People v. Spears

Page 506

278 Cal.Rptr. 506

228 Cal.App.3d 1

The PEOPLE, Plaintiff and Respondent, v. Anthony Joseph SPEARS, Defendant and Appellant.

No. H006702.

Court of Appeal, Sixth District, California.

Feb. 27, 1991.

Review Denied May 16, 1991.

[228 Cal.App.3d 6] Julie Schumer, Encino, in association with Sixth District Appellate Program, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Herbert F. Wilkinson, Supervising Deputy Atty. Gen., Deborah D. Factor, Deputy Atty. Gen., for plaintiff and respondent.

ELIA, Associate Justice.

Anthony Joseph Spears appeals from a judgment of conviction entered upon a jury's verdict finding him guilty of the murder and robbery of Dennis Roarke (PEN.CODE, §§ 187¹, 211, 212.5--counts I and II, respectively) and the possession of cocaine (Health & Saf.Code, § 11350, subd. (a)--Count III.). The jury also found true allegations that the murder was intentional and was committed during the course of the robbery (§ 190.2, subd. (17)) and that appellant had personally used a firearm during the commission of both offenses (§§ 12022.5, subd. (a), 1203.06).

Following the penalty phase of the trial, the jury returned a verdict of life without possibility of parole. Thereafter, the trial court denied appellant's motion to strike the special circumstance and imposed a sentence of life without possibility of parole on count I; execution of sentence on count II was stayed pursuant to section 654 and imposition of sentence was suspended on count III.

On appeal, appellant assigns as error: (1) the trial court's denial of his motion to suppress evidence pursuant to section 1538.5; (2) the admission into evidence of appellant's statements to the police; (3) the admission into evidence of five autopsy photographs of the victim, Mr. Roarke; and (4) the denial of appellant's motion to strike the special circumstance. For reasons explained below, we affirm.

STATEMENT OF THE FACTS

The Prosecution's Case

On July 5, 1987, at approximately 8:20 a.m., several employees of Chili's restaurant on Stevens Creek Boulevard in Cupertino gathered outside the restaurant in the parking lot after the manager failed to answer the door bell to let them inside for the morning shift. The manager would routinely arrive between 7 and 7:15 a.m.; the other employees would begin arriving at about 7:30. Upon their arrival, they would go to the back door of the restaurant and ring the door bell; the manager would then let them in.

Manager Dennis Roarke's car was parked outside the restaurant and although all the doors and windows were locked, the alarm system had been turned off, and the lights inside the restaurant were on. The doorbell had been rung several times, but Roarke did not respond.

Employee Noel Matyas knew about a side door leading into the kitchen that would pop open if kicked just right. When he suggested trying the door, appellant, who was standing around with the other employees, went over and kicked the door open.

Appellant and another employee, Bill Reznor, entered the restaurant followed by Matyas. After discovering Roarke lying on the floor of the manager's office in a pool of blood, appellant said: "Dennis is in the office, he's been shot." Two of the other employees present could not tell that the victim had been shot.

Appellant and employee Bruce Kelly drove to a nearby 7-11 to call the police. ² In the car, appellant seemed upset and shaken and told Kelly he "couldn't believe this happened, ... it was a tragedy, poor Dennis, who could have done this."

Back at Chili's, appellant and Kelly speculated as to what had occurred. Kelly thought somebody off the street was responsible. Appellant agreed, stating that Mr. Roarke "was the sweetest man in the world and nobody who knew him could have killed him."

When Deputy Donald Staats arrived at Chilis's at 8:35 a.m., he spoke to emergency fire personnel who informed him that the person inside the restaurant was dead. He then entered Chili's and saw Roarke lying face down on the floor of his office. When he first observed the body, the deputy could not tell what had happened to the victim.

Deputy Staats separated the Chili's employees who were present and directed them not to speak with each other. After additional officers arrived at the scene, the deputy took statements from several employees, including appellant.

Appellant told Deputy Staats that he was not working that day, but was en route home from a nearby auto parts store when he drove past Chili's and saw some of the employees gathered outside the restaurant. He stopped to find out what was going on. Someone indicated the employees couldn't get into the restaurant and thought the manager must have fallen asleep. They were able to get inside after Noel Matyas suggested kicking open the grill door. Employee Bill Reznor was the first person to see the victim.

