeditated killing of Large (Pen. Code,  189).

B. ANDERSON FACTORS:

(1) Motive

The strongest evidence pertains to motive. Larges pay/owe sheet showed that McGuire owed him $7,400. According to Davis, defendant admitted that he killed Large because McGuire owed Large money and Large was going to kill McGuire. In addition to being motivated to save his son from the possibility of being killed by Large, and to alleviate the debt to Large, there were other possible financial reasons why defendant may have wanted to kill Large.

McGuire himself was a drug addict.^[3] He used heroin, opiates and marijuana. He also sold drugs. McGuire was in financial trouble. He was unable to pay his rent, unable to repay his girlfriend, Amber Switzer (Switzer), the $14,000 he had borrowed from her, and unable to repay another drug dealer in addition to Large. Prior to December 6, 2001, McGuire owed drug dealer Jeff Byrne (Byrne) about $14,000 for four pounds of marijuana. To compound matters, Byrne had stopped supplying McGuire with marijuana because of the outstanding debt.

While McGuire was short of funds, Large, on the other hand, often kept large quantities of cash at his home tens of thousands of dollars. His roommate, Jessica Frawley (Frawley), said that he did not use a bank. Large was known to possess up to five kilos of cocaine at one time, worth about $100,000, and up to 50 or 80 pounds of marijuana at a time, valued at about $2,500 to $3,500 a pound. Moreover, according to Larges brother, before his disappearance, Large was putting together a $200,000 transaction. Large was collecting money to amass the $200,000 necessary to complete the deal.

This notwithstanding, when the police searched Larges apartment after his disappearance, they found no cash other than the one $7,000 bundle. They also found no drugs. The day after Larges disappearance, when Frawley returned home, she noticed that the room of Large, who was normally a meticulous roommate, was disorganized and messy. It was as though someone had gone through the room. However, Frawley did not notice any damage to the locks that would indicate that the apartment had been broken into. Confirmation of the unusual state of Larges room was provided by his mother. She went to his apartment on December 8 or 9, 2001, and also observed that Larges room was pretty messy. She, too, thought that was unusual because he was usually a pretty neat and tidy, organized person.

From the foregoing evidence, one could infer that Large had been killed for his money and drugs, which had been stolen. One could also infer that the thief had entered Larges apartment with a key and that Large was in possession of a key to his residence at the time he was killed. One could further infer that defendant, who was in possession of Larges body and pickup truck, was in possession of Larges keys when Frawley first observed that Larges room was in a state of disarray. Finally, defendant had a motive to kill Large inasmuch as McGuire, defendants son, was in need of money if not also drugs.

(2) Planning Activity and Manner of Killing

There is also circumstantial evidence of planning activity. As we shall show, there is evidence from which a rational trier of fact could infer that defendant carefully prepared the apartment so that no blood would be left behind after the killing.

Forensic pathologist Dr. Susan Comfort testified as to the condition of Larges skull and the probable cause of his death. She noted that there was a hole in the back of his skull, indicating a blunt force trauma. She also stated that a scalp wound bleeds profusely, so there would have been a tremendous amount of bleeding. Defendant testified that he found Large dead in the hallway. This being the case, there should have been a considerable amount of blood in that location. However, a forensic examination of the 913 Monte Vista apartment did not yield any evidence of blood on either the walls or the carpet.

Where the walls are concerned, McGuires cleaning lady, Esperanza Sanchez (Sanchez), said that one day in early December 2001, McGuire paid her extra money to clean the walls in the entire hallway area, even though the walls did not appear to be stained or dirty. About three weeks later, after defendant and McGuire had vacated the apartment, McGuire had Sanchez go back and scrub down the hallway walls again.

While this may explain the lack of blood evidence on the walls, it does not explain the lack of blood evidence on the flooring. Given the fact that there was no blood on the flooring, a rational trier of fact could infer that precautions were taken to ensure that the flooring was protected from blood and that the blood was removed from the apartment right along with the body. Defendant admits that he transported Large in a black plastic tarp or sheet with silver duct tape. One could infer that the plastic was placed in the hallway before Large arrived and that he was killed while positioned over that plastic, so that the plastic captured the blood that would otherwise have come in contact with the floor. From the fact that defendant hemmed and hawed about the purchase of the tarps he stored in his bedroom, and changed his story about where they were purchased, one could infer that the tarps were purchased specifically for use in the crime.

