PEOPLE v. MOORE







Filed 1/31/11







IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE, )
)
Plaintiff and Respondent, )
) S081479
v. )
)
RONALD WAYNE MOORE, )
) Monterey County
Defendant and Appellant. ) Super. Ct. No. SS980646
__________________________________ )

STORY CONTINUE FROM PART I….


After some discussion of Carnahan’s personal life, defendant’s relationship with her (defendant said they had had a talk about a week earlier about “boyfriends and girlfriends” and defendant’s encounter with a man in Carnahan’s backyard, Hanson asked a series of questions suggesting defendant might have been in the Carnahan house that day and might know what happened to Nicole. On defendant’s denial, Hanson seemed to back off, but soon began questioning defendant about any weapon he might have had with him when he went to the Carnahan house; defendant admitted having a “stout stick” that he always carried.
Hanson told defendant Nicole had been killed and that “this is the time for you to be honest with me.” When defendant denied knowing anything about Nicole’s death, the detectives asked him about the knife he was wearing when he saw Dennis Sullivan that afternoon. Defendant said he left it at his trailer after that; Hanson asked for permission to search the trailer, but defendant said he would get it for them instead. When Lorenzano suggested defendant must still have had the knife at Carnahan’s, defendant said, “You guys are trying to trick me, you know.” The following colloquy ensued:
“Hanson: We just want to make sure that you didn’t break into that house.
“[Defendant]: I didn’t break into it.
“Hanson: Okay. And then while you were in the house maybe, uh, maybe Nikki surprised you and because you carried that knife with you—You were seen earlier. You didn’t want to get caught, so, you hurt Nikki. And maybe in the process of hurting Nikki, you didn’t mean to hurt her as bad as you did.
“[Defendant]: Huh-uh.
“Hanson: And, uh, and—
“[Defendant]: Am I under arrest‌
“Hanson: No, you’re not under arrest.
“[Defendant]: I’d like to . . . (Tape Inaudible) . . . Can I get a ride home please‌ I’ve told you everything I know.
“Hanson: Right.
“[Defendant]: I’ve told you the best I can, and you—you’re trying to twist words. I’m being honest with you.
“Hanson: Well, you can see where we’re—we’re, you know, we’re a little suspicious, you know—
“[Defendant]: Yeah.
“Hanson: Because of, um, uh, you were seen with that knife.”
Hanson again suggested defendant might have sought money for his addiction and perhaps “didn’t mean to harm anybody.” Defendant said he was physically incapable of attacking anyone; the detectives questioned how, then, he could have pursued the “Mexican guy” in Carnahan’s backyard. Defendant accused the detectives of trying to trick him, which they denied. The conversation continued as follows:
“[Defendant]: Yeah, you guys are. Man I—Can I get a ride home please‌ Can I please get a ride home‌ You going to charge me or what, you know‌ I got my rights. I’m not on pro—I’m not on probation.
“Hanson: Right.
“[Defendant]: I told you everything I know, you know.
“Hanson: Right.
“[Defendant]: I’ll give you my doctor—I’ll give you my doctor’s . . . address and name. You can call up him, and he’ll tell you how messed up I am, you know.
[¶] . . . [¶]
“Hanson: You’re the last one to see Nikki, you know, uh—
[¶] . . . [¶]
“[Defendant]: How do you know that‌ Because I volunteered and told you that, right‌
[¶] . . . [¶]
“Hanson: Uh-hum.
“[Defendant]: Yeah, not because you guys tricked me into say [sic] it. You guys going to give me a ride home, or am I going to have to walk home like I always do when I come down here to—to—be honest with you. . . . (Tape Inaudible).
“Hanson: Well—well, what I’m going to have—to ask you to do, Ron—
“[Defendant]: Yeah.
“Hanson: Have a seat here.”
Hanson then asked defendant “to voluntarily give us your clothes” to be checked for trace evidence. In exchange defendant would get a jumpsuit to wear home. Defendant agreed. While they waited for the lab technician to come, the detectives continued to question defendant, who continued to deny involvement. Defendant at one point asked who was going to take him home, to which Hanson replied, “We will as soon as we grab your clothes.” Lorenzano asked defendant whether anyone else had been at his trailer that day. Defendant said his girlfriend had not been there because they had had “a little fight.” In answer to further questions, he explained that the knife he had been carrying was one of a set of seven kitchen knives his mother owned. The lab technician then took defendant’s clothes and photographed his body, with special attention to scratches and bruises the detectives pointed out (and which defendant said were from falls or needle use).
