In re Malone (12 Cal. 4th 935, 1996)

Opinion

WERDEGAR, J.

Kelvin Shelby Malone is confined at San Quentin State Prison pursuant to a judgment of death rendered in the San Bernardino County Superior Court. In that proceeding, he was convicted of the first degree murder (Pen. Code, §§ 187, 189) of Myrtle Benham, with special circumstances of previous conviction of murder (§ 190.2, subd. (a)(2)) and murder during the course of robbery and kidnapping (§ 190.2, subd. (a)(17)(i), (ii)). The jury fixed the penalty at death. We affirmed the judgment on automatic appeal. (People v. Malone (1988) 47 Cal.3d 1 [252 Cal.Rptr. 525, 762 P.2d 1249].)

On June 5, 1989, Malone filed the present petition for writ of habeas corpus. This court issued an order to show cause and, after receiving respondent’s return, appointed a referee to hear evidence and make factual findings. The referee has now filed his report and the parties have filed exceptions to the report and briefs on the merits of the petition.

Petitioner’s chief claim for relief is the allegedly false testimony of a prosecution witness, Charles Laughlin, who testified he received accounts of the charged crime and other crimes from petitioner while they were both confined in the Riverside and San Bernardino County jails. In answer to one of the factual questions posed by this court, the referee found Laughlin “probably lied when he testified at the Malone trial that he received his information from Kelvin Malone.” We conclude the referee’s findings, including this one, are supported by substantial evidence and should be accepted by this court.

In many cases testimony such as Laughlin gave—i.e., testimony relating the petitioner’s confessions to the charged murder and two other murders— would necessarily be considered material and probative on the issues of both guilt and penalty. Several notable and unusual aspects of this case lead us to the opposite conclusion here. On the issue of guilt, petitioner himself testified he and his accomplice robbed and kidnapped Benham, taking her to the place where her dead body was later found. Overwhelming evidence established she was killed in the course of that robbery and kidnapping, thus making petitioner liable for first degree murder in her death irrespective of whether he personally killed her. As to penalty, the evidence independent of Laughlin’s testimony clearly established that petitioner initiated and fully participated in a cross-country crime spree that included four robbery murders in the space of five days. In light of this independent evidence, and that of petitioner’s other violent crimes, we are confident the result of the penalty proceeding would not have been different in the absence of Laughlin’s testimony.

Consequently, we conclude that petitioner is not entitled to vacation of the judgment as a whole because the false evidence provided by Laughlin, viewed in context of the entire trial evidence, was not substantially material to or probative on either guilt of the charged first degree murder or the choice of punishment. (§ 1473, subd. (b)(1); In re Sassounian (1995) 9 Cal.4th 535, 546 [37 Cal.Rptr.2d 446, 887 P.2d 527].) Because the false evidence was, however, substantially material to and probative on the truth of the felony-murder special-circumstance allegations, we will order the findings on those allegations vacated.

I. Factual and Procedural Background

The Evidence at Trial

The evidence presented at petitioner’s trial will be reviewed here only briefly; a fuller description appears in our opinion on the appeal (People v. Malone, supra, 47 Cal.3d at pp. 12-16), and additional facts, when pertinent, are stated in the discussion.

On March 20, 1981, Myrtle Benham was kidnapped from her workplace, a gas station in Baker, and was beaten to death in an abandoned shack near Daggett, both in San Bernardino County. Her body was found lying face-down, nude below the waist. The cause of death was blunt force injury to the head.

Petitioner, testifying in his own behalf, admitted he and Michael Crenshaw robbed the gas station where Benham worked, took Benham from the station at gunpoint and drove her to the shack. According to petitioner, Crenshaw took Benham into the shack while petitioner, who thought Crenshaw was merely going to tie Benham up and leave her, waited in the car. When Crenshaw returned, he said nothing about beating, raping or killing Benham. Petitioner presented evidence of a polygraph examination in which the examiner found he answered truthfully that he did not himself kill Benham, although he lied when he denied having been at the shack where she was killed.

Crenshaw testified at petitioner’s preliminary examination, and that prior testimony was admitted at trial when Crenshaw asserted his Fifth Amendment privilege. Crenshaw too admitted robbing the gas station with petitioner and taking Benham to the shack. According to Crenshaw, however, it was petitioner who took her inside, saying he was going to have sex with her. After some time Crenshaw went to the door of the shack, where he saw petitioner lying on top of Benham, who was facedown and nude below the waist. Petitioner then beat her on the head with a pipe, and he and Crenshaw left.