Informed of appellant's comment to other employees that the victim had been shot, Deputy Staats inquired why appellant had made that statement. Appellant replied: "All that blood, I don't know, it just, I just assumed it looked like he'd been shot." The deputy asked whether appellant had seen any shell casings, traces of gunpowder, bullet holes, or had smelled any gunpowder. Appellant replied that he had not.

Appellant also mentioned seeing a styrofoam cup which was not where it belonged. When he saw the victim, he picked the cup up from a dishwasher and placed it on a shelf south of the manager's office. Appellant appeared calm during the course of the interview and, according to the deputy and other employees who testified, did not appear to be under the influence of alcohol or drugs.

Evidence technician Danny Aulman processed the crime scene, taking photographs and documenting and collecting the evidence. He found a Marlboro cigarette butt on the floor in the dishwashing area and an open Marlboro cigarette pack on the shelf where the styrofoam cup was located. There were two expended .22 caliber shell casings on the floor next to the victim's elbow, a third shell casing under the desk, and another distorted projectile lying next to the phone on the desk. Two Marlboro cigarette butts and an empty Marlboro cigarette pack were located outside the restaurant. Winston cigarette butt was found inside the dumpster area. There was a large amount of blood on the desk top and floor and blood spatters on a bookshelf and counter.

The office safe was closed but unlocked. Missing from the office were a red log book in which managers noted, among other things, what had occurred during their shift and what needed to be taken care of during the next shift. Also missing were four cash boxes containing between $1600-$1750. The computerized register tape indicated that Mr. Roarke had begun his sales report at 7:11 a.m.; the tape stopped running at 7:23 a.m. It was routine procedure for the manager to remain in the office and verify the amount of money in the various cash boxes while the tape was running. David Morgan, another Chili's manager, believed that this procedure was common knowledge amongst the employees.

The coroner's office determined that Mr. Roarke died from gunshot wounds to the head. There were three such wounds, each of which was potentially lethal. One bullet entered the back of Mr. Roarke's head; the other two bullets entered near the victim's left ear. The victim also had a laceration and bruising on his forehead which was consistent with his falling forward and hitting his head on the desk. A second laceration was found on the back of the victim's head. The medical examiner could not determine the direction of Mr. Roarke's head at the time he was shot. Based on the bullet fragments, the coroner concluded that the wounds were inflicted with a .22 caliber weapon. The wounds were not contact wounds, i.e., where the weapon is held against the victim's head. The most likely scenario was that the victim had been shot from a distance beyond two feet.

Homicide detectives Gerald Egge and David Pascual arrived at Chili's just before 10:00 a.m. on July 5, 1987. They conferred with Deputy Staats, who told them what he had learned from his interviews with appellant and the other employees.

After attending the autopsy, the detectives contacted and interviewed the restaurant's janitors, who were then dismissed as suspects. At about 5:00 p.m. that afternoon they contacted appellant at his home. Although he was not a suspect at this point, Detective Egge thought appellant's statement about the victim having been shot was "unusual" in view of the fact that the detective himself had been unable to determine that the victim had been shot until after he located the expended shell casings on the floor.

Detective Egge interviewed appellant's mother, Mrs. Spears, while Detective Pascual interviewed appellant in a separate location. Mrs. Spears told Egge that appellant left the apartment at approximately 6:30 a.m. that morning. Meanwhile, appellant told Pascual that he left at 8:00 a.m. to go to an auto parts store near Stevens Creek and the Lawrence Expressway.

After five or ten minutes of conversation, the detectives conferred with each other. They then both questioned appellant about his whereabouts that morning. Appellant again stated that he had left home that morning at 8:00 a.m. to go to the auto parts store. After leaving that location, he stopped at a 7-11, then went to Chili's and returned home.

At some point, the detectives confronted appellant with the discrepancies between his statement and that of his mother's. They also told him that he could not have travelled the described route in the amount of time he stated he was gone from home.

Appellant then stated he had gone to visit his girlfriend, Tina, whom he had been dating for awhile. Appellant was unable to supply Tina's last name or address. The officers asked appellant if he could...