Far out on the desert
the demoniacal kil-
ler forced Jean
Wells to write a let-
ter to her husband,
advising him to help
the hunchback find
the missing 8 irl.
Then he opened fire.
David and Jean
Wells (circle) were
a happy couple with
no cause to suspect
the tragic fate that
was to he theirs
when the ma d de-
sires of 2 lustful
fiend were thwarted.
a re
ens ‘-*"On, ‘Tuesday: morning, ‘as Washing-
“1° ton police and detectives’ intimated
~s they were completely baffled -by .the
i at n
. Sher: Clyde. ~
e p ;
-- didn’t kriow what had become of Ray,
and_
. Sheriff. Clyde said to us? —
-no.news.. You’re going to check into
a tourist: camp: in town. Nobody bu
me and Sheriff Shay in San Bernar.
dino Knows your address. . You'll u:
ay-t
‘two
0-man posse, had ‘found _
the desert, shot through
. My poor, valiant broth-
“paid for his courage. with
s no trace of.
pparently.
“car, which
j slayings,
was found i TA
ha :
But by the
Meanwhile, we lived under consta f
fear, holed up in the tiny tourist court,
the name of Wolf. Don’t write.
a
Bos
shoes at the scene of the ‘murderous
attack, Doctor Rosenberg. began ex-
haustive tests to.match the recovered
‘grains with portions of sand. taken
from various points around Washing-
. ston. No lead,’no clew would be left”
unexamined, in the exhaustive effort’
to find the girl’s slayer. . - a
‘prutal: slaying, Senator Clyde Li. Her-
ring arose in the United.States Senate
and demanded that the case be turned
itr? to the Federal: Bureau of. In-
“ment on the “endless crime wave"! with
its new and shocking climax.”
guard against all strangers and casual
« proffered rides, and to avoid: walking
the ’streets of ‘the capital -unless.in
groups. As eng bts Seah t
oy
“THE face of.
nothing promising had. been done,
Washington police heads undertook an
unusual .move.= They, placed the in-
“vestigation, in the hands: of Captain
~ John Fowler, a crime expert of proved
ability and generally regarded as pos- —
sessing the best deductive brains .in
the Department.” me
estigation! At just about the same |
time,- President Roosevelt, at his press. —
conference, grimly declined to. com-:
ever, Mrs. Roosevelt: at one of her
“press conferences emphatically warned
all girls in Washington to be doubly on.
‘ tectives for the entire day and night
acquaintances, to be. suspicious..of . of the slaying. A subsequent investi-
bitter criticism that 3
living dead as far as the outer world
+ *
tive that. the young man had been
at home all day Sunday, and asserted
that when the body was found the
‘man was in Richmond. This fact was
“quickly proved, ‘ ‘
_~ Still another ‘suspect at first seemed
to be baking in heat. Not only did
‘his record show several attempted at-
‘tacks on women, but also there was a
distinct cut on his right index finger.
After clapping thé man in a cell, de-
tectives traced down his automobile
and found several bloodstains on the
back seat, and the rear window
smashed. oS
Subjected to a rigid questioning by
Captain’ Fowler, Captain Keck and
Lieutenant Darnall, the man main-
_ tained that the broken glass and the
bloodstains had been. incurred during
a fight between two of his friends the
previous Saturday. He gave a full
account. of his movements to the de-
gation into his story and’ alibi failed
to reveal any material discrepancy.
From Zanesville, Ohio, came a police
notification that a man arrested on a
charge of intoxication had aroused
the ‘suspicions of the department be-
cause of almost frantic interest in
newspaper stories of the crime. After
learning that he had just come from
Washington, the Zanesville police
decided he was worthy of further in-
vestigation. Detective. Aubrey Tolson
‘4mmediately was dispatched to Zanes-
->With calm. purposefulness, Fowler
organized several super-squads le-
tectives, To each squad was given a
specific task—one to hunt relentlessly
for=the girl’s clothing; one to. check
friend and acquaintance
ville by Captain Fowler.
Meanwhile, Doctor Rosenberg re-
ported that the sand found in the girl’s
shoes could not be matched with any
samples taken from points in the Dis-
trict. The girl’s fingernails had yielded
a single clew—several microscopic
threads that appeared to be red, white
and blue. in color, Hope soared high.
Was this the clew that would crack
. the baffling riddle?
Detectives immediately went to work
“upon the threads and began a_ swift
|. back-tracking of the scores of sus-
_ pects they had taken into custody. But
not a single one had worn a garment
of such diversified colors.
Despite the fact that every officer
and detective in the city was working
overtime shifts, the phantom maraud-
ers who had seized the capital in
tentacles of terror took no holiday.
Three days after the murder of Jessie
- Strieff, a pretty, young~girl only 20
years old took a cab for the Union
Station at 10:30 p.m. from her home
* in Washington.
It wasn’t long before she noticed that
job, the taxi-driver was proceeding past
lenied ‘he had ‘made, sueh
‘oreover, his mother was posi
the Union Station. She leaned over
and reiterated her destination. The
driver. did not answer, but increased
his. speed perceptibly. Sensing that
“. something was wrong, the girl shouted
for him to stop. His only answer was
to’jam “down on the accelerator and
roar out toward the Baltimore High-
Wayans
tir effort to, resist.
trail, the driver \ i:
was concerned, and day and night
guarded by grim-faced, vigilant dep-
st uties,
‘Weeks passed and we despaired that
Al ever would be apprehended.
“Then about sundown on June 7,
1941, Sheriff Clyde pulled up at the
tourist court. Through the window I
saw him rapidly walking toward our
cabin. I rushed outside.
“Al’s caught,” he. erted.
Mother and my stepdad came out,
too, and then Clyde told us the story.
Police officers in|Spokane, Washing-
ton, had been tipped off that a hunch-
backed man, living in a hobo jungle
near the railroad tracks, was carrying
a gun. The officers rushed out at once,
approached thecamp from the rear
and. tackled the ‘pen, who made no
ey searched him
took a .32 caliber gun and a jack-
nife from him. At that time,.the offi-
cers still were unaware they had cap-
oa ta the frantically hunted Alfred,
ells, ad
The Case of Jessie Strieff (Continued from Page 11)
The complete details of what hap-
pened afterward still are lacking.
During semi-conscious moments at the
Casualty Hospital, the girl has man-
aged to tell detectives that she was
forced to put up a terrific fight against
a man who entered the cab somewhere
in Maryland. The girl was found by
a gas company watchman at Hyatts-
ville, and he speedily summoned the
Prince Georges County police.
Following on the heels of this came
a more daring and a more appalling
episode that further shocked the city.
At just a few minutes before three
in the afternoon a young wife who was
operating a cleaning and _ pressing
branch office turned: from sorting a
rack of suits and looked inquiringly at
a man standing silently at the counter.
“How much does it cost to clean
this?” he asked, holding out a coat.
She told him the price.
WITHOUT a word the man turned
and walked toward the door. To
her surprise, the woman saw him shut
the door and lock it. A second later the
man had turned around. A gun was
pointed straight at the pounding heart
of the woman. Curtly the man or-
dered her to hand over all the money
in the office. Trembling with fear, she
obeyed.
The bandit jerked his gun toward
the rear. i
“Get in there!” he ordered.
Five minutes later, after binding and
gagging the terrified woman, the gun-
man criminally attacked her.
Some time later a woman customer,
‘hearing a noise in the rear, walked
back to find the struggling form of the
victim. She immediately screamed for
the police.
Nineteen hours later, as 20 detec-
tives frantically sought to snare the
attacker through the description fur-
nished by this woman, the phantom
marauder struck again. This time it
was an unmarried girl who managed a
chain laundry branch several blocks
from where the previous atrocity had
taken place.
That it had been the same calm and
merciless attacker, the police never
doubted for a second. Not only did
he use the same technique, but also the
description was exactly the same—a
medium-built man, wearing a brown
suit, green shirt, and a pair of smoked
glasses. But was this same monster
the killer sought in the Jessie Strieff
case? How could this question be an-
swered? When? :
Seven hours afterward an eleven-
year-old girl was found brutally raped
and partially conscious in the base-
ment of a home not far from DuPont
Circle. ‘
From then on, the series of sexual
depredations in various sections of
Washington became almost incredible
in number and daring.
. As this is written, the Washington
police: seemingly are submerged be-
On the way to the Station, the pris- .
oner asked what the penalty for car-
rying a weapon would be and gave
his name as Alfred Baker.
Finger-print records cracked his
phony identity. When Detective George
Sexsmith hurled at him the accusation
that he was the killer of Ray, Jeanie
and Rose Destree, a shrug was his an-
swer, Then, according to the Spokane
authorities, he confessed.
“That’s the story,” Sheriff Clyde
concluded, “You may leave here safely
now. This monster won’t roam around
killing people any more.”
ES, we were free, but what price
freedom? I’ll never be able to forget
to vist sacrifices I owe my life. How
can I? :
As‘ this issue of Acruat Detective
Stories goes to press, Alfred Wells is
/ in San Bernardino awaiting grand jury
action. . }.,
neath a tidal wave of crime, and utter-
ly impotent to check the reign of terror
that has benumbed the District of
Columbia. An exhaustive Congres-
sional investigation, now being car-
ried on, so far has failed to root out
the exact cause. Charges by one set
of police officials that a “Gestapo” of
spies was maintained to spy on other
officers, has been denied by other re-
sponsible officials. The contention of
Major Brown that the police force in
Washington is seriously undermanned
may be the truth about the appalling
state of affairs.
Meanwhile, despite hours and days
of constant and relentless work, despite
the fact that over 1,800 pieces of cloth-
ing have been examined, over 2,000
witnesses have been questioned, over
40 men have been arrested and rigidly
investigated, the death of Jessie Strieff,
as this issue of AcTuat DETECTIVE
Stor1es goes to press, still is a dark
and inscrutable mystery. There are
three questions which the police, so
far, cannot answer—any of which may
be the key to the mystery. These are:
Did the girl know the man who car-
ried her to the delicatessen? Does the
30-foot trail of bloodspots indicate the
girl was murdered in the alley—or
miles distant, and dragged from the
car? What became of the snuggies,
brassiere and blue-and-white playsuit
she wore?
But even if. the brutal killer of
Jessie Strieff is brought to bay, what
of the other Washington women whose
violent deaths have never been solved?
Is it too fantastic to theorize that some
super-criminal is at large—that his
hands alone are stained with blood of
pretty Rose Abramowitz, of lovely
Corrina Loring, of charming Beulah
Limerick and of the many, many
others whose lips have been stilled by
merciless fingers? .
.
T MAY be. In any event, the Wash-
ington police are working today as
police and detectives never worked be-
fore. Countless investigators are wait-
ing today for the break that will end
Washington’s reign of terror, the crime
wave that is endangering the lives of
thousands of women national defense
workers. When will that break come?
Will the police recognize it?
All the known facts, all the clews
which police have uncovered in their
investigations of the long list of baffling
slayings will be presented faithfully
in forthcoming issues of ActuaL DeE-
TECTIVE SToRIES. Watch for the next
story in this series for progress made
by the police in the Jessie Strieff case
and the work now being done in the
slaying of Rose Abramowitz. Who
killed Rose? How and for what reason
did she meet violent death behind the
locked doors of her apartment? Who
was the unknown man who visited the
bride of three months? Watch for the
story of this case in the October issue.
AD- 5b
a
.
-. The? an Bellen
e spoke:in-
d_the “ine:
a he reached.
sok it é
- And I’m gonni
leed to death: at
perf “-normal—as_ normal as “any
hi
- I or some member of the family would
squeal to the cops. Therefore ‘we had
stant .fear to prevent any
schemes from backfiring. -
The following morning. the:
officer dropped in. Al. gave
servile smile. “This is my li
Violet,” he said smoothly, in
oily voice. “She’s ‘watchin’
hen. A peach of a
your boots I won’t fall-into
while she’s around.”
HE parole officer nodded and gave
me a brief smilé of satisfaction.
Oh, -how I wanted
fered in the past few hours.
was in mortal terror. Al had me
tamed and bewildered. His fish-eyes
were on me now and a challenging: .
smirk flitted over his pasty face which -
said, “Go ahead.
the cop.” 4 rae
When the officer was gone Al said,
“See how I treat the cops? They can’t
get anything on me.” a :
. He glanced at the alarm-clock, which
was ticking on the table. “Gosh,” he
cried, “it’s almost noon. I got to go to
work. I’ll be back for dinner.”
A moment later I.was alone. The
full realization of the terrible predica-
ment I was in fell upon me with re-
doubled force. I had the hopeless feel-
ing I never would get out of this mon-
ster’s clutches alive. He was a killer.
He had bragged about having wiped
out six innocent people. And I be-
lieved he’d kill again. °}
What could I do? Run away?’ He
hadn't even locked the door or for-
bidden me to leave the house. He was
so sure the dread he had instilled in
my heart would prevent me from mak-
ing a break. He was right.
_1 stayed home all afternoon and
prepared dinner. When he returned he
tossed his pay-check on the table.
“Everything is yours,” he said. “My
money, my life, Vi.” aS,
Then he asked me what I had done
all afternoon and IJ told him... He
beamed with satisfaction. “I see you
want to be-a good girl. I know you
ain’t lyin’. I had some “pals keepin”
an eye on you.” -. pa .
Was that just more boasting? :Or a
fact? : ; Settee
I was to find out the following day.
_ After Al.had gone to work I*left-the
I dare you to tell
~«house for'a walk. *I ran into Mary, a
t I knew from the time ‘parents
ived:in-San Bernardino, - Poe r
“What’s the matter, Vi? You’re look.
-ing_rather peaked,” she said:
-.<“T had the flu,” I replied
“What. else. should I -have eo
Mary
©. bought popcorn, and I blew. her
“.soda.>Then_-} returned None
straightened up*the house.
‘Asdark, ugly scowl was on Al's fa
hen. he got back. “What were -you
this afternoon?” he inquired. ~’
atched him, For a few moments
he did nothing, just stared at me. The ;
next split second a. chair® whirled.
£
abitual criminal can be. His maniacal
fits only were part of his.strategy of
‘terror. He apparently was afraid that
to be intimidated and kept under. con= F tioned .a
of his**
to scream out:
what I had heard and seen and suf- ~
But I:
to‘a-
nd
: 3 1
ed deliberately. “Nothing. Stayed ©
r and landed:
mirror. . Oth
d half. wrecked | the
e suddenly
id» stop)
the,
‘I felt: faint.
itched! :
girl. You can bet -
any. trouble ~
t to moan. “Oh... oh
h
Mary,’ what® stores’ we
at. The soda was men-
popcorn. |
-T actually’ had been
t couldn't have been Al, because he
2
~Bas chamber, See, I wrote a note and
gave it to a’pal of mine. In the note
‘it. says’ that if I/should die of strych-
nine poisoning, you poisoned me, see?
~. You! poisoned your little brother, Al,
who never got a break in his life.”
I became more frightened—-if that
was possible. He was right. That’s
how it would happen. The cops would
think 1. did, it.. Everything he'd. said
“before; had ny tA cae a “this
would, too, 0) =
-.He slumped into a chair and began
... these pains
»... I can’t stand it. It’s like fire...”
... I was too terrified, to move.. Had he
really taken poison? -
-He’suddenly jerked up and grabbed
something off the table. It was a
flashing object—a razor blade.
Blood began to trickle down from
his left wrist, falling in big drops to
the floor. He had cut himself. I lunged
and for a moment we grappled.
Sheriff Dan Stephenson and Undersheriff Ed O’Donnell examine
the gun with which Helen Riley’s hope of marriage was blasted.
Read Helen’s own story beginning on Page 12 of this issue
“was at work. The mysterious mob
“was watching me. The pals Al had
boasted of.
“Tf I ever hear of you making eyes
at a guy I’m gonna bump you,” he
said. “You were lucky this afternoon
because you didn’t. But the first time
I hear something—”
The next evening when he came
» through the door, he>stopped, looked
at me, then said, “So you’re wearing a
sweater?”
“Yes, what’s wrong with that?” I
had no idea what he meant.
“- “Everything’s wrong with that. You
~ want. guys on the street to turn
, -around and look at you? Like a street-
walker?” :
. He blew his top again. I was afraid
;he’d. kill me. .Then he grabbed the
‘strychnine bottle, -and before my
ooo Se’ eyes swallowed some of the
| stuff.
| -“Y’'m_ killin’ “myself,” he sputtered.
-“I don’t want to live with a so-and-so
ike you, You're driving me nuts.”
I waited in horror for him to writhe
and twist. And yet somehow I knew
he was only pulling a bluff.
.. “I’m..gonna kick the bucket,” he
said. “And you’re gonna croak in the
He tore himself loose, made a few
steps forward and sank into a chair.
“Water,” he cried.
I gave him a drink. What now?
Should I call a doctor?
I didn’t have to make up my mind.
Al lifted his head and whispered,
“Phew—that was a close call. I could
feel ‘the devil sticking me with his
pitchfork. But I guess I didn’t take
enough. Anyway. it showed me that
you care for me. My little sis, I love
you. You don’t want me to kick off—
I know now.”
What was this suicide business?
Just another of his tricks to intimidate
me, and to break my resistance com-
pletely?
{ ie went on. But what a life! One
day he committed “suicide,” the next
he “blew his top.” And the things in
between were still more horrible.
You’ll ask me how I could stand this
reign of terror. I don’t know it
myself. I must have become used to it.
It’s funny what a human being can
suffer. Anyway there was nothing
else I could do but suffer. I knew
now that Al meant it when he said
he’d kill me if I left him.
Summer came. The fiery desert
Summer of southern California, with
the air standing still and everything
burned yellow. Then the Fall. Jeanie
had given birth to-a baby, and in Oc-
tober, she and Ray moved to San Ber-
nardino, Al told me I could visit them
if I was careful what I said.
I hadn’t written them much. Ray’s
first. question when we met, was,
“How’re things, Vi? But give it to me
straight.”
We talked. I told him many of the
things that had happened, but I didn’t
tell him everything. It only would
have made things worse.
Ray ranted. “There must be a way
to stop this mad dog. I’m going to the
Police.” e
We agreed to see each other the
next day, so he could tell me what the
police had said.
To prevent trouble, I again told Al
that I was‘seeing my brother.
“Sure,” Al. said. “Why shouldn’t
you see him? He’s part of the family.
But don’t forget the slogan, Vi.”
The slogan was that he’d kill who-
ever tried to take me away.
Ray’s face was gloomy when I
walked into his place the next day.
“I talked to the cops,” he said.
“Same story. They can’t do a thing.
The Captain at the Station even called
up the parole officer. But the parole
officer says Al’s okay. No complaints.
And they seem to think we want to
get rid of Al—frame him or some-
thing.”
Suddenly an idea struck me. “When
I went to live with Al he showed me a
gun. He’s not allowed to have a gun
in his possession being on parole—or
is he?”
Ray jumped. “A gun? I'll get his
parole revoked for that!”
And out he stormed.
E same afternoon, while Al was
at work, police searched the house.
When the officers were through, they
looked at Ray and me in a funny way.
“Say, what’re you tryin’ to do?” one
of them asked. “We turned the whole
joint upside down and found nothing.”
They were dead certain that we just
were trying to make trouble for Al.
I was shaky when evening came. Al
probably had heard that cops were at
the house in the afternoon. What would
he do? I should have warned Ray, at
least.
Al stood in the door. I didn’t hear
him open it. His face was white, his
eyes jumping little dots.
“Squealing to the cops, eh?” he
gritted. “You double-crossing little rat,
you!” He hunched himself closer. “1
know all about it.”
Again the underworld grapevine had
worked!
“One day I’m gonna have my fun
with Ray!” The next moment things
were whirling through the air as I
trembled and waited for him to beat
me. But he didn’t this time. When
the scene was over he scurried out.
Life, if you call this abject slavery
life, went on. Winter came. It was
soon a year that I had lived with Al
—and still I feared he would kill my
family if I left.
In the weeks that. followed Al’s jeal-
ousy became an obsession with him.
After a while he even forbade me to
leave the house when he was at work.
One late afternoon in April I had
to go to the dentist’s. When I came
home, Al stood in the middle of the
room. His jumping little eyes were
boring into me.
“So you were at the dentist’s?” he
cried.
I nodded.
He lurched forward, grabbed the
collar of my blouse and pulled it back.
“Sure, I knew it right away. You—
you streetwalker—that’s what you are.
Comin’ home with a mark on your
neck. Your boy friend bit you, you
eee. ned
His face was almost black and his
whole body shook in uncontrolled rage.
His hands were on my throat, press-
AD- 5
Whi I lying in
Al sat. e, stroking my hair.
r, ed. “DideI h
more. There aahiet: be a
me. tomorrow, :
w minutes to talk
Ray ee Tr had to isk Al’s ‘hidden
- watchers. >"
Ray was jubilant.
“it looks like“they believe me.
going to keep an eye on Al, they said.”
~ I told Ray.that I still couldn’t fee
safe but he laughed my fears off,
“Don’t worry, Sis, when he knows that —
the cops are watching him, he won’t
do a thing. He’s a coward like all
crooks.”
Then he developed his plan.
“Meet me Saturday at eight in the
evening in front of the Thrifty Drug.
Elk be waiting: for.
Store.
there sometime next: mon
got the slightest idea, ‘SO. everythin Lied
will be fine.”
“And you want to leave Jeanie and
the baby rsh I inquired anxiously,
AY snooker his head. “pm going to -
send them away for a few days.” ©
I never-will forget the date ApeiDs
12, 1941,-a Saturday. I was jittery and
jumpy,; ‘dreading what_would happen
if gree
if something went wrong. I made din was. hehdving okay, Ray said. And
ner. It.was to be the last time I sat
at a table with my torturer...Would”
something go wrong?’ Would Ray be 48 she had asked a girl’ friend of hers, '
there?..Could I’get away from Al?.
are at the clock. It was a Tittle
ach Piers ‘remem
bering, I said,’“Gosh, I forgot to buy
doughnuts. I’m going to run’ over. to
the bakery.” :
“Tm gonna go with you,” he snapped.
His animal-like instinct had sensed
that something unusual» was’ inthe .-
4] told the cops
-again- the whole story and ‘this time
“Tm ate » My. pie were wet when I»
1ed him (slide’_behind the steer-
the was frightened before, ~
felt Thad still more to fear.
et don’t write ‘anybody. in
ind
“way not to see
! had so impressed m
threats that I couldn’t help
\ -he’d go through with them:
On ‘the fourth day I had a letter
m Ray. Everything:-was okay, he
wrote, “Al had come around, but had
“made no great fuss. ~All he wanted
for me to. comeback.
‘one day I had a letter from
ther and stepdad in Vista, Cal-
ia. Enclosed was a message Al
t them. “I-don’t quite under-
“what he means,” Mother wrote.
But | I did. With shuddering horror
“felt unabated murderous fury smol-
jeath ; Al’s mushy-sounding
“J Jove her, I need oe ” he wrote.
can see her sitting with. her little
legs over the arm of the chair.” And
then came the line that made me numb
with fear:
aos, tell Vi de. Fonember our slo-
gan!”
him, The quiet of the past
been only ‘the -calm. before
ric lent. «storm... He was cunning,
N he was being watched by the
é. He wouldn’t move while that
continued. But how long would the
surveillance be kept up? Police can-
not shadow a man indefinitely, espe-
cially one who” hadn’t made a slip as
far as the law is concerned .
I wrote Ray a frantic letter, implor-
‘ing him to be doubly careful, and to
send Jeanie and the baby away.
I again. got a. reassuring letter. Al
feanie never was alone. in the house,
venteen-year-old Rose * Destree, to
ay with them. ©. i
‘day I received the letter—the
was May 7, 1941—I went to bed
th‘a-feeling of relief. I was almost
confident that Al, a calculating coward
‘like all criminals, would never perpe-
trate any acts of violence as long ‘as
“Rose was with them. How deceptive
this hope was!
‘A tragedy of blood and horror be-
wind. He was going to keep his eye yond the pall of human imagination
on me every minute.
I ving pre of
ever getting away., .- :
When we got back I. made coffee. pen
We ate. the doughnuts. It was 7:55. 1
had five:minutes to meet my brother,
The time was going quickly.~I had to
try once. more, Would I make it? -
“I knew I forgot to buy something,”
I said.)“Cigars for you.’
He glared at me angrily.
trouble. with” you. is you ain’t got no .
brains.”
RE be right. back,” I said, rushing
out.
I was ‘on the street. Free? Maybe . eee
Running, I reached the drug store:
There was Ray!. Without a word, he
pushed. me into his car and we roared .
off. We reached Escondido, some»30-
miles northeast of San Diego, by one
o’clock: in the morning... ?
I had escaped at last! But wh
“would happen now? |
I couldn’t sleep a wink that ‘night,
~ My thoughts were whirling... What. was
Al doing. right now? I-had: visions of ~
him blowing his top, ranting and rag-
ing like a wild beast, hatching thoughts.
of t bore panqennes <2 Would. he
“The
~was to, thunder like an avalanche into
our lives that very same night.
T-hardly had fallen asleep when a
_knock on the door awakened me. I
‘heard the. landlady’s voice. . “There’s
long-distance phone call for you.”
I raced down the steps to the phone
i in ‘the lobby, The call, I knew with
‘horrible certainty, could mean only
one. thing: Al had begun his purge of
1
blood.’
“Hello,” I said into the phone in a
: ~ quavering voice.
nf “This is Deputy Sheriff Perry Green
, ot: San: Bernardino,”
‘The room seemed to swim around
“me and my heart was pounding like a
,Sledge-hammer, * as the deputy went
Oni”
Miss. Wells, be prepared for-a
“A biamed cry broke from my_ lips:
-“Al—he killed Ray and—”
“Take it easy, Miss Wells. We found
your. sister-in-law. and Miss Destree
‘in the .desert—”.Things seemed -to
-erash all around me. Like in a. bad
dream; coming - from far away :the
orry, Sis,” Ray said confi- .
on.
nee -you’re Staying,
ity’s' voice throbbed on in my‘ ear,
“Miss Destree is gravely injured but
» we hope she will live. Jeanie is dead.”
~“And Ray and. the baby?”
For a moment there was no answer.
Then Green said, “We don’t know
where Ray is. We’re looking for him.
But the baby is unharmed.” The dep-
uty paused again before he continued.
“The reason why I’m calling you is
‘this. Alfred Wells is at large. There’ 's
_a possibility he found out where you’re
staying and he might be on his way
to Escondido. Now do what I’m telling
you. Go to the Escondido police imme-
diately. By the time you get there the
“chief will have been notified. Spend
the night there and don’t Jeave until
you . hear from us again’ tomorrow
morning.” / > eke
URW ores cannot describe the terror of
that night.)"Jeanie was dead. Rose, an
nnocent bystander, between life ‘and
death. Ray missing. And it was all
y fault. I never should have left San
Bernardino I told myself again and
again. But it was too late now.
HE police in Escondido were kind
and sympathetic, doing everything
in their power to soften the terrible
shock of events. The next morning
they told me the rest of the story as
it had become known during the night.
Rose Destree, gravely wounded in
the abdomen by several bullets, had
awakened at the hospital from her
coma long enough to give an account
of what had happened.
On the previous day, about 6 p.m.
while Ray.was at work, Al had come
to Jeanie’s house. He seemed to be in
a gay mood. “I’m going to forget Vio-
let,” he said. Then he asked Jeanie
if she wouldn’t drive him to a chicken
ranch, about twelve miles out of the
city. “I heard I can get a job there,”
he explained,
Jeanie didn’t think she could refuse
the request. Rose Destree, she and the
baby got into the car and they all
started out.
When they had drtvéh some distance
out in the desert, Al told them to stop
as it would be necessary to make the
rest of the way to the ranch on foot.
““When we had walked about a half a
mile, in the light of the full moon,”
Rose related. in a feeble, pain-choked
voice, “Al ordered us to!sit down. We
were terribly afraid and did as he told
us.”
Then he dictated a note to Jean for
her husband. It read: “Honey, Al is
holding Rosie and the baby and me.
_I think it is better that you do what
he says and go with him, and then
you can come to us.”
As soon as Jean had “fnished writ-
ing, he pocketed the note and grabbed
the baby Rose was holding. Then
without any warning he pulled out a
gun and fired two shots at Jean, and
two at Rose.
“y fell to the ground,” the girl re-
lated, “and tried to lie motionless
despite my terrible pains. I knew he’d
shoot again if he thought that I was
still breathing. I peeped past my arm
and saw him put the crying baby in
Jean’s arms. Then he turned back
toward me...
“I shut my eyes instantly. He stood
still for a.while, probably making sure
we were dead. Then he laughed, and
turned away, crashing through the
underbrush toward the road.”
When the monster was gone, Rose
Destree began crawling painfully over
the rocks and through the scrub to get
help. Four hours later- her screams
attracted a rancher who called the
sheriff’s office.
When Deputy Sheriff Bill Lungstrom
arrived, he found Jean dead, the baby
clinging to her mother’s clothes, un-
harmed.
That was the story I heard at Es-
condido Police Headquarters.
“But where’s Ray? Tell me,” I
They shook their heads sadly, “No-
body knows. Al apparently lured him
into a trap with Jeanie’s note, after
he left work at ten o’clock last night.”
I didn’t know at the time I was told
Rose’s story that the courageous girl
already had died of her injuries. Nor
_ begged.
did I know that Ray’s body was
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7
brought her to my office, where I was wait-
ing for another try at her with Deputy
: Prosecutor Ralph Hammer. She _ had
hardly gotten seated in the chair, when we
told her that we had decided to filé murder
charges against both Harry and herself.
Still she remained unruffled.
“Regardless of your statement, Mrs.
Longfield,” I said, “We have found people
who saw you out on the highway on the
night of the murder, so there is nothing
for us to do:but charge you with the mur-
der.”
“I was on the highway,” answered Mrs.
Longfield, “but it was after the officers had
been to the house: ‘I was trying to find
my husband.”
' Disputing this fact, I told her we had
witnesses who had seen her on the road
before the shooting. Admittedly that state-
ment was untrue, but we were trying to
trap her into telling us the truth, which we
were sure she was not doing. All of us
were surprised at her next utterance,
“How was I dressed?” she queried, evi-
dently meaning to trap us. If that ques-
tion was answered in the wrong way, she
would know that we did not have the in-
formation we claimed to have, for, if she
had been at the scene of the murder, she
naturally knew how she was dressed and
would know if we told the truth.
I looked at Allingham and gave him a
nod to answer the question because he was
more familiar with all the intimate details
of the case. -
“You were wearing rubber boots,” he an-
swered, remembering the tracks in the
muddy field. Anna Longfield merely
smiled,
“You just. guessed at that,” she said,
“because you found those tracks across the
road from Smart's place. But tell me, how
did the people say I was dressed who saw
me‘on the road that night?”
‘Allingham had spent many hours ques-
‘tioning Tilda Ellingson and other neigh-
bors of Anna Longfield. There was little
that he did not know about her, even as
to Her usual manner of dress.. And he had
learned that when working on the farm
she dressed like a man.
Having delayed his answer, Mrs. Long-
field grew a bit impatient, and she asked
another question.
“Was I dressed like I am now?”
“No,” said Allingham, “you had on over-
alls, and a big hat, and rubber boots—you
were dressed like a man. Look at this
chart, Anna. You've seen it before. We've
talked about it many times while I accused
your husband of this crime. Now I’m go-
ing to show you what happened. You left
home and hid along this walk in front of
Smart’s house, by the cherry. tree. You
stepped out and shot him and then ran
across the fields to your home and jumped
into bed before the officers got out to your
place. It was you the dog barked at. It
wasn’t Harry who shot Smart—it was you,
Anna Longfield!”
Allingham was talking rapidly now, and
not giving the woman much chance to col-
lect her thoughts. He was pointing to spots
on the chart as he talked.
“You went there to rob him, and you
shot at him three times,” continued Alling-
ham. “And there is where you stood,
there, right there.”
Allingham’s finger stopped over a spot
beside the cherry tree and Mrs. Longfield’s
eyes followed every movement he made.
“I did not—I stood there—!” she ex-
claimed. be
Ts STATEMENT was involuntarily. It
was too late now to'withdraw it. We
sat back and waited for her next words.
When she finally spoke it seemed with an
air of relief,
“T'll tell it all now,” she said, “I'll tell
you who killed Smart, and why.”
First she unfolded a tale of her un-
happy marital relations with Harry Long-
field. She told us about her first husband,
Charles Paxson, and the money they had
saved by working so hard on the little
ranch; how, soon after she married Long-
field she had come to realize that he didn’t
really caré for her except for what money
she had. Then she had learned: that he
was “chasing” another woman. And finally
THE BODY IN THE DUNES
f “That shirt—that color—it seems fami-
iar—”
Deftly, he searched the dead man’s
pockets. There was no money, but a sheaf
of papers bulged in a worn leather wallet.
Bending over in the glare of the head-
lights, McGinn ran rapidly through the
papers. His eyes lighted.
“That’s it—the olive-drab shirt—a sol-
dier! According to these papers, the dead
man is Roy V. Lockwood, a first class
medical private in the United States Army.
Come on, Harry, we'll take a run over to
the Presidio,”
Instructing the uniformed-officers to call
at the nearest houses and determine
whether anyone had heard the shots above
the pounding of the ocean, and leaving
orders for a quick check of the license
number of the death car, McGinn and
Husted ‘climbed into their police car and
sped off into the fog. Ape
It was now completely dark; the star-
less murk and the ghostly sand hills out-
lining the dim headlight glow, were redolent
of mystery and death.
8 Be DETECTIVES headed for the Presidio,
the 1500-acre military reservation on
the northern tip of the San Francisco
peninsula, ‘overlooking the Golden Gate,
where 1300 officers and men are barracked
and the Ninth Corps Area has its head-
quarters.
The Presidio, with its hidden guns guard-
12
ing the harbor entrance, rises on the site
of the old Spanish Presidio of a hundred
years ago—on the hills where Padre Juni-
a8 Serra came to the end of his mission
trail,
Passing a grilled gate guarded by a sen-
try, they sped down a dark lane of eucalyp-
tus trees. .
“He was a medical private, so he must
have been attached to the Letterman Hos-
pital. We’ll go. there first.” .
The fog was thinner here. They passed
the deserted parade ground, passed the an-
cient Spanish guns with their pyramided
stacks of cannon-balls, ahd stopped in front
of Letterman General Hospital, the Army’s
west coast medical base,
Colonel William Deere of the Medical
Corps received the two inspectors-in his
office. In brief words, they explained their
grim errand. The colonel was shocked.
“Lockwood? Yes, I know him well.
He’s been in the army for years. Yes,
those are his papers, all right. But are
you sure it’s he? It doesn’t seem pos-
sible—”
“That’s what we want to find out,”
McGinn said. “We want someone to iden-
tify him.” ,
The colonel produced a young private, a
friend of Lockwood.
“We'll ‘take. you out and show you the
body. If it’s Lockwood, as we think, we'll
be back, colonel.”
The young soldier shivered as they sped
she resolved to kill him.
It was then that she went to a nearby
city and bought the revolver. She pur-
posely shot the old horse to furnish an ex-
cuse for buying the gun if any questions
were asked about it.
“I made up. my mind that if I couldn’t
have Harry’s love, no other woman would -
have it,” said this sixty-two-year-old ranch
woman. “I put on my overalls and the
rubber boots and the big hat so that I
would look like a man and I walked around
the road toward Algona. When I got to
the cherry tree I saw a man coming along
the walk. I thought it was Harry. And
all I could think of was that he was com-
ing home from seeing some other woman.