The only other direct evidence petitioner was the actual killer of Benham came from Charles Laughlin, who testified petitioner had described his crimes, including the murder of Benham, to Laughlin in jail. According to Laughlin, petitioner said he beat Benham to death while Crenshaw held her. Laughlin testified petitioner said he beat Benham to death with a gun. Petitioner, in contrast, testified he had never discussed his murder cases with Laughlin and claimed Laughlin must have obtained his information by going through petitioner’s papers when they were housed together in San Bernardino County jail.

Petitioner previously had been convicted of the first degree murder of Minnie Ola White, whose body was found in the trunk of her car near Blythe (Riverside County) on March 21, 1981. In his testimony at the Benham murder trial, petitioner denied any involvement in or knowledge of White’s killing. Evidence was presented that he was apprehended (with Crenshaw) on March 24, in possession of White’s rings and credit cards, and with a piece of skin on his trousers consistent in blood type with White’s. Petitioner admitted owning the pistol with which White was killed, but testified he had given it to Crenshaw to use before the White killing. According to Laughlin’s guilt phase testimony, petitioner said he and Crenshaw together forced White into the trunk of her car, where petitioner shot her in the face. The two then took her money and valuables.

At trial, the prosecution presented evidence of a third jointly committed murder, that of Jim Rankin. Rankin disappeared from the parking lot of a Kansas City, Missouri, restaurant on March 18, 1981. At the time of the Benham murder, petitioner and Crenshaw were driving Rankin’s car, which they later burned, and when apprehended they had Rankin’s credit cards and other property. Petitioner, who had escaped from the Monterey County jail on March 11 and gone to St. Louis to meet Crenshaw, testified he and Crenshaw stole Rankin’s car in Kansas City after Rankin left his keys in the car and drove away with a woman in another car.

At the guilt phase trial, Laughlin testified petitioner told him petitioner and Crenshaw had kidnapped a man in Kansas City, putting him in the trunk of his car, which they then stole and drove to California. In the penalty phase, Laughlin added that petitioner said he put Rankin in the trunk, then later let him out and made him plead for his life before shooting him.

At the penalty phase, the prosecution presented evidence petitioner killed a fourth person during this same period, a St. Louis taxi driver named William Parr. Parr had been dispatched to a building near the bus station (where petitioner had arrived from California) and was shot to death near Crenshaw’s home. The bullet came from one of petitioner’s pistols. In addition, the prosecution presented evidence of other violent conduct by petitioner, including aiding an in-prison forcible sodomy.

The defense, in the penalty phase, produced several witnesses to petitioner’s difficult childhood, learning and social problems, and brain damage. The defense also called another San Bernardino County jail inmate, Terry Caylor, to impeach Laughlin. Caylor testified Laughlin said he would not have to stand trial in his own pending case because he was going to testify against petitioner. Caylor also saw Laughlin and Crenshaw talking together, and testified Laughlin said he had a deal with, and could get information from, Crenshaw.

The Habeas Corpus Proceedings

This court affirmed petitioner’s convictions and death sentence on appeal in 1988. On June 1, 1989, petitioner’s attorneys and investigator met with Laughlin. According to their subsequent declarations and testimony, Laughlin revealed at this meeting that he had not received any information about the crimes from petitioner. Laughlin signed a declaration revealing implied promises of lenient treatment, which the prosecution had not disclosed at trial, but refused to sign a declaration recanting his trial testimony as to petitioner’s purported admissions. Laughlin explained he would not sign anything that would subject him to prosecution for perjury.

Laughlin’s foregoing statements, together with information a juror, psychologist Dianne Irwin, may have misconducted herself during deliberations by discussing her own professional knowledge of polygraph testing, provided the basis for the petition for writ of habeas corpus, filed June 5, 1989. In opposition, respondent presented an additional declaration from Laughlin, dated June 27, 1989, denying he had fabricated any evidence against petitioner or had been promised any consideration for his testimony.