Hanson again asked defendant if he had been in the Carnahan house or was involved in Nicole’s death, and defendant denied both. He asked defendant to take a seat and assured him he would be “out of here . . . [a]s soon as I get this patrol guy to take you back again.” Hanson then asked a few questions about defendant’s family, clothing (defendant said he had changed from a sweatshirt to a jacket earlier), and drug and alcohol use that day (defendant said he had had a couple of beers but no heroin or methadone). Hanson said he would either give defendant a ride back or “get this, uh, patrolman” to do so.
After a few more questions about defendant’s visit that day with Dennis Sullivan, Lorenzano called Hanson out of the room. Hanson testified that Lorenzano conveyed to him information gathered at the crime scene that linked defendant to the crime, including that property from the Carnahan residence had been found on defendant’s property. On returning to the interview room, Hanson asked if they could have a technician come in and swab defendant’s hands. Defendant said he wanted to “go home right now” and, when asked if he would stay voluntarily a little longer to talk to other officers, he refused.
Hanson then told defendant he could not go home and read defendant the Miranda advisements. Defendant said he would talk to the other officers when they arrived. After the lab technician took some hair samples, Hanson and Lorenzano engaged defendant in another round of accusatory questioning. Defendant barely responded to the questions, continuing to deny any involvement. Eventually he said, “I want to talk to a lawyer.” Hanson said, “That’s the magic word” and stopped questioning defendant.
We agree with the trial court that the sheriff’s station interview did not, in its entirety, constitute custodial interrogation. As already discussed, defendant, the last person known to have seen the victim and obviously an important witness, was asked — and freely agreed — to come to the station to give a statement. In context, Hanson’s statement that “we have to do [it] now” rather than the next day clearly referred only to the importance of getting information promptly and did not convey a command that defendant go to the station. On arriving at the station, defendant asked whether, and was again assured, he was there only to give a statement. Once in the interview room at the station, Hanson expressly told defendant he was not under arrest and was free to leave. Defendant said he understood. Defendant was not handcuffed or otherwise restrained, and there was no evidence the interview room door was locked against his leaving. The interview was fairly long — one hour and 45 minutes — but not, as a whole, particularly intense or confrontational. The interview focused, initially, on defendant’s encounter with Nicole, the missing fence boards, and information defendant might have had about the man he reported seeing in Carnahan’s backyard or others connected with Carnahan. For a substantial period, while defendant filled in his previous statements with details, the questioning did not convey any suspicion of defendant or skepticism about his statements.
After a while, to be sure, the detectives interjected some more accusatory and skeptical questions, with Hanson asking defendant straight out, “Did you burglarize the house‌” and, later, urging him to begin being “honest with me.” The detectives’ questions about defendant’s prior arrests, drug use, need for money, and carrying of a knife and other weapons on the day of the crimes conveyed their suspicion of defendant’s possible involvement. But Miranda warnings are not required “simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.” (Oregon v. Mathiason (1977) 429 U.S. 492, 495, italics added.) While the nature of the police questioning is relevant to the custody question, police expressions of suspicion, with no other evidence of a restraint on the person’s freedom of movement, are not necessarily sufficient to convert voluntary presence at an interview into custody. (See id. at pp. 493-495 [no custody where defendant agreed to interview at police station, was told in interview that the police suspected him of a burglary and told (falsely) his fingerprints had been found at the scene, but was allowed to leave at conclusion of interview].) At least until defendant first asked to be taken home and his request was not granted, a reasonable person in defendant’s circumstances would have believed, despite indications of police skepticism, that he was not under arrest and was free to terminate the interview and leave if he chose to do so.