I hid behind the brush and waited, and
didn’t step out until he passed by. .Then I
stepped out and fired three shots. I stooped
over him and saw that I had made a mis-
take—I had shot Mr. Smart. But I hadn’t
‘meant to.
“I ran home. I wanted to tell the officers
about what I had done but couldn’t make
up my mind to do it. On the way home
I hid the revolver behind a stump. I got
my clothes wet when the dog chased me;
I fell in the creek. I had just gotten my
clothes off and kicked them under the bed
when Sheriff Starwich came in.”
“Where is the gun?” I asked.
“I took it with.me when Harry and I
went to St. Paul on a visit-last summer,”
answered Mrs. Longfield. “I threw it into
the Mississippi River. I’m sorry I killed
Mr. Smart. I never had anything against
him and I didn’t intend to kill him. I
didn’t tell Harry that I killed him and I
don’t think he ever suspected me. But
Harry never had anything to do with the
murder—nothing at all to do with it.”
There was little satisfaction in listening
to Anna Longfield’s story, except to be glad
the case was cleaned up. All of us were |.
sorry for her. I did not push the case for
first degree murder and Prosecutor Ewing
Colvin allowed her to plead guilty in the
second degree.
She was sentenced 4o five to ten years in
the state penitentiary at Walla Waila.
From page 47
up the dark Presidio lanes and headed for
the sand dunes,
“Lockwood was always a quiet man,” he
offered. “He kept to himself ;-went out by
himself. Mysterious, you might call him.
But I can’t imagine him—murdered !”
From the soldier, the officers learned .
that Lockwood had been attached ‘to the .
hospital yacht Letterman—his duty to take
convalescent patients for rides in the sun-
shine of the Bay and the Golden Gate.
Their conversation was cut short, when
they arrived at the. desolate dune, where
headlights limned the murder car in ghostly
silhouette. Hugo’ Dietel, police hotog-
rapher, was taking pictures of the body as
it lay in the car, his flashlight bulbs flaring
weirdly on the grim scene.
The young soldier leaned over the body.
“Yes. That’s Roy Lockwood.” “
An officer stepped up to McGinn.
“We've checked the license plates. The
car is registered to Roy V. Lockwood, of
Letterman Hospital.”
The car as a clue was exploded. The
soldier had ridden to lonely death in the
dunes in his own car!
“We've canvassed the nearest houses,”
the officer went on. “There’s:no house
within a block. No one heard the shots.
The noise of the ocean is pretty loud out
here, and there was-a strong wind.”
“Find anything in the car?”
“Not a thing.’
On the drive back to the Presidio
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“We were lucky,” Husted commented,
“to find the two men Kirn saw in the car,
without any delay. We might have wasted
hours, Now we've got a chance to strike
while the iron is hot. Do you think Smith
and West may have killed him—in an ar-
gument over a girl?”
. McGinn shrugged noncommittally.
“This is West’s. locker,” Munson said,
stopping before a tier of metal lockers.
He opened it with a passkey.
Husted stooped down, emitted a low
whistle of, surprise. The: others craned
their’ necks.
At the bottom of the locker lay a nick- .
eled .32 revolver. Husted picked it up
gingerly, sniffed at the muzzle.
“Can’t.tell whether it’s been fired lately,
or cleaned,” he ‘said. “The ballistics boys
will tell, though.”
“That's not an army gun, either,” Lieu-
tenant Munson said in an awed whisper.
“Where's Smith’s locker?” McGinn asked
grimly.
“Here—”’
The only. suspicious object there was a
brown sweater with a faint dark stain on
the front; which McGinn held close to his
nose, wrinkling his nostrils.
“Smells like cleaning fluid!”
“Well, we'll take it along. Let’s get back
and talk’ to Smith again.”
In silence they walked back to Colonel
Deere’s office. ° Howard Percy Smith was
still sitting there, his collar wilted with
sweat, his. forehead glistening under the
bright light. A group of men. stood out-
side the office. An intelligence officer had
joined the colonel.
. McGinn closed the door. Walking to the
». desk, he took the revolver from his pocket
_and laid it down.
Smith gasped. All eyes fastened on him.
He was staring at the revolver as though
at a deadly snake, too fascinated by its
evil glint to turn away. All the blood
.drained from his face.
“Yes,” McGinn said, quietly. “We've
found this, and more. Now do you want
to tell us the truth?”
Smith nodded, gulped, tried to smile.
“T guess I’m not a very good liar.”
“No, son, you’re not.”
“Well, Arthur West and I have had a
grudge against Lockwood for a long time.
A month ago Arthur told me he couldn't
stand the sight of Roy around here any
longer, and was going to kill him. He
bought the gun and a box of shells in a
pawnshop on Third Street, under an as-
sumed name, and hid them in his locker.
“Today, he told me the time had come.
I agreed to help him. We went up to
Lockwood when he came off duty, and
West told him he wanted to patch up the
grudge. . Lockwood was willing to be
- friends, though he didn’t say much. Then
West asked him if he wouldn’t drive us on
an errand we had to do.
“You've got a car,’ he told him. ‘We
have to take a package to a girl, away out
in the Sunset District. Drive us out there,
and we'll all go to dinner together.’
“Lockwood finally agreed, though he
said he’d eaten already, and we got into
his car. West had a bundle with him,
wrapped up in a blue shirt. He said that
was the bundle he had to give to the girl.
eee didn’t know that the gun was
in it!”
The young soldicr licked his dry lips,
looked quickly around at the startled and
unbelieving eyes of the army men, the
speculative eyes of the inspectors.
He looked down at the floor and con-
tinued his recital.
“We drove out to the Taraval District.
lt was: getting dark. : West was trying to
steer Lockwood to a lonely sand dune. He
78
‘slumped over the wheel. I c
-the way, and Arthur shot him again—once
told him he couldn’t locate the house.
“Then Roy got suspicious. He told us
he didn’t believe there was any house or
any girl, and he started to turn back.
“Arthur whipped out the gun, yelled
something at me, and shot Lockwood
through the head. He had to reach across"
me—I was sitting in the middle. The gun
went off almost in my face. Blood spat-
tered all over my sweater.
“I grabbed the hand brake as Lockwood
I ducked out of
in the head and once in the chest. Then
he hit him in the face with the gun.
“We got out of the car as fast as we
could and ran up to Taraval Street. We
took a street car downtown. I had to get
the blood off my sweater. We tried a
couple of cleaning places and finally found
one on Franklin Street that would do it.
I waited while they cleaned it. Then we
fixed up the story about leaving Roy at
Geary and Van Ness.
“We split up then—I went out to Irene’s
house, and West went off somewhere.
haven’t seen him since.”
The youth shuddered, sank back in the
chair, and closed his eyes.
CGINN’s MIND was racing. Would
West confess as easily as had Smith?
The job now was to round up all the evi-
dence possible, build.a case against them.
“What became of West’s shirt ?”
“The shirt the gun was wrapped in? I
don’t know—I guess he threw it out of the
car—”
McGinn grabbed the telephone and or-
dered Taraval Station to send a car out to
search the spot.
“You said you had a grudge against
Lockwood,” Husted prodded. “What was
it? A woman?”
Smith’s face hardened.
“No. About a year ago, Roy took us—
West and me—for a ride down the Skyline
Boulevard. We had an argument about
something or other. West.and I got out
to buy some cigarettes at a stand. Lock-
wood locked the doors of the car so we
couldn’t get back in, and drove away,
laughing at us. We had to walk back fif-
teen miles.”
The officers looked at each other in
amazement,
“Was that—your grudge—your motive
for the murder?”
“Yes.”
“The only motive?”
“Yes.”
Lieutenant Munson ducked in the door.
“West is here!” he whispered.
“All right. Here, Smith, step into this
other office. Bring West in.”
Arthur D. West was a short, bald-headed
man with a greasy complexion and dead
black eyes. He was ten years older than
Smith. He scanned the officers’ faces
shrewdly.
“Well, are you ready to confess?” Mc-
Ginn asked him.
“Confess? I don’t—”
“About Lockwood ?”
“Roy Lockwood? Why, Howard Smith
and I left him—”
McGinn waved his hand impatiently.
“We know all that. We also know how
you got him to take you out in his car,
with the, gun—this gun, here—wrapped in
a shirt. We know—”
West’s face paled as the inspector con-
tinued his damning recital. He licked his
lips.
“T don’t know.”
“Smith has confessed,” McGinn clipped.
“We found the gun in your locker.”
The jangle of the telephone interrupted
him. He answered it briefly, turned back
to the cringing soldier.
“We also found your blue shirt at the
scene of the murder. Now take off your
shoe.”
Startled, West obeyed, handed the shoe
to the inspector.
“The lining’s full of sand,” McGinn an-
nounced. “Ocean sand. You didn’t get
that walking along Market Street!”
West’s small head seemed to contract
into his shoulders, like a turtle’s. -He
looked about him helplessly.
“I guess I might as well confess—”
HE TOLD SUBSTANTIALLY the same story
as had Smith. After leaving Smith,
he said, he went to the Odd Fellows’ Hall,
where he met another soldier named
Nathan Kaplan, and returned to the Pre-
sidio with him. Kaplan, questioned, con-
firmed the time that he had met West,
leaving ample time for West to have come
downtown from the death spot.
“Now what was your motive?” McGinn
barked. “What was this grudge?”
“He took us for a ride, about a year
ago,” West whined. “He made us walk—”
McGinn looked helplessly at Husted,
who shook his head sadly. The inspectors
handcuffed the two killers and took them
out to the police car.
No amount of questioning could pry any
motive from the murderers, other than the
fantastic story of the auto ride and the
walk back. Was there a buried motive
of jealousy, perhaps a love feud for the
Arabian dancer? Both the prisoners in-
sisted they knew nothing of the women
in Lockwood’s life.
Questioned again and. again in detail,
they also denied knowledge of the mysteri-
ous ’phone call to Taraval Station, that
had sent the radio car to the death scene.
McGinn finally decided the call was prob-
ably put through by some resident of the
dunes who happened to-see the car and
wanted to tell the police, without being ~
involved himself. Had he a dark reason
for not wanting his name known?
That same _ morning,
Smelser appeared at McGinn’s office with
an amazing story. Just at dawn—an hour
or so after the officers had left with their
prisoners, he said—he had seen an expens-
ive sedan drive up and park by Letterman
Hospital.
“A woman and a man got out,” he re-
lated. “The woman was tall, a brunette,
about twenty-one. She hid her face with
her hand. I saw them go into the locker
room. They hurried out in a minute and
drove away. I went in where they had
been, and found Lockwood’s locker pried
open !”
Luckily, the police had removed all of
the slain man’s effects.
Was this dark woman the "Arabian
dancer, driven to attempt a desperate theft,
a-federal crime, to destroy evidence she
thought might point to her illicit intrigue
with Lockwood?
' McGinn and Husted could locate no
Arabian dancer at any night club.
With the full confessions of both men
in hand, the investigation was closed, after
a few loose ends of evidence, including the ©
statement of the cleaner who had taken
the bloodstains from Smith’s sweater, were
gathered up.
Strangely, both men pleaded not. guilty.
West added a plea of not guilty by reason
of insanity,
On January 27, 1935, a jury in Superior
Judge George Steiger’s court found Arthur
West guilty of first degree murder, with
no recommendation. Smith was found
guilty of second degree murder.
Smith was sentenced to from one year
to life in San Quentin.
Judge Steiger sentenced West to be
hanged on the San Quentin gallows.
Private Jess.
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done questioning the men?”
“No,” McGinn said. “Bring in the rest
of them. We want every scrap of infor-
mation we can get, to form as complete a
picture of the man as possible.”
‘A NOTHER SOLDIER, an elderly man, con-
firmed the Arabian dancer story.
“We understood he was making a play
’ for her, in some night club,” he said.
A private who worked with Lockwood
and Hansen on the yacht, contributed a
startling piece of information, revealing
that Lockwood had once been married. He
told of one°of the dead man’s rare mo-
ments of confidence.
“One day when we were out in the
Gate,” this man related, “Lockwood took a
marriage ceftificate from his pocket,
showed it to us just long enough for us
to see what it was, and tore it up. He
threw it in the water. He said, ‘Well,
that’s over now.’” :
In truth, the picture was deepening in
which was now stale with the smoke of
many cigarettes.
“You know about Lockwood being
killed,” McGinn stated. “When did you
last see him? What do you know about
his girl friends?” |
Kirn flashed a glance at the colonel. “I ©
don’t know anything about his girl friends,”
he said quietly, “except what the fellows
say. But—I saw him this afternoon.”
“This afternoon?. What time?”
“About five o’clock.”
The officers tensed in their chairs.
“Where was he? Who was with him?
Was he alone?”
“I was walking down the road by the
cemetery,” Kirn said, “and I saw Lockwood
go by in his car. I recognized the car. He
was driving in this direction—” .
“Yes?” McGinn barked as the soldier
hesitated.
Kirn’s next words electrified the room.
“There were two men in the car with him.
I didn’t pay much attention to them, but
McGinn drummed on the desk with his
fingers. .
“We'll see. Suppose Lieutenant Munson
checks the list of all medical corps men
who are away from the post tonight?”
While they waited, McGinn consulted his
watch, It was nearly midnight. . The list
was a sizeable one.
“I’ve checked off the ones who’ve re-
turned,” the M.P. said.
“Good. Let’s have them in here.”
8 Ser OFFICERS started nervously when the
telephone rang, so tense was the atmos-
phere from the long hours of tedious ques-
tioning. McGinn and Husted had tired,
sleepless lines under their eyes.
It was police headquarters, reporting to
McGinn that a complete check of. the
neighborhood of the sand dunes had dis-
closed absolutely no clue. The ballistics
expert added that Lockwood had been slain
with a .32 gun, probably a revolver.
Persistent questioning was narrowing,
down the field. Had Lockwood been slain
by a pair of fellow-soldiers, who were
jealous of his attentions to some girl?
Munson was absent for a long interval.
When he returned, his eyes were gleam-
ing and he ushered a dark young man in
civilian clothes into the office. ‘
“This is Howard Percy Smith,” he an-
nounced, “one of the medical privates.
He’s just come in. He has an interesting
story to tell.”
The youth blinked nervously under the
scrutiny of McGinn’s narrowed eyes.
“I—we were with Lockwood this after-
noon. We—”
“Who are ‘we’?”
“Private Arthur D. West and myself.
We met him about five o’clock. He was
driving downtown in his car, and we asked
him to give us a ride. We drove out the
Lombard Street gate and turned down
Van Ness Avenue. Lockwood dropped us
at Geary and Van Ness. He said he was
going to see a girl. :
“West and I took a Geary car down to
Market Street. We had dinner, and then
walked back to Van Ness. I left West
there. I went to visit my girl friend, and
I’ve just come back.”
“What time did you leave Lockwood?”
McGinn shot.
“A little after five.”
“You say you went to see your girl
friend. Who is she?”
“Her name is Irene M——, a high school
girl. She lives away over on New Hamp-
shire Street, in the Potrero. It took mea
long time to get back on the street car.”
McGinn reached for the telephone.
“We'll check that right now. What’s
her ’phone number ?”
The soldier, beads of sweat on his fore-
head, told McGinn the number.
After a short conversation with the girl,
McGinn hung up.
‘i “I guess it checks all right,” he said.
- “You went to see her, though she’s vague
a about the time.”
“It takes a long time—”
“Okay. Now, where’s West, your pal?”
“He hasn’t come in yet,’ Munson of-
fered. ‘“He ought to be back any time.”
“If he’s coming back at all!”
Motioning to Husted to follow him,
McGinn stepped out of the room.
“Their story may be straight,” he told
Munson in a guarded whisper, “but I want
to check everything. That girl isn’t sure
about the time Smith visited her. Show
me where these men have their lockers.”
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Arthur West and Howard Percy Smith (left to right) discuss their plight, following their
confession of the cold-blooded killing.
I know they were men I’ve seen around
the post. One was a short man, sort of
bald, and the other was tall and thin. He
wore a black suede jacket.”
An electric silence held the little group
in tableau.
“Is that all?” McGinn asked finally.
“Yes—I didn’t pay much attention—”
“We're getting closer,” Husted com-
mented. “It looks like Lockwood went out
hd a ride with two men from the Presidio
ere.”
“What?” exploded the colonel. ‘Do you
mean: he was murdered by two of his fel-
low-soldiers ?” - ‘
color and perspective—a scorned sweet-
heart, a cast-off wife, a wronged husband,
a jealous suitor—any one of these might
have slain the romantic medical private.
| Did the ferocity of the attack, the bat-
tering of his skull, indicate the work of an
hysterical woman; or perhaps the hand of
a vindictive Oriental, the husband of the
i} Arabian dancer? Every man in that little
| room revolved these questions in his mind.
i} Undoubtedly, they reasoned, the murder
F had its root in Lockwood's love life.
} “Bring in the next man,” said McGinn,
Private William E. Kirn of the Quar-
termaster Corps stepped into the room,
76
S THEY WALKED to the locker room,
stepping silently at that late hour
through the hospital corridors, McGinn
compared notes with Husted.
“This may be a bum lead,” he said, “but
The VACU-
McGinn and Husted analyzed the evidence
. carefully and summed up the case, as far
as they had gone.
“He was shot in the right side of the
head, almost at the back,” McGinn pointed
out. “The bullet in his hody isin the right
. side. That indicates that the murderer was ©
. sitting in the car with him. The right-
hand window was closed.” Husted nodded.
“And did you notice,” he supplemented,
“how the car was run up over the curb,
into the sand? That may mean that he
was driving along the street: when he was
shot. The person in the car with him shot
him without warning and the car went out
of control. The murderer. leaned over,
grabbed the wheel, and brought it to’ a
stop.”
“Someone with him in the car—maybe
a girl. After shooting. him to death, the
murderer battered his face with the gun.
That’s what a woman might do—a woman
who hated him, perhaps a woman scorned.”
“Either that,” McGinn agreed, “or he
may have been killed by some stranger he
picked up in the car, someone who was
walking through the dunes. Remember,
there was no money on his body. Robbery
may have been the motive.”
“Well, the next few hours should throw
some light on it. We'll go over his friends
at the Presidio with a fine-tooth comb.”
The fog had lifted from the Golden
Gate; the great searchlight of Alcatraz
flashed in their eyes, as they drove down
the long hill above Letterman Hospital.
Far up, among the stars, a red light burned,
atop the rising southern tower of the
Golden Gate Bridge. . ;
The two inspectors parked in front of
the hospital for the second time, and
walked through’the silent corridors to Col-
onel’s’ Deere’s office. Stolid-faced order-
lies were hurrying in and out.
Two other soldiers were with the colonel.
He introduced:them. “This is Captain F.
A. Crawford of the Medical Corps, and
this is Lieutenant. Munson of the Military
Police: .We’re at your service, ’til this
terrible thing is cleared up. You're in
charge of the investigation, of course, since
the murder was committed outside the
Presidio grounds. Your headquarters
phoned me of the definite identification of
poor Lockwood. They want you to call.”
When Inspector McGinn ’phoned the bu-
reau, he received startling news.
“We've checked on that ’phone call to
Taraval Station,” Lieutenant Frank Win-
ters, acting head of the bureau, told him,
“and we find that there’s no such address
as 3249 Forty-eighth Avenue, and no such
person as Carl Evans living near there!”
McGinn pursed his lips, as he pronged
the receiver. Here was a new twist! An
anonymous ’phone call, before the body
was. cold. Was it possible that the mur-
derer was busy establishing an iron-clad
alibi, and that he wanted the police to find
the body as speedily as possible, to make
the alibi effective?
“From events so far,” he told Husted,
“it looks as though we’ll have a long way
to go before we track down this killer.”
. “Here,” cut in Captain’ Crawford, ex-
tending a sheet of paper, “is Lockwood's
military record. It may be helpful.”
The officers scanned the sheet eagerly.
Leyes, THE RECORD REVEALED, was aged
thirty-five. He had been a chauffeur
before enlisting in the army. He had
served fifteen years and nine months, start-
Pa last enlistment period on June 23,
His mother, Mrs. Minnie Spencer, lived
in National City, California. Lockwood
returned July 21 from a furlough on which
he, had visited her and spent some time in
_ Long Beach and Los Angeles. He had an
74
TRUTH ... STRANGER
_THAN FICTION
Month after month, these pages
sparkle with thrilling mystery
tales; tales in which plots, char-
acters, fascinating solutions are .
frequently so strange as to be al- '
most unbelievable. Yet every.
single word in every single. story
holds fast to actual fact, fact
sworn to in official police records
and by our expert corps of
writers and true crime investiga-
tors. If you're looking for the
truth behind the startling crime
news of the day—truth stranger
than fiction—you'll find it pre-
sented best, most entertainingly
in
REAL DETECTIVE
excellent record at Letterman. He spent
most of his duty hours around the hospi-
tal, and on the yacht Letterman, berthed
in Yacht Harbor just outside the Presidio.
Inspector McGinn settled himself in a
chair and lit a cigarette.
“I think,” he told the army men, “we'd
better start questioning his fellow-soldiers.
We want to dig up some background on
his personal life.” .
“It'll take some time,” Captain Crawford
said. “There are about three hundred men
in Lockwood’s company. Lieutenant Mun-
son has weeded out some of them, but—”
“Good,” McGinn nodded. “Bring them
on. We'll take all night if we have to!”
The two homicide inspectors put them-
selves into a receptive mood to pick up
whatever clues might come in chance words
of the soldiers, whom Lieutenant Munson
mustered one by one into the room.
The first uniformed man ushered in by
the military police officer saluted, glanced
nervously at the colonel and the two in-
spectors. He was Private Arthur C. Han-
sen, who shared Lockwood's duties in pi-
loting the convalescent yacht.
“Just tell us all you Snow about Lock-
wood. Anything may help. When did you
last see him?”
“Why, he and I piloted the yacht on a
cruise up the Bay this afternoon,” Hansen
said. “He seemed—everything seemed all
right with him. We moored her at Yacht
Harbor, and came back here and had din-
ner. I left him at the dinner table, about
4:30 this afternoon. That’s the last I saw
of him.”
“Did he tell you what he was going to
do tonight ?”
“No. Not a word. He never told me
any of his personal affairs. He was a
close-mouthed man.”
“I see.” McGinn stared thoughtfully at
the ceiling. “He was a quiet man, then,”
the inspector said finally. “Does that mean
he didn’t go out much—kept close to the
barracks? Eh?”
Private Hansen smiled crookedly, “No,
sir. He was out nearly every night—out
until late. Nobody knew where he went.
Different fellows have told me they saw
him at times, with different women.”.
McGinn’s eyebrows lifted. “He was a
ladies’ man, would you say?” .
“Well, yes, that’s what I gathered, al-
though as I say, he never talked very
much,”
Further questioning elicited nothing more
from Hansen, and he was dismissed, sweat-
ing profusely.
The next soldier who was questioned
knew nothing, but the next gave significant
information.
“Lockwood was very friendly with a
woman’ from Stockton, named Mildred.
He used to go to see her often, and she
used to come down to the city.”
“What was her last name? What did
she look like?”
“T don’t know. I never saw her. I just
heard that name—Mildred, I forget who
told me.”
“Did Lockwood tell you?”
“Oh, no.”
T= LITTLE OFFICE was blue with smoke.
McGinn and Husted leaned forward in
their chairs, as the next soldier came in.
Colonel Deere and Captain Crawford
watched the drama intently.
The inquisitors barraged the startled
young soldier with questions,
“What women did Lockwood know?
Did you ever hear of a girl named Mil-
dred? Did he ever go to Stockton?”
“Why,” the soldier ‘ faltered, “I: never
heard of a Mildred, but I’ve seen him with
different women, here and there.” -
“What do you mean, here and there?”
barked McGinn, hot on the scent,
“Well, I saw him dancing in a cafe on
North Beach one night, and another time
I saw him driving in his car with a dark,
. tall woman—”
“Do you know who she was?”
“Well, I don’t know, but some of the
fellows said she was.an Arabian.”
“An Arabian?”
McGinn and Husted looked at each other
in astonishment,
“Yes. An Arabian. She was supposed
to be a singer and dancer insomé: night
club, I don’t know which one. I “under-
stood she was a married woman,” “
McGinn coughed loudly.’ The. young
soldier was excused. The two inspectors
exchanged significant glances.
* “Now we're getting somewhere,” said
Husted. “He was a ladies’ man;'a militar
Lothario! He was going around with dif-
ferent women—probably had several on
the string at one time. An Arabian dancer
—a married woman.” . f
McGinn’s gray eyes narrowed. “We
may be getting somewhere, and we may
not. We don’t know the names of any of
these women. I suppose we can check on
the Arabian dancer easily. In the light-of
what we’ve heard, it’s more than likely the
murder was done by a jealous woman, or
maybe an outraged husband.”
Colonel Deere slowly nodded agreement,
A military Lothario! A man of many
loves, with the faculty of keeping his af-
fairs to himself. He drove his own car.
What secrets of romantic trysts in the
moonlight, in these very Presidio groves,
might be locked in the dead brain of Roy
Lockwood? The wooded hills by the
Golden Gate are an ancient place of ro-
mance. It was here that the classic love
story of’ Maria Concepcion Arguello and
the Russian courier, Rezanov, had its birth:
—on these very.‘hills, under the eye of the
old Spanish commandante. i
Colonel Deere cleared his throat. “You're
going to check these women? Then you’re
Williams, who lived in Lodi and
was visiting Tyson, offered to buy:
Miguel Vargas’ Plymouth Road-
runner car for $1,500 with a check
che had recently stolen. The two
sealed the deal the next day and
agreed to exchange the pink slip
the next week, but afterward Wil-’
liams told friends he should have
killed Vargas instead of paying
him, saying “killing a wetback is as .
easy as killing a nigger.”
So'on Oct. 8,’three days after
the-yard sale, Williams and Tyson.
drove to the dairy farm near Mer-
ced where the cousins worked and
rented a small house. As he had
been for much of his life, Williams
was high that day — this time on a
cornucopia of intoxicants from
heroin to beer.
After waiting for several visi-
tors to leave the house, the two
burst in, each wearing gloves and
wielding a .22-caliber pistol.
Orders to Kill
While Williams cornered the
cousins in an upstairs room, yell-
ing at them to return his check and .
give him the pink slip, he ordered
Tyson to take the only other per-
son in the house, Miguel Vargas’
girlfriend, 24-year-old Lourdes Me-
za, downstairs and kill her.
Williams then shot the cousins.
in the head, twice each, with his -
22-caliber Beretta as they lay on
the floor. They died instantly. He
went downstairs, bawled Tyson
out for not obeying his orders to
kill the woman, then forced the
pair into his car and told Tyson to
drive northeast.
Tyson drove 80 miles, finally
pulling off near Highway 108 out-
side the tiny town of Tuolumne.
Williams turned the journey into a
private horror for Meza, raping
her over and over as she begged
for her life and cried that she had
four children.
~ When Tyson parked, Williams
took Meza into some weeds for
what.he said would be one more:
rape session. Tyson later testified
he heard four gunshots and a “yip”
outcry. Williams returned shortly
afterward “very excited,” Tyson
said, and bragged that he had shot
Meza as he raped her so he could
feel “her dying twitches.” He told
Tyson: “I love to kill.”
Investigators were led to the
scene days later by Tyson, who
turned himself in, and found Me-
za’s naked body. Williams was ar-
rested six weeks later in Arizona
and confessed. ~
Tyson traded testimony against
Williams for three life prison
terms, and a jury convicted Wil-
liams and sentenced him to death
in 1979 for three murder counts
with eight special circumstances
including kidnapping and rob-}
bery. State records recount. the.
rape, but note that the verdict did:
not include the charge because the,
victim’s body was too decomposed :
for evidence.
Murders a Long Time Coming
What Williams did to his vic-.
tims came as no surprise to anyone
familiar with him. The only shock
was that it took him until age 31 to
commit murder.
“This is a man who didn’t have
much chance at life from the be-
ginning, and it just got worse from
there,” said Michael Kroll, one of’
his attorneys.
Born prematurely in Pittsburg,
Contra Costa County, on June 6,
1947 — three months after his twin
brother was miscarried — to an al-
coholic woman named Lucille Wil-
liams, he started life with “classic
signs of fetal alcohol poisoning,”
prison doctors later wrote. His fa-
ther deserted the family early on, |
and his stepfather, migrant farm-
worker H.K. Smith, mercilessly
beat Williams from the age of 15
months with belts and fists.
The family moved from field to
field in California, never setting
roots. In one year alone, Williams
attended 12 schools. He soon
turned to crime, and ‘reached
adulthood with several years in
the California Youth Authority un-
der his belt for thefts and other
offenses,
Williams also experienced
blackouts, double-vision and other:
symptoms of bi-polar disorder,
commonly called manic depres-
sion — and early in life began to
“self-medicate” for the mental
pain by taking any street drug he
could lay his hands on, from booze
and marijuana to LSD. Two failed
marriages produced a son and a
daughter, and by the time of the
triple murder he had spent most of’
his adult life in state or federal
prisons for rape, car theft, assault
and kidnapping. ;
Williams says now that he was
out of his mind during his murder-
/ against
ous rampage, and that today he is
“haunted by the memories of what
he did and deeply sorry for that
and for any racist things he felt
then,” said Kelly.
Relatives Have Compassion
With that remorse and his men-
tal illness in mind, 10 relatives of
- Williams’ three victims have asked
that his sentence be downgraded
to life. But others have argued just
as passionately that he die as
planned.
Among those pushing for exe-
the man Williams shot for his car.
He recently said that no matter
how nice his father’s killer is today
he took something that cannot be
replaced — and he must pay for
_ that. ™
“He should have been dead a
long time ago,” Miguel Vargas told
_.the Merced Sun Star. “It (any plea
Williams’ execution)
makes me sick. I was robbed of my
childhood with my father. He was
my idol. My hero. To me he was
everything. Don’t they know what
he did?”
:
:
s
U
cution is Miguel Vargas Jr., son of |
WEDNESDAY, MAY 1, 1996
row who
If anyone deserves a stay, it is Danny’
— KATHY KELLY, DEFENSE ATTORNEY
With Treatment, Killer Is
‘This is a clear example of someone on death
needs a second look.
AS
xxx San Francisco Chronicle
himself since then, but in
Different Man, Lawyers Say
‘I don’t care what he’s done wi
my book we don’t need anybody like that here on this earth’
The Sacramento Bee ( ( } )
Zz
> FROM PAGE ONE Wh kon 4 -2Q5-%
Execution: Killer has expressed remorse for slayings
Continued from page Al
tion and the fourth to be put to death in Cali-
fornia since the state resumed executions in
1992.
To a large degree, there are striking similar-
ities between the case of Robert Alton Harris,
whose death in the gas chamber in April 1992
broke a 25-year span without an execution in
California, and that of Williams.
In the final weeks before his death, Harris
and his attorneys fought a pitched battle for
clemency or court intervention based on the
‘premise that Harris had suffered from a hell-
ish childhood of abuse and that he had become
a model inmate.
Now, Williams’ defenders are taking the
same tack, arguing that the 48-year-old in-
mate suffered from major mental illness dur-
ing his criminal period, that he consistently _
has sought treatment for his ailment and that
since his incarceration he has become “a model
inmate, respected by guards and prisoners
alike.”
“If Gov. Wilson ignores Mr. Williams’ plea
for mercy and allows the state to execute Dan-
ny, the citizens of California will have tried,
convicted, condemned and killed a mentally ill
man,” his attorneys wrote in a bid to have Wil-
liams’ death sentence commuted to life in pris-
on.
His attorneys had argued before the Califor-
nia Board of Prison Terms that he deserves
clemency because of a life that has been punc-
tuated by such difficulties as:
= A series of head injuries that included a
motorcycle accident at age 15 that left him in a
coma for a period of time.
= Bipolar mood disorder (or manic depres-
sion) that can lead to violent episodes unless
treated with medication.
= A violent and abusive upbringing by a
mother and stepfather steeped in alcohol
abuse.
= A hellish adolescence inside the Califor-
nia Youth Authority, where Williams was sent
in the 1960s with a criminal career that began
with an auto theft in 1962 when he was 14 and
later included burglary, forgery, assault with a
deadly weapon and escape.
Williams’ final series of transgressions be-
gan in September 1978, when.he was 31 and
in Corning, south of Red Bluff. It was there
that Williams met up with 26-year-old Robert
Tyson, a Galt-area man who would become his _
accomplice.
~ The two men were working for an acquain-
tance of Williams there doing some plumbing
and construction work when they decided to
steal some guns and tools belonging to the
man.
After stealing the weapons and tools, the
men robbed a couple of their camper at a park
ral area near Galt.
It was there that they held a four-day yard
sale to dispose of some of the items they had.
stolen from Corning and from the camper,
which they subsequently had burned.
And that was when Miguel Vargas and
Lourdes Mezaranacrossthem. —
The couple, who lived on a dairy ranch near
Merced, went to the sale on Friday, Oct. 6, and
Williams talked to Vargas there about want-
ing to buy his car.
The next day, Vargas and Meza returned
and completed a deal to sell the car to Wil-
liams for $1,500. He paid for it with a check
stolen from the camper and took the car, while
Vargas held onto its pink slip, saying he would
release it after the check cleared when the
banks opened Monday.
Vargas left, but returned to the Tyson home
later in the day to offer to buy a pistol from
Williams, and during that visit Williams no-
ticed a wad of cash Vargas was carrying to pay
for the gun and also noticed that Vargas was
carrying his $1,500 check in his shirt pocket.
A day later, on Sunday, Oct. 8, Williams and
Tyson drove to the ranch where Vargas and
Meza lived, planning to rob them and their
housemate, Vargas’ cousin Salvador. When
they arrived, they found the trio had three vis-
itors, so they left their guns in their car and
went inside and socialized.
After the visitors left, Williams and Tyson
retrieved their guns and accosted the trio. Wil-
liams held Vargas and his cousin upstairs at
gunpoint, demanding to know where their
money was. Tyson, who was downstairs with
Meza, later said he heard four gunshots and
- quittéd..
in Modesto, then went to Tyson’s home in aru-.. .
that Williams came back down alone.
Williams and Tyson then drove off with Me-
za.in the car. At some point, Williams had sex
with her, and then after arriving at an area
near Sonora he took her from the car and told
Tyson he was going to have intercourse with
her again:
He walked her to a nearby field. to do so,
then afterward shot her four times and
boasted to Tyson later of how much he had en-
joyed it. He later was accused of rape and ac-
‘Williams considered killing Tyson after
that, saying he.was disturbed at Tyson’s “sniv-
eling” over the murders. Instead, the pair split
up and Tyson turned. himself in later that
week and led authorities to. Meza’s body.
Williams eluded authorities for more than a
month, until he was spotted in a bar in King-
man, Ariz., and arrested. He confessed to the
killings and defended the slayings by telling
one officer that one of the victims was “just a
Mexican.”
Years later, upon upholding his three mur-
der convictions and death sentence, the state
Supreme Court noted that “the only explana-
tion given by the defendant was his ‘intense
dislike of Mexicans.’ The acts were cruel and
calculated.”
Tyson later was convicted of being Williams’
accomplice and sentenced to 25 years to life in
prison.
Today, he is in prison and Williams is on
death row awaiting his scheduled date inside
the execution chamber at 12:01 a.m. Friday.
Williams has expressed remorse for the kill-
ings in his filings with the Board of Prison
Terms and his attorneys have provided state-
ments from some of his victims’ children say-
ing they prefer that he spend the rest of his
life in prison rather than be executed.
Sister Helen Prejean, the New Orleans nun
whose book inspired the movie “Dead Man
Walking,” has lobbied the board to spare Wil-
liams. .
