The People v. Alexander

49 Cal.4th 846

235 P.3d 873

113 Cal.Rptr.3d 190

The PEOPLE, Plaintiff and Respondent,v.Andre Stephen ALEXANDER, Defendant and Appellant.

No. S053228.

Supreme Court of California

July 15, 2010.

As Modified Sept. 29, 2010.

Rehearing Denied Sept. 29, 2010.

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Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Susan Ten Kwan and Joseph Chabot, Deputy State Public Defenders; and Thomas Kallay, Burbank, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka, Richard T. Breen, Keith H. Borjon, John R. Gorey and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

On June 4, 1980, Julie Cross, an agent of the United States Secret Service, was murdered in the line of duty. Over a decade later, defendant Andre Stephen Alexander was charged with Cross's murder. In 1996, a jury convicted him of first degree murder (Pen.Code, § 187),¹ and found true allegations that he personally used a firearm and that a principal was armed with a firearm (§§ 12022.5, subd. (a), 12022, subd. (a)). The jury also found true special circumstance allegations that defendant previously had been convicted of murder ( § 190.2, subd. (a)(2)) and that the murder of Cross had been committed in the course of a robbery ( § 190.2, subd. (a) (17)). At the penalty phase of the trial, the jury returned a verdict of death. The trial court denied a motion for a new trial and the automatic motion to modify the penalty verdict ( § 190.4, subd. (e)), and it imposed the death sentence. Appeal to this court is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. Facts

A. Guilt Phase

1. Prosecution Evidence

a. Commission of the Murder

On the evening of Wednesday, June 4, 1980, Secret Service Agents Julie Cross and Lloyd Bulman were part of a team of agents planning to serve a search warrant on a suspected counterfeiter's residence. The two were partners whose role was to prevent the suspect's escape should he try to flee when the warrant was served. They were seated in an unmarked car near the corner of Belford Avenue and Interceptor Street near the Los Angeles International Airport; Bulman was in the driver's seat, and Cross was in the front passenger's seat. Both were dressed in civilian clothes.

The agents' vehicle contained a police radio and a 12-gauge shotgun with the standard Secret Service modifications of a shortened barrel, a pistol grip, and a folding stock. A guard attached to the barrel inhibited a person from placing a hand in front of the muzzle when firing the gun. This guard was unique to shotguns the Secret Service used because it was permanently, as opposed to temporarily, attached. On the night of the murder, the shotgun was loaded with four rounds: the first and third were slugs; the second and fourth were buckshot.

Bulman testified that, at some point before it became dark, a large, brown, two-door car with a lighter colored roof and rust spots on the body slowly drove past the agents. The two African-American men in the car looked at the agents as they drove by. The driver was neatly groomed and had a mustache. The passenger wore a stocking cap and also had a mustache. Several minutes later, the same car with the same occupants again slowly drove by, this time parking a short distance away. The two men left the car and walked out of sight between an apartment building and a garage. Two to three minutes later, they returned to the car and drove away.

A short time later, after it was dark outside, Cross told Bulman she saw someone coming up behind the agents' car. The agents drew their sidearms from their holsters, and Cross got out of the car. As Bulman turned to open his door, he saw someone approach the rear of the car on the driver's side. Before Bulman could exit the car, the person opened the door and pointed a revolver at Bulman's head. Bulman recognized the man, who was wearing a black leather jacket, as the driver of the brown car. The driver ² told Bulman to raise his hands. After putting his pistol on the seat, Bulman raised his hands and identified himself as a police officer. The driver said he also was a police officer, but refused Bulman's request to allow Bulman to show his badge. He ordered Bulman to tell Cross to drop her weapon; instead, Bulman told Cross not to do so. While the driver had the revolver pressed against Bulman's temple, forcing his head toward the seat, Bulman heard Cross say, “What are you doing? Get your hands back up on the car.” Bulman could not see what was happening on the other side of the car.

