People v. Kelly

68 Cal.Rptr.3d 531

42 Cal.4th 763

171 P.3d 548

The PEOPLE, Plaintiff and Respondent, v. Douglas Oliver KELLY, Defendant and Appellant.

No. S049973.

Supreme Court of California.

December 6, 2007.

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Evan Young, Deputy State Public Defender, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

A jury convicted defendant Douglas Oliver Kelly of the first degree murder of Sara Weir under the special circumstances of robbery and rape murder and with personal use of a deadly weapon. (Pen.Code, §§ 187, 190.2, subd. (a)(17), 12022, subd. (b).)¹ After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4) and imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. Facts

A. Guilt Phase

1. Overview

On September 15, 1993, 10-year-old Eric A. discovered Sara Weir's nude and decomposed body under his bed in the apartment where Eric lived with his mother, Michelle T., and, for a while, defendant.² The evidence presented at trial established that defendant had stabbed Sara to death with a pair of scissors several days earlier.

2. The Evidence

The prosecution presented evidence regarding defendant's and Sara's actions in the weeks and, especially, days before defendant killed her. Defendant, who apparently had little money and owned no car, frequented a fitness center in Burbank, where he met and befriended a number of women, including Sara, Michelle T., and Teri B. Michelle and Teri testified that at first defendant was a friendly and seemingly caring person. He told them, and they believed him at first, that he had a wealthy family in Chicago. He also led them to believe he was a manager or part owner of the fitness center.

Sara, who was 19 years old when she was killed, lived with a friend and had a job at Warner Bros. Studios. Martha Farwell, Sara's adoptive mother, described her as naive and trusting. During the summer of 1993, she visited the fitness center quite often, where she met defendant. Defendant became her personal trainer. One time Sara went with a friend to defendant's apartment to look at a dog. Sara told people that defendant was her personal trainer but never suggested she had any other relationship with him. She mentioned to one friend that defendant had tried to flirt with her but she was not interested. She had other boyfriends that summer.

Sara spent the Labor Day weekend with her mother and left to go to her home the afternoon of Labor Day itself, September 6. One friend was expecting to hear from her sometime that same day, during the evening at the latest. The next morning, September 7, shortly after 9:00 a.m., Sara called her place of work and said that "she wasn't going to be at work today because a friend had committed suicide and she had to deal with that." She sounded upset. Sara's mother testified that she knew of no such suicide. Sara had made plans with another friend to see a movie around September 8 and to go to the Hollywood Bowl on September 11. Neither Sara's mother nor her friends ever saw or heard from her again until her body was discovered.

Michelle testified that she and defendant began dating. Eventually, defendant moved into her apartment at 4950 Laurel Canyon, apartment 110, in North Hollywood, where she lived with her son, Eric A. The three lived together in that apartment for about five months until late August. Defendant often spoke of Sara Weir. He told Michelle that Sara had hired him to do weight training.

At some point, defendant offered to become Teri's personal trainer, which she accepted. He also asked Teri to work in his family business, promising that his mother would pay her when she arrived from Chicago. Teri agreed, and she believed she had a working relationship with defendant for about two weeks, although she was never paid. She once told defendant she needed to be paid. He gave her one of Michelle's checks, in the amount of $2,000, but the check bounced.

During this time, defendant also sought to obtain money from acquaintances. Leticia Busby testified that she met defendant at the fitness center, where she worked as an aerobics instructor. On August 26, defendant asked to borrow her credit card so he could take his girlfriend to San Diego for the weekend. She refused.

Helen Walters also knew defendant from the fitness center. He told her that he had just received a family inheritance, but he needed some money to rent a car to go to Disneyland, where he planned to set up a food business. He asked to use Walters's credit card, offering to pay off the $300 balance on the card account if she allowed him to do so. He showed her his bankbook, which indicated he had much money, but he also said he did not have a credit card, so he needed to borrow hers. Walters trusted him and permitted him to use her card. He charged $900 to her card but never repaid her. She last spoke with him around August 29 or 30. He told her then that he would get her the money, but she never heard from him again.

Damon Stalworth owns a restaurant. He came to know and to trust defendant. Defendant gave him "the impression that he had access to cash." Around August, Stalworth accepted two personal checks from defendant that were in someone else's name, possibly Teri B.'s. He gave defendant cash. "It was like a loan, just to get cash." The checks bounced, and defendant never repaid Stalworth. Teri testified that she did not give defendant permission to write a check of hers for cash.

On Monday, August 30, defendant asked Teri to come to his apartment on Laurel Canyon to meet his mother, who was supposedly coming to town. Teri believed the mother would have money to pay her what defendant owed her. She went to the apartment shortly after noon, but defendant said his mother had not yet arrived. Later, when the mother did not appear, Teri began to get concerned and wanted to leave. She went to the bathroom. When she came out, defendant assaulted her with a pair of scissors. He forced her into the master bedroom, where he held the scissors to her throat, drawing blood. Defendant threatened to kill her. In order to survive, Teri did not resist what followed. Defendant forced her to disrobe, raped her twice, and sodomized her twice. After that, he poured champagne and whiskey into two glasses, from which they drank. Then he raped her again and orally copulated her.

Afterwards, defendant had Teri get dressed, and they drove to a restaurant in her car, where they stayed for about 15 minutes. Then they drove some more. During this drive, around 6:00 to 7:00 p.m., defendant had a conversation with Michelle on his cell phone. Michelle and defendant argued, and defendant became quite angry. During this conversation, Teri came to realize that much of what defendant had said about himself and his family was not true. Eventually, Teri managed to get away from defendant. She did not report the rape until just before she testified at trial because, she said, she was ashamed and, due to defendant's threats, terrified.

Michelle testified that that same Monday, August 30, she and Eric arrived home after his football practice sometime around 8:00 p.m. or a bit later. The apartment was open. "The balcony doors were wide open and the lights were on and wine glasses, empty champagne bottles were in the house." They found a dirty towel and women's glasses and underwear that were not Michelle's. After that, defendant and Michelle spoke on the telephone, but defendant did not return home until about midnight.

When defendant returned, and while he was still outside, Michelle told him, "as I had told him previously on the phone, that I didn't want him to come to the house...." Defendant kicked the door open. "He almost broke it off the hinges." He grabbed Michelle by the neck and started to strangle her with both hands, hard enough to penetrate the skin of her neck with his fingernails. He spent the night with her. The next day, August 31, defendant permitted her to go with her son to his football practice. When she did so, she called the police and defendant was arrested. The day after that, September 1, she learned that defendant had been released from custody. The same day, she obtained a restraining order to keep him from coming to the apartment. Because she was frightened, she went to live with her sister. She did not return to her apartment again except occasionally to get clothing.

The manager of Michelle's apartment building testified that on August 30, the door of apartment 110 (Michelle's apartment) had been kicked in. The next day, the manager had the door fixed. The day after that she had a new lock put on the door. She gave Michelle, but not defendant, a key to the new lock. Michelle testified that a person could reach the apartment's balcony from the outside.

Karrie Marshall worked at a cafe inside the fitness center and knew defendant. She testified that shortly before Labor Day, defendant called her at her home. He said he was in jail and asked her to help bail him out by obtaining some money from a friend of his. She declined. Later the same day, defendant called her again. He said he was out on bail and asked if he could come to her apartment to pay her some money he owed her. He arrived around 3:00 to 4:00 p.m. She had a male friend with her. Defendant seemed surprised to see the friend. He did not have the money and gave no explanation for not having it. After about half an hour, he left. Around 8:00 that evening, defendant called her again. He said that he had the money this time and would come to her apartment again in about an hour. He...