But even ardent opponents of the death pen-
alty are pessimistic over the chances that Wil-
liams will be spared, and preparations for the
execution at San Quentin already are under
way.
a
~2-9%
die
estined to
G
ection for ’78 sl
4 IPAY 5
de Cur
V1
S
Tue CA
OG
Kill
gE XECUTION
from Page lA
For a last meal, he ordered
fried pork chops, a baked potato,
asparagus, french bread with
“real butter’’ and a salad with
blue cheese dressing. He also re-
quested apple pie with vanilla ice
cream and 4 large glass of milk.
The full 9th U.S. Circuit Court
of Appeals voted earlier Thurs-
day against reconsidering a three-
judge panel's decision Wednesday
to not grant a delay in execution.
That left only the U.S. Supreme
Court to inter-
vene. And given
the high court's
recent efforts to
quicken the pace
of executions,
that seemed un-
likely.
While Wil-
| a liams’ execution
Williams would be the sec-
ond this year
and 439 inmates remain on death |
row, no additional executions are |
scheduled. But the anti-terrorism
crime bill signed by President
Clinton imposes time limits on
federal appeals that state offi-
cials say will eventually quicken
the pace of executions.
eoeee p ‘ -
“He
aying’s
filings failed to convince state and federal
judges that their client had been denied
justice because of an incompetent defense
attorney and foul play by the federal Bu-
48, apparently was at peace
with his impending death.
“He is in good spirits,” prison spokes-
woman Joy Macfarlane said after an after-
noon visit with the condemned man.
See EXECUTION, Page 17A
seems relaxed and not at all anxious.”
No friends or family members met with
Williams, who claimed to be a Williams on Thursday, but he spent sever-
Nn
& Merced County Sheriff Tom
2 Sawyer said justice in the Wil-
a. 5 liams case already had been too
Se long delayed.
3 = “It’s really appalling that
2 we've gone 17 years without car-
rying out that sentence,” he said.
“Mr. Williams should not live one
minute more.” :
_ Like the three other men exe-
cuted since California reinstitut-
ed capital punishment in 1977,
Williams committed the kind of
crimes that make the death penal-
*
His lawyers fought frantically in recent
d by his vicious al hours with one of his attorneys and his
Merced County residents spiritual adviser, Margaret Harrell.
California executed by
er ap
eo © “a
cm) S255 &
2 3g a
oiead 2segeé =
TM oF S825 >
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= = ZESS =
ae 2. -_—T “7
os =< , £29 Ses ty popular.
= HSEs ese ‘ a
se} “S32 at 1 love to kill
“~ $8) Ss Ss
ao) < i go = 3 Just three months out of feder-
ta tz. 2S ws al prison, where he had served a
Ome -< Mm SIEs2E S55 term for auto theft, Williams
— Az S5Sé“Ece ae =) ’
O°ao “SS AR 23 F=528Se murdered two men and a woman
+ ~ QO 22252 “EV PZ EWS _in a killing spree apparently moti-
OE SICLSeRPees ts Sy vated as much by pleasure as by
> © 227225393 ~ 7, fF eZSR fit
° SrGx2tsuentco ae ae ere
one useKe QasSaonrnassn “I love to kill,” Williams, then
oY _— 2 me SESS SSEE 31, allegedly told an accomplice
just minutes after shooting 24-
year-old Lourdes Meza four times |
while raping her.
Meza, who according to court
records had pleaded, ‘No, no, I
have four babies,” was doomed
by the simple misfortune of being
an acquaintance of Miguel Var-
gas, 29, and his cousin, Salvador
‘Vargas, 40, who were Williams’
Killer turned model inmate
unlikely to deter executioner
By Sam Stanton. i .
Bee Staff Writer 1s
- On the last Friday Me fore Keith Daniel
Williams’ life spiraled’ out of control, ‘he —
used some heroin, morphine and Valium.
He smoked marijuana, drank two or three
six-packs of beer, and had two or three
glasses of tequila, followed by an LSD chas-
er.
The next day, he had more herpin, drank
a little wine, swallowed Valium, injected
morphine and smoked marijuana, .
On Sunday, he used some more heroin,
injected morphine twice, drank eight cans
of beer, smoked marijuana, ate four Valium
tablets, drank eight more cans of beer and a
_. glass of whiskey.
Then he shot thr ee people to death.
wut
03801, ‘and early Friday he is.scheduled to
be put to death at San Quentin Prison for
_ the Oct. 8, 1978, slayings of Miguel Vargas,
29, Salvador Vargas, 43, and Lourdes Me-
Za, 20.7
_—“After 17 long years of legal review and
scrutiny, justice for Keith Daniel Williams
is near,” Merced County District Attorney
Gordon Spencer wrote in an exceptionally
blunt letter to Gov. Pete Wilson urging that
the execution go forward.
Wilson, who has made no effort to halt
the three previous executions that have
taken place since 1992, obviously agreed,
saying Thursday that he was rejecting Wil-
liams’ plea for clemency.
With his court appeals exhausted and de-
spite the arguments of Williams’ defenders
— including some of his victims’ relatives —
all indications are that sometime Friday
* the Lodi man will become the second per-
son in state history to die from lethal i injec-
(og
Please see EXECUTION, page A7.
Men 4- 89-Te Secramente A Z,
[Ear aaa “TfieSRECORDER. | ved
Volume 2_No. 61° A DAILY PUBLICATION OF APPELLATE DECISIONS FOR SUBSCRIBERS TO THE RECORDER ~« March 29, 1988
Table of Cases e Tuesday, March 29, 1988 |
e
an aT
\ :
CALIFORNIA SUPREME COURT }
People Da ee Ee digress gonemerter en opeetndnane gate A wale ot, m,'dl fo March 24..... 199]
‘Death penalty upheld despite ineffective assistance of counsel claim.
: ee UUPRINS. ealf Snanaecmdeteiatjevnsnreajtexantparanstviveginndb cr cneee swerkca denca6 March 24..... 1998 é
Death sentence upheld for multiple murderer
‘ # CALIFORNIA Courts OF APPEAL
Missal nseiee of Northern California... ceccececccceceeeeceseccc C.A. 2d......March 24.....2023
Unwarranted restrictive medical necessity standard justified damages against insurer.
har ecco C.A. Ist......March 4.....2027
Report of agency in vestigation into expenditure of public funds deemed privileged.
ree Marrlagl of Hatchet os... asses cecssscteqorecteceelscociececcceeescccc C.A. 2d...... March 24.....2028
Agnos Act does not require showing of need to obtain minimuin support level.
( Allbright v. Superior Court...0.00..0.0 0.00. ccecccccccceceeceecscec Pipa gAD fier nedsinesenginees C.A. 2d...... March 23.....2029
Party claiming personal injuries damages need not submit to mental exam when mental state not in dispute
Contreras v. Blue Cross of California... eee. seeee ng dines idl Peerceew sie steryeean CAS 24... March 23.....2030
Deletion of ERISA-related causes of action did not make amended complaint sham pleading.
PERPIE Ns SOPIIOM 025355 tps rtecerichcatecnnsnngaaseisvesrageractorini es, 2 C.A. 4th...... March 22.....2031
Bifurcated hearing not required when prior conviction element of charged offense.
Apte v. Regents of University of California... Oe eb ashe aevecccesasdovcngetudescesenensedivancesecs, C.A. Ist...... March 24.....2033
Order modifying opinion and denying rehearing.
THEDE V~ Pabemad ..--ssosssesssscocerssnssssessosecsapssssssvusestseseazenssssataeeeseeccossec C.A. 6th...... March 23.....2034 ©
Order modifying opinion and denying rehearing.
U.S. SuPREME Court
Bow OR NER iene ul eattessoy.detinneseesnerennece ite 9th Cir.....March 23.....2034
Medicaid plan improperly rejected.
United States v. Wells Fargo Bank..... pemrisingaeentoststas agate tk On BA Gr") eee March 23.....2034
Project notes subject to estate taxes.
tyng v. International Union..........0.....2..ccccsssssssssssessttseeeessssseeeeeeeec D.D.C...... March 23.....2036
Food stamp limitation on strikers deemed valid.
NINTH Circuit U.S. Court or APPEALS
. Meridian Land & Mineral Co. v. Hodel.........0.0.0.c.cccccccscsessesteseseeceeeeeeeesec D.Mont...... March 25.....2042
( _ Custer Proviso is not absolute bar to surface mining in national forest.
7 ta re Windmill Farms, Ine......0.........ssscscssssessssessssssssssssssessssisesdeseeeeeesceesc cc BAP...... March 25.....2044
Tenant entitled to sufficient notice before bankruptcy trustee assumes lease.
¢ Continued on next Page e
: a DERON oot *
og, CALD PN G98) ,surict for ®
AMS ‘¥: 19 Th . Ss de
~TLLe 3 1465 oul. wer ee deny the a eve te
WILLIAMS v. CALDERON
1467
Cite as 52 F.3d 1465 (9th Cir. 1995)
special circumstance was immaterial error
given that it was highly unlikely a jury sim-
ply counted up special circumstances charged
to determine verdict and, in any event, state
supreme court determined that error was
harmless.
13. Habeas Corpus ©—498
State trial court’s alleged failure to in-
struct jury in capital murder prosecution,
that it could consider any criminal activity
only if proved beyond reasonable doubt, is
not subject to federal habeas corpus review
given that any error was matter of state law
and state court conclusion that there was no
error was binding on federal court. West’s
Ann.Cal.Penal Code § 190.3(b).
14. Homicide 311
No error resulted from reading to jury
entire list of factors that state considered
relevant to sentencing in capital murder |
prosecution.
15. Homicide 311
Giving of no sympathy instruction dur-
ing guilty phase of capital murder prosecu-
tion did not result in jury being misinformed
about its responsibility to consider all miti-
gating evidence.
16. Homicide 311
Jury in capital murder prosecution was
properly instructed, after reading list of po-
tentially relevant statutory factors, that it
was not required to weigh aggravating and
mitigating factors and was not under an obli-
gation to find for life or death based on which
factors predominated; jury need not be in-
structed how to weigh any particular fact in
capital sentencing decision.
17. Criminal Law ¢@730(14)
Any prosecutorial error in capital mur-
der prosecution from argument that jury was
required to impose death if aggravating fac-
tors outweighed mitigating circumstances
was cured by trial court instruction clarifying
that jury was not required to weigh aggrava-
ting and mitigating matters and retained dis-
eretion to determine what consequences
should follow from any weighing it did.
18. Habeas Corpus ¢7508
No reversible error resulted from state
trial court’s refusal to modify capital murder
defendant’s death sentence based on fact that
one victim was required to submit to sex,
that defendant had been committed to Youth
Authority, that defendant had been involved
in previous shooting incident, and in light of
defendant’s trial demeanor, lack. of victim’s
consent or justification, and defendant's dis-
like of Mexicans as an explanation for kill-
ings. West’s Ann.Cal.Penal Code § 190.4(d)
(Repealed).
19. Habeas Corpus 680.1
Purpose of answer to federal habeas pe-
tition is to frame issues in dispute and ferret
out unmeritorious petitions. 28 U.S.C.A.
§ 2254: Rules Governing § 2255 Cases, Rule
5 note, 28 U.S.C.A. foll. § 2255.
20. Constitutional Law €=306(6)
Habeas Corpus ¢689
Delay of 26 months before denial of peti-
tion for federal habeas corpus relief did not
violate petitioner’s due process rights.
U.S.C.A. Const.Amends. 5, 14; 28 U.S.C.A.
§ 2254.
21. Habeas Corpus 746
Federal habeas corpus petitioner was
not entitled to evidentiary hearing on claim
that counsel was ineffective during state cap-
ital murder prosecution. 28 US.C.A. § 2255.
Richard B. Mazer, San Francisco, CA, and
David A. Nickerson, Sausalito, CA, for peti-
tioner-appellant.
J. Robert Jibson, Deputy Atty. Gen., Sac-
ramento, CA, for respondent-appellee.
Appeal from the United States District
Court for the Eastern District of California.
Before: POOLE, DAVID R. THOMPSON,
and TROTT, Circuit Judges.
POOLE, Cireuit Judge:
Petitioner Keith Daniel Williams, sen-
tenced to death for committing three mur-
ders, appeals the district court’s denial of his
petition for a writ of habeas corpus. We
1468 52 FEDERAL REPORTER, 3d SERIES
have jurisdiction under 28 U.S.C. §§ 1291
and 2253. Although we agree that some of
Williams’ claims identify defects in his sen-
tencing, none of these flaws rise to the level
of prejudicial or harmful error warranting
habeas relief. We therefore affirm.
I
Keith Daniel Williams, Robert Tyson, and
three others were out driving on Saturday,
September 30, 1978, when their car broke
down. Williams and Tyson decided to rob a
nearby camper. They forced the couple oc-
cupying the vehicle out and, as the couple
fled, Williams fired several shots over their
heads into the air.
In part to sell off the contents of the
camper, Williams, Tyson and others! held a
yard sale. On Friday, October 6, Miguel
Vargas, Salvadore Vargas and Lourdes Meza
came to the sale. Miguel expressed interest
in selling his car for $1500. He returned the
next day with Meza and agreed to sell the
car. One of the members of the group wrote
out a check on a checkbook stolen from the
camper. Vargas also expressed interest in
buying Williams’ Beretta.
After Vargas and Meza left, Williams told
Tyson how easy he thought it would be to
“just get rid of them.” A rough plan was
formed to go to their place in Merced and
retrieve the bad check; Williams intended to
kill the three. Williams proceeded to clean
his and Tyson’s guns. That night, he sent
two of the women in the group out to hustle
money or prostitute themselves in order to
obtain gas money. When that failed,
Williams himself went out Sunday morning
and sold a camera, and others in the group
cashed more checks from the stolen check-
book. With money for gas, Williams and
Tyson then left for the Vargas’ farmhouse.
They stopped along the way and had at least
two beers.
Upon arrival, Williams and Tyson found
Miguel Vargas, Salvadore Vargas, Meza, and
three others. They drank and discussed sell-
ing Williams’ gun. After the others left,
1. At the time, a group of five adults was living at
the Tysons’, including Williams, Robert Tyson,
Karen Tyson (Robert Tyson's common-law wife),
Williams and Tyson retrieved their guns
from the car. Williams pulled a gun on
Miguel Vargas, but Tyson turned the situa-
tion into a joke and Williams and Tyson left
briefly, purportedly to get beer. They re-
turned within 15 minutes with guns drawn.
Williams ordered Tyson to guard Miguel
while he went upstairs. There he found
Salvadore and Meza. Williams ordered Ty-
son to bring Miguel upstairs and take Meza
downstairs and “take care of her.” After
asking where the bad $1500 check was,
Williams shot Salvadore and Miguel twice
each..
Williams retrieved two guns, Meza’s purse,
and the check, and the three then left the
farmhouse. They drove for more than an
hour, during which time Williams had inter-
course with Meza in the back seat. When
the three finally stopped in a remote area,
Williams took Meza from the car and shot
her four times. Meza’s naked body was left
abandoned in a field.
During this entire period, Williams con-
sumed a disputed amount of alcohol, mor-
phine, codeine, heroin and marijuana.
Williams and Tyson returned to the Ty-
son’s place, and Williams then left for good.
Tyson became nervous and confessed to the
police within the week; Williams was picked
up the next month and also confessed.
Williams was charged with murder with
special circumstances under California’s 1977
death penalty law. He pleaded not guilty by
reason of insanity, and was examined by two
court appointed psychiatrists, Drs. Brannan
and Lloyd, each of whom found him sane.
Williams’ defense proceeded on a theory of
diminished capacity. Williams was found
guilty on three counts of first-degree murder.
The jury found nine of 10 special circum-
stances true—six multiple-murder circum-
stances, two robbery circumstances, and one
kidnapping circumstance. It found not true
the charged rape circumstance. The jury
then found Williams sane, and returned a
sentence of death on all three counts.
Cindy Williams (Williams’ ex-wife), and ‘‘Betsy”
(Cindy's cousin).
WILLIAMS v. CALDERON
1469
Cite as 52 F.3d 1465 (9th Cir. 1995)
Williams’ appeal and first state habeas pe-
tition were denied in their entirety. People
v. Williams, 44 Cal.3d 883, 245 Cal.Rptr. 336,
751 P.2d 395, cert. denied, 488 U.S. 900, 109
S.Ct. 249, 102 L.Ed.2d 237 (1988). His sec-
ond state habeas petition received a postcard
denial. Williams then filed his first federal
habeas petition. The district court, after
granting an evidentiary hearing. only on
Williams’ claim that the prosecution present-
ed perjured testimony, and after considering
the case for 26 months, denied all 19 of
Williams’ claims. Williams v. Vasquez, 817
F.Supp. 1443 (E.D.Cal.1993). This timely
appeal followed.
[1] We review de novo the district court’s
denial of William’s petition for a writ of
habeas corpus. Brown v. Borg, 951 F.2d
1011, 1014 (9th Cir.1991). We consider first,
in §8§ II-V, four alleged trial errors.
Williams contends that 1) he was denied ef-
fective assistance of counsel due to his attor-
ney’s incompetence, 2) he was denied effec-
tive assistance of counsel because his attor-
ney was burdened by a conflict of interest, 3)
he was denied his constitutional right to psy-
chiatric assistance, and 4) his trial was infect-
ed by the perjury of the prosecution’s main
witness. In §§ VI-VIII, we next consider
instructional and penalty-phase challenges by
Williams to 1) the jury’s special circumstance
instructions, 2) the adequacy of the guidance
the penalty-phase instructions provided the
jury, and 3) the trial court’s consideration of
various allegedly impermissible factors in
ruling on a motion to modify Williams’ sen-
tence. In § IX, we review procedural chal-
lenges to the district court’s handling of this
case, including its denial of an evidentiary
hearing on all but one of Williams’ claims.
Finally, in § X, we consider Williams’ consti-
tutional challenges to the overall sentencing
scheme applied to him.
I
[2] Williams contends that he was denied
the effective assistance of counsel at the
guilt, sanity, and penalty phases of his trial.
2. Williams also mentions in passing, without ex-
plication or argument, numerous other alleged
defects in counsel's performance. To the extent
that this discussion properly preserved these is-
We review de novo the denial of this claim.
Paradis v. Arave, 20 F.3d 950, 959 (9th Cir.
1994), cert. denied, —- US. —, 115 S.Ct.
915, 180 L.Ed.2d 796 (1995). We agree with
the district court’s conclusion that Williams
was not prejudiced by his counsel’s perfor-
mance.
Under the familiar Strickland _ test,
Williams must establish both deficient per-
formance by counsel and that that deficiency
prejudiced him. Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80
L.Ed.2d 674 (1984). “The essence of an inef-
fective assistance of counsel claim is ‘that
‘eounsel’s conduct so undermined the proper
functioning of ‘the adversarial process that
the trial cannot be relied on as having pro-
duced a just result.’” Paradis, 20 F.3d at
959 (quoting Strickland, 466 US. at 686, 104
S.Ct. at 2063). In establishing prejudice,
Williams “must show that there is a reason-
able probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding
would have been different.” Strickland, 466
US. at 694, 104 S.Ct. at 2068. Counsel’s
errors must be “so serious as to deprive the
defendant of a fair trial, a trial whose result
is reliable.” Id. at 687, 104 S.Ct. at 2064.
A
[3] The gravamen of Williams’ complaint
is that his trial counsel, Roland Howard (“R.
Howard”), failed to conduct an adequate in-
vestigation of a possible diminished capacity,
defense2 See Sanders v. Ratelle, 21 F.3d
1446, 1456 (9th Cir.1994) (“[C]ounsel must, at
a minimum, conduct a reasonable investiga-
~ tion enabling him to make informed decisions
about how best to represent his client.” (em-
phasis in original)). Here, Williams alleges
that R. Howard failed to examine Williams’
previous medical records or to seek appoint-
ment of an independent psychiatrist to exam-
ine Williams, and was unaware of California
Penal Code § 987.9, authorizing funding for
experts for indigent defendants in capital
cases. Williams presents declarations from
five psychiatrists who have examined him
sues on appeal, the district court addressed them
correctly. Williams, 817 F.Supp. at 1463-70,
1473-78.
286 83 FEDERAL REPORTER, 3d SERIES
which was on file when the Act was eviacted
may be considered under the law as it exist-
ed prior to’ enactment.*' We can instead sim-
ply treat Williams’s new claims as part of his
earlier filing, because even giving him the
benefit of the more favorable pre- enactment
law, we deny his claims. °
There i is one final matter which affects our
review of the district court’s order denying
Williams’s habeas petition. The Act contains
new standards governing the issuance of a
certificate of appealability. of an order, deny-
ing a second habeas petition. Prior law re-
quired a. Certificate of probable cause.’
Section 2253(c)(2) of the Act. provides, ‘ “A
certificate of appealability may issue . . only
if the applicant has made a substantial shéw-
ing of the denial of a constitutional right. ”
The standard for’ obtaining a certificate of
appealability under the Act is more demand-
ing than the standard for obtaining a certifi-
cate of probable cause under the law. as it
existed prior to enactment of the: Act.
We need not decide’ whether to =e the
Act’s more demanding standard retroactively
to Williams’s case.,. Rather, we assume, with-
out deciding, that section 2253(c)(2) of the
Act does not apply rétroactively to Williams’s
case.2 We, therefore, grant a certificate of
probable cause to permit. Williams to appeal
the district court's. denial of -his writ -of habe:
as corpus. '. ah
B. Standard of Review.
[2,3] We review for’ an abuse of. discre-
tion the district court’s decision not to review
the merits .of -claims::when:: the: claims: are
abusive or successive... Campbell v. Blodgett,
997 F.2d 512, 516 (9th: Cir.1992);.cert: de-
nied,.: —: US: ——, -414.,8.Ct..,1837, 127
L.Ed.2d. 685; (1994), The district court abus-
es its. discretion ;if . the: court’s decision. is
based on “an erroneous. legal conclusion or
on a clearly erroneous finding of fact.” Jd.
C. Successive Claims .
. In this. second ; petition, Williams : -aaserts
two claims which we addressed and rejected
2..' We note’ that the Act does not ‘provide an effec-
~-tive: date for the general :habeas) provisions,
- which include’ section 2253(c)(2). <The part. of
in his first petition: ‘Williams, 52 F.3d at
1469-72, 1474-75. ‘Williams again alleges (1)
he received ineffective assistance of counsel
at both the guilt and penalty phases because
his trial counsel did not’ obtain or present
evidence of his mental impairments, includ-
ing an alleged bipolar mood disorder; and (2)
prosecutors made an alleged undisclosed
death penalty deal with his codefendant,
Robert Tyson.
[4] These claims are successive. See
Campbell, 997 F.2d at-515-16. “[A] different
factual basis or argument asserted to support
the same legal theory advanced previously
does not constitute a new ground for relief
and is successive. " Id, at 516.
[5] Weare sical from: reviewing the
merits of these successive claims unless
Williams‘ can demonstrate cause and preju-
dice or show ‘that a‘ miscarriage’ of justice
would result if:we failed to review them.
Sawyer v. Whitley, 505 U.S. 333, 338-39, 112
S.Ct. 2514, 2518-19, 120: L.Ed.2d 269 (1992).
6] In the context of successive claims,
Williams must show cause for asserting a
claim that “fails to present a-new ground for
relief.” « Campbell, 997 F.2d at 524. Cause
requires Williams. to show. that “some objec-
tive factor external to the defense” impeded
his ability to; present: the evidence. in the
prior petition. McCleskey v. Zant, 499 U.S:
467, 493, 111 S.Ct. 1454, 1469, 113 L.Ed.2d
517 (1991). The standard of cause focuses on
Williams’s conduct. Jd.. at 498,.111 S.Ct. at
1472. Williams has an obligation to “conduct
a reasonable and diligent investigation aimed
at including all relevant ... grounds for re-
lief in the first-federal habeds. petition.” .. Id.
mi Williams argues he has established
cause for:: raising his suécessive claim of inef-
fective assistance of ‘counsel because’ he re- -
cently obtained new evidence which further
supports this:: claim. He ‘asserts: that; in
preparation for his first habeas: petition,: his
habeas counsel wrote in 1984 to the: Federal
Bureau of Prisons (Bureau) and. requested
Williams’s' medical and psythiatic: ‘records
the Act relating specifically to capliat cases, how-
ever, states thay al epplies't to pending peavone.
a ee ae
while. incar
and Lompo
reau . turne
ments. In
_ wrote the
ords.” He
was no rec:
the federal
false, his
and, Willia
leased ap}
ments, inc.
chiatric re
‘records st
fense.
_ Of the
ments, W
exhibits t
Of these &
medical 0}
pages inc
er, presel
tificate : tl
complete
probatior
service
stamped
Even
lease all
reports,
onstrate:
oral arg
for year
that mo}
must ha
that tim
this reg
1991—a
these r
sponse
record
for ove
This -di
ords V
shows
tion” o
3. The
adjus
“incall
binat
atric
. com}
Willi
home to rob
1d to kill them.
as and Tyson,
ons, arrived at
Miguel, Meza,
at their home.
el and Salvador
yson and Meza.
h Meza in the
sbandoned field
ody in.the field.
was under the
e, codeine, her-
: three counts of
mstances under
nenalty statute.
y by reason of
as examined. by
sane, his defense
iminished capaci-
him to be: sane,
sounts of murder,
‘cumstances true,
Jeath; ,
Court affirmed
f denied his first
ch had been con-
ic appeal. People
245 Cal.Rptr. 336,
United States Su-
ams’s petition for
ulifornia, 488 US.
.Ed.2d 237 (1988).
econd petition for
the California Su-
alifornia Supreme
petition in an un-
j his first federal
beas corpus. The
yetition on the mer-
; 817 F.Supp. 1443
med. Williams v.
‘9th Cir.1995). We
quest for rehearing
ing.en banc,
the’ Supreme Court
1 for certiorari. . ——
7,133: L.Ed.2d: 863
Cite as 83 F.3d 281
(1996). Williams’s execution date was then
scheduled for May 3, 1996, at 12:01 a.m.
After Williams’s execution date was set,
Williams filed a another habeas corpus peti-
tion with the California’ Supreme Court on
April 22, 1996, and requested a stay of execu-
tion. In this petition, Williams raised four
new claims. On April 26, 1996, the California
Supreme Court ‘denied this petition and de-
nied Williams’s request for a stay of execu-
tion. The California Supreme Court denied
the first three claims.as untimely and oo
all the claims on the merits.
‘Contemporaneous with Williams’ S filing of
his petition before the California Supreme
Court on April 22, 1996; Williams filed a
second federal. petition with . the’ district
court.. In this petition, Williams ‘asserted
two ‘claims which we‘and the district court
had-previously rejected. He argued the dis-
covery of new evidence justified bringing the
successive claims. He also sought leave to
amend his petition. ‘after exhausting ‘the four
new claims which ‘were then pending Bare
the California Supreme Court. . :
Lae Williams filed: his cota netition
with the district court, President Clinton, on
April. 24, 1996, signed. the Act. When. the
California _: Supreme *. Court. dismissed
Williams’s four claims which. previously had
been unexhausted, he filed‘an amended peti-
tion in the district court on April 26, 1996.
In this amended petition, Williams realleged
the two claims he filed:in his second petition
‘before enactment: of: the Act, as well asthe
four: previously - unexhausted claims.’. ‘The
district. court. determined. that: the. Act -gov-
erned Williams’s ‘second: petition; both ‘as: to
the two claims filed before enactment of the
Act and as to the four previously unexhaust-
ed claims which were ‘filed after enactment, of
the. Act. as ‘part. of, the amended petition.
“ With’ regard: to” ‘the ‘two. ‘claims Williatns
filed before enactment of the Act, the district
court concluded the Act required dismissal of
those ” claims. Alternatively, the district
court dismissed the’ “claims ‘under’ the ‘prior
Jaw:because- Williams: had not shown cause or
_prejudice. or, a: miscarriage of. justi¢e: to. Justi
fy-again raising these: Sens. i
WILLIAMS v. CALDERON —
2895
(9th Cir. 1996)
With regard:to the four new claims, the
district. court also concluded the Act required
their dismissal. - Alternatively, the district
court determined that under the prior law an
independent and- adequate state procedural
ground barred review of three of the claims,
the fourth claim was abusive and Williams
had not shown cause or prejudice or a mis-
carriage of justice to _justify- raising the
claims at this late date. As a result, the
district court. dismissed Williams’s latest peti-
tion in its entirety. The district ‘court also
denied Williams’s request for : a stay of éxecu-
tion and ‘declined | ‘to issue a certificate of
peoavle cause.
On ‘April’ 30; “1996, ‘Williams’ ‘appéaled to
this court. Williams requests ‘a certificate of
Areas
le
requests a stay” “of Ssecuion. Finally, he
moves for an order recalling’ our, mandate
that, issued following the filing « of our opinion
in Williams v. Calderon, 52 F- 3d. 1465 (9th
Cir.1995), cert. denied, - us “116
S. Ct. 937, eg L. Ed. oa 863 (1996). ae
~ DISCUSSION”
i Effect of the ‘Antiterrorism. and Effective
Death Penalty Act of. 1996:
{1] The Antiterrorism - an Effective
Death Penalty. Act was signed: ‘into law. by
President Clinton on April 24, 1996. Section
9244(b)(3)(A) of the Act provides:
Before a second or successive application
permitted by- this section is filed in the
» district. court;;the‘ applicant: shall..move in
: the appropriate: court: of appeals. for an
- oyder:authorizing the-district:court: ‘to con-
- sider-the applications:, 42. 577 :
~ The two: claims Williams filed in the dis-
trict court-on April 22,1996 were filed-before
the “Actwas signed” into: ‘law. As‘ to’ these
claims;: ‘therefore: section: 9244(b)(3)(A) would
not apply to Williams’s ease; afid no advance
approval of this court would be required to
authorize the filing of that petition: The four
claims: which; Williams, added. by his. amended
petition filed, after. enagtment, ofthe, Act: pose |
more, of -a: -problem. : We,need not, however,
adopt a. holding; in, this case that. habeas
claims - added: by. amendment, : HO. A petition
1s, De F.3d ‘at
ain alleges (1)
nce of counsel
yhases because
xin or present
‘ments, inelud-
sorder; and (2)
2d undisclosed
s codefendant,
uecessive. See
_ “{A] different —
erted to support
nced previously
round for relief
I. :
5 é/
m reviewing the
» claims unless
~ause and preju-
rriage of justice
to review them.
_ 333, 338-39, 112
Ed.2d 269 (1992).
successive claims,
> for asserting a
a new ground for
d at 524. Cause
that “some objec-
defense” impeded
2 evidence: in the
1 v. Zant, 499 US:
1469, 113 L.Ed.2d
of cause focuses on
t 498, 111 S.Ct. at
ligation to “eonduct
investigation aimed
_.. grounds for re-
sbeas petition.” Id.
he has established
ressive claim of inef-
nsel because he re-
dence which further
Je asserts: that, in
habeas petition, his
1984 to the Federal
reau) and requested
| psychiatric records
lly to capital cases, how-
lies to pending petitions.
pee OE ae
| Cite as 83 F.3d 281
while. incarcerated ‘at the Terminal Island
and Lompoc facilities; in response, the _Bu-
reau . turned over approximately 21 docu-
ments. In February 1996, his counsel again
wrote the Bureau and, requested “all rec-
ords.” He contends the: Bureau stated there
was no record Williams had been confined in
the federal prison system.. - Knowing: this.was
false, his counsel again. requested records
and, Williams contends, the Bureau then re-
leased approximately 600 pages of docu-
ments, including nurmerous medical and psy-
chiatric records. “"Williams contends | these
yecords support. his diminished capacity’ de-
fense. a oe
~ Of the approximately 600 pages, of, doeu-
ments, Williams. attached. only 84 pages as
exhibits to his petition, in. the district court.
Of. these 84 pages, many, if not most, are not
medical or psychiatric records. The attached
pages include a letter from Williams's moth-
er, presentence reports, work reports, ;a cer-
tificate -that, indicates Williams . successfully
completed ,a “transactional. analysis” class,
probation violation.,.reports, a meritorious
service award,..pages with only dates
stamped on them, and educational tests.
. Even. assuming . the Bureau failed. to. rer
lease all of: Williams’s.medical and psychiatric
reports, we conclude Williams has not dem-
onstrated cause. As his counsel ‘conceded. at
oral argument, Williams himself has known
for -years, presumably since -at least, 1984,
that more Federal Bureau of Prisons records
must have existed than those turned over. at
that time. In fact, it was Williams’s belief in
this regard that pro apted. his’ attorneys. in
1991—almost five years ago--again to seek
these records: : When they received a re-
sponse they knew to be false—“‘we have no
record of this individual,”. they did: nothing
for over four years ;.until.. February .1996.
This dilatory. approach. to. pursuing: the: rec-
ords Williams... knew. ‘must be there hardly
shows a “reasonable and diligent investiga-
tion” on his part. . e :
3, The new pages suggest Williams made a good
adjustment to prison life during his previous
- incarceration. - This fact; however; even in’com-
bination with the additional medical and psychi-
-atric:evidence the new’ pages disclose; pales: in
_ comparison: to the ‘overwhelming .evidence- of
Williams’s careful planning, methodical execu-
_ oo. WILLIAMS. v. CALDERON
287
(9th Cir. 1996)
- Moreover, the pages he now proffers re-
veal only that he. has epilepsy and he takes
dilantin for his epileptic seizures; is anxious,
angry, and antisocial; had an unstable : and
unhappy childhood; has experienced black-
outs;. has a head injury from ‘a motorcycle
accident; and has an extensive -history~.of
alcohol and drug abuse. ‘Williams. presented
similar information in his first federal peti-
tion. Simply because Williams has obtained
additional information which, minimally at
best, may corroborate his “ineffective assis-
tance claim does not constitute cause.*
_ Because .Williams has not demonstrated
cause for his successive ineffective assistance
of counsel claim, we need not consider preju-
*[8] - Williams's second claim for habeas
relief is that: he has obtained newly discover-
ed evidence which, according to him, “eonclu-
sively” establishes that the prosecutor made
a deal with his codefendant; Robert ‘T'yson.
Williams alleges that the prosecution. agreed
not to seek the death penalty. against Tyson
if Tyson agreed to testify against Williams.
- Williams raised this identical clainr in his
first federal petition. Williams, '52 F.3d: at
1474275; The‘alleged newly discovered ‘evi-
dence: consists of a declaration from Tyson’s
ex-wife, Karen Tyson; a declaration from the
prosecutor, Larry Howard; and an unsigned
declaration from Michael Sofranek; a correc-
tional officer, stating that Tyson “had agreed
to make a deal with the District Attorney to
turn state’s evidence.” 7 ee
-
Willianis makes’ no attempt to demonstrate
“cause for his failure to. obtain Howard’s déc-
laration before: this: late'date- During” his
first'federal petition, Williams deposed How-
ard because Howard was -medically- unavail-
able. to «testify: at - the evidentiary ‘hearing
before the district: : court. Williams, 817
F.Supp. at-1456 n. 10.0In Howard’s:. first
declaration before the district court, he de-
nied making such a deal.* Id. at 1456.
tion, of that plan, and the ruthless murders of his
_ three victims.. See Williams )}:52: F.3diat!1 472 n.
Pal i japoke Oe Si’ etiRE es
4.i We. also. note that: the veracity, of. the Howard
ak declaration submitted :by Williams isiquestiona-
“+ ble: dda declaration intresponse to, Williams's
it
ft
288 83 FEDERAL REPORTER, 3d SERIES
With regard to Sofranek’s declaration,
Williams asserts it was “well known” within
the sheriff's department that Tyson agreed
to testify “in exchange for favorable treat-
ment.” He gives no explanation as to why he
could not obtain this alleged information be-
fore this late date.®
‘With regard to the declaration of Karen
Tyson, Williams states he had difficulty locat-
ing her. He does not adequately explain how
Karen Tyson was not found, for years, but
then was suddenly found days before his
scheduled execution. .