People v. Boyer, supra, 48 Cal.3d 247, on which defendant relies, is readily distinguishable. The defendant there was a suspect when he was first contacted, and he was stopped by the police as he left his house by the back door, other officers having sought entry at the front door. (Id. at p. 263.) Although the defendant was asked, and agreed, to “voluntarily” go to the police station for an interview, once at the station he was given Miranda advisements, directly accused of having committed the homicide under investigation, and repeatedly told that the police had evidence of his guilt of which he was unaware and that he would not be able to live with his guilt unless he confessed. (Boyer, at pp. 264-265.) Several times the defendant asked whether he was under arrest and said he wanted a lawyer and did not wish to speak further, but the police interrogator ignored these remarks and continued questioning him. (Id. at p. 265.) We held this set of circumstances — the manner in which the police “accosted” the defendant at his home (id. at p. 268), their administration of Miranda advisements at the interrogation’s outset, the defendant’s being subject to “more than an hour of directly accusatory questioning” (Boyer, at p. 268) in which he was falsely told the police had the evidence to prove his guilt, and the officers’ response to the defendant’s questions about arrest — showed he had in fact been arrested, making his interrogation custodial for Miranda purposes (Boyer, at p. 272).
Defendant, in contrast, was first contacted as a witness with potentially important information about the burglary of his neighbor’s house and the possible abduction of a child, rather than as a homicide suspect. (When Deputy Robinson first contacted defendant at his trailer and interviewed him in the patrol car, Nicole’s body had not yet been found.) From the time defendant was asked to come to the sheriff’s station through the first portion of the interview, the police consistently conveyed to defendant that they wanted to question him only as a witness; defendant sought and received the assurance that he was being asked only to give a statement of what he had seen and heard that day. Even when the interviewers began to express some skepticism about defendant’s statements, they did not claim to know he was guilty or, until the point investigator Hanson expressly arrested him, to have evidence of his guilt. Unlike the defendant in Boyer, moreover, defendant was not detained while trying to leave his house, nor did the police repeatedly ignore statements that he wanted a lawyer and did not want to talk to them further.
People v. Aguilera (1996) 51 Cal.App.4th 1151 is similarly distinguishable on its facts. There police, on information of the defendant’s involvement in a gang-related homicide, went to his house and asked him and his mother if the defendant would talk to them at the station about the killing and for consent to search the house for evidence of homicide and gang involvement. (Id. at p. 1159.) At the station, police conducted an interrogation the appellate court described as “intense, persistent, aggressive, confrontational, accusatory, and, at times, threatening and intimidating.” (Id. at p. 1165.) The officers repeatedly told the defendant they had evidence of his involvement and that the interview would end only when he told them the “truth,” conveying, in context, the message that the defendant would be interrogated until he admitted his involvement in the crime. (Id. at pp. 1163-1164.) Without belaboring the point, none of these circumstances were present in the case at bench.^[1]
We need not decide whether the interview became custodial when defendant asked to end the interview and go home, but was not given the transportation he had been promised. Defendant made no statements of any significance after that point, largely repeating his earlier responses. Defendant argues admission of the interview was prejudicial because the prosecution used his exculpatory statements made during the interview to rebut his claim of an impaired mental state, but he points to no such statements that he first made after he sought to end the interview and be driven home. Any error in not suppressing the last part of the taped sheriff’s station interview would, therefore, be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