Several seconds later, another man appeared at the driver's door. Bulman could not see clearly who he was. While bent over, Bulman tried to use the police radio, but it did not work because the car's ignition was not turned on. Bulman again identified himself as an officer and mentioned the police radio as proof. Saying, “He's got a radio,” the second man reached into the car, removed the keys from the ignition, and knocked the radio's microphone from Bulman's hand. That man then noticed the shotgun on the floor in the front of the car, said something like, “What do we have here,” and took the shotgun.

Bulman testified that, almost immediately after the man with the shotgun left the driver's door and went behind the car, Cross jumped into the car through the front passenger's door. She went over the seat into the back, a panicked look on her face. A shotgun blast then came through the open passenger's door, the shot traveling across Bulman's lap and out through the driver's door.

Bulman grabbed the revolver pressed to his head and wrestled his way out of the car. As he did so, the driver fired the gun, but the bullet did not hit Bulman. While Bulman and the driver struggled on the street, Bulman heard two more shotgun blasts coming from the agents' car. The driver fired several more shots from the handgun during the struggle, but again Bulman was not hit. The struggle continued for three or four car lengths in front of the agents' car in the middle of Interceptor Street until the driver said, “Shoot the son of a bitch.” After Bulman heard another person say, “I can't. You're in the way,” Bulman saw the passenger aiming the agents' shotgun at him. The passenger was wearing a dark stocking cap and a dark-colored jacket.

Bulman and the driver next wrestled in the opposite direction, behind and past the agents' car, each trying to put the other's body towards the shotgun as the passenger tried to get a clear shot at Bulman. Near the corner of Interceptor and Belford, Bulman lost his balance and fell. As Bulman tried to get up, the passenger ran over and put the shotgun muzzle about six inches from Bulman's head. The passenger fired the weapon, but the shot missed Bulman and hit the pavement. The assailants then ran off.

When he realized he had not been shot, Bulman went to the car to get his pistol and check on Cross. She was lying on the back seat and had no pulse. Bulman ran to a Secret Service surveillance van parked nearby. He and Agent Terry Torrey, who was stationed in the van, then drove back to the car. Bulman did not see the shotgun, the keys to the agents' car, or Cross's pistol again.

Bulman was interviewed by agents that night and on numerous occasions in the following days, months, and years. He worked with a police sketch artist on June 6, 1980, and completed composite drawings of the suspects that were introduced into evidence at trial. Several of the interview sessions involved attempts to hypnotize Bulman in the hope of helping him to remember other details of the crime.

At a live lineup conducted on June 27, 1980, Bulman identified one subject, Terry Brock, as looking similar to the driver, the man with whom Bulman had struggled, except the person in the lineup had a beard. Bulman was unable to identify defendant Alexander as the passenger who fired the shotgun during a live lineup conducted on April 19, 1990, at the preliminary hearing, or at the trial. However, at trial, Bulman testified a picture of defendant Alexander taken around 1980 looked “closest” to the person with the shotgun, who was depicted on the left side of the composite sketch trial exhibit.

Agent Torrey testified that, minutes before Bulman ran to the surveillance van, he had seen a medium- to dark-colored car speeding on Belford Avenue with its lights off.

Wayne Dhaler was driving his car at the intersection of Belford and Interceptor at 9:00 p.m. the night of the murder. He testified he saw two men, one wearing a tan or brown jacket, leaning into the driver's side door of a car parked on the street.

Alvin Borges drove by the same area at about the same time. He testified he saw two African-American men fighting with a White man who was on the ground. Borges saw one of the men shoot the man on the ground at almost point-blank range with a shotgun. The shooter, who used his right hand to pull the trigger and his left to hold the barrel, was wearing a brown, waist-length jacket. Borges testified the jacket later seized from defendant's parents' home “could be consistent” with the one the shooter had worn.

Harry Zisko testified he heard shots that evening while in his Belford Avenue apartment. He saw two men running down the street, one carrying a two-inch diameter cylinder that was between one and one and a half feet...