We conclude Williams has failed to show
cause for failing to include in his earlier
petition the information he presents as “new-
ly discovered evidence” in this successive
petition. . Because he -has failed to’ demon-
strate cause, we need not: consider prejudice.
D, Abusive Claims rar
Williams raises-four claims: which hedid
not raise in his first federal petition. “ These
four claims are: (1) the introduction of Karen
Tyson’s testimony which ‘was allegedly
coerced, involuntary, and unreliable deprived
Williams of a fair trial; (2) the prosecutor’s
failure to reveal alleged benefits . - given, :to
Karen’ Tyson violated Williams’s due process
rights; (3) the alleged forced medication of
Williams before and during his trial and the
trial court’s failure to conduct. an inquiry into
the necessity of this medication violated
Williams’s due process rights; .and (4) the
prosecutor’s alleged failure to reveal certain
evidence violated Williams’s due process
rights. We conclude these four new claims
constitute an abuse of the writ.
[9,10]. Williams ° abuses the writ if he
raises any new claims in his ‘current’ petition
that could have been raised in his ‘first peti-
tion. McCleskey, 499 U.S. at 489, 111 S.Ct.
at 1467. Under McCleskey, the State must
second petition, Howard submitted a declaration
stating that an investigator for Williams befriend-
ed him after Howard became ill. According to
Howard, the investigator eventually presented
the declaration to Howard Arid assured him the
declaration reiterated what“Howard ‘had alteady
stated in his first deposition.-; Howard states in.
his latest declaration’ that his declaration submit-
ted by Williams incorrectly implies that he made
a deal with Robert Tyson and that he could have
specify the claim that appears for the first
time in a subsequent petition. Jd. at 494, 111
S.Ct. at 1470. If the State satisfies this
burden, Williams must demonstrate cause
and prejudice for-.failing to raise the new .
claim: in his first:‘petition or show that a
miscarriage of justice would occur if we failed
to review. the merits of the claim. Jd.
‘The State has sufficiently identified the
claims raised for the first time as part of
Williams’s amended. second petition and
Williams admits he has not previously raised
these. four claims. Therefore, our review of
the merits of: these claims is barred by the
abuse of the writ doctrine, unless Williams
can establish | cause and prejudice for failing
to assert these claims in his first petition
which he’ filed in 1989, or demonstrate a
miscarriage of justice would result if we re-
fused to review them. =
[11] Williams’s first ‘two claims rely on
the recently ‘obtained’ ‘declaration of Karen
Tyson. As discussed above, Williams has not
demonstrated cause for failing to present this
information earlier. ‘ Williams had years to
locate Karen Tyson, but did not do so until
days. before. his’ scheduled execution.
Williams does not adequately ‘explain why
Karen Tyson was not located Retore this late
date.
12) In his third esi, Williams : asserts
that. the jail staff: gave: him valium thrée:
times a day before and’ ‘during his trial.
Williams contends the trial: court was aware
that Williams was provided such medication,
but did not conduct an inquiry into the néces-
sity for it. Again, Williams offers no plausi-
ble explanation as to why he could not have
raised” this ‘“claim in ~ his first petition.
Williams does not state that he was not
aware he was given valium or that this affect
ed: his memory to such an extent that-he did
sought the death penalty for Tyson. Howard
emphasizes that he did not make such a deal
with Tyson.
5.. We also note that. Sofranek does not state how
he learned of this information. He states only
that it-was' common. knowledge: ° His statement,
therefore, amounts to HeArSHO:
not ‘realize or lea:
he had been given
[13] Williams’:
volves the Buréa
over the approxir
ments which inclu
and psychiatric 1
that in response t
eral: case worker
ments to an inves
torney’s office, but
turned over to Wi
these documents ¥
ly released by. the
that the failure to
to''the defense ‘vic
373 U:S. 83, 83'S
(1963). ~ As “discu
failed to demonstr
present this inforn
Because Willia
strate :cause for
claims he. asserts
amended second :p
er the question of
E::* Actual Innoce
“pal | Williams (
tually innocent of
tent he contends |
sentence, this clai
strate that he is
death: sentence, :”
clear and. convinci:
constitutional - err
would have found
penalty under app
505 U.S. at 336, 1
carefully. reviewec
_ Williams has not n
F, , Motion to Rec
-[15]. On April
motion to recall o
Calderon, 52 F.3d
we could rehear t
makes. this. reque
newly . discovered
* The panel unanim«
submission on the
Beautiful Violet Wells (above)
proved to be a key figure in the
weird mystery of the triple
tragedy on the western desert.
For 16 months the girl had been
a virtual prisoner, constantly
threatened with death if she did
not stay, she told the police.
what appeared to be a man’s overcoat.
I‘oster leaned down to pick up the
bundle. Straightening suddenly, the
startled officer dropped his lantern.
“Why, it’s... it’s a baby,” he stam-
mered.
Bacon recovered the lantern while
Foster clumsily lifted the coat wrapped
infant from the dead woman’s arms. The
baby was clad only in a thin night dress,
its eyes were open. One pudgy hand
closed on the deputy’s necktie, the baby
gurgled happily.
For a moment the three men were
stunned as the realization of the horrible
crime they had discovered dawned on
them. It was no part of the killer’s plan
that the first girl should escape and
summon help. He had meant to kill
them both and had left the baby to die
of exposure.
Foster turned to Bacon, “Take the
kid, will you? Here, let me have that
coat a minute.’ The officer’s eager
fingers searched the pockets. ‘There’s
something here,” he announced. “Hold
that light over this way.”
Foster spread out his find. There was
a book of lewd pictures depicting the
adventures of a comic strip character
in a Turkish harem, some cheap ruled
note paper folded double, and a post
card addressed to Jean Wells, 1068 5th
Street, San Bernardino. ;
Had this coat belonged to the killer?
Did the lewd pictures indicate they were
on the trail of a sex maniac? Was the
dead girl or her wounded companion
Jean Wells?, And to whom did the baby
belong ?
With these questions racing through
his mind, Foster turned to make a closer
examination of the dead girl. She had
been shot twice. One slug had entered
just above her left breast, the other had
torn away the flesh of her upper ab-
domen. There was a plain gold band on
the ring finger of her left hand.
[ler inexpensive dress was torn, re-
vealing the white flesh above her knees.
Her silk stockings were snagged and
her legs badly scratched. Her shoes
were scuffed and dirty.
“She must have walked quite a ways
through the sage brush,” Foster ob-
served.
“There isn’t any road comes within
a mile of here,” Bacon replied.
“We'll come back in the morning
when it’s light,’ Foster said. “Right
now we’d better get this baby to some-
one who .can take care of it.”
It was decided that Lungstrom should
remain at the ranch until the coroner’s
men could arrive.
Foster notified the dispatcher in the
sheriff’s office and asked him to call
Sheriff Emmett Shay and Undersheriff
John ‘Stocker. “TI’ll be in by the time
they get there,” he concluded.
Xefore he left the ranch, Foster
telephoned the county hospital. The
(Continued on page 86)
15
sure of that. Maybe she came with a
party of sightseers out for wild flowers.”
Foster took a powerful electric lantern
out of the car. ‘“Let’s go down in the
fields and have a look around,” he sug-
gested.
T™ THREE MEN were silent as they
crossed the fields. Finally Bacon
signalled them to stop. “She was lying
in the bottom of that wash when I found
her. I brought you this way so we
wouldn’t cut across her back trail.
The bright rays of the lantern re-
vealed a story of the girl’s desperate
attempt to reach help, Her dragging
feet had cut a plain trail through the
dry sand.
With Foster in the lead the trio
moved forward slowly. The undersher-
iff flashed his lamp from side to side.
0. E. Hawkins (with stick)
and E. E. Thompson (center)
show Deputy Coroner Doyle
(right) the body of Wells.
Ie pointed to some brownish stains on
the rocks. “She must have rested here.”
More than half a mile from the spot
where Bacon had found the girl the trail
led out of the wash and onto higher
ground.
“I don’t see how she did it,” Lung-
strom said, “shot up the way she was. It
probably took her a couple of hours.”
He scrambled up the bank after Foster.
“Yeah, she . . .” the deputy left his
sentence unfinished. An involuntary
exclamation of horror escaped his lips.
Less than ten feet away lay the body of
a second girl.
As the three men moved forward they
realized she was dead. She was older
than the injured girl Bacon had found,
her hair was coal black, and even in
death she was beautiful. In her arms
there was a tiny bundle wrapped in
HE NIGHT WIND raced down the
slopes of Cajon Pass where that
rocky gorge breaks through the
cuast range to provide a natural
gateway leading from southern Califor-
nia’s coastal plains to the Mojave desert.
Below the pass the city of San Ber-
nardino sprawled, its blazing lights re-
flected against the sky.
In the spacious living room of the
Two Bar ranch, located on the western
slope ten miles north of the city, Todd
Bacon snapped off the radio and started
for the bedroom. It was 10:15 on the
evening of May 7, 1941. Halfway across
the room he paused. Above the moaning
of the wind the rancher’s keen ears de-
tected an alien sound.
It came again, unmistakable this time.
Sound carries great distances in the thin
air of the mountain country. Some-
where off there in the fields a woman
was crying for help.
For all his sixty years the gray haired
rancher moved with surprising speed
down ‘the lane which led to the highway
below. Two. hundred yards from the
house he paused. That anguished sound
was closer now, more distinct. Bacon
left the lane and cut across a grain field.
His eyes searched the desert land ahead.
“Where are you?” he called.
There was no answer.
Methodically, the rancher searched
the area. He found her in the sandy
bottom of a dry wash. She was lying
on her side, a slender young girl in a
thin white dress. Blood gushed from
two wounds, one in her shoulder-and one
just below the rising curves of her
young breast.
Bacon dropped to his knees beside her.
She was still breathing, air bubbled hor-
ribly through the blood on her lips.
Tenderly the owner of the Two Bar
picked her up. His eyes swept the dark-
ness around him. Did those shadows
conceal the fiend who had done this ?
Twenty minutes later Bacon was ex-
plaining events which led to his grue-
some discovery. Deputies M. W. Lung-
strom and Jack Foster of San Bernar-
dino County listened intently.
An ambulance from the county hospi-
tal arrived at the ranch house and a
white coated intern hurriedly examined
the wounded girl.
Jack Foster, sharp featured veteran
of the criminal {vestigation department,
studied the girl's pale face. She couldn’t
be more than eighteen, he judged. What
terrible frenzy had prompted that vicious
shooting ?
“Tlow bad is she, Doc?”
The intern shook his head.
“How long ago do you figure she was
shot?” Lungstrom asked.
“Two, perhaps three hours ago. The
wounds had closed once, she must have
opened them trying to get help.”
The girls’ eyelids flickered, then
opened. Her lips moved. “Get... . them
. they're stile co,”
V
“Who do you mean?” Foster ques-
tioned eagerly.
The girl tried desperately to move her
lips but no sound came.
“What’s your name, who shot you?
Please try to tell us, we want to help
you, we want to find who did it.”
The girl’s eyelids closed. There was
no reply.
Lungstrom indicated the torn cloth-
ing. “Do you think she was assaulted ?”
he asked the doctor.
“It’s hard to say.”
“Keep someone with her in case she
comes to and can talk,” Foster ordered.
“We'll dig around here and see you
later.”
The ambulance roared away into the
night. Who had the girl meant by
“they”? Had there been more than one
gunman ?
“Did you find anything which might
identify her?” Lungstrom addressed his
question t» Todd Bacon.
“No, I didn’t.”
“Ever see her before?” Foster asked.
“No, she doesn’t live around here, I’m
Alfred Wells (above) blamed his
brother and sister-in-law when
the beautiful half-sister who’d
kept house for him disappeared.
On the bank of the wash lay the
body of a second girl. She was
beautiful even in death and in her
arms she held a timy bundle.
REAL DETECTIVE
REAL
wounded girl was still unconscious, Doc-
tors had ordered a blood transfusion and
were planning to operate to remove the
bullets.
N THE OFFICE of the sheriff, Foster out-
lined the results of his investigation to
date.
Emmett Shay, taciturn veteran of more
than twenty years in the sheriff’s office,
received his deputy’s report without com-
ment.
“The only thing I’m sure’ of so far,”
Foster concluded, “is that these girls were
well acquainted with the killer. Some
stranger might have forced them to walk
across the desert, but I can’t believe any
mother would knowingly carry her baby
into danger.” ! ,
“Maybe it isn’t her baby,” Stocker: 6b-
jected, te a
“T thought of that,” Foster replied, “but
the girl Bacon found said ‘they are out
there,’ she must have meant the girl and
the baby. The black haired one had a
wedding ring and the baby is probably
ers.”
Sheriff Shay hunched himself forward
in his chair, “It’s funny the killer took
the trouble to wrap that baby in his coat.”
The sheriff’s observation tied in with
Foster’s theory, that the gunman and his
victims were well known to each other.
The sheriff stood up, “Let’s check that
address on Fifth Street,” he said, “I think
it'd be a good idea if you went out to the
hospital, Stocker, Stay there, until that
girl comes to. You'd better take someone
from the county attorney’s office with you.
Her statement may crack this case.”
_ The cottage at 1068 Fifth Street was
dark when the sheriff and Foster arrived,
© one responded to their knocks. “Guess
dit have to get the neighbors up,” Shay:
said,
From a sleepy-eyed middle-aged neigh-
bor the two officers learned some startling
facts. David Raymond Wells and his dark
haired wife, Jean had lived at the Fifth
Street address for more than a year. The
Wells had an eleven-month-old baby girl,
and for the past week Mrs, Wells had
been entertaining a house guest, a younger
girl whom the neighbor thought came from
scondido, California.
“Where does the husband work?” Shay
asked.
“He’s on the late shift at the Santa Fe
shops, but he should be home by now,”
“Have you seen the girls around here
today ?”
“I saw them just before dinner. They
were getting into a Ford coupe. Mrs.
Wells was carrying the baby. There was
a man with them but I didn’t get a good
look at him.”
Shay thanked the man for his help and
apologized for the late call.
Back in the car Foster eyed his chief
speculatively. “I wonder if that guy Wells
worked tonight.”
The sheriff’s lips were grim. “We'll
check on that.” Was it possible that this
was a case of an unwanted wife and baby ?
Had a father left his own child on the
desert to die?
It didn’t take long to check the employ-
ment records at the big railroad shops.
David Wells had worked his full shift,
had punched the closing hour on the time
clock at 10:28 p.m.
VENDETTA OF LUST
(CONTINUED FROM PAGE 45)
“Maybe he got somebody else to punch
out for him,” Foster speculated. “If he
left at 10:28 he ought to be home by now.”
The sheriff turned to the payroll clerk
who had produced the nightshift records.
“Would that be possible ?”
“Tt might be,” the man admitted.
“Can you give us the names of some
other employees who worked with him or
near him tonight ?”
“Sure, he was a machinist on the num-
ber four lathe.” The clerk scribbled some-
thing on a card. “Here’s the names and
addresses of the fellows who worked on
either side of him, They can tell you if
he was here tonight.”
As Shay and Foster walked out through
the brightly lighted machine shop they no-
ticed the position of the number four
lathe. If Wells had been missing, his fel-
low workers surely would know it.
“Maybe one of these guys has a tele-
phone,” Foster suggested. “That would be
quicker.”
In the night watchman’s shack at the
main gate the sheriff thumbed quickly
through the telephone book, then dialed a
number.
David Wells had been on the job that
night. Moreover, his fellow machinist
had walked to the gate with him, had seen
him drive off in a Ford coupe.
A call to the second man whose name
was on the card produced the same infor-
mation. One thing seemed certain, David
Wells could have had no hand in the double
shooting.
The officers returned to the courthouse.
Stocker had called in to say the girl was
still unconscious, Shay sent a squad car
back to the Fifth Street address with or-
ders to search the house. “Break in if
you have to,” he said. “Talk to the neigh-
Ts again, see if you can find out whether
or not either Mr. or Mrs, Wells had@ any
relatives living here.”
T= CLOCK IN THE sheriff’s office ticked
out the minutes ... minutes a mur-
derer might be using to good advantage.
At 2:15 the call back radio in the sheriff's
office cracked to life. It was one of the
deputies who had been sent to search the
house. He reported that David Wells had
a half brother, Alfred, living at 659 King-
man Street. Through some letters the in-
vestigators had identified Jean Wells’ house
guest as 18-year-old Rose Destree, of Es-
condido.
“I know that guy Alfred Wells,” Foster
exclaimed. “He’s an ex-convict. Wait a
minute.” The deputy crossed quickly to a
row of steel filing cabinets, “Here’s his
record.
“ ‘Alfred Wells. 30 years old. 5’ 1” tall.
Weight 130. Black hair, brown eyes,
Walks with a limp. Hunchback. Last
convicted in Fullerton, California, 1934,
Robbery. Paroled out of San Quentin,
November, 1939,’ ”
The sheriff crossed the corridor to the
radio room. “Call car 7,” he told the dis-
patcher. “Tell them to ask the neighbors
if a hunchback called at the Wells place
this evening.”
A brother-in-law would fit Foster’s the-
ory as well as a husband. But if Alfred
Wells had killed his brother’s wife, where
was David Wells? Why had he failed to
return home?
The sheriff ordered a general pick-up
sent out on both Alfred and David Wells.
In a white painted high ceilinged hos-
pital room the undersheriff and Deputy
District Attorney, C. O, Thompson, sat on
the edge of their chairs and waited hope-
fully for the wounded girl to regain con-
sciousness. She had held up remarkably
well under the operation and the effects of
the anaesthetic were beginning to wear off.
Finally her eyelids fluttered and opened.
She looked around the room as though
trying to place herself in these strange
surroundings,
“We're friends who want to help. Please
try and tell us what happened.” Stocker’s
voice was low and tense.
The ‘girl stared as though she didn't
understand his words. “Jean’s dead...
isn’t she?”
Stocker nodded. “Who did it?”
“Al, came to our house... he
asked Jean to take him...
Then he shot us. . . .”
“Who's Al?”
“Alfred Wells . . .”
Little by little Stocker coaxed the com-
plete story from the suffering girl. Alfred
Wells had called at his sister-in-law’s home
around six o’clock on Wednesday evening,
He told the girls he had a job on a chicken
ranch in Cajon Pass and asked them to take
him out there. Near Devore he had di-
rected Jean Wells to drive off the road,
saying they had to walk the rest of the
Way.
Safely away from the highway the little
hunchback had charged his sister-in-law
with influencing Violet Wells, a half-sister
who had been keeping house for the ex-
convict, to leave him.
Wells forced Jean to write a note to her
husband. advising him to help Alfred find
Violet. With the note in his Possession,
Wells opened fire on both the girls.
“For a long time I didn’t know any-
thing,” the girl concluded. “When I came
to, the baby was crying. I saw a light
and I tried to get help... . You've got to
find David... . I think Al meant to kill
him too.”
When Stocker reported the girl’s state-
ment to Sheriff Shay, every available officer
was thrown into the search for the dead
woman’s husband. Rose Destree’s parents
were notified. The missing girl, Violet
Wells, was located at the home of her
mother, Mrs. Clark Davis of Escondido
and placed under police guard.
to a ranch,
AS DAWN WAS BREAKING, Stocker and
Foster drove out to Alfred Wells
home on Kingman Avenue. The front door
was open. Inside they found the bed un-
made, an extra suit hanging over the chair.
The floor’ needed sweeping and there were
unwashed dishes in the sink. “He wasn’t
a very good housekeeper,” Stocker ob-
served, “let’s see what the neighbors know.”
An. attractive, sleepy-eyed woman re-
sponded to the officer’s knock at the house
next door, “We're from the sheriff's
office,” Stocker explained. “We're looking
for Alfred Wells.”
“Tsn’t he home? He lives next door.”
“He’s not home and we have every rea-
son to believe he shot his sister-in-law
and a friend of hers tonight.”
“T saw Al last night but I didn’t notice
anything unusual. He stopped at the house
about six o'clock. His sister-in-law was
in the car with him, and another girl, He
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60 CALIFORNIA 581
WHEELER, George A., white, hanged at San Francisco, Calif,, on January 23, 188).
"San Francisco, January 23, 188)-George A, Wheeler, a native of Gorham, Me,, respectably
connected, formerly an employee of the Rogers Company Chair factory, Boston, who strangled
his sister-in-law, Adele J, Tillson, Oct. 20, 1880, was hanged today,
"Adele Tillson was a younger sister of Wheeler's wife, He became enamored of her in New
York and an unlawful intimacy followed. A child was born, His wife condoned the offense,
and continued to permit her sister to live with them, fully aware that the criminal inti-
macy between then continued, They came here in 1880 when another child was born to the
sister-in-law,
"Shortly after, a young man met Miss Tillson, admired her, proposed and was accepted. When
Wheeler learned this fact he entered his sister-in-law's room, took her in his lap, pre~
tending to joke with her, seized her by the throat and choked her to death,
"He squeezed the body into an emty Saratoga trunk, proceeded to the police station and
surrnedered, assigning as a cause that he could not see her become the wife of any man,
A series of trials followed, Every effort was made to save the man's neck, but on three
different occasions he was sentenced to death,
"At an early hour this morning a crowd of 5,000 people assembled outside of the jail. The
demand for entrance tickets was so great that the were held at $10 premium, ‘shen led from
bhe cell, wheeler evinced unexpected firmarss and helped the officers to fix the straps to
his legs, the only visible emotion being a twitching of the lips. He was attended by a
Catholic priest. Although brought up a Quaker, he signified a desire for a Catholic faith,
Being asked by the sheriff if he had anything to say, he replied: 'I forgive the worlds
may the world forgive me,' The priest extended the rucifix, which he kissed, saying:
"Jesus, unto thy hands I commend my spirit.!
"The signal was given, the trap fell, the neck was broken, and death was instantaneous, Not
a muscle in the body quivered,
"The female desire for notoriety manifested itself in this case in the person of Mrs. Strai-
ton, a divorced woman, who frequently visited Wheeler in his cell, wh insisted last night
on being married to the strangler, Wheeler expressed a willingness, but the sheriff took
measures to prevent the ceremony," NEWS, Galveston, Texas, Jan. Rl, 188) (1)/6.)
y lod by z Hoe flo as 3 i 2 x
Wiiimi, George #,, white, hanged san Francisco,
Calif. 3 KKK Jan,
\ STRANGLER'S DOOM.
The Hanging of George A. Wheeler, in,
San Francisco.
xfer Years of Legal Quibbles, the
Murderer of Adele Tillson pays
the Penalty of Mis Crime.
sae [With Portralt.] . ;
George A. Wheeler, a native of Gorham, Me., where
hie was respectably connected, formerly employed in
the Rogers Company Chair Factory in Boston; was
“hanged in San Francisco at 12:54 P. M., on Jan. 23, for
the murder of his sister in-law, Adele J. Tillson, by
strangling, In that city on Oct. 20, 1350.
Thus ends one of the most remarkable criminal
cases of the Pacific Slope. On the night of Oct. 20,
1890, Wheeler walked into the city prison and delivered
himself up, aamitting that he bad killed his sister-in-
law. The strange and horrible story he related as fol-
Juws: Ng
‘* ugeorge W. Peckham is the cause of all thistrouble.
Tre isa gambler and resides at Cisco, Placer county.
Jle was going to take my sister-in-law away from me
to-morrow and take her to Sacramento. I have had
‘trouble with my wiie. She threatened to separate
trom me. My wife and sister-in-law and J resided to-
gether for several years. My wife accused my sister-
in-law of making trouble between us. My wife has not
treated me well. T loved my sister In-law, and I am
willing to die for her and she was willing to die forme.
We were in room No, 14, No. 23 Kearney street, to-day
about 3 o'clock, and I put my right hand on her neck
und my left hand over her mouth. She strugglicd fora
fev minutes and then died. I put her dead body in her
trunk. Istayed in the room doing nothing until 10
o'clock, and then I came down here and delivered my-
self. up.”
With regard to his previous life he said:
“J have been married eleven years. I was born in
the State of Maincand am thirty-five years of age. T
have two brothers, Charics Wheeler and Jobn
Wheeler, living in Baldwinsville, Mass. My father
hvesin Portland, Me. I came to this city about six
months ago from New York, expecting to work at my
trade asan engineer. My darling Adele was as good |
ns o wile to me. More she could not have been.
Peckham met her in Cisco about six months ago when
we first came here. She was twenty ycars old. He
u>quired a strong influence over her. He came to this
city last Saturday and has been taking her to thea-
tregand other places of amusement. She told me to-
day that he was golng to Sacramento to-morrow and
that she would probably go with him. She said, ‘J
would rather die than go.’ Isaid Iwas perfectly will-
ingtodie for her. She asked me to cut her throat,
but T said I conld not hear to see her blood. She said
she was willing I should choke her. T then choked
heras described. My wife wasin the house, but did
not know anything ofthis. Iam perfectly willing to
suffer the penalty ofdeath. Iam ready to Jay down
my life for her, My wife and T have been having a
good deal of trouble. She left me a short time ago
when I was in Cisco, and we were separated for two
wecks. She returned to me about @ week or ten duys
azo. Istayed in my room Jooking over my papers
aiter I killed my sister-in-law until 1 came duwn here
to the city prison. I met Peckham at the door of ny
room this evening, but did not huve any conversation
with him.”
Wheeler told this story with the utmost self-posscs-
gion and coolness. Questioned and cross-questioned,
he never wavered from his story. Upon proceeding
to the lodging-house the oMicers opened a trunk in the
corncr ot the room, to find the body of the girl cram-
mcd into it. The head was jammed in the lower left
corner; the back was close to the front of the trunk.
Several skirts had been thrown on top ofthe bevy,
und the lid closed. A measuremert of the trunk In
which the murdered woman was packed, showed it to
be thirty-four fuches long, tweuty-one and a half
inches wide, and twelve and a haif inches in depth be-
low the shoulders where rested the tray, An autopsy
held on the body of the deccased, found that death had
resulted from strangulation.
This sensational murder led to an equally sensation-
my Hoan
—_——
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ILLIAM PAT KING. Armed Robbery DNA BOOKER, Escaped Murderess. RANK WILHELM. Alias OHN WILLIs. Alias, John Williams. .
and Escape, Rewards: Trus Detective, 4 Rewards: True Detective, $100; author- sell. Murder. Reward: Tr T Double Murder. Rewards: Trug Derec-
$100; authorities, $250. Age, 33; height, 5 ities, $50. Age, 52; height, 5 feet, 2144 inches; $100. Age, 25; height, 5 feet, 8 inches ; TIVE, $100; authorities, $100. Age, 35: height, —
feet. 5% inches; weight, 139 pounds: hair, weight, 115 pounds: hair, black and kinky; weight, 138 pounds; hair, black; eyes, brown. 5 feet, 744 inches: weight. 148 pounds; com-
dark chestnut; eyes, yellow blue slate. Dim eyes, maroon; complexion, medium light German-Filipino, could pass for Mexican. plexion, dark brown: eyes. dark brown; hair, ra
scar 1% inches long above inner vight eye. brown. Small scar on forehead: 2-inch scar When last seen Was wearing light gray black-kinky, Sear under left ear; small sear f
brow. Occupation, painter. Escaped 11-7-36. on left cheek bone. Escaped 11-21-36. Tf trousers, dark gray coat. brown felt hat and left jaw; scar on front temple and knuc ‘le ~
If located, wire Joseph E. Ragen, Warden, located, wire J. M. Sanders, Warden, Jefer- black shoes. Carries union card. Crime com- of left middle finger. Occupation, chauffeur. a
Ulnois State Renitentiary, Johet, Ill. son City, Mo. mitted 11-23-36, 7/ located, wire Capt. H. J. Badly wante.. Dangerous. Use caution in ©
Wallis, Department of Police, Los Angeles, attempting arrest: known to carry 45 suto-
9. Kl : Calif. matic pistol. Tf located ..:- JO -Pawns <j
F.P.C, F. Chief of Harbor | olice, Gulfport, Miss
Cs (OY 14 U 0 oO
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THE LINE-UP IS A FREE PUBLIC SERVICE IMPORTANT NOTICE
Five dollars js paid for each Photograph used in Tur Lixe-Ue. “Screen” photos. metal Renders of True Detective asta tae pessessing authentic with nation concerning ty nd picts in
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Mark Wilkins was hanged at San Quen-
tin Prison, California, on Friday, January 12,
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1912. This account was first published the 4
next day in The San Francisco Bulletin.
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GOWAN LIBRARY, 1936
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3 Y and presently we are going up the gradual | under the condemned corridor I see many eyes
at ascent through the prison grounds to the War- | and shadowy striped figures. And over there
or den’s office. Striped figures are passing by the ~ ot to the right, in a big room where hundreds of
bday \ road that runs along the wall. In front of the ‘ men sleep, there are groups of striped figures
o> ae entrance to the prison yard there is a small 4 at each window, looking over one another’s
Ef group of men, most of them in overcoats and +4» shoulders. : —_
t slouch hats. As we descend we see Warden ' }* I notice the prison smell, pungent, disagree-
b ted Hoyle coming up the road from the direction ‘ able, the smell of disinfectants.
hee | of his house. He looks very tall and erect. His We walk down a flight of steps and find our-
ah Smooth-shaven face is ruddy with health. He selves between two tall buildings. Then we
ptt N | smiles pleasantly. “Is there any chance of a mount a long iron stairway. _We enter a big
h reprieve?” someone asks. He says, “No.” bare-looking room and pass into another big
Be Sy room, where several thick ropes are holding
s) | ll great iron weights. I look quickly around in
, | ° search of the scaffold. But I see none. Direct-
ly in front of me stand two large iron doors.
east We stroll down to the crowd in front of the r
| Through the narrow slit between them I can see
f entrance. They are the invited guests, sheriffs, ;
i politicians, newspaper writers and a few curi- | figures moving. It is beyond those doors that
j osity-seekers. They are talking and laughing the scaffold stands. A young man near me,
| and making introductions. “These people act with a round, pink face, seems to be turning
- blue. About me there are several faces that
as if they were going to a vaudeville show,” I
hear someone say. I wonder how they really look like cream. I hear one man ask another
how he feels. The reply comes quick and
eo feel. Some of them look troubled. One has . Ss.
Peed sunk into a seat, apparently resting for the short: “All right.
a¢ i ordeal. I glance at my watch. It is seven minutes of
; | Soon a line of men draws out of the crowd. ten.
itd We fall into the procession. The men are I take a long breath and I feel easier. I
Bois 4 ‘ holding up their white cards of invitation. As begin to talk with a man beside me. Some-
ae { we pass the guard he greets us genially. We one says that, after all, the hanging will not
Bris walk through the tunnel leading to the yard. take place till half past ten. The Warden, it
& There are few people about. Three guards stand is suggested, may have put it off in the hope
be, A on the porch of the office and across the yard of a reprieve at the last moment. I notice
{ that all the windows in the room are closed. I
there is a group of striped men. I glance at the
. | row of condemned cells. I can see only one
face peering through the lattice. Many of the
cells seem to be empty. I recall hearing that
go out for fresh air and with several others
I stand at the head of the iron staircase.
Beyond stretch the prison buildings of rough
balconies and stair-
a when a man is hanged at San Quentin the other brick, with frail-looking iron
Bs ™ | prisoners are locked up. I wonder if such can 4 . cases. I catch a curiously mingled suggestion
Lad | be the case to-day. Someone explains that of antique grandeur, of rough construction, an
pe. only the outside men are in their cells, the of whitewash. The whole prison seems to be
| construction gang mainly. The men in the jute _ at peace. A guard far below is leaning against
mill are working. In that lower tier of cells the wall, seemingly without care.
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HANGING MARK WILKINS
—
A Description of
an Execution at
San Quentin Prison
BY
_ JOHN D. BARRY
PRICE FIVE CENTS
THE MONADNOCK PUBLISHING COMPANY
318 MONADNOCK BUILDING
SAN FRANCISCO
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- { We expect to find a vehicle at Green Brae.
_ But we are disappointed. So _ we decide to
walk along the muddy road. We have plenty
ae, | of time. It is only a little past nine and,
ye a | according to announcement, the hanging will not
' take place till ten. Over the bay hangs a thick
mist. Mount Tamalpais has disappeared. One
of our group speaks of the fitness of the
weather for the occasion. He mentions other
hangings. He has seen several. “Your first
experience?” he asks me. I nod my head and
I say: “I hope it will be my last.” -
A “Tt will be the last hanging in California,” he
; prophesies.
We have a bright spirit among Us. He tells
oe wt stories. He makes jokes. But_our talk goes
} : back to hanging. That line of Kipling’s comes
org: 4 into my mind: “For they’re hanging Danny
, | Deever in the morning.” Presently we march
| in single file, over a dry path. For a long.
| time no one speaks. That cheerful voice calls
out: “Say, we haven’t had the funeral yet.”
ey | We make another effort to talk.
h?. 4 o- | Meanwhile we are nearing the boundaries of
4 San Quentin. A heavy team comes along, drawn
Rie | by two horses. On it sit four striped figures.
One of them is slouching in the front seat, with
j a the reins dangling from his hands. He looks at
: — oo pe ee | us with sleepy interest. Those men do-not seem
bod | : ! depressed.
} We glance up at the graveyard on the hillside.
. | “There’s where he’s going to-day,” says a voice.
mf | “ * But we see no signs of a new-made grave.
stage comes along the road. It passes us and
then turns and _ follows. The driver invites us
to step in. We climb the steps in the rear
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We grow used to the situation. For a few
minutes we talk about Wilkins. One of the
describe hangings that have
I wish that he
That line is
guards begins to
taken place here in his time.
would speak of something else.
coming back, “For we’re hanging Danny Deever
in the morning.” I wonder what Wilkins is
doing at this moment and how he is feeling.
Someone is telling a funny story. We all
listen and laugh. We are a very friendly group.
That young man whose pink face was turning
blue is leaning against the railing. His face is
less blue now. But I can see that he wishes
it were over.
At last the word comes that we are to go
in. When we reach the room where those
thick ropes are hanging we find that the iron
doors have been opened. Slowly we follow the
guard. Just behind one of the doors we see
a coffin, covered with a black cloth. We group
ourselves around the slim green scaffold. That
pink-faced young man is becoming blue again.
From the narrow door behind the scaffold
Warden Hoyle appears. He is less erect and
less ruddy. He starts to walk up the steps
of the scaffold. Behind him come two priests,
one in middle life, the other young, in long
black cassocks and white lace surplices. Each
carries a prayer book in his hand. One is
reading aloud. Now the other reads aloud.
Behind them walks a dignified old man, with
a deep-lined, smooth face and white _ hair,
wearing a gray suit, with loose collar. He is
supporting a thin little man, with a spare figure,
dressed in black, without necktie or collar, and
with a face like yellow wax. The little man is
moving his lips. As he mounts the scaffold I
see that his arms are pinioned. He looks meek.
He reminds me of a frightened canary. He is
responding to the prayers of the priests. They
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reciting names of saints. “Pray for me,”
little man keeps repeating. As he steps on
scaffold he looks at the dangling. rope, at
face of the Warden, at the crowd. The
‘The older
of the two priests stands in the centre, with the
other priest at his right. Each priest clutches
the railing with one hand, holding his book in
the other.
“Holy Mary,”
“Pray for me.”
“Holy Mother of God.”
“Pray for me.”