II. Admission of Expert Opinion Regarding Bloodstain in the Living Room

Defendant contends the trial court prejudicially erred by allowing a criminalist to testify that if a bloodstain found on the Carnahans’ living room carpet was deposited by a person, the person must have been lying down rather than standing up. We agree the prosecutor’s hypothetical question was improper, as there was no evidence the stain was deposited from a person rather than an object that had been in contact with a person, but do not agree admission of the evidence was prejudicial.
During the prosecution’s case, criminalist Gene Avilez described a small bloodstain on the living room carpet, the only bloodstain found in that room. (Nicole’s body was found in her bedroom, where there were numerous bloodstains on objects in various parts of the room.) Over defense objections of lack of foundation and of prejudicial effect outweighing probative value (Evid. Code, § 352), Avilez was permitted to answer this hypothetical question from the prosecutor: “If you assume that that bloodstain was deposited by a human being, do you have an opinion as to whether or not the individual would have been standing or either lying down or very close to the carpet at the time that bloodstain was deposited‌” The witness opined the person “was either at or near the surface of the carpeting” at the time. But on cross-examination by the defense, as in the hearing on admissibility, Avilez testified he could not determine whether the stain had been deposited from a person or from an object.
This court recently summarized the relevant limits on hypothetical questions to expert witnesses. “ ‘Generally, an expert may render opinion testimony on the basis of facts given “in a hypothetical question that asks the expert to assume their truth.” [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence, however. [Citations.]’ [Citation.] It is true that ‘it is not necessary that the question include a statement of all the evidence in the case. The statement may assume facts within the limits of the evidence, not unfairly assembled, upon which the opinion of the expert is required, and considerable latitude must be allowed in the choice of facts as to the basis upon which to frame a hypothetical question.’ [Citation.] On the other hand, the expert’s opinion may not be based ‘on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors . . . . [¶] Exclusion of expert opinions that rest on guess, surmise or conjecture [citation] is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide‌’ [Citation.]” (People v. Richardson (2008) 43 Cal.4th 959, 1008, italics added.)
The record contains no evidence the living room bloodstain was deposited directly from Nicole’s wounds, rather than from, for example, a weapon used to attack her. Avilez could not answer how it was deposited, and the Attorney General points to nothing beyond his testimony to support the hypothetical question’s assumption. For that reason, the premise of the prosecutor’s hypothetical question was not rooted in the facts shown by the evidence; rather, it was an “ ‘assumption[] of fact without evidentiary support.’ ” (People v. Richardson, supra, 43 Cal.4th at p. 1008.) The hypothetical question thus called for an opinion without adequate foundation.
As the concurring and dissenting opinion points out, trial courts enjoy a measure of latitude in determining the permissible scope of expert testimony; a ruling on admissibility of such evidence under Evidence Code section 352 is reviewed under an abuse of discretion standard. (People v. Richardson, supra, 43 Cal.4th at p. 1008.) But when the proposed expert testimony rests on an assumption without any support in the trial evidence, the court does abuse its discretion in admitting it. Such testimony has little or no probative value, bears the potential to mislead the jury into accepting the unsupported assumption and drawing from it unwarranted conclusions, and thus cannot significantly “help the trier of fact evaluate the issues it must decide.” (Conc. & dis. opn. of Kennard, J., post, at p. 2.)
The concurring and dissenting opinion argues the disputed question’s assumption, that Nicole directly deposited the bloodstain in the living room, can be deduced from the fact Nicole “could have been” in the living room at some point during the attack. (Conc. & dis. opn. of Kennard, J., post, at p. 3.) That an event could have happened, however, does not by itself support a deduction or inference it did happen. From the existence of a single small bloodstain in Nicole’s living room one might speculate she was attacked in that room, but one might equally well speculate the blood dripped from defendant or his weapon as he left after murdering her in her bedroom. Jurors should not be invited to build narrative theories of a capital crime on speculation.
Defendant contends admission of this evidence was prejudicial because it allowed the prosecutor to suggest, in guilt phase argument, that defendant had first encountered Nicole in the living room, knocked her down, and then, after a pause, pursued the attack in her bedroom. The prosecutor thus “conjure[d] a vivid and unsettling image of Nicole lying on the floor in a pool of blood and ma[d]e it into the turning point of the crime.”
In light of all the evidence and instructions, we do not agree the error was prejudicial. From defense counsel’s cross-examination, the jury knew that the living room bloodstain might as likely have been deposited from an object as from Nicole, making it arguably insignificant. Indeed, the jury was instructed it was for them to determine whether the facts assumed in a hypothetical question had been proved and that they could consider any failure of such proof in evaluating the value and weight of the expert’s opinion.
More important, the evidence of Nicole’s numerous wounds and the blood prolifically deposited in her bedroom, independent of the small bloodstain in the living room, told the story of an extraordinarily brutal attack. Even without consideration of the living room bloodstain, the jury would have learned defendant, an adult man, repeatedly beat the 11-year-old victim on the head and face with one or more blunt objects and cut her neck with a knife, leaving the broken blade in the wound, so that he could steal from her and her mother. The blood deposited throughout Nicole’s bedroom, the force with which the most serious wounds were inflicted, the defensive wounds on Nicole’s hands and wrists, and the fact defendant at some point in the attack must have switched weapons all pointed to a determined, cruel and extended assault on a weaker, unarmed victim. In light of that evidence, that the jury would have reached a different verdict in the guilt phase absent the erroneous admission of Avilez’s answer about the living room bloodstain is not reasonably probable. (People v. Watson (1956) 46 Cal.2d 818, 836.) Nor is it reasonably possible the jury’s penalty choice turned on this relatively minor aspect of the evidence. (People v. Ashmus (1991) 54 Cal.3d 932, 983-984.)^[2]