On August 15, 1990, we issued an order to show cause on the juror misconduct claims and the following claims regarding Laughlin’s testimony: “the prosecution’s failure to disclose to the defense that Charles Laughlin was impliedly promised consideration for his testimony; and . . . Charles Laughlin’s allegedly untruthful testimony concerning the facts of the case and the consideration promised him for his testimony.”

On April 1, 1992, we appointed the Honorable Kenneth G. Ziebarth, Jr., retired judge of the San Bernardino County Superior Court, to take evidence and make findings on six factual questions:

1. What did Juror Dianne Irwin tell her fellow jurors during deliberations about (a) her knowledge of polygraph examinations, and (b) her views on the reliability of such examinations?

2. Did Dianne Irwin tell fellow jurors her views were based on her research?

3. Did Charles Laughlin believe that the government had impliedly promised him “consideration” in exchange for his testimony in the Malone case?

4. Did the government impliedly promise Charles Laughlin consideration for his testimony in the Malone case?

5. Did Charles Laughlin have the opportunity to fabricate his testimony?

6. Did Charles Laughlin testify untruthfully when he said he received his information about the case from Kelvin Malone?

The parties litigated the above questions vigorously. After completion of discovery, an evidentiary hearing was held in June and July of 1994. The hearing was not limited to direct evidence as to the truthfulness of Laughlin’s trial testimony, but included extensive circumstantial evidence on Laughlin’s informing activities before, during and after petitioner’s trial, his character for veracity or the opposite, and the circumstances surrounding the dismissal of two pending felony charges against Laughlin at the time of his testimony against petitioner.

After ruling on evidentiary objections and receiving written and oral closing arguments, the referee issued a proposed report and, on May 17, 1995, filed his final report with this court. In brief summary, the referee found;

Questions 1 and 2: Irwin told fellow jurors her professional reading and course work made her doubt the accuracy rates claimed by the polygraph examiners, and the key question to petitioner as to whether he killed Benham was worded in a manner that made it nonprobative.

Questions 3 and 4: Laughlin did believe he had been impliedly promised lenient treatment in exchange for his testimony; at least one government agent, San Bernardino Sheriff’s Sergeant Bill Arthur, did make such implied promises.

Question 5: Laughlin had the opportunity to obtain information from sources other than petitioner, from which he could have fabricated his trial testimony.

Question 6: Laughlin testified falsely that petitioner had confessed to him.

For reasons given in the next section, we accept all the referee’s factual findings. In the final section of the discussion, we consider whether the findings warrant relief in the form of reversal of either the murder conviction or the death sentence, ultimately concluding they do not.

II. Review of the Referee’s Findings

The referee’s findings are not binding on us, but are entitled to great weight when supported by substantial evidence. (In re Ross (1995) 10 Cal.4th 184, 201 [40 Cal.Rptr.2d 544, 892 P.2d 1287]; In re Marquez (1992) 1 Cal.4th 584, 603 [3 Cal.Rptr.2d 727, 822 P.2d 435].) Deference to the referee is called for on factual questions, especially those requiring resolution of testimonial conflicts and assessment of witnesses’ credibility, because the referee has the opportunity to observe the witnesses’ demeanor and manner of testifying. (In re Ross, supra, 10 Cal.4th at p. 201; In re Jackson (1992) 3 Cal.4th 578, 585 [11 Cal.Rptr.2d 531, 835 P.2d 371].) Respondent impliedly argues such deference is not due here because the referee based his findings on questions 3 through 6 on “his own interpretation of the documentary evidence” rather than the live witnesses’ demeanor and manner of testifying. Our own review of the record and the referee’s report, however, does not support this assertion. The referee heard live testimony from numerous witnesses, including Laughlin, one of petitioner’s appellate attorneys, law enforcement officers involved in investigating petitioner’s case, the prosecutors and defense attorney involved in Laughlin’s pending felony charges at the time he agreed to testify against petitioner, and witnesses to jailhouse conditions at the times Laughlin claimed to have conversed with petitioner about petitioner’s crimes. In reaching his findings the referee necessarily compared and weighed this live testimony together with the written exhibits. We have no reason to doubt the witnesses’ demeanor and manner of testifying played a role in the referee’s resolution of many of the questions posed.

Evidentiary Objections

At the close of the evidentiary hearing, respondent made or renewed several objections to evidence introduced by petitioner, which objections the referee overruled. Before assessing the evidentiary support for the referee’s findings, we must determine whether respondent’s objections should have been sustained.