The old man binds a narrow black belt
across the little man’s ankles. He puts the
noose over the head. He draws it around the
neck into a thick knot at the base of the skull.
“St. Gabriel,”
“Pray for me.”
The old man starts to press a black hood over
the head. It catches at the nose. He pulls it
down firmly. It hangs loose about the neck.
“All ye holy angels and arch-angels,”
The response comes from ‘under the hood:
“Pray for me.”
The old man is raising his hand. The trap
falls, swings out and catches. The little black
figure is frantically dangling, with the hood lean-
ing to one side. The old man seizes the rope
and holds it tightly. The figure does not stir.
IV.
Two young men run forward. One quickly
opens the vest and tears the white shirt over the
heart. _ The ends of two rubber tubes he puts
into his ears. He listens for the heart beat.
The other young man snatches a pencil from his
vest pocket. He sees that it has a broken point.
Impatiently he throws it on the ground. He
snatches another pencil and begins to write.
“St. Peter,”
are
the
the
the
white-haired man remains at his side.
a
ay
alli aah laa a Ni
| 111 PACIFIC 612 (See)
WILKINS, Merk A., white, 62, hanged San Quentin (Alameda) on January 13, 1912.
"San Francisco, Dal., Nove 26, 1907-The police at Oakland yesterday uncovered a most dia-
bolical murder and have taken into custody M. A. Wilkins, a stationery engineer, and will
charge him with the murder of his wife, whose remains were found buried in quicklime un-
derneath a shed in the yard of the Wilkins home in Elmhurst, a suburb of Oakland. Mrs.
Wilkins had not been seen around her home by the neighbors for several days. It was
known that she had given birth to a child and inquiries regarding her by the neighbors
elicited the response from Wilkins that she had gone to the home of her parents in the
east.
"A friend of the dead woman, Mrs. J. M. Anderson, of San Francisco, had been staying at the
Wilkins house for the past few days, and now asserts that Wilkins hed endeavored to per-=
suade her to leave her husband and go away with him. Her suspicions became eroused, and
the night before, in a dream, she saw the body of her former friend lying on the ground,
with the arms crossed over the breast. She came to San Frencisco and told her husband of
the strange incident and the two went to the chief of police of Oakland and told the story.
The case was given into the hands of Sheriff Barnet, of Alameda County, and he, with De-
tective Kyle of Oakland, went to the home of the Wilkins, in Elmhurst, and found the
body in a trench under an old carpet in the shed. It was lyigg just ad described by Mrs.
Anderson, with the hands folded across the breast.
"Wilkins was taken into custody later, and after being taken to the Alameda jail he
first said that his wife had committed suicide. ‘ater he said that she hed died during
childbirth and he had buried the body to save funeral expenses. He told several stories
and then refused to talk. Mrs. Anderson told the officers that she was awakened from the
dream by Wilkins, who was standing over her with a knife in his hand. When she asked
what he meant, he replied that she had been talking wildly in her sleep. He put away the
knife and asked her to take a drink of water. She sipped some of the water, but did not
swallow it, suspecting that it had been poisoned. This proved to be the fact. Wilkins
is 50 years of age and hes always borne e good reputation." JOURNAL, Atlanta, GA, Nov.
26, 1907 (1/7.)
: ' i
a = a iS i” pron :
J ss ee i" oe . ‘pine alae Sin
S sae SY eb seme dated a
Yee
atk
Gree. .
os ; 4
|
+
'
“Pray for him.”
«St, Paul,’
“Pray for him.” |
the scaffold, with the exception
The men on
down the narrow
of the priests, are coming do ;
steps.
The ‘one
doctors keep busy, one listening,
. . f
we watch in silence. jj
The crowd breaks see |
Warden Hoyle standing near by. I
to him.
“The worst of all,” he says:
before and a few days after. ;
affold stands the white-haired
kindly face 1S haggard. He
Near him is 4 tall, striped figure, .
“3 a few days
“He kept his nerve
Warden Hoyle is saying:
came out he was
Just before we
9
“confession.”
Warden shakes his “Up to the end he
said that he He used to tell
me that if he had anything, to confess he would
confess it in my p
he a Catholic before he came here?”
speaks of
Someone
head.
a chicken hanging on a hook in a market window.
The feet are small, like a woman's.
covered with black felt
torn shirt I can see the white skin.
The people about me are talking rapidly.
“St, Mary ”
“Pray for him.” ;
Quietly the priests gO On with their litany.
No one seems to pay attention. It is the little
body that is interesting. The two doctors are sti
absorbed over 1 Though it seems a lifeless
10
, keeps writing.’
They are »
slippers. Through the |
scary ri :
pe am
Ss anand bs Sorgen
eee
—_
——= BR Tc Re eee on
thing, there is still life.
One of the doctors
Near me there is a slight confusion. Something
has happened.
The crowd parts and I see a
young man held by his arms and legs, his face
gray, his brown eyes open.
him out.
4 .
and, crossing themselves, come —
steps.
over.
Quietly they carry
+ For a quarter of an hour we stand i
| quar ; watchin
and talking. The priests finish ‘their hea?
down
One of the doctors turns away.
the
It is
nes ge ake a
Pe
~y
LECTURES
. BY | Ye
JOHN D. BARRY
=
THE CRIME OF CAPITAL
PUNISHMENT
TOLSTOY AS MAN AND WRITER
THE THEATER OF TO-DAY
THE NEW DEMOCRACY
For dates and terms address
1. E. SHUSTER
PN er eas hieciesel man ee _ :
— a cen Shad. or roy
GREE ITIL
—
cenansetees, Alle
Cr
: ae
ara
Sm h ne
Re
be SBN
e
ff
Pa poe
iy hae
ti es
eet f
»
fre
“2 f. ae)
“Son _ Cutts June 14.1 ;
Rainey
5.950 0 M—The execution of. Frank s
_ likelihood of
Ee Rie eee o : sci clemency be extended at this late bear Sete, :
pe | atl. The hangiag Of Frask Willard, convicted of the murder a Sheriff
J. H. Smith, takes place at 10: 50 today at the San Quentin | prison.
Tnformation was, received several days ago that there would be no
‘
spot aly
2; Binkley John Site ae ahd R. R.
a Lucas are among those who. joumeyed to San Quentin: this! morning t to.
Stir Sees
s, | was necessary to have : another jadge
1 other than Judge White upresiding at|
_....| the time and the. appearance of Judge f=
“2. | Sayre to- preside. tomorrow’ will be}
\the first opportunity - offered to pass{
ibe issued by the: -auperior court to-
“I tence of death passed "upon him...
a ae It is probable- -his | order -would
WILLARD, Frank, white, 13,
on June boas ant
We
1g da ade Sa: vans: peer will
|
‘morrow for the tetern :of Hzank © Wil-
lard’ trom San Quenti2- to “have » ae
‘have been issued. “before this,’ ‘bat it
upon the Willard - case..* Should an
order be issued ‘tomorrow the services
to pass sentence and~ when that can
be - secured. ‘cannot: be. paid... It is
probable, -. “however, . that - sentence
Py are paals:.
hanged San Quentin (Mendocino)
aot ae
MAY TRY TO save®*
‘FRANK WILLARD'S NECK
!
Last aide! s city papers “|
(ined the. following reg ar ding the |
aN government, 4 inte : rank |
Willard: OBBO Fe . So
:7, Because Frank Willard, ‘ aatanoed |
to be hanged. on ‘May 16th, is a half
Indian ward of the Government, the
' United States Attorney General has
‘requested United States District At-
torney Robert T. Devlin to make af
- yeport as to his trial and conviction
for the murder of Sheriff Smith of |
- Mendocino county. -.
The attention of the Attorney Gan:
eral was brought to the matter by a
- geahool teacher at the. Indian reserva-
- tion, who was of the opinion that
' Willard’s conviction was due to the
great popularity of the murdered
official and the consequent prejudice
against his slayer.
. An effort will be made to procure
@ re-examination of the doomed man |
regarding his sanity, with a view to
placing him in an asylum. , If he is
found to bea sane at present, the
Governor will be asked to commute
breed Indian and. thereby. rated as an }
_, directed to intargede: ‘for. bim—Ex rea
Hee the sentence. Mecptute l, Masco csed
ane pie ara tty1107
‘WILLARD’S SANITY.
ATTESTED BY JURY
“Bob ‘Duncan,’ Ménansiue! coeunle s
a ceackesjab “district . attorney, has
won another! ‘victory in the Willard
4 CASE: '- After: ‘running the
twice- “On > -the. Willard’ case he was
_ ‘ealledto San Rafael this week to ap-
_, pear'on’ behalf cf. the people,, as’ the
“Mr. Duncan: appeared and fought
- | for, Mendocino county: and” the people
of an outside judge will _be required —jand in just five minutes the jury. re-|
turned * with va: rwerdict that ‘Willard |
WEB: gan i awben: he: :took ~ Sheriffs |
‘Smith's 2ife., aes eat Governcr. Gillett or
a and juatioxvingl icated;?
oe sat OS li le Feet FR aE
.gauntlet| —
. United:States district attorney want-
# ed the sanity of. Willard inquired into. |’
wilt be passed. upon - ‘Willgra within ccmiggs President: ‘Roosevelt do: not: ‘interfere
La ee the next week. P peat
xT ‘ONINDOW AVATYI a — nna
-{ jury in the superior: court on May-72.
fact for Willard. : pe ape LS
»
ws)
REHEARING DENIED IN
2 FRANK WILLARD GASe|
i Ateonaors Cacother’: and Peach
‘received word Tuesday that their ap-
‘plication for a rehearing in the-case
of Frank Willard bad been denied on
Monday. This - evidéntly exhausts
the resources of the defense and ‘the
| present indications are that Willard.
_ lwill pay the, penalty: ar agreth ‘by
|g
Real FRANK WIL
Frank. Witlacd, the indian ehosie £3
now in-San Guantia awaiting .execn-|? -
tion for the murder of Sheriff Smith Vs
of Mendocino county, is to: be-~tried.
by a jury to determine his “sanity..||'-
At the request of Warden Edgar,- Dis-
trict Attorney Boyd of Marin county,’
| yesterday took charge of the- case,-
which will come up before’ a. special |*':
United States- ‘Attorney Devlin will. =
| tion of the Federal - dutHor ritiea.- “ak .
; Washington and on the ‘grounds. that 5 s
' Willard was a’ ward. of. the nation: a sis
United States Attorney: - Devlin’: was
~
B
=}
®
-
DS eaca Sree
SPN IR hey Dar PA
a
a “eek a
ea |
ba! 3 3 .
2
WILLARD ile
TANG rv r
. Smith’s litve Murderer Is|
é _, Once More Before: the
pee ~ Court
S Prank Willard, ‘the half- breed de
ate who sped the bullet that cut
short: Sheriff J. H..Smith’s span of
life and who made ‘an: attempt that
-of Superior. ‘Judge. White, - appeured
in the superior ‘court: -at 10 o’clock
Wednesday morning and heard Judge
Seawell, | of Santa: _Rosa, make the
torder that - theif mer: order of the
-!gourt be executed
: The date bef the
execution was seti.at. May 16th.
his Lhe ceremony: attending: the sen-
“|tencing was brief. and was witnessed
by. probably :a: hundred’ ‘spectators.
District Attorney. Duncan read to the
court the history: of the case az it ap-
peared on the: court ‘documents: and
“| when he had finished Attorney T. Ih.
..; Carothers arose and: stated to the
“!court that the attorneys for the de-
fense had received. a communication
from U.S. Attorney Devlin stating
that. the: Attorney General of the
United States bad requested Devlin
to at once take soms action in the
case, and Willard’s attorneys desired
that the date of execution be put at
a date late enough to allow any ex-
_{amination-that might~ be desired to
be made. In compliance wjth this
request Judge: Seawell selected the
[date mamed. pest See
“There is. some. no alatien aa. to
the purport of the. injection. of the
U..S. Attorney General into the case.
holds that the: prisoner should not
have: been held: to answer for his
crime. Fj IRI
It is the culation! rt that the in-
quiry or investigation to be made by
eat} the U. S. Attorney: General, should be
one be made, will avail nothing and
that the prisoner will pay the penalty
for his crime on the date: selected by
oo Seawell.
-It is also soasible that Willard
may be looked upon in the light of
being a ward of the government on
the ground that he. has maintained
‘}tribal relations- with Teservation
, Indians. ats on
vs 3
be ee _—e
During the stuciebiiies in sourt
{Willard appeared to take no more
than a passing interest in what. -was
“|going on. He was smooth shaven and
-.sispick and span in a new epring suit
“land stiff hat. During his prison life
‘|}he bas gained considerably in flesh
“land those: acquainted with him ‘Bay
‘|that he is heavier than for years.”
Sheriff Donohoe and Thos. toriali
brought Willard up from San Quentin
an Tuesday night and Tom Binkley ac-
companied Sheriff Donohoe when’: the
prisoner was returned to the peni-
tentiary. Wednesday afternoon. Bert
“|Miller. and Thos. Lynch guarded
| Willard ia the county jail here Tuee-
was. all but. successful upon the life}
: i banged , ahecay the 16th, but abiey
2 “ counsel: ‘of. the doomed. man time: to
./I¢ ‘appears that: the: ‘cause of. that}.
+l officer’s move is the fact that Willard
“Thad. been adjudged insane just prior
“jto his committing the homicide and|
‘Ithe government official evidently |’
xe _ insanity of the prisoner. Ever siace
oe his incarceration Willard’s relatives,
dal, -bave made’ repeated efforts to
A
county: ‘The wood question ‘is’, get-
~ and keep,’’ so the bunch will be put,
—~ to work at:onces.. Since the order has |
Lise ca VASP rich an we. (84 Seaci ea cit a eRe S
Type cacy
WILLA iD) Is ‘GRANTED
ee
e “Last. Wodnesday - Governor
| granted Frank Willard, the murderer
fat: Sheriff. Smith, a nese of fitteen
kof execution. was granted to give the
“present additional ‘ evidence of. the
‘especially his sister, Mrs. Frank Tin-
ihave him freed. Mrs. Tindall has
[written pathetic appeals to the Gover-
| mor. > She states. that. Willard was
injured ina. runaway when a& boy and
‘that since that time he baa been out
of his: head, and’ that:‘ he frequently ne
oaimitted acts of. violence~ on * his
owns ‘family.'~ ‘Rev: ‘Ms. J... Walsh,. a
/Catholic’ priest, has also aided in the
effort’ tg: fiea® ‘Willard: “District }At-
~ ‘torney.: ‘Duncan ‘ wrote.” ‘the: Governer
that y Willard ‘w ‘one. of. thé: worst
criminala? in th states and : should
@* “,. 1£2 nothing: eles
' {defeat * ‘justice « then,
-Willara wilt hang: on: ma ‘Bist. Reine
eae oe ah 5
“het The gi ott supervisors ce de
cided’ ta: pat all the county: boarders
to ‘work chepping’**‘wood - forthe
ting to be quite w problem and the
~- supervisors thought the criminal ele-
ment might as well.earn their ‘‘board
gone’ out: everyone of the ‘‘birds’’
has = complained] of ‘being ‘sickz and
bas“ sent’ for: Dr. § Littchild. - The}
3 Doc is.on': to: his job however,” andj °
“will'soon ‘put thonr in condition to
poi reprieve’ of. ‘two- weeks in or-
der - thatthe attorneys, may ‘satisfy
then. on ‘June: '14th«unless the Gover-
nor is again’ hypnotized into delaying
the matters; This cage has been post-’
‘poned’ anough, ‘and it is hoped that:
the. ‘Governor: ‘will get: onto. himeelf
of dustic
at Eh fy: Pa
Gillett No given Willara
themselves. ¢ ‘ea sto~ sthe- sanity ‘of thet”
fiend. The; Sexecution will take place}
and quit’ interfering ‘with the course |.
te ra a rey
3 announced ‘exclusively - in: the
) EMeuatoh. of Inst week, Frank. Willard
{must pag - the penalty for bia cruel
2. : crime on. the gallows. . The. Supreme
; court: : last - Friday © morning . banded
ee dict of the lower court.
Willard ig still fresh in the minds.of
xyis+4Mendocino county people. On De-
i ; Gember 22,.1905, Willard was arrest-
Rk Eee ener ed on the charge of insanity and was
: 24 pg taker to Superior Judge - White’s
‘amination had just concluded, the
. physicians, attermeys and a handful
‘of spectators had barely left the room
- wher Willard aizo attempted to leave.
In answer. to Sheriff Smith’s ‘remon-
“strance Willard wheeled around and
”> fired a shot that crashed through that
popular. official’s- throat and neck,.
©. fired another shot at Superior Judge
White that- barely missed his honor,
and then: made good his escape. from
the court house.
aS A i of ‘citizens: hastily armed with all
he sc —‘gorta of weapons, Willard was. cap-
4 , j tured a mile and one-half from town
_ and returned to the county jail. On
~~ his return hé narrowly escaped lynch-
MAing at the hands of infuriated cit-
izens, who had by this time become
aware of. the awful deed commnittnd
; by the demon. ‘
_ 4%, The same. afternoon Willara was
* hustled ont to the asylum. After
remaining there thirteen days Wil-
~ lard, of his own volition, petitioned
~ .the superior court fora writ of ha-
~, beas corpus from the asylam on the
| petition was granted and Willard was
at once placed on trial for murder.
His defense was made on the fact
that he had just been committed and
therefore wasirresponsible. The tes-
timony at the trial, however, went to
, shaw that while irrational to an ex-
tent: Willard was capable ‘ot knowing)
right from wrong, and farther that
: GS murder was in a way premeditat-
_ ‘The result of the trial was that
te was convicted of murder in
ithe first degree and was sentenced to
-be hanged. The triai took place be-
fore Judge Barnett in this city... +:
4; The case was appealed by Willard’s
2S SES
a
ne ~ attorneys,’ but the higher comt held}.
that: at: theriplea of: irresponsibility ;, on)
gee by. the-defendant- was ‘not. gus-
downs decision sustaining the. jver-7
““\yThe horrible crime coaiadteea” ee
hambers to be examined, The ex-|
4 After an exciting chases by @ poses :
© i ground that he was not insane. The}.
_ tained by thevesidenoe,:and the j jars’ 8
verdict ‘was Bustained. -: te
* ‘Willard-will’ ave _ to be brought
4 bok to ‘Ukiah to: be::re-sentenced to
* death. a °This‘must take place within
thirty days trom: the .time -jndgment
was confirmed by the supreme court,
and the date’ ‘of his execution must be
within, thirty: ‘daya ‘from. ee time of
“passing sentence::
©
upon to pay.the legal penalty of as |
~ wanton murder as was ever. committ- | i
_ That Willard will have: ca Jast inun a s
Y than two months-before he ‘ is called |
an see innidee ee ortega pe tees apne ses
nee type Bet ge nite +, 1. Se
d in ‘this’ county - will be received
with> satisfaction~-on' every side.
[Sheriff Smith was one of the most
/popular men ‘that ever filled “the
sberiff’s office; and the crael crime
that robbed him of his life will be
far from being expiated when the
_' worthless. neck of its perpetrator is
~~ stretched at the. — ie tbe hempen
Cortese Pea ;
ET ern eee Pee eee ae ee pa ere
i nee teeth ent eae eet eae oe =
tte te tr tree San Francisco Chronicle AlY
CONTINUED FROM THE FRONT PAGE
Keith Daniel
Williams killed
three people
near Merced
over a $1,500
Plymouth
same lethal combination on Febru-
ary 23.
He had no last words.
Williams spent most of the day
with his defense lawyers and his
spiritual adviser, the Rev. Marga-
ret Harrell from the United
Church of Christ in Marin County,
who remained with him until he
entered the execution chamber.
As the hours passed, the in-
mate, a devout Catholic, seemed to
have achieved a certain peace
about his fate. “He is very comfort-
able, smiling and relaxed,” said
prison spokeswoman Christine
May shortly before he was moved
to a “death watch” cell,
Williams said goodbye to his
family a week ago, and no relatives
witnessed the execution, May said.
While the condemned man
spent his last hours relatively qui-
etly, prison officials and the news
media were engaged in a separate
legal battle over whether the pub-
lic and reporters could witness the
entire lethal injection procedure.
On Wednesday, U.S. District
Judge Vaughn Walker ruled in fa-
vor of two media advocacy groups
that complained they were able to
see only the last stages of Bonin’s
execution, when the lethal chemi-
Triple Murderer Dies By Injection
cals began to flow through his
veins.
Walker said the public is enti-
tled to see the entire process —
from at least the time the tubes
and needles are injected into an
inmate’s arm until shortly after he
is declared dead.
The state spent most of yester-
day pursuing appeals to try to
overturn the judge’s order, argu-
ing that opening up the entire exe-
cution process would jeopardize
the safety of prison staff members,
whose identities are kept secret.
But both the U.S. Court of Appeals
and the U.S. Supreme Court de-
_hied the state’s request.
While legal documents were
being faxed back and forth across
the country, San Quentin Prison
was eerily quiet, the prisoners un-
der lockdown since 12:01 a.m. yes-
terday.
Williams was moved at 6 p.m. to
a “death watch” cell, just a few
steps from the lethal injection
chamber. There he met with his
spiritual adviser and shared with
her his final meal: fried pork
chops, baked potato, asparagus,
French bread with butter, salad
with blue cheese dressing, and ap-
ple pie with vanilla ice cream. He
also requested one glass of milk.
Williams had committed the
murders on October 8, 1978, as he
tried to back out of a deal to buy
Miguel Vargas’ Plymouth Road-
runner car for $1,500. Williams and
his friend Robert Tyson went to
Vargas’ farmhouse to steal back
the check he had given him and
Williams shot the two men execu-
tion style. Then he and Tyson
drove Meza to a field several miles
Evidsy 5-3-7
LIA/THE CHRONICLE
‘Pamela Hines (left) and Janice Gray, both married to inmates on
death row, comforted each other outside San Quentin
away. Williams repeatedly raped
her during the drive and even
while he shot her four times, ac-
cording to authorities. However,
he was acquitted of rape because
the body was too decomposed to
support the charges.
In his defense, his attorneys say
that Williams had an incompetent
trial lawyer because he failed to
raise evidence at the penalty phase
that his client suffered a mental
illness at the time he committed
the murders,
But on April 25, Governor Pete
Wilson denied Williams’ request
for clemency, and the following
day the California Supreme Court
refused to hear his appeal. Federal
courts also failed to find any mis-
carriage of justice.
In a show of mercy, 10 relatives
of Williams’ three victims signed
statements asking the governor to
reduce the inmate’s death sen-
tence to life in prison without the
possibility of parole. The daughter
of Salvador Vargas was among
those who asked that Williams’ life
be spared.
“If you execute him it will not
bring my father back,” Maria del
Refugio said.
But others, including the son of
Miguel Vargas, said he was a cold,
brutal murderer who deserved his
punishment. “He should have been
dead a long time ago,” Miguel Var-
gas Jr. told the Merced Sun Star.
Fv-Call- - ee ©
U.S. Supreme Court
denied fina] appeal
By Harriet Chiang,
Fagan and Henry K. Lee
Chronicle Staff Writers
Kevin
three People he barely knew ina
dispute over a $1,500 used car,
Williams, 48, was the fourth in-
| Mate to be executed in California
|
since the death penalty was rein.
Stated in 1977, and the Second to
die by lethal injection.
He was Pronounced dead at
12:08 a.m., six minutes after a le-
thal mixture of three powerful
drugs began to flow through his
veins.
His execution came after his
lawyers unsuccessfully had pur-
|
EXECUTION:
From Pagel
about inserting the needles in each
arm, a process that some Observers
found Strange because they associ-
ated it with Saving a life, not end-
_ ing one.
+ As the process began, Williams
raised his head slightly and looked
to the left corner of the room to.
ward his lawyer Kathy Kelly, who
was quietly Crying, and a Spiritual
adviser,
After the technicians inserted
a needle into his left arm, they put
Williams was Sentenced to die
for the 1978 murders of Miguel
Vargas, 29; Vargas’ Cousin, Salva-
dor Vargas, 43: and V:
Williams was executed ess
than three months after “Freeway
Killer” William Bonin died by the
Mexico Ex-Governor Tied
To Cover-Up of Killings
By The New York Times
MEXICO CITY, April 23 — An
investigation by the Mexican Su-
preme Court released today found
that the former Governor and sev-
eral officials of the state of Guerrero
tried to cover up the killing of 17 poor
farmers by police last June.
The court also said the former
Governor, Ruben Figueroa Alcocer,
had violated the peasants’ rights by
ordering that they be kept from at-
tending an anti-government rally.
Federal and state authorities will
decide whether to bring charges.
President Ernesto Zedillo used a
clause of the Mexican constitution
last month to ask the justices to
intervene in the case. Their report
contradicts the findings of a special
prosecutor that had exonerated Mr.
Figueroa, who resigned in March,
from any responsibility for the mas-
sacre or the attempt to cover up.
A videotape of the episode was
doctored and offered by Mr. Figue-
roa as proof that peasants attacked
first. But witnesses saw the police
plant weapons on dead peasants.
Suspects in Tourist Deaths
Battle Egypt Police; 6 Die
ASYUT, Egypt, April 23 (AP) —
Egyptian police fought a gun battle
today with Islamic militants they
said were responsible for killing 18
Greek tourists last week.
Two men believed by the police to
have participated in the killing of the
tourists were killed in the battle in
southern Egypt. Four police officers
died and 14 others were wounded.
The Islamic Group, the largest or-
ganization involved in a violent four-
year campaign to replace Egypt’s
secular Government with an Islamic
one, has claimed responsibility for
the attack on the tourists.
Maj. Gen. Gamal Fayegq, head of
police forces in the south, and his
brother, Lieut. Col. Magdi Fayeq,
were among the police killed, the
ministry said.
Leader of Reign of Terror
Is Dying, Cambodia Says
PHNOM PENH, Cambodia, April
23 (AP) — The Cambodian Govern-
ment says Pol Pot, the Khmer Rouge
leader whose reign of terror left pos-
sibly more than one million people
dead in the mid-1970’s, may be termi-
nally ill and near death.
King Norodom Sihanouk, in Paris
for an official visit, told France-Info
Radio today that Mr. Pol Pot, be-
lieved to be in his 60’s, is dying. The
king did not say what the ailment
was.
The report brought rejoicing from
many Cambodians. ‘‘Praise God for
agreeing to kill him,’ said Mam
Chien, who lost six brothers and sis-
ters during the Khmer Rouge’s rule,
from 1975 to 1978.
Mr. Pol Pot, whose real name is
Saloth Sar, is still believed to be
directing a stubborn Khmer Rouge
insurgency against the Government
elected in Cambodia three years ago.
He led the Khmer Rouge forces
that overwhelmed the American-
backed Lon Nol Government in April
1975. As the leader of the so-called
Democratic Kampuchea, he emptied
the cities and turned Cambodia into a
labor camp in an effort to create an
agrarian utopia.
AusTrRAtiA |
Syd man, Morn+r§ Herod 13: “at Thursday, April 18, 1996
EAST TIMOR .
UN urged to investigate ‘torture’ photos
By CRAIG SKEHAN ee 3 ; : . {> =e, R
in Canberra bi eos. Pad
my
t
Graphic photographs pur-
porting to show the torture and
burial of East Timorese dissi-
dents by the Indonesian mili-
tary have been passed to the
United Nations for investigation
by a leader of the Timorese
independence movement, Mr
Jose Ramos-Horta.
“We are prepared to accept
an investigation to ascertain
whether these things hap-
pened,” Mr Ramos-Horta said
by telephone from Geneva.
He said the photographs had
been sent to representatives of
the independence movement
from a person living in the
Ainaro district about 100 kilo-
metres from the capital of East
Timor, Dili.
They were given to Mr
Ramos-Horta as Special Repre-
sentative of the National Coun-
cil of Maubere Resistance
(CNRM), an umbreila body
linking East Timorese indepen-
dence groups.
The call for a UN investiga-
tion into the claims has been
supported by the Australia—
based East Timor Human
Rights Centre which also
received copies of the photo-
graphs from East Timor.
A spokeswoman for the cen-
tre, Ms Maria Brett, yesterday
backed the call for a full
investigation of the photographs,
and said her organisation would
send them to Amnesty Interna-
tional in London. “Our people
have studied the photographs
closely and it is our belief they
are genuine,” she said.
Asked if the centre was 100 per
cent Satisfied the pictures were
genuine, Ms Brett replied: “I
would not use the words 100 per
cent, but we have very reliable
sources in East Timor and we can
rely on those sources.”
The photographs appear to
show young Timorese men
bound hand-and-foot and blind-
folded being interrogated and
tortured, in one case with an
electric prod. Another picture
shows several young men in a
shallow grave with a military
officer shovelling in dirt.
The photographs were
ay) po Ge oe
B ¢ ae
at
The photographs passed to the UN: above, the alleged torture of Timorese prisoners by Indonesian troops,
one said to be holding an electric prod, and below, soldiers shovelling dirt onto corpses in a shallow grave.
released as the Minister for
Foreign Affairs, Mr Alexander
Downer, made his first visit to
Indonesia where he discussed
human rights in East Timor
along with other issues.
While the authenticity of the
photographs is in question, Mr
Ramos-Horta said he believed
they were genuine and that
checks with sources in East
Timor during the past few days
had indicated the pictures were
taken in the Ainaro district
early last year.
A priest who had worked in
the area had told him he
thought he recognised some of
the young men in the photo-
graphs as having been from the
area, but he could not make a
positive identification because
the men were blindfolded.
“My own information is that
the photographs were taken in
January last year in the Ainaro
district,” Mr Ramos-Horta
said. Pro-independence protests
and a sit-in at the United States
Embassy in Jakarta during a
conference of the Asia Pacific
Economic Cooperation group
had resulted in detentions
throughout Timor.
“Particularly in Ainaro,
there were many interrogations
and much suffering,” he said.
Begause of the continuing
crackdown by the Indonesian
military in the area, it had not
been possible to contact the
source of the photographs to get
more detailed information.
Mr Ramos-Horta was yester-
day accompanying four East
Timorese who are giving evidence
to the United Nations Human
Rights Commission in Geneva,
including one man who will show
scars which allegedly resulted
from Indonesian soldiers nailing
his feet to wooden planks.
Mr Ramos-Horta said the
photographs had been given to
the Portuguese Government
and the European Union, as
well as specialist UN agencies,
for further investigation.
A we Stata ail ATE, oR aC UGE ah Ft ib tte Fad
snips, pM yh SUM IO il BOs ap Ai ag A ra ho A RIGO EE ces oe et hie
THR $-2-%
SAN FRANCISCO EXAMINER
Court refuses
to block
execution of murderer
Keith Daniel -
Willams to die by
lethal injection at |
minute past midnight
By Sam Stanton
SCRIPPS-MCCLATCHY NEWS SERVICE
Barring a last-minute court or-
der, Thursday morning’s sunrise
was the last one for 48-year-old
Keith Daniel Williams.
Williams, who has been on San
Quentin Prison’s death row since
being convicted of the 1978 slay-
ings of three people near Merced, is
scheduled to die by lethal injection
one minute after midnight Friday.
The 9th U.S. Circuit Court of
Appeals in San Francisco refused
Wednesday to block the execution,
ruling that Williams’ lawyers had
not justified their failure to obtain
records of his mental illness earlier
and had not shown that the evi-
NEXT IN LINE ON DEATH ROW rr
> BERNARD LEE HAMILTON: Con-
victed in San Diego in 1981 for killing a
woman who had recently given birth,
cutting off her hands and feet and
making incisions in her stomach.
> JATURUN SIRIPONGS: Sentenced
to death in 1983 for robbing and mur-
dering a Thai couple who ran a mar-
ket in Orange County.
Examiner staff report
There are currently 366 men and four women on California's death row. These
are the three who, because of the advanced stage of their appeals, appear to
be next in line for execution after convicted killer Keith Daniel Williams:
> MELVIN MEFFREY WADE: San
Bernardino County man convicted of
torturing and killing his. 10-year-old
stepdaughter over a 22-hour period in
1981. The court found that Wade
punched the girl, slammed her head
through a wall, locked her in a duffel
bag and attempted to hang her from
the wall using a dog collar. In court,
Wade pleaded insanity, but was ruled
sane by the jury.
dence could have changed the ju-
ry’s verdict.
The ruling was issued by a
three-judge panel. An 11-judge
panel could rehear the case if or-
dered by a majority vote of the
entire court. Williams’ only further
appeal would be to the U.S. Su-
preme Court.
Also Wednesday, U.S. District
Judge Vaughn Walker told state
corrections officials to make more
of the execution visible to wit-
nesses, including the media. The
ruling stemmed from complaints
that the state’s only previous lethal
injection execution Feb. 23 was
conducted under tight secrecy.
Witnesses and reporters were not
permitted to see the condemned
inmate, William George Bonin,
walk into the chamber or be at-
tached to the execution device.
Prison officials didn’t divulge
until after his death that they had
experienced difficulty in getting an
intravenous line into his arm.
There could be similar problems
with Williams because court docu-
ments show that he was a drug
abuser. Heavy users of intravenous
narcotics often have damaged their
veins to the extent that prison offi-
cials experience difficulties in ad-
ministering lethal injections.
Williams was convicted of mur-
dering dairy workers Miguel Var-:
gas, 29, and his cousin, Salvador
Vargas, 40, at a Merced farmhouse
in October 1978. Prosecutors said
he killed them while stealing a bad
check for $1,500 that he had given
to Miguel Vargas for a car. He also
was convicted of murdering Miguel
Vargas’ pregnant girlfriend, .
Local Court Drops Case
Against Po lish Ex-Leader
GDANSK, Poland, April 25 (Reu-
ters) — A _ provincial court in
Gdansk, saying it lacked jurisdiction,
Gen. Wojciech Jaruzelski over the
shooting deaths of 44 protesters by
security forces in 1970, when General
Jaruzelski was Defense Minister.
The judge ruled in favor_of Gen-
eral Jaruzelski’s appeal that, since
he had been charged among other
things with infringing the constitu-
tion, the court had no authority and
he could only be tried by Poland’s
State Tribunal.
“A common court cannot rule on a
matter of infringing the constitu- -
tion,” the judge, _Wlodzimierz
Brazewicz, said. ‘‘In such cases only
the State Tribunal can decide.”
_The shootings occurred during
anti-Communist protests in Gdansk
dropped proceedings today against and other cities.
i
The trial began last month after
long delays caused by disputes béy
tween civil and military courts over
jurisdiction.
The judge ruled that another of the
accused, Kazimierz Switala, » who
was then Interior Minister, also had
to be tried before the State Tribunal.
For General Jaruzelski, 72, to go
before the State Tribunal, the Parlia;.
ment would have to vote for him to,
be tried. The legislature is dominat:
ed by his former Communist Party.
colleagues, now members of the Sor;
cial Democratic party. ~ , ;
The trial of 10 other men, mainly
former police and army officers ac-,
cused of instigating the shootings, is
to continue in | Gdansk,
THE NEW YORK TIMES INTERNATIONAL FRIDAY, APRIL 26, 1996
Spanish Premier Clear in Basque Deaths
By The New York Times
MADRID, April 25 — A Supreme
Court judge investigating charges
that Spanish death squads carried
out assassinations of Basque sepa-
ratists in the 1980’s has found noth-
ing to link the squads to outgoing
Prime Minister Felipe Gonzalez,
Spanish newspapers ‘Teported to-
day.
The newspapers, citing court of-
ficials,. said that the judge,
Eduardo Moner, was expected to
produce a writ no later than Mon-
day discarding testimony against
Mr. Gonzalez. Such a writ would
end the possibility that Mr. Gonza-
lez would lose his parliamentary
immunity and be brought before
the Supreme Court’s penal section
for interrogation.
