People v. Lazarus

238 Cal.App.4th 734

190 Cal.Rptr.3d 195

The PEOPLE, Plaintiff and Respondent

v.Stephanie Ilene LAZARUS, Defendant and Appellant.

B241172

Court of Appeal, Second District, Division 4, California.

Filed July 13, 2015

Donald R. Tickle, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

MANELLA, J.

Appellant Stephanie Ilene Lazarus, a 25–year veteran of the Los Angeles Police Department (LAPD), was charged and convicted of first degree murder in the shooting death of Sheri Rasmussen, the wife of appellant's former lover, John Ruetten. The 1986 crime was not solved until 2009, when a DNA profile obtained from a bite mark on Rasmussen's arm was matched to appellant. At trial, the prosecution established that appellant had been in love with Ruetten and was emotionally devastated when she learned of his and Rasmussen's 1985 engagement. She went to Ruetten in tears, begging him to reconsider, and later confronted Rasmussen at work. The bullets used to kill Rasmussen were of the type then used by LAPD officers, and were discharged from a gun similar to one owned by appellant, which she declared stolen two weeks after the shooting. The jury found appellant guilty, and she was sentenced to 27 years to life.

Appellant raises the following contentions on appeal: (1) the pre-accusation delay violated her due process rights; (2) the trial court erred in denying a defense motion to quash search warrants used to search appellant's home and computers; (3) the trial court erred in denying a defense motion to traverse the search warrants; (4) the trial court erred in admitting a tape of appellant's pre-arrest interview by LAPD detectives; (5) the trial court erred in failing to hold a Kelly hearing before admitting evidence of partial DNA profiles from material found on the victim's fingernails developed through use of a “MiniFiler” DNA test kit;¹ and (6) the trial court erred by failing to allow the defense to introduce evidence of a burglary that occurred in the area six weeks after the murder, and by preventing the defense from cross-examining the prosecution's crime scene expert about the burglary. Finding no prejudicial error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Information

By information dated December 18, 2009, appellant was charged with the willful, deliberate, and premeditated murder of Sheri Rasmussen on February 24, 1986 (Pen.Code, § 187, subd. (a) ). It was further alleged that appellant personally used a handgun in the commission of the offense.

B. Evidence at Trial

1. Prosecution Evidence

On February 24, 1986, Rasmussen lived in a condominium on Balboa Street in Van Nuys with her husband John Ruetten and worked as a nurse at a Glendale hospital. Ruetten left for work at 7:20 a.m. that morning. Rasmussen called in sick. Both Ruetten and Rasmussen's sister tried to call Rasmussen at home several times that day, beginning at approximately 10 a.m., but Rasmussen did not answer. At approximately 9:45 a.m., a neighbor, Anastasia Volanitis, noticed the garage to Rasmussen's condominium was open with no cars inside.² When Ruetten returned home at 6:00 p.m., he noticed the garage door was open and Rasmussen's BMW was missing.³ There was broken glass on the driveway from a shattered sliding glass patio door. The door from the condominium to the garage, which Ruetten had closed and locked when he left that morning, was ajar.⁴ Rasmussen was lying dead on the living room floor, still wearing her sleep shirt and robe.

The pathologist who examined Rasmussen declared the cause of death to be three gunshots to her chest, all fatal. One was a contact wound and at least one was inflicted while she was lying on the floor or against a similar hard surface. There were abrasions on Rasmussen's arms, near the wrist, consistent with injury from a rope or cord.⁵ There were signs that Rasmussen had struggled with her assailant, including multiple contusions, lacerations and abrasions on her hands, mouth, face, head and neck. Broken pieces of two of Rasmussen's fingernails were found on the floor near the condominium's front door. An injury on her face was consistent with a blow from the muzzle of a gun, with a size and configuration matching a .38 caliber Smith & Wesson revolver. There was a blow to her head consistent with a broken vase found near her body.⁶ On Rasmussen's left inner forearm was an apparent bite mark. The pathologist examined it under a microscope. Based on the amount of hemorrhaging and the absence of inflammation, she determined that the injury had been inflicted at or about the time of Rasmussen's death.⁷

Based on distinct physical characteristics, experts in the field of identifying ammunition testified at trial that bullets recovered in or near Rasmussen's body were “.38J Plus–P” ammunition, manufactured by Federal. In 1986, LAPD officers were required to use Federal .38J Plus–P ammunition, even when off duty and carrying a personal weapon.