There is also additional circumstantial evidence concerning planning activity and manner of killing from which a rational trier of fact could infer that defendant deliberately and with premeditation attacked Large from behind, so that the strong and well-trained young man would not have an opportunity to defend himself. That evidence has to do with the condition of the skull, the weapon used to inflict the wounds, the relative physical conditions of the three men, and the lack of any evidence that Large had put up a fight.

Dr. Comfort testified that there were at least four blows to the back of the head. She opined that the meat cleaver could have caused the injuries. From the fact that defendant was storing the bloody meat cleaver wrapped in a towel in his bedroom closet, a rational trier of fact could infer that the meat cleaver was in fact the murder weapon. Indeed, at trial, defendant answered yes, to the following question: And [McGuire], unbeknownst to you, took the murder weapon in this case and put it in your closet when you were gone, to try to help him essentially get away with the killing; right?

The location of that weapon both before and during the crime is also of interest. Switzer, who lived with McGuire and defendant at the time of the killing, testified that the meat cleaver was generally kept in a drawer in the kitchen, along with other kitchen implements. Yet one could infer that, on December 6, 2001, it was on hand in the hallway where Large was killed. One could further infer that the meat cleaver was retrieved from the kitchen in advance of Larges visit, so that it would be ready for the attack.

This inference is further supported by evidence of the relative conditions of the men in question. Large was a strong and fit young man in peak condition for an upcoming ultimate fighting match. Although both defendant and McGuire occupied the apartment in question, one could infer that the frail and sickly McGuire would have been no match for Large. That would have left defendant, who was in his late 50s at the time of the murder, to take on Large with less than vigorous assistance from McGuire. One could infer that defendant took these factors into consideration in planning an attack from behind.

The inference that Large was attacked from behind is further supported by additional testimony of Switzer. On December 6, 2001, Switzer returned to the apartment, probably in the late afternoon. When she got there, McGuire was there, exhibiting his normal demeanor. Switzer did not observe any injuries on McGuire and did not observe any broken items in the apartment. She did not observe anything out of place. Everything was just normal. Given this, it is unlikely that a violent struggle had taken place when Large, a trained fighter, was killed. From this, combined with the fact that the back of Larges skull was smashed, a rational trier of fact could infer that Large had been attacked from behind, and did not have any opportunity to defend himself.

While defendant testified that McGuire killed Large, a rational trier of fact could infer that he was lying blaming the crime on someone who was physically incapable of committing it at the time and who was dead by the trial date and thus unable to dispute the allegation. At trial, defendant maintained that he had been unconcerned that McGuire might die without taking responsibility for the killing, leaving defendant behind holding the bag. Indeed, defendant stated that he had not wanted McGuire to say anything to the police. He adhered to this position even though the police interviewed McGuire at the hospital on his death bed, when one could infer it would have done no harm to McGuire to confess and save his father.

(3) Conclusion

As the foregoing shows, there is strong evidence of motive. There is also circumstantial evidence of both planning activity and manner of killing that would support the finding that defendant killed Large willfully, and with premeditation and deliberation. Defendant nonetheless insists that there is insufficient evidence of the Anderson factors to support the conviction. We disagree.

[T]he Anderson factors do not establish normative rules, but instead provide guidelines for our analysis. (People v. Sanchez, supra, 12 Cal.4th at p. 32.) The goal of Anderson was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse. [Citation.] [] In identifying categories of evidence bearing on premeditation and deliberation, Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation. . . . The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive. [Citation.] (Id. at p. 33.) Finally, . . . it is not necessary that the Anderson factors be present in some special combination or that they be accorded a particular weight. [Citation.] Nonetheless, we are guided by the factors in our determination whether the murder occurred as a result of preexisting reflection rather than unconsidered or rash impulse. [Citation.] (Ibid.) Based on the evidence outlined above, a rational trier of fact could have found, beyond a reasonable doubt, that the murder resulted from preexisting reflection, not rash impulse.

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

SILLS, P. J.

IKOLA, J.

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^[1] Since defendant Tommy Lee McGuire and his son Travis McGuire share the same last name, we will refer to the former as defendant and the latter as McGuire, for clarity and convenience.

^[2] The court ordered the conditional examination of Davis before trial, because she was gravely ill. In fact, she died before trial. A transcript of an interview with Davis was introduced into evidence as a prosecution exhibit.

^[3] McGuire died on September 7, 2002, several years before defendants trial took place.