The ruling, however, came too
late to save Mr. Gonzalez’s job as
Prime Minister. The political furor
over the shadowy death squads,
who have been blamed for at least
27 killings from 1983 to 1987, was
one of the reasons Mr. Gonzalez
was forced to call early elections,
_ which his,Socialist Party lost to the
Ruling in death
squad investigation
comes too late to
save Premier’s job.
conservative opposition. Prime
Minister-designate José Maria Az-
nar is nearing the completion of
negotiations to form a majority
coalition, and is expected to be
sworn in as Prime Minister soon.
But Mr. Gonzalez, who remains
in Parliament and at the head of
the Socialist Party, is expected to
use the Supreme Court judge’s rul-
ing in an effort to rebuild his politi-
_ cal stature and prepare for the
next elections.
The Prime Minister’s office and
the Popular Party declined to com-
ment on Judge Moner’s findings,
saying it was premature until a
writ had been issued.
The death squads were formed
to stem the wave of killings by the
Basque separatist group, ETA,
which has waged a violent cam-
paign since 1968 for an independ-
ent homeland in northern Spain. -
More than a dozen former police
officers and Government officials
have been implicated or tried on
charges related to the killings.
Some said the operation’s master-
minds were at the highest levels in
Madrid, and a former Government
official, Ricardo Garcia Dambor-
. enea, testified against Mr. Gonza-
lez. "ed
Spanish newspapers also report-
ed today that Judge Moner found
no -proof of involvement in the
death squads by former Deputy
Prime Minister Narcis Serra and a
Socialist Party official, José Maria
Benegas.
The highest figure implicated,
former Interior Minister José Bar-
rionuevo, remains under indict-
ment. Congress voted last Novem-
ber to remove his parliamentary
immunity, paving the way for a
Supreme Court interrogation,
which is pending.
Sue
y News
witnesses
CA MERCI R
opened to
TOS. e
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execution
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Mercury News Wire Services
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See EXECUTION, Back Page
“freeway kill-
‘was the state's
serted into Wil-
njection.
y did during the Feb. 23
Quentin of
er” William Bonin. Bonin’
first execution b
die at 12:01 a.m.
g three people durin
appeals court re-
1978 robbery in Merced County.
y to stop the execution of
y lethal i
, a federal
Meanwhile
fused Wednesda
| Williams, who is set to
Friday for murderin
Williams
Ss
past
judge in San . |
d that witnesses mus
t be
njection
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“Dan-
while
killer Keith
plete lethal j
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r state prison officials from drawin
SAN FRANCISC
rancisco has rule
next execution sch
midnight . toni
F
U.S. District Jud
process for condemned
ba
allowed to see the com
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4
_| curtains to. block witnesses’ view
Full execution process |
opened to witnesses;
@ EXECUTION
Srom Page 1A
Williams, 48, of Lodi was con-
victed of killing dairy workers
Miguel Vargas, 29, and his cousin,
Salvador Vargas, 40, at a Merced
farmhouse in October 1978. Pros-
ecutors said he killed them while
stealing a bad $1,500 check he
had given Miguel Vargas for a
car.
He also was convicted of mur-
dering Miguel Vargas’: pregnant
girlfriend, Lourdes Meza, 24,
whose body was found near Sono-
ra, about 50 miles away.
His first appeal, rejected by
state and federal courts, claimed
his trial lawyer was incompetent
for failing to obtain any of his
medical records and for introduc-
ing psychiatric testimony that
portrayed:him as a bigot who was
likely to kill again.
With the execution date ap-
proaching, Williams’ lawyers said
they obtained 595 pages of medi-
cal records that federal prison of-
ficials had withheld since 1984,
when the records were first re-
quested. Based on his psychiatric
treatment both inside and outside
prison since 1969, the documents
showed that he suffered from ep-
ileptic seizures and a manic-
depressive condition, responded
' well to medication and could be-
' have in prison, defense lawyers
said.
Argument rejected
But the appeals court said Wil-
liams’ lawyers had failed to
. prove that the records could not
have been obtained earlier and
presented in his first appeal.
In a decision Wednesday on
witnessing the execution, Walker
said prison rules imposed in Feb-
ruary for California’s first execu-
tion by lethal injection — remov-
ing a curtain just before lethal
chemicals start to flow into a
San J OS
prisoner's body — appear to vio-
late the public’s constitutional
right to watch an execution.
Reporters and members of ‘the
public who saw Bonin put"to |
death were allowed to see “the
condemned killer only after he
was lying motionless, strapped to
a gurney, with IV lines already
attached to his body. Later, pris-
on officials described his ‘last
words, how he walked into the
chamber and was strapped down,
and the difficulty a staff member
had in inserting a needle. .<" ¢
The San Jose Mercury News’ is
among the news organizations |
with representatives scheduled to, |
wait Str
ie Et
witness Williams’ execution. ~
Pool-reporter idea
A state lawyer, who had. ar-
gued that the restrictions were
needed to protect prison guards,
asked Walker whether officials
could comply with his order by |
excluding all journalists except.a
single pool reporter. ‘a3
Walker said he couldn't. an-
swer, but he noted that state law,
which allows at least 12 invited
members of the public to attend
executions, does not mention,the
news media. He also said the war-
den could require reporters to
promise not to reveal guards’
identities. ead
Appeal is possible a
4
The state also could ask the 9th
US. Circuit Court of Appeals. to
overturn Walker's injunction...
Any attempt to exclude the
news media would be challenged
as illegal retaliation, attorney Da-
vid Fried, who represented the
California First Amendment Co-
alition, a group of professional
associations and news organiza-
tions, told reporters after the rul-
ing. _
“It wasn’t until the 19th centu- ,
ry that executions were moved
out of public squares,” Fried said.
$ —-2- GE |
cA eR ey Vlews
% > ee ie
Ison ote appara tingsn athe nen nm ia
4-24 Ie
~ China quashes resolution
ton human-rights violations
REUTERS
GENEVA — China yesterday
-”
quashed a critical draft resolution .
by the U.N. Human Rights Commis- ©
sion expressing concern over con-
tinuing reports of violations of fun-
damental freedoms. It was the sixth
year in a row that China managed to
avert censure at the United Nations’
main rights forum, which will end
its annual six-week meeting Friday
after examining violations world-
wide. 3
John Shattuck, U.S. assistant sec-
retary for human rights, accused
China of an “all-out global cam-
paign” to intimidate the 53-member
group and thus avoid scrutiny of its
“abysmal record.”
Shattuck criticized Russia for ab-
staining in the vote on a Chinese
motion to halt all debate, and he
also expressed deep disappointment
- with India and Pakistan for backing
Beijing. Phila Taguirer
1998 California Supreme Court
Pr ay a =
CALIFORNIA
would have at least argued that evidence at the sanity phase.
Instead, he assumed that because the jury had rejected the dimin-
ished capacity defense it would automatically reject the insanity
defense. As he explained to the court before waiving argument at
the sanity phase: “[Y]esterday I argued to the jury as an analogy
that the world was round, that the earth was round. And to now
go before them in the sanity phase and ask them to believe that,
well, if it isn’t round, would you consider that it may be oval, I
think would be wasted on this jury.”
Given counsel’s unprofessional guilt phase argument, his com-
plete silence at the sanity phase cannot be justified on the ground
that he “reasonably could have deemed it unnecessary or unwise
to repeat those matters” pertaining to the insanity issue that were
argued at the guilt phase (maj. opn., ante, at p. —, fn. 8 [typed opn.
at p. 16, fn. 8]). In the face of testimony by three experts (including
a prosecution expert) strongly supporting the theory that defendant
lacked substantial capacity to conform his conduct to the require-
ments of the law as the result of a mental disease or defect, compe-
tent counsel would have attempted to explain to the jury how it
could find defendant insane even if it had rejected the diminished
capacity defense. Competent counsel probably also would have
explained what defendant’s fate would be if found insane. Compe-
tent counsel would not have simply assumed that the jury’s guilty
verdict rendered any such efforts hopeless.
If defendant had a chance of escaping the death penalty after
counsel’s argument against him at the guilt phase and his silence
at the sanity phase, counsel did little to save him at penalty closing.
His argument started off well enough, pleading, as the majority
observe, for “a continued existence until death” (maj. opn., ante,
‘at p. —[typed opn. at p. 32]). Counsel’s final words to the jury,
however, seriously undermined his earlier “reasonable and tactical
[argument], aimed at gaining the jury’s sympathy for defendant”
(maj. opn., ante, at p. — [typed opn. at p. 32]). Counsel concluded
as follows: “I just want to conclude with, considering the disorder,
the emotional disturbance that the evidence has suggested to you
by way of the physicians in this case and the psychologists, I don’t
think that Melvin Wade, Melvin Meffery Wade, can actually, can
be said to lose this case. [1] As has been expressed to me by Melvin
on many occasions, he can’t live with that beast from within any
longer and if in your wisdom you think the appropriate punishment
- is death, you may be also giving an escape once again by analogy
the gift of life to Melvin Meffery Wade to be free from this horror
that he and only he knows so well.”
To the extent such an argument is directed at “gaining the jury’s
sympathy for defendant,” it does so only by commending him to
death. A defense attorney who argues death as “an escape” and “the
gift of life” for his client is not an adversary of the prosecution.
Rather, he comes very close to being exactly what counsel told the
jury he was not: a second prosecutor. Instead of endeavoring to
assure that the jury fully comprehended the awesome nature of
their life-or-death determination, counsel offered the jurors an
excuse for executing defendant, effectively minimizing their sense
of responsibility for the consequences of rendering a death verdict.
I cannot imagine a reasonable tactical purpose to justify such an
argument.
To paraphrase Justice Mosk, the “conclusion is inescapable that
counsel’s [argument] was neither ‘effective’ nor ‘assistance’ in any
sense of those terms. Under these circumstances counsel’s actions
deprived defendant of his constitutional right to counsel.” (People
v. McKenzie, supra, 34 Cal.3d at p. 637.) The denial of that right
requires reversal of the judgment. (Strickland v. Washington (1 984)
466 U.S. 668, 692; People v. Cronic, supra, 466 US. at pp.
656-659.)
Cite as 88 C.D.O.S. 1998 7
THE PEOPLE, Plaintiff and Respondent, v.
.———=» KEITH DANIEL WILLIAMS, Defendant and
~ Appellant.
Crim. No. 20911
Super.Ct.No. 9660
Cheated 5-3-6
In re KEITH DANIEL WILLIAMS on Habeas
Corpus.
Crim. No. 23904
In the Supreme Court of the State of California
County of Merced; FRETZ, Judge
Counsel: Richard B. Mazer for Appellant. Joel Carey, Department
of Justice, Office of the Attorney General for Respondent.
Filed March 24, 1988
EAGLESON, J.:
A jury convicted Keith Daniel Williams of three count of first
degree murder (Pen. Code, §§ 187, 189)! with special circum-
stances (§ 190.2) and use of a firearm (§ 12022.5). The same jury
found that he was sane during the commission of the offenses and
determined that death was the appropriate penalty for each offense
(§ 190). This appeal is automatic (§ 1239). A petition for writ of
habeas corpus was filed in conjunction with the appeal, and an
order to show cause issued thereon. Upon careful examination of
each of defendant’s numerous arguments, we find no prejudicial
error and affirm the conviction. We also conclude that appellant
has failed to establish either on the basis of the appellate record or
by evidence offered in support of his petition for writ of habeas cor-
pus that his trial counsel failed to provide constitutionally adequate
representation. We shall therefore affirm the judgment of convic-
tion, as modified to reflect a single multiple-murder special circum-
stance, and penalty. The petition for writ of habeas corpus will be
denied:
Defendant was charged by information in count I with the mur-
der of Miguel Vargas. The information alleged that the killing was
willful, deliberate, and premeditated; was committed with express
malice during the commission of robbery (§ 211); and that defen-
dant used a firearm in committing the offense. It was also alleged
that three special circumstances existed in that defendant also mur-
dered Salvador Vargas and Lourdes Meza, and committed the mur-
der of Miguel Vargas willfully with deliberation and premeditation
during a robbery. The jury found each allegation to be true.
In count Ii defendant was charged with the murder of Salvador
Vargas. The additional allegations differed only in the first special
circumstance, that charging also the murder of Miguel Vargas.
Again the jury found each allegation to be true.
Count III charged defendant with the willful, deliberate and pre-
meditated murder of Lourdes Meza, alleging that this murder had
been committed with express malice and during the commission
of robbery, kidnapping (§ 207), and rape (§ 261), with use of a fire-
arm. The four special circumstances alleged were that defendant
also murdered Miguel and Salvador Vargas, and committed the
murder of Lourdes Meza during a rape and.a kidnapping. The jury
found that the offense did not occur during a rape, rejected the rape
special circumstance, and otherwise found the allegations of count
III to be true.
In a multifaceted attack on the conviction and sentence which
we summarize here and address in detail below, defendant argues
that the trial court erroneously admitted evidence of his prior crim-
inal record and other criminal conduct; that lay opinion evidence
was admitted erroneously; and that he received constitutionally
inadequate assistance by his appointed counsel during the guilt,
sanity, and penalty phases of the trial.2 He also argues that he was
improperly charged with and convicted of more than one
“multiple-murder” special circumstance, and that the robbery and
kidnapping special circumstances must be set side because he was
not separately charged with and convicted of those offenses.
~ In his attack on the finding that he was sane at the time of the
commission of the offense, defendant claims that the court’s
“instructions to the jury were confusing and erroneous. As to the
penalty trial he alleges that he was prejudiced by prosecutorial mis-
1AIl references to code sections are to the Penal Code unless otherwise indi-
cated. .
2Evidence outside the record on appeal was introduced in the habeas corpus
proceeding in support of this claim. Reference will be made to this evidence where
appropriate in the sections of this opinion dealing with the appeal. The habeas
corpus petition will be separately treated in this opinion.
as
me
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DAILY OPINION SERVICE
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California Supreme Court.
1999
conduct; that the court’s instructions were not adequate; that error
occurred in the appointment of psychiatrists and in permitting the
jury to consider various evidence admitted during the guilt and
sanity phases of the trial; that the trial court erred in declining to
modify the penalty; and that the death penalty is disproportionate
as a matter of law. In addition he argues that the 1977 death penalty
law, under which he was tried, convicted, and sentenced, is uncon-
stitutional under the Eighth and Fourteenth Amendments to the
United States Constitution.
GUILT PHASE EVIDENCE
With the exception of conflicting evidence as to the quantity of
alcohol and drugs defendant had consumed and its possible effect
on his mental state at the time of the homicides, the evidence is
essentially undisputed. The events leading up to and most relevant
to the homicides commenced during the latter half of September
1978 when defendant and Robert Tyson (hereafter identified as
Tyson) stole a .22 Beretta pistol and several other items from their
employer of one week, Terry Judd, in Corning. On Saturday, Sep-
tember 30, 1978, they robbed a couple who had parked their
camper in the John Street Park in Modesto, taking from them the
camper and its contents. After the robbery they drove the camper
to the Tyson residence near Galt where the contents were removed.
Some were sold on Sunday. On Monday, October 2, appellant
drove the camper to the area of Lake Camanche and burned it.
Tyson and Karen Tyson (hereafter identified as Karen) accompa-
nied him in another vehicle.
Among the items in the camper was a checkbook. The other valu-
ables taken from the camper were kept at the Tyson residence and
offered for sale there at a yard sale conducted by Karen over the
four-day period from October 4 through October 7. Miguel Vargas.
and Lourdes Meza, who lived with Miguel on a dairy ranch near
Merced, attended the yard sale on Friday, October 6. Notwith-
standing their limited English and defendant’s limited Spanish,
defendant conveyed to Miguel an interest in purchasing Miguel’s
car. Defendant road-tested the car and noted that the registration
was in the glove compartment. No purchase was agreed upon at
that time. Defendant told Tyson and Karen that it would have been
easy to load Miguel and Lourdes into the trunk of the car and take
them to a field. e
Miguel and Lourdes returned to the Tyson home on Saturday
and completed the sale. Defendant paid for the car with a $1,500
check written on one of the checks stolen earlier in the Modesto
robbery. Defendant took possession of the car, but Miguel retained
possession of the registration slip with the understanding that it
would be turned over to defendant when the check cleared on Mon-
day. Defendant gave Miguel a receipt for the car. Later that day
Miguel returned to the Tyson home and offered to buy the Beretta
from defendant. At that time Miguel displayed a “wad” of bills
from which he proposed to make payment. Defendant noted that
Miguel had the check in his shirt pocket. -
On Sunday, October 8, defendant and Tyson drove to the home
which Miguel and Lourdes shared with Miguel’s cousin Salvador
Vargas. Their purpose was to rob, and they had discussed killing
Miguel and Lourdes. Defendant intended to take the money he had
seen in Miguel’s possession, and to take any other items that might
be pawned. He also planned to obtain the registration slip and to
retrieve both the check and the receipt defendant had given for the
car. Defendant, armed with the fully loaded 10-shot Beretta, and
Tyson, armed with a 9-shot semiautomatic .22 Storm-Luger pistol,
arrived at the Vargas home in the early evening only to find a com-
plicating factor—guests were visiting. Leaving their weapons in the
car they joined the group in the house: Miguel, Lourdes, and their
three visitors. Salvador had retired to an upstairs bedroom as he
was scheduled to work at 11 p.m. Defendant spoke of the car’s
excellent performance and mileage, assured Miguel that the check
which Miguel still had in his pocket was good, and said he would
meet Miguel at the bank on Monday to help him cash the check.
The visitors soon departed. Defendant and Tyson returned to
their car where they retrieved their guns. Miguel had again
expressed interest in purchasing the Beretta. When they reentered
defendant held the Beretta at Miguel’s neck. Miguel thought he was
joking and Tyson pulled defendant’s arm away, explaining to
defendant later that his own gun was not loaded, and that he had
seen Salvador on the second floor. Defendant then suggested they
all go out together for a drink, but Miguel declined because he had
to work. Tyson proposed that he and defendant get some beer and
bring it to the house. Defendant left with Tyson.
Tyson testified that he had hoped defendant would abandon his
plan once they left the house, but defendant did not do so. Rather,
he told Tyson that he “wanted to take him out right then.” Defen-
dant then outlined his scheme telling Tyson that Tyson was to make
Miguel lie down while defendant took care of Salvador upstairs.
The pair then returned to the Vargas house. Miguel opened the
door. Miguel again believed defendant was joking when defendant
ordered him to lie down, but he did so when Tyson repeated the
command. Defendant ran up the stairs where he yelled at Salvador
and Lourdes to be quiet. He then directed Tyson to bring Miguel
upstairs. When Tyson did so he saw Salvador lying on the floor.
Defendant ordered Miguel into a bedroom and told him to lie
down. He then directed Tyson to take Lourdes downstairs and
shoot her. Tyson took her to a downstairs bedroom. He heard
defendant threaten to shoot Miguel and Salvador if they did not
tell him where their money was. He then heard four shots.
Defendant described the homicides in his testimony on
cross-examination, acknowledging both that the purpose of the trip
to Merced had been to rob Miguel and Lourdes, and that he had
discussed killing them. He shot Miguel, after hollering at him about
the money, when Miguel turned with a gun and lunged at defen-
dant. Miguel did not point his gun at defendant and seemed to be
trying to escape. Although other evidence established that the
bodies of Miguel and Salvador were found inside the room and had
been shot in the location where found, defendant testified that he
shot Miguel at the door to the bedroom, and then shot Salvador
as Salvador began crawling as if to enter the bedroom. He shot Sal-
vador twice in the head and then shot Miguel, who was moving,
a second time. He then took the gun that Miguel still held in his
hand, as well as the check and receipt for the auto which were in
Miguel’s shirt pocket, and a second gun that was under a pillow on
the bed.
Defendant ordered Tyson upstairs to view the bodies telling
Tyson the carnage occurred because Tyson had disobeyed defen-
dant’s order to disarm Miguel. Defendant took Lourdes’s wallet
from a kitchen table, and left the house with Tyson and Lourdes.
He testified that he drove to an unpopulated area near Sonora for
the purpose of killing Lourdes. On the way defendant had inter-
course with her. Tyson remained in the car while defendant took
her into a field saying that he only wanted to have intercourse with
her again. There, in the early morning hours of Monday, October
9, 1978, he shot her four times. When he returned to the car he said
to Tyson: “I f. . .d her. . . and I killed [her]. I love to kill.” He
then ordered Tyson to retrieve some beer cans Tyson had thrown
out of the car so there would be no fingerprints.
The bodies of Miguel and Salvador were discovered on Monday
‘morning. Tyson surrendered on October 13, 1978, and led authori-
ties to the location near Sonora where the body of Lourdes was
found. Defendant was arrested in Arizona in late November and
returned to Merced for trial. While in custody in Arizona he con-
fessed.
The defense was diminished capacity resulting primarily from
a prolonged course of drug and alcohol abuse. Defendant’s mother
described symptoms of illness suffered by defendant in his early
childhood which she believed were indicative of epilepsy. She testi-
fied that he also suffered a head injury when he was 15 which caused
a concussion and unconsciousness. After his marriage he drank
heavily, and in 1972 she became aware of his use of drugs, includ-
ing mescaline, “acid,” marijuana, and “speed.” In October 1978 she
found three or four needles and a burned spoon in her home in
Corning where defendant had been staying in September during her
absence.
Defendant corroborated his mother’s testimony regarding his
use of alcohol and controlled substances. He began drinking alco-
holic beverages when he was 14 or 15 years old, consuming them
whenever the opportunity presented itself. His consumption
increased when he left his mother’s home at age 19. He drank what-
ae
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DAILY OPINION SERVICE
2001
California Supreme Court
uncharged offense is among the statutory exceptions to the rule that
all relevant evidence is admissible. (Evid. Code, § 351.) As charac-
ter evidence in the form of evidence of specific instances of unlaw-
ful conduct it is made inadmissible to prove the defendant’s
conduct on the instance of the charged offense by subdivision (a)
of Evidence Code section 1101. Subdivision (b) of that section pro-
vides a limited basis for admission, however: “Nothing in this sec-
tion prohibits the admission of evidence that a person committed
a crime, civil wrong, or other act when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident) other than his disposi-
tion to commit such acts.” Even when admissible, evidence of prior
criminal conduct must be subjected to special scrutiny to insure
that its probative value outweighs the prejudice inherent in the pos-
sibility that a jury may consider uncharged criminal conduct as evi-
dence of the defendant’s propensity to commit crimes. (Evid. Code,
§ 352; People v. Schader (1969) 71 Cal.2d 761, 772.)
The considerations governing admission of evidence of
uncharged crimes were examined in People v. Thompson (1980)
27 Cal.3d 303, 314-316. “The admission of any evidence that
involves crimes other than those for which a defendant is being
tried has a ‘highly inflammatory and prejudicial effect’ on the trier
of fact. This court has repeatedly warned that the admissibility of
this type of evidence must be ‘scrutinized with great care.’ ‘[A]
closely reasoned analysis’ of: the pertinent factors must be
undertaken before a determination can be made of its admissibil-
ity.
“Evidence of an uncharged offense is usually sought to be admit-
ted as ‘evidence that, if found to be true, proves a fact from which
an inference of another fact may be drawn.’ (See CALJIC No. 2.00
(1979 Revision) (4th ed. 1979).) As with other types of circumstan-
tial evidence, its admissibility depends upon three principal fac-
tors: (1) the materiality of the fact sought to be proved or
disproved; (2) the tendency of the uncharged crime to prove or dis-
prove the material fact; and (3) the existence of any rule or policy
requiring the exclusion of relevant evidence. [Citation.]
“In order to satisfy the requirement of materiality, the fact
sought to be proved may be either an ultimate fact in the proceed-
ing or an intermediate fact ‘from which such ultimate fact[] may
be presumed or inferred.’ [Citation.] Further, the ultimate fact to
be proved must be ‘actually in dispute.’ [Citation.] If an accused
has not ‘actually placed that [ultimate fact] in issue,’ evidence of
uncharged offenses may not be admitted to prove it. (People v.
Thomas (1978) 20 Cal.3d 457, 467; see also People v. Antick (1975)
15 Cal.3d 79, 93; . . .) The fact that an accused has pleaded not
guilty is not sufficient to place the elements of the crime charged
against him ‘in. issue.’ (People v. Schader (1969) 71 .Cal.2d 761,
775-776, fn. 13.)
“In ascertaining whether evidence of other crimes has a tendency
to prove the material fact, the court must first determine whether
or not the uncharged offense serves ‘logically, naturally, and by rea-
sonable inference’ to establish that fact. [Citations.] The court
‘must look behind the label describing the kind of similarity or rela-
tion between the [uncharged] offense and the charged offense; it
must examine the precise elements of similarity between the
offenses with respect to the issue for which the evidence is proffered
and satisfy itself that each link of the chain of inference between
the former and the latter is reasonably strong.’ [Citation.] If the
connection between the uncharged offense and the ultimate fact in
dispute is not clear, the evidence should be excluded. [Citations.]”
(Emphasis in original, fns. omitted.)
With these guidelines in mind, we examine the specific items of
evidence to which this claim is directed.
A. The Judd Theft.
Terry Judd testified that on Saturday afternoon, September 30,
he noticed that his Beretta semiautomatic, a rifle, a pellet gun, a
router, a hammer, and a reciprocating saw were missing from the
shed in his shop area. The objection was to the relevancy of the evi-
dence to an issue in the trial.4 Although the objection did not spec-
“Counsel stated: “Your Honor, I’m going to object to that question upon the
grounds of relevancy, unless he relates it to some issue in this trial.”
ify that, as prior crimes evidence, the theft was inadmissible under
Evidence Code sections 352 and 1101, subdivision (b), unless it sat-
isfied the admissibility criteria summarized in Thompson, supra,
27 Cal.3d 303, we believe that it was sufficiently specific to encom-
pass a Thompson objection, i.e., that the People were offering evi-
dence of uncharged criminal conduct by the defendant, that
defendant had not put in issue any element of the offense or issue
necessary to the People’s case-in-chief to which that crime was rele-
vant, and that any relevance the evidence might have if admissible
was outweighed by its inherently prejudicial nature.
A verdict may not be set aside on the basis of the erroneous
admission of evidence, even if prejudicial, unless the party assert-
ing error has preserved the question by a timely and specific objec-
tion to the admission of the evidence, or by a motion to strike or
exclude the evidence. (Evid. Code, § 353; People v. Green (1980)
27 Cal.3d 1, 22, fn. 8; see also People v. Collie (1981) 30 Cal.3d
43, 49, fn. 1.) A general objection on grounds of. relevancy is not
adequate to preserve an issue with respect to admission of
other-crimes evidence for appeal. (People v. McDaniel (1976) 16
Cal.3d 156, 176.) If the defendant objects that the evidence to be
offered will show the commission of an uncharged offense, the Peo-
ple bear the burden of demonstrating admissibility. (People v.
Schader, supra, 71 Cal.2d 761, 772, fn. 4.) While no particular form
of objection is required (People v. Gibson (1976) 56 Cal.App.3d
119, 137), the objection must be made in such a way as to alert the
trial court to the nature of the anticipated evidence and the basis
on which exclusion is sought, and to afford the People an opportu-
nity to establish its admissibility. (See Bundy v. Sierra Lumber Co.
(1906) 149 Cal. 772, 776; Cramer v. Morrison (1979) 88
Cal.App.3d 873, 886.)
Although defendant did not identify the specific nature of his
objection or state that the evidence would show an uncharged
crime, and the People made no offer of proof, the prosecutor’s
opening statement to the jury had already made clear the nature
of the evidence to be introduced.* The circumstances in which an
objection is made should be considered in determining its suff-
ciency. (See People v. Golden (1961) 55 Cal.2d 358, 369-370.)
When, as here, the People have already made it clear that the evi-
dence will show the commission of an uncharged crime, and the
defendant objects on grounds that the People have not shown that
the evidence is relevant to any issue in the case, the objection is
sufficient to alert the court that admissibility must be determined
under the criteria of Evidence Code sections 1101, subdivision (b)
and 353, and People v. Thompson, supra, 27 Cal. 3d 303, 314-318. 6
The People now argue that the evidence of the Judd thefts was
relevant to establish intent, an element of the charged offenses put
in issue by defendant’s anticipated diminished capacity defense.”
5The prosecutor had advised the jury that evidence would be presented that
defendant and Tyson had been working for Judd who owned two Beretta weapons
which they had fired together, and that “during that week, Mr. Williams and Mr.
Tyson left on the 29th and were not to be seen by Mr. Judd again—nor were his
reciprocating saw, or his drill, or his router, or one of his Beretta weapons, as well
as a rifle and a pellet gun.” The prosecutor also told the jury that Judd had
reported the items to police as missing. We think it clear that this statement indi-
cated that the jury would be expected to infer that defendant and Tyson had stolen
the missing items.
©The statement of the objection here, and the context in which it was made,
distinguish this case from People v. Green, supra, 27 Cal.3d 1, 21-22, on which
the People rely. There the trial objection had been that a question was leading,
but on appeal defendant argued that the evidence should have been excluded
because it was evidence of other crimes. We stated there that “[dJefendant’s objec-
tion to the testimony on the sole ground that the questions were ‘leading’ did not
preserve a claim of a wholly different basis of exclusion such as he now raises.”
(27 Cal.3d at p. 22, fn. 8, emphasis added.)
7Defendant argues that evidence of uncharged crimes may not be introduced
until the defendant puts in issue the point to which the evidence is relevant. He
relies On Our statement in People v. Thompson, supra, 27 Cal.3d 303, 315, that
a plea of not guilty does not put in issue the elements of the offense. The People,
of course, bear the burden in their case-in-chief of proving the elements of the
charged crime and the identity of defendant as the perpetrator. Thompson, supra,
27 Cal.3d 303, did not hold that, if otherwise admissible, evidence of uncharged
crimes may not be introduced during the People’s case-in-chief on a showing that
an issue will be raised as to the existence of the element or identity of the perpetra-
tor, or if the judge is satisfied that the evidence is necessary to establish an element
2000 California Supreme Court
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CALIFORNIA
ever was available, usually wine or beer, and sometimes stole from
a liquor store. His daily consumption was as high as.a case of 24
cans of beer, and he was also “strung out” on heroin. He would
often drink a pint of tequila before or with the beer.
The first period during which petitioner was unable to obtain
alcohol was when he was confined to the Deuel Vocational Institu-
tion at Tracy at age 19. Prison-made “pruno” was available, but it
made defendant sick. He was confined for 18 months and began
drinking again as soon as he was released. His wife brought alcohol
to him when she came to pick him up. He continued to drink except
when institutionalized. His first commitment was that to Deuel
Vocational Institution for theft of a motorcycle, the next was to the
federal penitentiary at Lompoc for interstate transportation of a
stolen car. He was recommitted for parole violation after a 1972
assault with a deadly weapon. ;
While at the farmhouse in Merced on October 8 he drank a
straight shot of whiskey from a glass and had a beer with it. Just
prior to that trip he had consumed two or three fifths of alcohol.
In addition to his consumption of alcohol, at age 14 or 15, defen-
dant began “chipping” heroin whenever he could get it. Alcohol
“mellowed” defendant. Heroin put him in a dream-like state in
which he did not let things bother him. Defendant testified that he
also used mescaline, “acid,” methadrine, benzadrine, cocaine, and
marijuana. He injected speed directly into his veins. When he ate
mescaline he would go on an eight-hour trip of hallucination. In
Corning in September 1978 he began using “speed,” heroin, barbi-
turates, Valium, and marijuana. .
Defendant described in some detail the events leading up to the
homicides, commencing with the robbery at the Modesto park,
explaining that on that day he had used morphine and Valium in
the morning, smoked marijuana, and consumed diet pills. On Fri-
day, October 6, he had again used heroin, morphine, and Valium.
He had also smoked marijuana, and had drunk two to three 6-packs
of beer as well as two or three glasses of tequila. In the evening he
had LSD..On Saturday he had used less, but had shared a bag of
heroin with his former wife, Cindy, had drunk wine, ingested
Valium, injected morphine, and smoked marijuana. Prior to 4p.m. -
on Sunday he used a bag of heroin. With the money from the forged
checks that had been cashed in Stockton he purchased more heroin,
but it proved to be “bunk.” He injected morphine twice, using one
cc each time. Before leaving for Merced he drank approximately
eight cans of beer, and smoked marijuana. On the way to Merced
he ate four “blue” Valium tablets, consumed another eight cans of
beer, and at the Vargas home drank a glass of whiskey. Later that
evening, on the way to Sonora, he drank two cans of beer.
In response to his attorney’s questions about the pattern of drug
use in his life, defendant testified that he had used drugs continu-
ously from the time that le was 14 or 15 years old, including the
time during which he was in prison where it was easier to obtain
them than on the street. On cross-examination he acknowledged
that he remembered his prior criminal acts of stealing a motorcycle,
transporting a car across state lines, assault with a deadly weapon,
and teenage thefts of alcohol. No objection was made to any of
these questions other than to that about the motorcycle theft. An
objection that the question assumed a fact not in evidence was
overruled. Defendant also acknowledged that he had escaped from
a half-way house to which he had been transferred prior to an antic-
ipated parole from prison in July 1978. While in prison he had been
withdrawn from drugs.
Defendant admitted taking the Beretta from a workshop at the
Judd residence. He also acknowledged that he and Tyson had taken
a pellet rifle and tools, and testified that at that time he was using
drugs.
Dr. Brannan, a psychiatrist who had been appointed to deter-
mine defendant’s sanity at the time of the offense and his compe-
tency to stand trial, was also called as an expert to give his opinion
as to defendant’s mental capacity. His testimony did not prove
helpful to the defense, however. In Dr. Brannan’s opinion defen-
dant did not suffer from any mental illness that would preclude him
from having the intent to rob or kidnap for the purpose of robbery.
The witness could not determine, based on his examination, the
extent to which defendant might have been under the influence of
drugs and alcohol at the time of the offenses, or whether defendant :
actually had the ability of defendant to premeditate, deliberate,
intend to kill and to harbor malice. The witness testified, however,
that drugs and alcohol, or a combination thereof, could have a ten-
dency to affect a person’s ability to have those mental states, but
that a person who used drugs all of the time would have a higher
tolerance. The peak of drug intoxication would occur approxi-
mately four to six hours after intake. The witness was given a hypo-
thetical of a person who consumed an eight-ounce glass of
eighty-six proof whiskey within thirty minutes to an hour prior to
a killing at 8 p.m. and two beers at about the same time; Six
12-ounce cans of beer and four Valium tablets within an hour
before that; and in four hours prior to 4 p.m. had smoked three
marijuana cigarettes, drunk eight cans of beer, injected a cc of mor-
phine in a minimum solution; and on the preceding night had eaten
twelve Valium blues and injected morphine, as well as an eighth
of a teaspoon of street heroin. The witness opined that the person
would be sleepy, slurred in speech, have an irregular walk, and be
drowsy. He might feel sleepy and euphoric from the morphine,
depending on the history of use. The doctor believed it would be
unusual for a person to have physical and mental effects of that
nature without affecting the person’s ability to form the specific
intent elements of crime. In the opinion of the witness a person who
had ingested the hypothetical quantity of drugs, but was able to
rush upstairs, walk and talk rapidly without slurring his speech,
would not be too intoxicated on drugs. If his thinking ability was
clouded so that he did not think rationally and clearly, however,
his ability to plan and premeditate would also be clouded or
impaired to some extent, and he would not be able to premeditate,
deliberate, and harbor malice. In the opinion of the witness, defen-
dant did not suffer from any chronic alcohol illnesses that affected
his brain although he might be an alcoholic.