A sleeved quilt found near Rasmussen's body was taken into evidence and examined. The presence of multiple bullet holes and gunshot residue on the quilt led authorities and experts to conclude that it had been wrapped around the assailant's weapon to dampen the sound of the gunshots. At trial, a forensic firearms expert testified that based on the location of the bullet holes in relation to linear gunshot residue that appeared to have been discharged from the cylinder, the weapon was a revolver with a two-inch barrel. Any number of guns were capable of firing the bullets found at the crime scene, but less than a dozen had two-inch barrels.

Criminalist Lloyd Mahaney took samples from the bite mark on Rasmussen's arm at the scene.⁸ Investigators and criminalists also collected the two broken fingernails found near the condominium's front door, clippings from Rasmussen's remaining fingernails, and samples of tissue and debris from the underside of the fingernails. Additional items and samples were collected at the scene and from the interior of the BMW, including multiple fingerprints, multiple samples of what appeared to be blood, and multiple hairs.⁹

Stereo equipment had been pulled from a cabinet inside the condominium's living room and stacked by the door to the garage. A drawer in a living room table had been pulled out and the contents dumped on the floor. Although there was no evidence of forced entry, and rooms containing other valuables—including additional stereo equipment—were undisturbed, the detectives who initially investigated the crime concluded that the murder was committed in the course of a burglary. Specifically, they theorized that one or two burglars had come in through an open door, were surprised by Rasmussen's presence, and shot her during a struggle over a gun.¹⁰

In December 2004, members of LAPD's cold case unit reopened the case, asking the coroner's office to locate the bite mark tissue sample, which had been in a freezer in the coroner's evidence room since 1986.¹¹ In 2005, Jennifer Francis, a criminalist with LAPD, examined a piece of one of the swabs under a microscope and also performed DNA testing on it. Under the microscope, she saw nucleated epithelial cells, which are found in large numbers in saliva and provide a good medium for obtaining a complete DNA profile. The DNA testing indicated the presence of two profiles: a major profile and a minor profile. The minor profile was consistent with Rasmussen's, although there was insufficient material for a complete match.¹² The major profile was complete. The DNA that comprised the major profile was from a female.

Authorities initially attempted to find a match by uploading the major DNA profile from the bite into a national database system. This was unsuccessful. In 2009, the investigation turned toward specific women who might have had reason to harm Rasmussen. LAPD officers surreptitiously obtained a sample of appellant's DNA by taking possession of a drink cup and straw discarded by appellant. LAPD criminalist Michael Mastrocovo developed a partial DNA profile for the drink cup and straw. Appellant's DNA profile matched the major profile found on the bite mark.¹³

Appellant was arrested on June 5, 2009. A criminalist swabbed her mouth in order to develop a complete DNA profile. Francis analyzed the DNA on one of those swabs. Appellant's DNA profile matched the major profile on the bite mark swab at 13 loci.¹⁴

In 2010, Thomas Fedor, a serologist for an independent forensics laboratory, Serological Research Institute (SERI), was provided the second bite mark swab. Several persons were present when he tested it, including a representative for the defense. Fedor began by placing the swab into a solution and analyzing the resulting liquid. It contained salivary amylase. When he performed DNA testing, he detected, just as Francis had, the presence of two distinct DNA profiles, one major and one minor.¹⁵ The minor profile was consistent with Rasmussen's. Fedor separately tested the swab obtained from appellant to obtain appellant's DNA profile. Appellant's DNA profile matched the major profile Fedor obtained from the bite mark swab at all 15 loci.¹⁶

Fedor also analyzed tissue samples found on or under Rasmussen's fingernails using a MiniFiler test kit. Under one fingernail, he found a mixture of DNA and obtained partial profiles for at least three people. One of the partial profiles was consistent with appellant's.¹⁷ Fedor found low levels of DNA under three other nails with profiles consistent with appellant's.¹⁸ There were minute amounts of DNA material under six other fingernails contributed by both males and females, some of which was inconsistent with Rasmussen's. Fedor was able to rule out appellant and Ruetten as possible contributors.¹⁹...