III. Sufficiency of Evidence to Prove Burglary and Robbery

Defendant contends the evidence was constitutionally insufficient to show he formed the intent to take property from the Carnahans before entering their house, as required to prove burglary, or before attacking and killing Nicole, as required to prove robbery. He argues on this ground that the convictions for those felonies as well as the first degree murder conviction and the felony-murder special-circumstance findings must be reversed.
Observing that he could have gone to Carnahan’s house earlier, when no one was home, and that he seemingly failed to plan thoroughly what items he would take from the Carnahans and how he would transport the items to his property, defendant argues “it is just as likely that [Nicole’s killing] was the result of a spontaneous explosion of violence, with any theft as an afterthought, rather than [defendant’s] entering the Carnahan house with the intent to steal.”
We disagree. While no direct evidence indicated defendant formed the intent to steal before going to Carnahan’s house, the circumstantial evidence was more than sufficient. From the prosecution evidence, the jury could reasonably infer that defendant, a heroin addict without the money to pay his electricity bill, prearranged a passage to and from his neighbor’s backyard by removing the fence boards, armed himself with a knife and metal pipe, and donned gloves before going to Carnahan’s house. He then used the weapons he had brought to attack Nicole, ransacked the Carnahan home, taking numerous items large and small, and began moving that property through the fence opening he had made, a process Carnahan interrupted when she came home. The evidence suggested no motive, spontaneous or otherwise, for defendant to attack and kill Nicole, other than to facilitate his theft. That defendant might have planned the burglary better did not negate or even vitiate the force of the inferences the jury could reasonably draw; poor planning was not inconsistent with what the guilt phase jury knew of defendant’s mental state and lifestyle.
Having “review[ed] the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt” (People v. Kipp (2001) 26 Cal.4th 1100, 1128), we conclude a rational jury could find, beyond a reasonable doubt, that defendant entered the house with the pre-formed intent of taking property from the Carnahans and attacked Nicole to facilitate that plan. Substantial evidence thus supports the burglary and robbery convictions and the felony-murder theory of first degree murder. Substantial evidence also supports the finding, required for proof of the felony-murder special-circumstance allegations, that defendant had an independent felonious purpose for the burglary and robbery, that is, the theft was not merely incidental to his murder of Nicole. (People v. Tafoya (2007) 42 Cal.4th 147, 171.) Finally, the evidence supporting the murder conviction and special circumstance findings was not so equivocal or unreliable as to render the death penalty violative of defendant’s Eighth Amendment rights.

IV. Failure to Instruct on Theft as a Lesser Offense

Defendant contends he was denied his federal and state constitutional rights to due process, a jury trial, and reliable guilt and death penalty verdicts by the trial court’s failure to instruct the jury, sua sponte, on theft as a lesser included offense of robbery. He relies on the same theory of after-formed intent to steal as in his previous claim attacking the robbery and burglary convictions.
Instruction on a lesser included offense is required only when the record contains substantial evidence of the lesser offense, that is, evidence from which the jury could reasonably doubt whether one or more of the charged offense’s elements was proven, but find all the elements of the included offense proven beyond a reasonable doubt. (People v. Hughes (2002) 27 Cal.4th 287, 365; People v. Breverman (1998) 19 Cal.4th 142, 162.)
As explained in the previous part, no evidence supports the theory of after-formed intent to steal. Defendant points to nothing in the record suggesting any motive for him to attack and kill Nicole other than to facilitate the theft. Mere speculation that he might have killed out of some other, spontaneous and violent impulse is not sufficient to warrant the instruction. (People v. Zamudio (2008) 43 Cal.4th 327, 361.) In the absence of substantial evidence from which the jury could have found defendant guilty of theft as a lesser included offense to robbery, no such instruction was warranted.

V. Instructions on Deciding Degree of Murder and Between Murder and Manslaughter

The jury was instructed on first degree murder (on theories of felony murder and premeditation), second degree murder (with malice aforethought but without premeditation) and on involuntary manslaughter (where malice is lacking due to intoxication). They were further instructed that if they found defendant guilty of murder they must determine the degree. The court continued, using the current version of CALJIC No. 8.71 (6th ed. 1996): “If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether the murder was of the first or of the second degree, you must give defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.” (Italics added.)
With regard to the lesser included offense of manslaughter, the court, using the current version of CALJIC No. 8.72 (6th ed. 1996), instructed: “If you are convinced beyond a reasonable doubt and unanimously agree that the killing was unlawful, but you unanimously agree that you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of that doubt and find it to be manslaughter rather than murder.” (Italics added.)^[3]
Defendant contends these instructions, in their above italicized parts, violated his constitutional due process and jury trial rights by suggesting to jurors that they must return a verdict on the greater offense unless they unanimously doubted whether it had been proven. As defendant puts it, “a juror who believed that [defendant] was guilty of some offense, but not necessarily first degree murder, would also believe that first degree murder must apply in the face of any disagreement. In other words, first degree murder became the default ver




TO BE CONTINUED AS PART III….

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