Dr. Brannan believed that defendant was of at least average intel-
ligence. He testified that a person who committed an offense while
heavily under the influence of drugs would not be expected to have
recall or memory of the details, nor would he be expected to suc-
cessfully operate a vehicle at high speeds over a considerable dis-
tance. By history defendant was a sociopath who would be capable
of killing three people without being under the influence of drugs.
Defendant had shown no remorse during the examination. Based
on what defendant said and what the witness had heard in court,
Dr. Brannan believed that defendant could have intended to kill.
Dr. Brannan testified on recross, without objection, that his
examination report reflected that defendant had told him that he
“rejects authority and always will. He does not go for this rehabili-
tation bullshit to use his words. He goes to the same code of ethics
whether he’s inside or outside of jail. He’s very prejudiced against
Mexicans.”
GUILT PHASE
1. Admission of Evidence of Uncharged Crimes and of Prior
Convictions.
Defendant asserts error in the admission of evidence of the theft
of property from Terry Judd in Corning, and of the camper robbery
at the John Street Park in Modesto, the threat to kill the victims
of the robbery, and the subsequent arson of the camper. He argues
that the evidence was not admissible under Evidence Code section
1101, subdivision (b), to provide intent, motive, or premeditation,
and was not admissible to show his state of mind, or to rebut his
diminished capacity defense.
Defendant also argues that evidence of his prior criminal history
—the motorcycle theft, assault with a deadly weapon, transporta-
tion of a stolen vehicle, and escape from custody—was not properly
admitted for impeachment and was not admissible to rebut his
diminished capacity defense.
We address first the admissibility of evidence of uncharged
crimes.? Because evidence of other criminal conduct is inherently
prejudicial special rules govern admissibility. Evidence of an
3{nasmuch as the offenses in this case were committed prior to June 8, 1982,
questions related to the admissibility of evidence are unaffected by article I, sec-
tion 28 of the California Constitution. (People v. Tassell (1984) 36 Cal.3d 77, 82,
fn. 1; People v. Smith (1983) 34 Cal.3d 251, 257.)
re
for the first
[d. at 494, 111
satisfies this
nstrate cause
‘aise the new .
show that-a
vur if we failed
n. Id.
identified the
me as part of
petition and
eviously raised
our review of
barred bythe
mless Williams
dice for failing
3 first petition
demonstrate. a
result if we re-
claims rely on
ation of Karen
Villiams has not
- to present this
s had years to
not do so until
led execution.
ly explain why
before this late
Nilliams asserts
n valium three
uring his trial.
court was aware
such medication,
y into the neces-
offers no plausi-
» could not have
first petition.
iat he was not
- that this affect-
ctent that he did
; Tyson. Howard
make such a deal
does not state how -
mn. He states only
ge. His statement,
- not realize or learn until this late date :that
r he had been given valium.. -
[13] Williams’ s fourth -claim again - in-
volves the Buréau’s alleged failure to turn
over the approximately 600 pages of docu:
ments which include some additional medical
and psychiatric reports. Williams asserts
_ that in response to an earlier request a fed-
eral case worker turned over certain docu-
ments to an investigator. for the District At:
torney’s office; but these documents were ‘not
tured over'to Williams. : He speculates’ that
these documents were the documents recent?
1963), is ae shave. ‘Williains has
failed to demonstrate cause for-his failure to
present this information earlier.
Because Williams has failed to demon-
strate cause. for failing: to raise. the four
claims he asserts for the first time: in his
amended second petition, we ee not: see
er the = of poo a
if
Re
a
a
s
a
ee
bat
eee.
sp
ieee
or
oa
(eo a
E: Actual inetonee of the Death Sentenée
“T4y Williams does. not contend he i is. ‘fac:
tually ‘innocent of the murders. “To the ex-
tent he contends he is innocent of ‘the ‘death
sentence, this claim lacks, merit. To. demon-
strate that he is actually innocent of ‘the
death sentence, : Williams must “show. by
clear and. convincing evidence that, but for a
constitutional. error, no reasonable: . juror
would have found [him] eligible for the death
penalty under applicable state law.” Sawyer, .
505 U.S. at 336, 112 S.Ct. at 2517. We have.
earefully reviewed the record and ‘conclude
Williams has not made such a showing.
Up Motion fb Recall the A andate
motion to recall our mandate in Williams v.
Calderon, 52 F.3d 1465 (9th Cir.1995), so that
we could rehear the case en bane. Williams
makes this | request... because,, he argues, ‘his
newly discovered evidence dramatically, af-
* The panel aninimously finds this case suitable for
submission on the record and briefs and without
US.:v. SILVER
Cite as 83 F.3d 289 (9thCir. 1996)
[15] On April 30, 1996, Williams filed. a.
289
fects our analysis of his claims that we es
ously- rejected. We disagree.
[16, cure We have the inherent authority
to recall our mandate and to assume jurisdic-
tion over a closed appeal. Zipfel v. H allibur-
ton Co., 861 F.2d 565, 567 (9th Cir. 1988).
We, however, will recall our mandate only i in
“exceptional” cases, when good cause exists
or when necessary to prevent injustice. Id.;
Bryant v. Ford Motor Co., 886 F.2d 1526,
1530 (9th Cir.1989), cert. denied, 493 U.S.
1076, 110 S.Ct. 1126, 107: L.Ed. 2d 1038
(1990). This i ys not such a case.
“CONCLUSION
"Williams? S a gepreuton for, a. stay of execu-
tion is DENIED. The district court’s. dis-
missal of, his habeas corpus, petition is. AF-
FIRMED.
Williams’s motion to renill 6 our uniate in
ease No. 93-99006; Williams v. -Calderon, 52
F.3d 1465: (9th Cir. 1995), cert: devited, —
US. —-, 116 pee ver 133 As 863
(1206) 3 is s DENIED?”
Ww ;
E KEY NUMBER SYSTEM
S
UNITED STATES of America, :
Plaintiff" Appellee, © A
ve =
Robert ML. SILVER, Deferdant-Appeliant.
No. 95-50319:-
“United States Court. of ‘Appeals, _
Ninth, Circuit.
Suibimitted April 12, 1996 * ae
Decided May 9 1996.
The United States District Court for the
Central District of ! California, William. J. Rea,
District Judge, ,extended, probationer’ s :pro-
bation, and’ “pecbquener appealed; contending
‘oral afgimnient: ‘Fed. R:App- eS 340, Ninth Gir-
etiit R/34-4. a Ph
Was on San
Quentin’s death
row for 1978
killing spree
By Larry D. Hatfield
and George Raine
OF THE EXAMINER STAFF
SAN QUENTIN — Keith Dan-
iel Williams, a triple murderer who
said he loved to kill, was killed by
lethal injection just after midnight
Friday, the 506th person to be exe-
cuted by the state of California.
The U.S. Supreme Court turned
down Williams’ last appeal less
than two hours before lethal 50cc |
doses of pancuronium bromide and
potassium chloride were injected
into his veins in San Quentin Pris-
on’s death chamber.
The injections were begun at
12:03 a.m. and Williams, 48, was
pronounced dead five minutes lat-
er, Department of Corrections
spokesman Tip Kindel said.
He offered no resistance and
made no final statement, Kindel
said.
In the witness room, the adult
daughter of one of his victims wept
quietly, as did one of his attorneys.
Outside the prison, about 200
demonstrators held a mock funeral
around a black casket, burned can-
dies and prayed to protest capital
punishment. A few pro-death pen-
alty demonstrators also were on
[ See EXECUTION, A-18 ]
uor}saful Aq saip
PAnW ajduy
‘TWaddV S.LOAIY LYNOD HDIH ‘sn
-sy ADMD
VY
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La
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is
es
Triple murderer
Williams executed
hand, but there were no incidents.
The prison was to be on lock-
down status until later Friday and
was quiet before, during and after
" the execution,
California has executed four
San Quentin inmates since the
death penalty was reinstated in
1978, the last two by lethal injec-
tion. There are 366 men and four
women on the state’s death rows.
As he died, the gray-haired Wil-
liams appeared to be trying to talk
to someone in the small room
where 16 press witnesses and 34
others watched.
“He was clearly saying some-
thing to someone,” said Harvey
Levin, a reporter with KCBS-TV
in Los Angeles.
After the tubing was inserted,
“he turned and raised up as best he
could and made eye contact with
somebody” in the witness gallery,
said Merced Sun-Star reporter
Randy Groves.
Williams blinked repeatedly
throughout the process, Groves
said. Witnesses said he made one
heaving motion before he became
still.
Said to be in a good mood
Williams, who was described by
a prison spokeswoman as in good
spirits, smiling and receptive in the
hours before he died, was executed
for the Oct. 8, 1978, slayings of
farmworkers Miguel Vargas, 29,
| Salvador Vargas, 43, and Miguel
Vargas’ pregnant girlfriend,
| Lourdes Meza, 24.
| _ Miguel Vargas’ son, Miguel J r.,
26, and daughter, Onix, 24, wit-
nessed the death of their father’s
killer. Onix sobbed during the five
minutes it took Williams to die but
straightened and stopped crying
when death was declared, Groves
said.
Miguel Vargas Jr., holding a
crucifix, remained composed.
A-18 Friday, May 3, 1996 *®
SAN FRANCISCO EXAMINER
Curtains open to death on stage
After battling to
view execution,
media call it surreal
By Larry D. Hatfield
and George Raine
OF THE EXAMINER STAFF
SAN QUENTIN — Prison offi-
cials lost an 11th-hour appeal to
veil some of Friday morning’s exe-
cution of Keith Daniel Williams,
but it was arguable whether seeing
more made any difference for wit-
nesses.
“It was surreal,” Nancy Os-
borne, a reporter for KFSN-TV in
Fresno and one of 16 media wit-
nesses, said of watching Williams
die. “It didn’t seem at all as if we
were watching an execution. It
wasn’t clear when it really began or
when it was really over.”
Media groups had protested af-
ter the Feb. 23 execution of “Free-
way Killer” William Bonin, the
first person in California to be put
to death by lethal injection, be-
cause witnesses were allowed to see
him only after he was lying motion-
less, strapped to a gurney, with
intravenous lines already attached
to his body.
Prison officials said they want-
ed to protect the privacy of staff,
but media spokesmen argued they,
as the public’s representatives, had
a right to view the entire process.
San Quentin officials lost the
legal skirmish Thursday night
when the U.S. Supreme Court re-
fused to overturn a lower court
judge’s order barring officials from
drawing a curtain while the fatal
injections were given.
As a result, this time the media
witnesses, and 34 others, got to see
the whole process, from the inser-
tion of needles to the pronounce-
ment of death.
But reporters who briefed col-
leagues after witnessing Williams’
death were ambivalent about
whether what they saw seemed all
that real.
“It was like an Andrew Lloyd
Webber production,” said Harvey
Levin of KCBS-TV in Los Ange-
les. “There was this eerie green
light. The curtain opens and the
players are on stage.
“It was striking, almost like
morbid theater where we got inside
the viewing area and a curtain was
already drawn and they opened the
curtain almost like it was a show
and we looked at the stage. The
action began and we watched it.”
Osborne, Levin and other re-
porters detailed every little move-
ment Williams made — he lifted
-his head as if looking for someone,
his throat, face and chest made a
single heaving motion, he made a
tapping motion with his right |
hand, needles were inserted in his
right hand and left arm.
Surreal, theatrical and stagelike, |
perhaps, but in the end, quite sud-
denly, and finally, real.
“It was strangely interesting,”
said KGO radio’s Greg Edmonds,
“but you know this is real death.
This guy didn’t get up again.”
* % Thursday, May 2, 1996 A-7
PQ HICIS Ce
Sa
Sa a8
EXAMINER/KURT ROGERS
Anti-capital punishment demonstrators march around Justin Herman Plaza on Wednesday. <—— D OW nye ta! AY
4
WEBER, Adeliph Jey white, hanged Folsom Prison CA (Placer) 9=27-1907.-
C c
— nr neremnceansncenmnsaganee eee
f
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oo GRA 3 belt ne Poles OfL as Arousal) Se kee eS & |
wien hal Maddbued Pls, Peaain Ce Wank y- Fe 900 em 5724 JJ70S, Afar area :
fee ptancls/o, porter X (De 0 iat reced hwrttd tin bycbts Caan 3
OTHER
Chetan beatin Fo Cenzts
Gove Wn 7 Fed Geline Lortktr, AinGetar Kiriha 1 | dor Chteler
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vier Father, Woh ; Vere AW ; ean 7 Wie Wha 0 ivi Aa |
SYNOPSIS
PP Aiba ice ge ae thee Padeheon Jd Mirth fo vote lrn0 5 i ok |
PSO, 000, Cue nig fit of Crave 4 flix . epAino Ted betevee
passed, the, lusietid bu at fret z ||
i t ho GE Ye et wit ea batt lo 20. abit Gd foe
TRIAL
EXECUTION
s0U ¢
Llaorn. pissin fa 3fizoe feg/z9] (1b
FG (acyfie SAV
{HERALD
Editor and Rbdénmnb
FEICIADL Parer
ficial Paper,
vesseseests- UNG, 23, 1906
tle Btate Convention
scramento . September
'. Re vey
0. plai (Prohibition)
‘cent Oregon election,
{ Lane, Yamhill, Ben-
6
a) Ga Sng
vnes-K. Jones of Ar-
ce chairman: of the
6e,says that William
the’ next Democratic
dout.°t;
Sows
safe until next winter,
amittée.on’ Privileges
¥ posponed further ac-
'e fall elections: What
> be w polygamist and
ovator.‘at -the same
ibton of Kansas should
rfves; sid have thei
tho .Supreme~:Court
ication’, for: ®& rehear-
rs
*
ee
q
OKLAHOMA,
ie
FOR,
‘the, obstr
uctive’ tad
30, the ‘Union. as, one
sent Session: of Con-
iNew Mexico, as one
ition that a majority
‘fach, of those:-'Per-
Jy'@ ¥oté.to be east at
Orial. clection;- when
rt)
«.Prospenity.
ae, Republican -high
leago,. and. there: xno
‘etectod, Beof Barons
lonaires-who are fav-
‘dk; Yet there. seems
of poverty; that re.
t. ‘economy “to: make
The ‘Chioaro Com-
cen'to overcome: this
ig girls how to keep
«. “A latge class has
o are all engaged to
j youth is gone;my health is gone; and
California has sustained Judge Prewett
fa the Weber murder ease, Tteis just
‘as was anticipated. Placer’s Judge has
never been revereed ina -criminal case,
The word was sent-to Sheriff Keen
Thurstay afternoon by Attorney .Gen-
éral Webb, ’ When Keena notified
Weber he said not a word, but kept
his eyes on a geography -he was. read-
Ing. A second: laier, he.raised hfs head,
pinched his lips between, his fugars for
& moment, ard again went to his book.
When the Sheriff told him that he
would have to change cells, and ordered
bim to undress for new clothes, he re-
belled, aud when Keena began empting
‘Weber's pockets, he contemptuously
remarked: “I'd like to know if a man
Is pot entitled to his own property.”
He wa3 taken to a cell with nothing tn
{t but a cot and the bare. walls, and on
the way he asked Undor Sheriff May
how the Judges stood... To an inquiry
by Coroner Shepard, he said he would
not fight the casa further, saying: “My
fon Chester’s head, and blood on the
dress of Mrs, Weber excited the suspi-
clons of the authorities, with the result
of-an autopsy and the discovery of
bullet. wounds in the hearts of Mrs.
Weber,- Bertha Weber and Julius
Weber, The little boy was beaten to
death with the aid of some blunt in-
strument—possibly a pistol. A second
wound was found under the arm of
Mrs. Weber, und the theory is ad-
vanced that’ Julius Weber was shot
while sittlog in the kitchen, Bertha
while playing at the piano, and Mrs.
Weber, who was upstairs putting Ches-
ter to sleep, heard the shots, and ran
down stairs to: the telephone to sum-
mon help. The telephone offide shows
the line went out that’ evening between
Sand 7c’clock. That the murder was
a deliberate and planned affair {s shown
by the manner of tho shooting, every
shot being-through the heart, The
murderer must have- understood the
human anatomy’ pretty well, and he
must also have. been sufficientiy nce
quainted wth the Webers in. order to
my honor {8 gone; - If Attorney John-
sou wishes to carry the case further he
does it on his ‘own responsibility, I
have gotten olose enough to them to do
such accurate shooting. He must also
have begn thoroughly conversant with
tried
Colburn, Henry Tones; Con
Run.
trict Attorney Robinson and Geo,
son,F. P. Tuttle, sam J.
rats of the Housd, the} |
S*beenforcod to:an|
ut Oklahoma and In-|
pt the' proposition: to |:
ritories are voted for. |
‘ ree oat
21. to ber nt texampled
terests: by virtue ot}
abandon the case.’
i, ~y
Later in the evening ho bécame very
communicative ahd talked freely: with
ho have''learned to
or four for 19 <cents
eat, two vogetables,
for 40. cents, Itis
she teachers of-the
the study of political
‘riculum, go that fu-
* may know that un-
ublican high tarlff
4s increased 46 per
and trust tax was
ges would go a deal
vould be no need for
my. ‘
———3 .
bear withess to- the
ts, These pleasant, re-
8g borne a repntation
axative and éathartic.
Jbeead in milhons of
feetive.: Wil ‘promptly
hout griping. Sold by
t
t
8
TP NO te t
teneral Gomez
rade, and. white
A VA o i oe 4 Nid
stanhdynig: ‘One Mth
bave won’ your law point.?* .When
like to see Mr, ‘Johnson, however.”’
night..and ate his
yesterday morning. He was quite talk-
ative when he found ott that Lozano
could speak Spanish. ‘ Weber has
studying the language Igtely oo +,
not weigh over 90 pounds:-: Ho “js ¢ors
When the reinittiteur. com
Sherlff Keona.will then take him {m-
mediately to Folsom, . Meanwhile, two
guards, Rafe Loza
Sheriff Keena, Under Sheriff May and
Jailer Fulton. «To: Keena. he said:
“Well, you have won your point; I
mean no personal ‘reflection, .but you
asked if he wished. to see any of his at-
torneys in. Auburn, hé repliod: “I
have no lawyers in Aaburn. I would
Weber rested fairly well during the
usual : -break fast
been
pil
Weber is a living skelston; ho does
alnly wasting away and may not live
o expiate his crime on tha’ gallows,
es down—
8—ho' will be
resentonced,
ometime within-30 day
aken into court and
ng} and. Ben .Depen-.
ser; have beon- placed ‘oawatch néat
7 Placed. “Qarwatct
einflammation out of
a
Wober'# ‘cell,
Nenendon
Avant, Sa WOE goo ©: t0t%e }
oe ae ;
Lozano at ‘night and
: road past the Weber barn to the gate
the Weber homa surroundings to select
_{& tlme for the deed when no ono was
likely to pass.that-way. | Little Francis
Snowden was at the Weber. home at
5:30, as was her custom for-the milk,
and Miss Zoe Hager passed by to her
‘} own homo at 6 o'clock, Adolph Weber,
the only surving member of the fam-
ily) was down town when the fire bell
rang; he was at Cohen’s store at 6:55 or
T.o’clock; hé says he left the Weber
homes: about 6:45, and described his
route to town as follows: Down the
| above the brewery; there he says he
tore his trousers on a fire hydrant and
for that reason bought a new pair at
Cohen’s; the old ones he had wrapped
up and threw them through one of the
windows of the burning building when
hd returned with the firemen; after
leaving the fire hydrant, Weber claims
he went across and over a atile to and
through the Jacob Roll property, com-
ing out on the Long Valiey road:thence
down High street to College or Hamil-
ton Lane, which he took, bringing him
out near the Court House; from there
he did not know which street he took
but anyway he went down town and
into Cohen's store. He walked up and
down Main and Washington streets,
and was at the postoffice when the firo
bell rang. His story of thorouto taken
was contradicted by May Clark, who
says she saw young Weber come down
Brewery Lane about a quarter or ten
minutes to seven.
J, A. Powell, of Forest Hill, was in
the American Hotel wash room, when
Weber came fn from the back way,
washed his hands, going out hurriedly
through tho front hall way door.
Some ‘days ufter the murdor, and
‘after Adolph had been arrested for the
crimes, a. pistol was-found under the
Wober barn by Clarence Geear, in com-
pany with Detective Rimer, Ben Dep-
eudener’' and John Monaghan. The
cabibre of the platol and some shells
found with {it tallied exactly with the
bullets taken from the bodiés by the
autopsy surgeons. The prosecution
proved by Henry Carr, a San Francisco
pawnbroker, that he sold: the same
plitol jto Adolph’ Weber: in Auguat
P
Z
=
ie
’
Weber! DeWitt
Pearson, FI. Selfria pe
Worthiman, Woimar;
Penryn; James Doherty,
P. Hallbom, Neweastle; J,
Wm. Phillips, Colfax; J, @
DeWitt Por ‘
Tho attorneys figuring i
wore: Attorney-Gancrul
2, Dis.
WwW.
Hamilton, prosecution; Grove L. Jubn-
Pullea ag
Ben P. Tabor. defense. drive
T. Git
i comet *
Naka tak ; ; 8
This kind of weather will mata the fa ’*
gruss grow, a good lawn mower will eat | € g
it. See Placer Hardware Co’s, la ly
For
CHAMPION MOWER
CHAMPION RAKES
“HEADER FORKS 4.”
PITOH FORKS
WOODEN RAKES
i Ay
ror the
3
the King
z
2
,
8)
+,
4
< a
‘STAR LADDERS i
* PICKING .ASKETS ved
PICKING PAILS: 35 "8"
ea For the-Hot
KITCHEN UTENSILS
BREAD MAKERS
WELL RUCKETS
*, CROCKERY | >>
LAMPS: ,. *
toy. PAINT
re
y ' ag
nee m
i Anything sisal
: ie : ‘abe <
ee ee 3.
Ul ang
: UH RG TGS
; ; Bh Res Be oe
hone: Black 172. - - - AMERIC
ET aaa
4
ont
GREAT DOING!
to get ready 1
best in one of
These clothes are
produce. Th
clothes making
¥
*
sollte Shi.
erin ade
om
¢ *
POP ONS TAO LRP ae ONG Se a ehart
« ‘ ‘ ,
prior tothe murders, Carr {dontified
hath Wate ect eh ata
1
joey oe
<a SRM SEAM RE
Kunnenheimer Sv
can
\
caNLaR y
WEBER, Adolph Je, white, nanged Folsom {Place§ County) 9=2/-1907.
Cal.) PEOPLE y. WEBER, 671
whose possession it is found before the mag-
istrate. This was not done in the case at
bar. If the magistrate, as he testified, is-
sued a search warrarit in the form directed
by the statute, then the officers (if they were
officers) who arrested the appellant did so
Without authority of law and without any
warrant authorizing such arrest. Their ac-
tion was not a service of the search warrant
as contemplated by the statute, but was a
wrongful and oppressive act, resulting in a
false imprisonment for which they, iff any
one, would be liable to the appellant. We
think this case is controlled by the principle
laid down in Bartlett vy. Hawley, 88 Minn.
308, 37 N. W. 580, where the court says: “In
respect to the third assignment of error, it
is sufficient to say that, if the imprisonment
complained of was the necessary result
of the issuance of the warrant sworn out by
the defendant, his liability therefor would
depend. upon the sufficiency of his defense to
the principal charge. If it was the wrong-
ful act of the officer, and an abuse of the
process, then the defendant would not be
liable, unless he was connected with or au-
thorized the alleged Wrong. Gunz y. Heftf-
ner, 33 Minn. 215, 22 N. W. 386.” Barker v.
Stetson, 7 Gray (Mass.) 53, 66 Am. Dec. 457.
“The mere inaking of an atlidavit upon which
a [search] warrant is issued does not render
the affiant liable, where he neither delivers
the warrant, directs its delivery, nor directs
the constable to make the search.’ 25 Al.
& Eng. Ene. of Law (2d Ed.) 151; Wallace
v. Williams (Sup.) 14 N. Y. Supp. 180. There
is absolutely no evidence in any way connect-
ing the respondent with the unauthorized acts
of the parties who claimed to be officers
and who wrongfully arrested the appellant,
nor does it appear that respondent either
directly or indirectly counseled, authorized,
or approved such illegal acts.
The trial court committed no error in grant-
a nonsuit. The judgment is affirmed.
MOUNT, C. J., and ROOT, DUNBAR,
and FULLERTON, JJ., concur.
—_—_
(149 Cal. 325)
PEOPLE v. WEBER. (Cr. 1,281.)
(Supreme Court of California. June 21, 1906.
Rehearing Denied July 19, 1906.)
1. HomtcipE—EvIpENcr,
In a prosecution for homicide, evidence
held sufficient to sustain a conviction of mur-
der in the first degree.
2. JURY—SELECTION—OBJECTIONS.
On the discharge of a juror for illness while
the jury was being impaneled, accused moved
that the remaining 11 jurors be not discharged,
but that the trial be proceeded with by calling
the name of another juror, and that each side
be allowed the number of peremptory challenges
remaining after deducting from the original
number the number already used. The court
assented to the suggestion, but denied the mo-
tion concerning peremptory challenges as pre-
mature, with leave to renew the motion; but
it was not renewed, and neither side exhausted
its peremeptory\ challenges, and did not attempt
to exercise any challenge upon the juror last
called. Held, that the court committed no er-
ror in denying the motion as premature,
[Iud. Note.—I"or cases in point, see vol. 31,
Cent. Dig. Jury, §§ 615, 616, 6385, 636.]
3. CRIMINAL LAwW—TRIAL—OPENING CASE TO
Jury,
Pen, Code, § 1093, subd. 2, providing that
the prosecution in a criminal case may open
the case and state the facts on which it will re-
ly for a conviction, is not mandatory, and hence
the prosecution may open its case by the intro-
duction of evidence, without any preliminary or
opening statement.
[Iid. Note.—For cases in point, see vol. 14,
Cent. Dig. Criminal Law, § 1659.]-
4. Same—Sunsects or EXpertr TESTIMONY.
Where, in a prosecution for homicide, the
physician who performed the autopsy on de-
ceased’s body testified with reference to a dia-
gram, he was entitled to testify as to the place
of entrance and exit of the bullet found in her
body as a physical fact which he observed, and
not as a subject for expert evidence.
[IXd. Note-—For cases in point, see vol. 14,
Cent, Dig. Criminal Law, §§ 1040, 1062, 1063.]
5. SAME—APPEAL—PREJUDICE.
Where, in a prosecution for homicide, the
bullet which inflicted the. wound was recovered
from deceased’s body, and was proved without
dispute to have been a 32-caliber pistol bullet,
an answer of an’ expert who performed an
autopsy on deceased’s body that he believed
the wound to have been produced by a 382-
caliber bullet was not prejudicial.
[Iud. Note.—For eases in point, see vol. 15,
Cent. Dig. Criminal Law, § 8138.
6. SAME—IDENTITY.
Where, in a prosecution for homicide, the
state proved that defendant was in San F’ran-
cisco during June, July, August, and September,
1904, and a pawnbroker had identified defend.
ant as purchasing from him the pistol intro-
duced in evidence in August, 1904, and described
defendant’s attire at the time of the purchase,
evidence concerning the style of the clothes
which defendant wore in San Francisco during
those months was admissible in corroboration
of the pawnbroker’s identification of defendant.
{Ind. Note.—lI*or cases in point, ‘see vol. 14,
Cent. Dig. Criminal Law, §§ 767, 768.]
7. IlomicronE—MorrvE—EVIDENCE.
Where accused, who was nearly 21 years
of age. was claimed to have murdered his whole
immediate family in order that he might ac-
quire his father’s estate, evidence of the value
of the property belonging to the father and
the amount of insurance thereon was admissible
as bearing on the issue of motive.
[d. Note.—I*or cases in point, see vol. 26.
Cent. Dig. Homicide, §§ 330, 331.]
8. WITNESSES—EXAMINATION—CRIMINAL LAW
—LEADING QUESTIONS.
In a criminal prosecution, leading ques-
tions are permissible within the sound discre-
tion of the court.
[1ud. Note.—For cases in point, see vol. 50,
Cent. Dig. Witnesses, § 795.]
9. CRIMINAL LAW—EvIDENCE—HEARSAY.
In a prosecution for homicide, it was error
to permit a witness to testify that deceased,
who was defendant’s mother, stated to witness
in the presence and hearing of defendant. that
defendant was so mean to her she was afraid
to ask him to do anything for her, and that
he aggravated her so; such declaration being
mere hearsay.
[Iid. Note.—For cases in point, see vol. 14,
Cent, Dig. Criminal Law, §§ 937, 973.]
Te ee
ern A Bs ete
reyes
ain
atten A Reeia
* TEI
Seer ee a
CRE a BR
oe
Sto some
aidkabemmentiidnenmcdita a i ae
ERLE ee RG mB
IRE te” ea
LO St Nee SO RN eT Ng Ran NS ed eam:
ie OMUs meULl.
*
%
4 pinching economy.
: arama og
dency of Early Risers,
es. Pleasant but offective.
} Gibson, druggist,
ee
Smoke the General Gomez
gar. Home made and white
hadking cough ia most annoying. One Min
Cough Cure draws the inflammation out of
by J. T. Gib
Shroat, chest and jungs. Sold
druggist,
eS
arg 14 no neéd worrying along in discom fort
use of a disordered digestion, Geta bottle
odo} for Dysvepsia, and see what it will do
ou.” Kodol not only digests what you eat
aives that tired stomech a needed rest, but
‘errective of the greatest efficiency, Kodo!
vez Aadizestion, dyspepsia, palpitation of
jeart, flatulence and sour stomach, Kodol
mske ‘your stomach young and healthy
n/ You will worry just in the proportion
your stomach worrles you. Worry means
we of ability to do your best, Worry is-to
‘oided’ at all times, Kodol will take the
yout of your stomach, Sold by: J. T. Gib-
druggist.
Ta. 2
4 ‘
YESE LoSt—Brown purse, contain-
money and gold thimble ‘A. J, R.*
ica to this office and get reward.
1 FarB—Good
(pffman, ‘Auburn,
ws 2,
£ ‘Feliowing the Flag.
> our Baldiérs went to Cuba and the Philip-
important consider-
retired Commissary
we Y. 8, A.,of Rural Route 1,'Concord, N,
382: "L was two years in Cuba and two
fu the Phtippines, and beitig subject to
l took De. King’s Now Discovery for Con-
tou, which kept me in perfect health.
gow, in. New Hampshire, we find it the
edicinein the world for coughs, colds,
fiai troubles and all 1yng diseases.” Guar-
‘at F.8, Stevens’, druggist. Price 60c aud
‘Dexlth was the mest
, Witte: T; Morgan,
putal botule free.
BT
+ Bid
@# SALE--Fresh milch cows and
d “sows, Apply at Cook’s ranch,
m24ml1
R TRADE—¥I ve-year-old unbroken
bay mare; weight about 950 lbs.,
Hd Johnston,
niles north of Auburn.
sw. OY poultry,
3gate, Cal,
a p* ee
‘Phat ‘Tired Fecling,
od aro languid, depressed, incapable for
it Jodicates that your liver 18 out of order,
@ will assist nature to thiow olf head-
rheumatism and ailments akin to ner-
5M, aud restore the energies and "itality
ad and perfect health. J. J. Hubbard,
» Texas, Writes, ‘I have used Herbine
bast two years, It hag done me more
Itis the best medi-
Sold
40 ail the doctors,
€F made for chills and fever.” 50.
. Stevens, druggist.
a3 ———_--.
Death From Lockjaw
slows an injury dressed with Bucklen’s
Salve. Its autleeptic and healing prop-
veveut blood Holaoning, Chas, Oswald,
Ot, of Rensselaerayiiie, N. ¥., writes:
d Seth Burch, of this place, of the ugliest
Cures Cuta
?he at ¥. S. Steven 4
his neek 7 ever saw,”
» Buces and Sores,
te,
*
;
«
+:
eq?
iverty by teaching girls how to koup
pase on $10 4 week. A large class bas
gr eraduated, who areall engaged to
‘married, and who have learned to
‘Ve a breakfast for four for 19 conts
il adinner of meat, two vegetables,
dand pudding for 40 cents. It Is
# noped that the teachors of the
Fumons will add the study of political
paomy to the curriculum, so that fu-
fy housekeepers may know that un-
= tho present Republican high tariff
» cost of living has increased 46 per
t. Ifthe tariff and trust tax was
ducted the 810 wages would go a deal
ther and there would be no need for
-pusands annually bear ‘witness to the
These pleasant, re-
48 Uttle pills have long borne a reputation
nd to none as @ laxative and ¢éathartic.
are a3 staple as bread in millions of
Will promptly
Sve Constipation without gripiug. Sold by
| fresh milch cow;
ie aud well broken; apply to Wm.
my2imi
Phe Clieuero Conus
Ba has uadortaken to overcome this
Later in the evening he became very
communicative and talked freely with
Sheriff Keena, Under Sheriff May and
Jailer Fulton, To Keena he said:
“Well, you have won your point; I
mean no personal reflection, but you
have won’ your law point.” When
asked if he wished to sea any of his at-
torneys in Auburn, he replied: ‘TI
bave no lawyers in Auburn. I would
like to see Mr. Johnson; howover.”
Weber rested fairly woll during. the
night. and ate his usual — breakfast
yesterday morning, He was quite talk.
ative when he found out that Lozano
could speak Spanish. Weber has’ been
studying the language lately. ho
Weber is a living skelston; he does
not weigh over 90 pounds. He is cer-
tainly wasting away and may not live
to expiate his crime on the gallows.
When the remittiteur comes down—
sometime within 30 days—he will “be
taken into court and resentenced,
Sheriff Keena will then take him im-
mediately to Folsom. Meanwhile, two
guards, Rafe Lozano and Ben Depen-
dener, have beon placed on watch near
Weber's cell, Lozano at night and
Dependener in daytime. Stet
Adolph Weber killed his father,
mother, brother and sister on Novem-
ber 10th, 1904. He {was convicted on
February 22nd, 1905, and senteaced to
be hung by Judge Prewett on the 30th
of June following. The appeal stayed
the execution. -He robbed the Placer
County Bank May 26th, 1904,
| The deelsion upholding . Judge
Prewett was signed by six of the
seven Justices, Chief Justice Beatty
dissenting. The opinion was’ written
by Justice Henshaw, who pointed out
that Weber was the only person who
could possibly benefit by the death of
his relatives, and therefore the motive
established by the Prosecution . was
clearly correct. Chief Justice Beatty
in dissenting holds that the evidence
was purely circumstantial aad that
Weber was not given 9 fair oppor-
tunity to controvert the testimony of
Carr, the pawnbroker, who swore that
the pistol found under the Weber barn
was the one sold to Wéber the preead-
ing August [Beatty is a very old man,
no doubt in his dotage, and was prob-
ably swayed by sympathy.] :
STORY OF THE CHIMR.