Respondent’s broadest objection was to any evidence of Laughlin’s informing activities in other cases and, in particular, to evidence Laughlin gave untruthful information on other occasions. Respondent argues such evidence was irrelevant and inadmissible under Evidence Code sections 787, 1101 and 352. We disagree. The disputed evidence, as will be seen below, tended to show Laughlin had a consistent practice of collecting incriminating information regarding his fellow jail residents and offering it to law enforcement officials with the hope and expectation of receiving beneficial treatment in his own pending cases. In some cases the information offered was, by Laughlin’s later admission, fabricated; in others it was demonstrably false. Such evidence was relevant to show a plan or scheme by Laughlin common to the other cases and, petitioner alleges, this case. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 [27 Cal.Rptr.2d 646, 867 P.2d 757].) It was therefore not made inadmissible by Evidence Code section 787 or 1101. Nor is there anything to suggest a danger the referee, a retired trial judge, would be confused, misled or distracted (Evid. Code, § 352) by the evidence.

To the extent respondent’s objections included evidence of other specific falsehoods by Laughlin, unrelated to the existence of such a common plan, we need not determine if they were well taken; the referee did not rely on evidence of any such isolated falsehoods, but cited instead reputation and opinion evidence of Laughlin’s untruthfulness.

Assertedly inadmissible opinion evidence as to the reasons for the outcome of Laughlin’s 1984 parole revocation hearing, the meaning of a statement Sheriff’s Sergeant Arthur made to Laughlin, the results of a 1986 polygraph test Laughlin took, and whether Laughlin was a pathological liar, did not form the basis for any of the referee’s findings and will not be relied upon here. Respondent’s hearsay objection appears well taken as to testimony by John Laughlin, Charles Laughlin’s father, recounting the statement of an unidentified prison employee concerning the reason for Laughlin’s early release; we will not rely upon the evidence. Other hearsay objections to portions of some of petitioner’s exhibits are not explained or specifically briefed; in any event, none of the cited evidence appears to have formed the basis for any of the referee’s findings.

Questions 1 and 2: Juror Irwin’s Statements During Deliberations

Juror Dianne Irwin, a psychologist, was asked by other jurors during deliberations what she thought about polygraph examinations. On the basis of her declarations and testimony at the evidentiary hearing, the referee found she had told her fellow jurors the following: that she was not an expert on polygraphs, but had read and discussed professional articles on the subject in the course of her studies in psychology; that while polygraph examiners claim an accuracy rate of 80 to 90 percent, Irwin was skeptical of that claim because independent researchers had found accuracy rates of only 50 to 60 percent; and that a key question petitioner answered truthfully, according to the examiner—whether he had killed, as Irwin remembered it being phrased, “the woman in Baker”—was not probative on his guilt because the woman was not killed in Baker, but some distance away near Daggett. Irwin told the other jurors these beliefs were based on her readings rather than on her own experimental research.

Neither party takes exception to these findings, and they are supported by Irwin’s uncontradicted testimony. We therefore accept them as true.

Questions 3 and 4: Implied Promises of Consideration for Laughlin’s Testimony

Based on the “weight of the credible evidence and the reasonable inferences that can be drawn therefrom,” the referee found that Laughlin believed the government had impliedly promised him some form of “consideration” for his testimony in the San Bernardino prosecution of petitioner, and that San Bernardino Sheriff’s Sergeant Bill Arthur did make such implied promises. Respondent takes exception to these findings. We will review the evidence, beginning with the statements of Laughlin and others as to whether any implied promises were made.

Direct Evidence of Implied Promises

At petitioner’s trial, Laughlin testified he had received no promises in exchange for his testimony; he claimed he was moved to inform on petitioner because of the violence of the crimes to which petitioner confessed.

In his June 1, 1989, declaration, however, Laughlin indicated he had sought and expected some form of leniency: “Because of my custodial status, including the then pending charges of escape, robbery, attempted murder and assault with a deadly weapon, I wanted to obtain ‘consideration’ from the prosecuting authorities so as to avoid spending further time in prison, ffl] To that end, I spoke to one of the investigating officers on the Malone case [Bill Arthur], whom I had reason to trust from previous contacts, to see if I could obtain that ‘consideration’ if I were to provide important testimony for the prosecution in the Malone case. [