- On the evening of November 10th,
1904, at the Weber home in Auburn,
Julius Weber, his wife, daughter,
Bertha, and little evippled son, Chester,
were foully murdered, the home set
afire and an effort made to destroy all
evidence of the crime by an attempt to
burn the bodies. The murderer locked
the house as he left it, evidently not
taking into consideration that in do-
ing so he denied the flames the oxygen
necessary for fuel. So when the fire-
bell rang at 7:45, and the firemen ar-
rlyed a few minutes Jater only a portion
of the buijding wasablaze, ‘Lhe flames
in the front room, where were piled the
bodies of Mrs. Weber, Bertha Weber
and Chester Weber, having eaten yp
all the oxygen jn tho room, simply
smouldered. That this Is 60, Was evi-
denced by the fact of the flames furi-
ously lapping the clothing of the bodies
as they were brought to the window by
Geo. Ruth, Clarence Gecur and Guy
Cukens. The bodies of Bertha and
Mrs. Weber were badiy burned, Chest-
er was still alive, but died befora a
Obene Ov bLiainii-
tou Lane, which he took, bringing him
out pear the Court Houso; from there
he did not know which street be took
but anyway he went down town and
into Cohen’s stors. He walked up and
down Main and Washington streets,
and was at the postofiica when the fire
bell rang. His story of theroute taken
was contradicted by May Clark, who
says she saw young Weber coma down
Brewery Lane about a quarter or ten
minutes to seven. ;
J. A. Powell, of Forest Hill, was in
the American Hotét wash room, when
Weber came in from the back way,
washed his hands, going out hurriedly
through the front hall way door.
Some days ufter the murder, and
after Adolph had been arrested for the
crimes, a pistol was found: under the
Weber barn by Clarence Goear, in com.
pany with Detective Rimer, Ben Dep-
endener “and: John Monaghan. :, The
cabibre pf the ‘platol and some shells
found with it tallied. exactly with the
bullets taken from the bodiés ‘by the
autopsy surgeons. . The prosecution
bees PEt da seb ees bee
pawabroker, that. he» sold’ the same
pistol to Adolph’:Weber. ins August
prior to the murders... Carr identified
both Weber and the pistol, ; +5. |
’ Howard. Carr, a U., S. gun’ expert,
proved’ conclusivelythat the bullets
found In the'déad bodies were the iden:
pistol in evidenced. 3s} 4g RD
Joe Goldenberg, a clerk for N.S.
Cohen, testified to W+ber’s purchasing
a pair of trousers just ‘before tha’ fire
bell rang. ~ His old ones were toro, he
threw his old trousers Into the buraing
afterward found, and Dr, J. BR, White
testified that they had blood, stuins on
i hd t. ;
them... Wats Ae TIES a8
Adolph Weber was 20 years old ‘at
the time ofthe murders, of an eX
clusive disposition, @ student of the:oc-
cult, and ag’ he ‘himeelf sald, & stalc,
the man who robbed the Placer County
Bank of $6300 May 26, 1904. This was
the most clever, daring and {ogentus
robbery (as ‘the murders were the most
dastardly) of modern times,. To broad
daylight, the . robbor, disguised < by
green goggles aud a mask .mede of
horsehair, entered the bank and pre-
Seated an order signed by ‘Red. Shirt
Gordon” for all the money in the baak,
As Assistant Cashlor McFadyen read,
the robber loaped through the teller’s
window, poking a pistol at McFadyen,
vas sack he carried. He went out as
he came. Vice President, Lubeck was
in the next room and Cashior Smith
came in as he went out.. A burglar
alarm called druggists McLaughlin and
Stevens, but the robber escaped in a
borrowed: cart with a parting shot
from the pump gun ‘of druggist FP. S.
Stevens. His disguisa and pistol were
later found In-the brush a short dis-
tance down Auburn ravine, , Sheriff
Keena identifled the pistol by 9 Sacra-
mento pawn broker, and the descrip-
tion given of tha purchaser was that of
‘a young man about 20 years old,
slender, light complexion;. and looks
like & Swede.” Shortly ‘alter the
Weber murders 35500 was found buried
in the Weber barn and a charga of
robbery was placed against Weber,
After his conviction of the murder of
his mother, the robbery charge was
dismissed, the Weber astate paying
over to the bank the amount af morey
doctor could be summgned, The body
of Julius Weber was foynd in the
charred ruins the next morning in the
} rear or kitchen part of the house, Cuts
alleged to haye been stolen, with jn-
terest. . .
Tho following were ‘the jury .who
a
proved by Henry Carr, 5 San Francisco}.
Mei ie ee mae eb in,
tical bullets that: passed ‘through .tho|
sald... On going to thé. fire, Weber}.
building. A portion of therm: were| :
Young Weber wns also arrested as |
a.
raked all the gold ia sight into a‘ can-|.
GREAT D
to get
best in
‘These cloth
2 produc
SEI CE
| Unfinished 4
FLEW Wis GR Pai
| TON
ree Naber ag 3 ie
‘Kuppenhai
Un he Bs Alyy :
tH b Double .breasted
shoulders. ATgarave
‘is ‘first class in eve ry
I
yor 4
oa Pe
eos
i
4
“TIT Is. NOPNE
r
“S* Black un aisheg
‘good style, neat, dies
Ae dedi b Pa Sy vt. pe i
Few light weight
“closed: out! ‘Ss
‘ ‘Alpaca Coat $2.
‘Mads of good-wus
ay ‘Alpaca ‘Coat $3.5 o-
2. 8R S We black e
j Blue’Serge Coat $3;
‘Navy blue serga ¢
Coat and Vest $6.00
Coat double breae
ANOTHER SHIPME.
Trunks and Suit Casas
factory
CONCERT
ff yey
IGHT
AT =
CENTRAL SQUARE
pT Aart ‘DAT TD Q + 14 5 407
From the PLACER HERALD, September 29, 1976:
A 1D 7 a hen TIT TAT. BWyT “Me
ADOLF W IBER UN FOLSOM
Adolf Weber, murderer of his mother, fa ; brother, and
the penalty of his crime on the gallows at Folsom
je a : i :
at 12:26 Thursday noon. He walked with upright
gallows, md never once showed any signs of
He said nothing to those around him and left no
anw wana
aA ee
evening before, e
foll
execution foll
We do not have the ac xr
facilities for making a copy ft
the essential part of the newspaper article.
fate)
BURN - PLACER COUNTY LIBRARY
350 NEVADA STREET
AUBURN, CALIF. 95603
672 86 PACIFIC REPORTER, (Cal.
10. SAME—PREJUDICE.
The error in such ruling was of such a
trifling character as not to justify a reversal
of a conviction.
11. Same—Acts or ACCUSED.
In a prosecution for homicide, it was per-
tinent to show what defendant did or did not
do on the day after the tragedy as a basis for
arguing that his acts were not those of an in-
nocent person.
[Iad. Note.—For cases in point, see vol. 14,
Cent. Dig. Criminal Law, §§ 776-785. ]
12. SAME—STATEMENTS OF DEFENDANT—PRE-
LIMINARY PROOF.
A statement made by accused to the dis-
trict attorney and to the sheriff on the day after
the tragedy, containing no admission or con-
fession, is admissible against him, without pre-
liminary proof that it was voluntary and not
made under duress.
13. Witnesses—Cross-EEXAMINATION OF Ac-
CUSED.
Where, in a prosecution for homicide, ac-
cused, after hearing the evidence of certain
witnesses, testified to the taking of a different
route after the homicide from that specified
in a statement made by accused to the district
attorney and the sheriff on the day after the
homicide, a question whether accused had not
fixed his route for the sole and single purpose
of meeting the testimony of the witnesses, who
testified they had seen him at a certain hotel
and stable,. was legitimate cross-examination.
[Isd. Note.—For cases in point, see vol. 50,
Cent. Dig. Witnesses, §§ 980, 981.]
14, GrimtnaL LAwW—TRIAL—ARGUMENT OF AT-
TORNEY.
While it is improper for the prosecuting
attorney to assert his personal belief as to ac-
cused’s guilt, if that belief or conviction is
predicated on anything other than the evidence
in the ease, the prosecutor is entitled to urge
to the jury that the “evidence” convinces his
mind of accused's guilt.
[Iad. Note.—For cases in point, see vol. 14,
Cent. Dig. Criminal Law, § 1677.]
15. SAME — DEMONSTRATIVE PQVIDENCE — Ex-
HIRITION OF BULLETS.
Where, in a prosecution for homicide, the
bullets taken from the bodies of the persons
killed were introduced in evidence in connec-
tion with other bullets fired from the same pis-
tol, it was not error to permit the Attorney
General to arrange the bullets in a particular
order, placed in juxtaposition, and thus submit
them to the jury.
[Bd. Note.—For cases in point, see vol. 14,
Cent. Dig. Criminal Law, § 891.] ,
1G. WiITNESSES—CROSS-EXAMINATION — CItAR-
ACTER.
It is legitimate cross-examination of a
character witness to ask whether he had ever
heard of the person whose reputation is under
investigation having been accused of committing
acts inconsistent with the character which he
has attributed to him.
[id. Note.—For cases in point, see vol. 50,
ent. Dig. Witnesses, § 1173.]
17. SAME.
A witness, having testified that C.’s reputa-
tion was good, on cross-examination was asked
whether he had ever heard discussed the fact
as to what business C. carried on, which he
answered in the negative, when he was asked
whether he had ever been told that C.’s license
to carry on business had been revoked. He
answered this question in the negative, when
he was asked whether he had not been told
that GC. had a lengthy examination before the
board of police commissioners and that his li-
eonse was revoked, to which question an ob-
jection was sustained. Held, that such ques-
tion was an illegitimate attempt to get the sub-
stance of the inquiry before the jury as an evi-
dentiary fact, and that the objection ‘was prop-
erly sustained.
18. WITNESSES—DXAMINATION — SPECULATIVE
QUESTIONS.
A subsequent question as to whether, if any
of such matters had been brought to witness’
mind, it would have changed his opinion con-
cerning C.’s reputation, was incompetent as
hypothetical and speculative.
19. Crmminat LAW—ApPPEAL—IIARMLESS ER-
ROR—RULINGS ON JSVIDENCE.
Where the court by its rulings had stricken
out all of the evidence of an expert with refer-
ence to his opinion that certain bullets were
all fired from a particular pistol, it was im-
material that the court, when it undertook to
designate specifically the evidence to be stricken,
failed to designate for elimination certain evi-
dence touching a particular exhibit which was
_jneluded in the court’s ruling.
20. SAME—EVIDENCE—IX PERIMENTS.
After a homicide a nistol was found on the
premises, concealed in a barn, and this was used
by an expert with which to fire certain bullets
for comparison with those from the bodies of
the persons killed. On the trial it was shown
that the pistol was in the same condition, ex-
cept as to exterior blood marks, when the ex-
pert fired the bullets from it as it was when it
was found in the barn. JJeld, that the -bullets
fired from the pistol by the expert were not ob-
jectionable, when offered for the purpose of com-
parison, on the ground that they were not fired
under the same conditions as those existing at
the time of the homicide.
[Ed. Note.—-For cases in point, see vol. 14,
Cent. Dig. Criminal Law, §§ 854, 891.]
21. SAME—TRIAL—INSTRUCTIONS—I"oRM.
Where, in a prosecution for homic'de, the
ease was otherwise fairly tried, the fact that
the court, in giving one of accused’s proposed
instructions, struck the concluding Janguage,
that, if the jury should find so and so, they
“chould find the defendant not guilty,” or
“should acquit him,’ was not ground for re-
versal.
[Ed. Note.—For cases in point, see vol. 14,
Cent. Dig. Criminal Law, § 1989.]
22. SamE—CONFLICTING INSTRUCTIONS.
Instructions that if the jury, from a con-
sideration of all the evidence, were satisfied of
defendant’s guilt beyond a reasonable doubt, it
was their duty to find him guilty, and that, as
the evidence was circumstantial, each material
circumstance must be proven to the jury’s sat-
isfaction beyond a reasonable doubt, or they
should acquit, were not in conflict.
[Id. Note.—For cases in point, see vol. 14,
Cent. Dig. Criminal Law, §§ 1967, 1968.]
93. SAME—REQUESTS—REFUSAL.
Where, in a prosecution for homicide, the
court had specifically charged that unless the ju-
ry were satisfied from all the evidence beyond a
reasonable doubt that the presumption of in-
nocence of the defendant was overthrown, it
was their duty to find defendant not guilty,
it was not error for the court to refuse to charge
tat unless the jury found the evidence sufli-
ciently strong to overcome the presumption of
innocence, and to satisfy their minds of defend-
ant’s guilt beyond a reasonable doubt, he was
entitled to an acquittal.
{Jad. Note.—Ior cases in oint, see vol. 14,
Cent. Dig. Criminal Law, § 2011.)
24. SAME.
Where the court charged that the jury
must not consider the evidence of all the witness-
es which had been stricken out, it was proper for
the court to refuse an instruction that the evi-
dence of certain named witnesses had been
stricken, and therefore must not be considered;
the list of witnesses not including the names
nti caoesii, tghtenctaan tea
a
nay Valet eg
She ms ese api, tliliaanlec ata. Zeegere
674 86 PACIFIC REPORTER. . (Cal.
upon it and one or two light-colored hairs,
and the pistol contained the shells: of five
discharged cartridges. The defendant was
in a clothing store in Auburn about five
minutes to 7 on the evening of the tragedy.
Ile there purchased a pair of trousers, He
took off his old trousers in the store. They
were rolled in a bundle by himself, and after-
wards more compactly by the storekeeper,
who wrapped them in a paper and returned
them to the defendant. The defendant’s
manner at this time was not such as to excite
attention, He comported himself as usual.
Prior to that he had been seen on Brewer
Lane, going from his house to Auburn at
about 6:30 p. m. He was seen in the wash-
room of the American Hotel at 6:40 or 6:43
p. m., where he washed his hands, and ‘hur-
riedly left the place. lle was seen on the
street going toward Cohn’s store, where he
purchased the trousers at about 6:45. Tle was
on the streets of Auburn after this time
until the alarm of fire, and his appearance
and conduct during that time was natural.
Upon hearing the alarm, be ran to the Weber
house in company with a friend, carrying
the bundle which contained his old trousers.
These trousers he used to break in a window
to gain access to the house. He did enter
the house, and testifies that he assisted in re-
moving the body of his little brother. His
testimony as to this was contradicted. The
bundle containing the trousers was burned
in the house. Upon November 1ith he was
examined by the district attorney and the
sheriff as to his knowledge of the fire and the
homicide, and his answers were reduced to
writing. On the evening of the same day he
testified as a witness at the coroner’s inquest.
Upon the following day he was arrested and
charged with the murder of his family. Upon
preliminary examination he was ‘held for
murder. An information was filed against
him by the district attorney upon November
29th, charging him with the murder of Mary
Weber, his mother. Upon this charge he was
brought to trial in January, 1905. The trial
consumed about a month, the jury return-
ing a verdict of guilty of murder in the first
degree. His motion for a new trial was de-
nied, and he was sentenced to be hung. From
that judgment, and from the order denying
his motion for a new trial, he prosecutes this
appeal.
The prosecution contended, and to this their
evidence was addressed, that the defendant
had killed his parents, sister, and brother, in
the manner indicated; that the father was
killed in the bathroom, the mother and
daughter in the piano room ,, the little hoy
beaten while in his night clothes, and brought
to the piano room, that the murderer then
saturated the clothing of Mrs. Weber and
the daughter with inflammable oil and set
fire to it; that he likewise set fire to the
house; then, hiding the pistol in the barn,
hurried to Auburn to establish an alibi; that
the heavy, black smoke from the piano room
came from the burning oil and burning flesh,
and the room being inclosed, the oxygen Was
soon exhausted and the flames thus smother-
ed, in support of which it was shown that
when the burned bodies were carried to the
open air the fire revived, and sparks were
seen upon the clothing. The people’s conten-
tion was, further, that defendant hurried to
the washroom of the American Ilotel to re-
move the blood and other traces of crime;
that the trousers which he wore were blood
stained, which necessitated the purchase of 2
new pair, and that, he deliberately threw the
old pair into the burning building in order
that this evidence of his crime might be de-
stroyed. Stress also is laid upon the asserted
unnatural conduct of the defendant during
and after the fire, that he did not approach
the bodies of his mother and sister after they
had been taken from the house nor inquire
about them. It was shown that Julius Weber
was worth about $50,000. Upon the death of
the other members of the family, this de-
fendant would succeed to property of this
value. Herein the prosecution imputed the
motive for the crimes. Upon leaving the fire,
the defendant went to the home of a friend,
and, on account of his excited condition, a
doctor was called. The doctor dressed a cut
upon the young man’s hand, which probably
he had received in forcing a window of the
burning house. The defendant wanted to
know if his mother were alive. The doctor
replied that his mother was in the care of
friends with a physician in attendance, and
that he could not see her, nor could he
see any member of the family that night.
The defendant said: “T want to know if my
mother is alive. I know she is dead. They
told me she is alive, but I know she is dead.”
The doctor gave him a composing draft, and
the young man said that if he was permitted
to go out for a time he would come back and
remain quietly all night. To this the doctor
consented,, and the defendant went out with
pis friend, and at his own suggestion visited.
an ice cream parlor, where they had an ice
cream soda, and after that called at the
Amercian Hotel to visit some young ladies;
the defendant making the suggestion, saying:
“Let's go see the girls in the hotel.” The
foregoing is instanced merely as an example of
the unnatural conduct which it is insisted by
the prosecution the defendant displayed after
the frigntful tragedy. Further, the prosecu-
tion produced a pawnbroker of San Francisco,
who identified the Iver-Johnson pistol as one ©
whieh had been owned by him, and which in
turn he had sold to defendant, positively
identifying the defendant, and describing
with some particularity the clothing which
he wore at the time of the purchase. All of +
the evidence was wholly circumstantial, and
the defense contends that it was likewise
| wholly insufficient to uphold a judgment of
| conviction. This is based upon the incon-
Cal) PEOPLE v. WEBER. 675
sistency and irreconcilability of the evidence.
Thus, it is said that the defendant must have
left his home before 6:80 p. mn., since he was
seen upon Brewery Lane walking to Auburn
at that hour, and was afterwards, and up to
the time of the alarm of fire, seen so frequent-
ly in the town of Auburn as to render a
surreptitious return to the house impossible;
yet that Bertha Weber was heard by a dis-
interested witness playing upon the piano at
6:40 or 6:45 p. m., and another disinterested
witness heard the scream of a woman from
the house between 6:40 and 7 p. m., and that
the fire was first discovered in the house at
about 6:30 or 6:45. From this it is argued
that as Bertha Weber was heard playing the
piano somewhere between 6:80 and 6:45,
her brother, who was at that time absent
from the house, could not have been the
murderer; and, moreover, that it would
have been impossible for him to shoot three
people, all adults, haul the bodies of two of
them in the piano room, where there was no
fire, and set fire to them, go upstairs and beat
his little brother upon the head, and carry his
body down to the piano room in the length
of time established by the evidence. But to
this it must be answered that the witnesses
who fixed the time do not pretend to do so
with positiveness and exactness. They fix it
as “about”? such an hour and even if it be
conceded that an irreconcilable conflict in the
evidence arises, it must be noted that the
testimony of the piano playing and of the
woman’s scream was offered by the defense,
and it was the province of the jury to weigh
and decide and to reconcile the testimony if
they could, and, if the conflict was irreconcil-
able, to affix their own value to the offered
evidence. And it must be added that, when
allowance is thus made for inaccuracies as to
time, there is nothing in the whole case to
show that the defendant could not have com:
mitted these horrible deeds, with all their
attendant circumstances, and still have made
his appearance upon the streets of Auburn at
the time shown. Upon this subject, there-
fore, it must be concluded that the evidence
is sufficient to justify the verdict.
To the rulings of the court in the impanel-
ment of the jury, and upon the admission and
rejection of evidence, appellant’s counsel re-
served very numerous exceptions, The same
is true of the court’s rulings in giving, in.re-
fusing to give, and in modifying instructions.
No one of these rulings has failed to receive
the careful investigation which the gravity
of the case warrants, and we pass to a con-
sideration of those which call for particular
mention and discussion. After 12 jurors had
been sworn to try the cause, but before the
information had been reador the plea of the
defendant stated, or the opening statement of
the prosecution made,one of the12was ex-
cused because of illness. A special venire was
issued and a twelfth juror accepted and sworn,
without any challenge interposed. At the
time of the final completion of the jury, the
defendant had 9 peremptory challenges un-
used. Upon the discharge of the sick jury-
man, defendant moved the court that the re-
maining 11 jurors be not discharged, and that
the trial be proceeded with by calling from
the box the name of another juror, and that
each side be allowed the number of peremp-
tory challenges remaining after deducting
from the original number the number already
used. ‘Lhe court assented to the suggestion,
but reserved its ruling concerning the number
of peremptory challenges to which each side
would be entitled, denying the motion as
premature, with leave to renew it at any
time. In this state of the case no question
arises as to the number of peremptory chal-
lenges, since neither side had exhausted the
number to which it was clearly entitled under
the law, and since neither side exercised or
attempted to exercise any challenge upon the
juror last called to the box. The ruling of
the court in this matter was correct, and is
supported by People v. Brady, 72 Cal. 491; 14
Pac. 202; People v. Van Tlorn, 119 Cal. 332,
51 Pac. 588.
The Attorney General made an opening
statement to the jury, at the conclusion of
which the defense moved that the prosecution
be requireu and directed by the court to state
to the jury what the other facts referred to by
the Attorney General were, and what they
expected to prove, and on what a reliance
for a conviction of the defendant was placed.
The court denied the motion. It is asserted,
that Penal Code, § 1093, subd. 2, is mandatory,
that the prosecution must open the case, and
that in so doing it must state what it expects
to prove. Such, however, is not the meaning
of the law. <A prosecution may open its case
by the introduction of evidence without any
preliminary or opening statement. The pur-
pose of such statement is merely to outline
the testimony about to be offered, to the end
that the jury may more clearly sift and digest
it. People v. Stoll, 148 Cal. 691, 77 Pac. 818;
People v. Ellsworth, 92 Cal. 595, 28 Pac. GOA.
The physician who performed the autopsy
upon the body of Mary Weber was permitted
to testify as to the place of entrance and of
exit of the bullet found in her body. It is
said that special skill will not entitle a wit-
ness to give an opinion, where the jury is
capable of forming its own conclusions from
facts susceptible of proof in ‘the common
form. This is undoubtedly true, and it may
be conceded that the observation even of the
unprofessional eye could determine which
was the point of entrance and which the
point of exit, and if the body had been ex-
hibited to the jury they could have formed
their own conclusions from their own obser-
vations. --But they had not this opportunity,
and the physician was merely illustrating up-
on a djagram and testifying to a matter
which had come under his own observation, so
that even if it be conceded that the question
So
—=
te ee?
Seer prt Fa Ras
eg oz,
POR RE
Cal!) PEOPLE v. WEBRA. 672
of all the witnesses whose testimony had been
stricken.
25. SAME—ABSTRACT INSTRUCTIONS.
An instruction that the mere possession “of
any article,’ whether it can or cannot be used
in the perpetration of a crime, is not of itself
sufficient to convict accused, but is merely a
circumstance, ete., was abstract, and properly
refused.
[id. Note—Tor cases in point, see vol. 14,
Cent. Dig. Criminal Law, § 1979.]
26. SAME — REQUEST TO CILARGE — MopIrica-
TION.
Where accused requested that the jury be
told that he was entitled to the independent
judgment of every juryman, it was proper for
the court to modify the instruction so as to read
that each side was entitled to the independent
judgment, ete.
[Iad. Note.—For cases in point, see vol. 14,
Cent. Dig. Criminal Law, §§ 2013, 2014.]
27. SAME.
An objection to an instruction in a crim-
inal case that it is not sufficiently full is un-
available, unless a fuller instruction, is re-
quested.
{Ed. Note.—For cases in. point, see vol. 14,
Cent. Dig. Criminal Law, § 2005.]
28. SAME—NEW TRIAL—GROUNDS—THEORY OF
PROSECUTION.
Where,.in a prosecution for homicide, ac-
cused was advised of the nature of the cirecum-
stantial evidence on which the state relied for
a conviction, and it did not appear that on a
new trial any new evidence would have suc-
cessfully controverted the Attorney General’s
theory adopted at the trial, the fact that such
officer, in finally arguing the case’ to the jury.
adopted a theory different from -that advanced
at the preliminary examination, ete., was not
ground for new trial.
29, SAME—NEWLY DISCOVERED E\VIDENCE—Im-
PEACHNG ‘TESTIMONY.
In a prosecution for homicide, it was not
an abuse of the trial court’s discretion to re-
fuse a new trial because of newly discovered
evidence tending to impeach the testimony of
a witness, not upon the principal fact of his
testimony, but merely as to one of the reasons
which he gave for his identification of the weap-
on by which the state claimed the homicide was
committed.
{Iad. Note.—Ior cases in point, see vol. 15,
Cent. Dig. Criminal Law, §§ 2331-2332.)
30. SAME.
Affiant testified in an aflidavit in support
of a new trial for newly discovered evidence
that he had purchased the pistol with which the
crime was committed from a man whom he des-
ignated as “the Sailor.’ He knew nothing more
concerning him, and testified that‘shortly there-
after he (affiant) went to the beach with several
companions and tried the nistol, and that they
were all surprised at the way in which the pis-
tol shot. yet the affiant gave the name of no
one of his companions. He testified that. he
sold the pistol] to a man employed in a repair
shop in Oakland, but did not state the name
of the man nor of the shop, and, while he was
unable to remember such names, he was able
to identify the pistol by description and number.
and also the day of the month on which he sold
the pistol IIe also testified that he wrote
defendant's attorneys concerning what he knew,
but this statement was not corroborated, and
the affidavit failed to give any evidence of the
witness’ location or whereabouts. Held, that
‘the refusal of the trial court to credit such
affidavit was not an abuse of discretion.
{Ed. Note.—For cases in point, see vol. 15,
Cent. Dig. Criminal Law, §§ 2335, 2336.]
Beatty, ©. J., dissenting,
86 P.—438
In Bank. Appeal from Superior Court,
Placer County; J. BE. Prewett, Judge.
Adolph Julius Weber was convicted of
murder, and he appeals. Affirmed.
Grove L. Johnson, Ben LP. Tabor, F. P.
Tuttle, and Sam. J. Cullen, for appellant. U.
S. Webb, Atty. Gen., A. K. Robinson, Dist.
Atty., and George W. Ilamilton, for the
People.
IIENSHAW, J. On November 10, 1904,
Julius Weber with his family resided in
Auburn, Placer county. His family con-
sisted of his wife, Mary Weber, his daughter,
Bertha Weber, aged 18, a son, Harl Weber,
aged 9, and a second son, Adolph Julius Web-
er, aged 20, the defendant herein. The home
was a two-story frame building situated
‘within its own grounds, some little distance
away from the house of any neighbor. At
about 6 o’clock of the evening of November
10th, the family was seen alive in the house
by passers-by. At 7:35 of the same evening
the house was discovered to be on fire, and
at 7:42 the fire alarm bell was rung. The
first people to arrive saw no living person
within or about the buildings. A number of
people, firemen and citizens, were soon upon
the ground. A front room upon the ground
floor Was entered by them through the win-
dow. This room contained a piano and is.
designated “the piano room.” It was full of
thick, heavy, smoke, but no fire was detected.
From this room three bodies were carried;
Mary Weber, Bertha Weber, and Karl Weber.
Mary Weber and Bertha Weber were both
dead, and had been frightfully burned after
death. The little boy was not burned at all.
He was alive, though unconscious, when re-
moved from the room to the yard, but died
almost immediately after. He was in his
night clothes. They were moist with blood.
An autopsy disclosed that Mary Weber and
Bertha Weber came to their death by gun-
shot wounds. Mary Weber was shot twice;
Bertha Weber, once. In each case the
wounds were almost immediately fatal.
Neither could have survived the wounds more
than five minutes, The bullets were recovered,
and were pistol bullets of 32 caliber. The
burns were inflicted upon the bodies after
death. The little boy had not been shot.
His death was caused by blows upon the
head, inflicted with some blunt instrument,
and subsequent suffocation. The house burn-
ed to the ground. The following day the body
of Julius Weber was found in the bathroom
of the dwelling. It had been subjected to
great heat and was frightfully burned. An
autopsy disclosed that the cause of his death
was a bullet wound caused by a bullet of
like caliber to those which killed the others.
Upon November 22, 1904, there was found in
the basement of the Weber barn, about 250
feet from the dwelling, a revolver described
as an “Iver-Johnson 32-caliber revolver, old
style.’ When found, there was dry blood
Se ee
os
67 | - 86 PACIFIC REI ER. (Cal,
did not call for expert evidence, the answer
was none the less admissible as being direct
testimony to a physical fact which the wit-
ness had observed and the jury had no op-
portunity of seeing. The same witness was
allowed to answer a question as to the size
of the wounds on the body referred to as
bullet wounds and answered: “I believe them
to have been produced by a 32-caliber bullet.”
A motion to strike out the answer was denied.
It is sufficient here to say that as the bullet
which inflicted the wound was _ recovered
from the body, and was proved without dis-
pute to have been a 32-caliber pistol bullet,
the answer could not have been injurious.
It was shown by the prosecution that
the defendant was in San Franciseo during
the months of June, July, August, and Sep-
tember, of. 1904. The pawnbroker, Tenry
Carr, had identified the defendant as purchas-
ing from him the pistol introduced in evi-
dence in August, 1904, and this witness de-
seribed the attire of the defendant at the
time of the purchase. Through the testimony
of the witnesses Mrs. Muston, Mrs. Hilliker
and others, the prosecution showed the style
of clothes which the defendant wore in San
Francisco during those months. The effort
was directed to establishing that the clothes
which the defendant actually wore during
that time were such clothes as Henry Carr
described the defendant aS wearing at the
time of the purchase of the pistol. This evi-
dence was admissible in corroboration of
Carr’s identification.
Proof of the value of the property belong-
ing to Julius Weber was objected to upon the
ground that it was not shown that the de-
fendant, a mere youth, knew the value of the
property of his father, or the amount of
insurance upon it, and unless he did so know,
the testimony had no pertinency upon the
question of motive. But, in the absence of
such a direct showing, it was established that
the young man, nearly 21 years of age, had
been living with his family upon the property,
and was continually surrounded by evidence
of his father’s possessions, and it would be
no strained, but a natural, inference for the
jury to say that he had at least some knowl-
edge of the matter.
Touching the conduct of the defendant upon
the morning after the fire, a witness was
asked and permitted to answer the following
questions: “Did he, during any of that time
(about three minutes) say anything about
his mother being dead? Did he speak about
any of the members of his family being dead?
During these three minutes that you were in
his presence, did he tell you that any mem-
bers of his family were dead?” The only
objections to these questions are that they
are leading. But even leading questions are
permissible within the sound discretion of
the court. The answers were in no sense jn-
jurious, the witness replying, “He said some-
thing, or Adrian Wells said something to
him; I didn’t understand, and he said, “I
don’t see why they could not get out of the
house.’ ”’
Mrs. Snowden was allowed to testify that
Mrs. Weber said to her in the presence and
hearing of defendant: “Dolphy is so mean
to me I am almost afraid to ask him to do
anything for me. He does aggravate me so.”
Defendant moved to strike out this state-
ment, and the motion was denied. It should
have been granted. It is not every statement
made in the presence and hearing of a per-
son which is admissible in evidence against
him. Nor is the statement, so far as its
contents are concerned, admissible as evi-
dence at all. It is merely the conduct of the
person in connection with the declaration,
his failure to act as it might reasonably be
expected that an innocent person would act,
which is the evidence, and the declaration is
received merely to illustrate the person’s
conduct under the particular circumstances.
Jones on Evidence, § 291; People v. Teshara,
134 Cal. 544, 66 Pac. 798; People v. Philbon,
38 Cal. 5380, 71 Pac. 650. Nothing is dis-
closed as to the conduct of the defendant at
the time the statement was made, so that it
stands upon the record as a naked hearsay
declaration of the mother of the defendant.
But even so, it is of such trifling character
as not to justify a reversal of the cause,
Many questions were asked of different
witnesses concerning the actions and state-
ments of the defendant upon the day after
the tragedy. They were all offered in proof
of the alleged unnatural and thus guilty
conduct of the accused. It was pertinent to
show what the defendant did or did not do
under those trying circumstances. It was
permissible to argue that he did or did not
act as an jnnocent person would have acted.
The weight of all this testimony was for the
jury, but it was not error to admit it.
Objection is made to the introduction of
the statement made by defendant to the dis-
trict attorney and to the sheriff upon the day
after the tragedy. It is said that it appears
that it was not a voluntary statement, but one
made under duress. A reading of the state-
ment, however, discloses that it contained
no admission or confession of guilt, and it
is only as to the latter class of statements
that the rule requiring preliminary proof of
their free and voluntary making bas applica-
tion. So, in People v. Jan John, 144 Cal.
286, 77 Pac. 950, it is said: ‘But this rule
applies only to confession of guilt, and does
not forbid proof of other admissions of the
defendant, though these, taken in connection
with other proofs, may tend to prove him
guilty.” See, also, People vy. Ammerman, 118
Cal. 32, 50 Pae. 15; People v. Hickman, 113
Cal. 86, 45 Pace. 175. In the statement which
the defendant made to the district attorney
and sheriff upon the day after the homicide,
and also in the testimony which he gave before
the coroner’s jury, he described the course
+ ee
af
A RO ED ape
tea, ee
Raymond Wells and _ his wife Jean
were both victims of the mad killer.
Raymond Wells was described as
a quiet, home-loving man, devoted
to his wife and child. There was
something radically wrong when he
did not come straight home from
work.
Was it some coincidence that had
delayed him? Or was his absence
connected in some yet unknown
way with the mad rampage of his
ex-convict brother?
By telephone, Stocker and his
men located the other Wells bro-
ther at Fontana and learned that
he had loaned his car to Raymond
for several weeks. More important,
they obtained from him a full de-
scription of the car, and in a mo-
ment it was flashing over the radio
and teletype:
1932 Ford coupe, black, with
red wire wheels. Two spare tires
in fender-wells. 1941 License Num-
ber 32-S-525.”
Y DAYBREAK, the manhunt
was tightly organized, with all
officers on the alert throughout
Southern California and Arizona.
Posses blocked all roads, in the
Mojave Desert, through which a
fugitive would logically head.
Officers were waiting at the Ray-
mond Wells home in San Bernar-
dino; still others were posted at
the bungalow-court home of Al-
fred Wells at 322 G Street. There
was no clue at either place, to the
whereabouts of either of the miss-
ing men. The dingy rooms of the
hunchbacked ex-convict looked as
though no one had been there for
hours or days. ’
At the hospital, Rose Destree
was resting more easily, still un-
der an anaesthetic, after a blood
transfusion and an operation to re-
6
move the heavy .38 slugs from her
body. But the doctors said she had
virtually no chance to survive. A
deputy waited by her bedside to
take down any further statement
she might make if she should be-
come conscious again.
At the same hospital, the Wells
infant was apparently little the
worse for her ghastly experience.
Washed and bathed by the nurses,
and fed, the tot was sleeping peace-
fully, showing no ill effects from
the desert exposure, and too young
to be affected by ‘shock.
In the morgue, autopsy surgeons
removed two bullets from the body
of Mrs. Jean Wells. One from her
heart and one from the other side
of her chest.
Neither of the women bore signs
of criminal attack or of any other
violence than the bullet-wounds
save for the lacerations Rose Des-
tree had suffered when she crawled
through the desert. .
Both of the women had been
shot from close range. There were
powder-marks on the wounds.
Deputies had gone to Escondido,
reported that Rose Destree’s hor-
rified relatives, who were rushing
to San Bernardino, could shed no
light on the tragedy. They did not
know Alfred Wells, and knew only
that the girl had gone to the city
to visit her friend, Jean, for a
week or So. ‘
“Well, we don’t know what it’s
all about, yet,” Undersheriff Stock-
er reported in the morning to Sher- /
iff Emmet L. Shay, “but we've got
all the angles covered. Every road
is being watched for that car;
Wells can’t get away.”
“what do you think about Ray-
mond: Wells being missing, too?”
“It's hard to say—-maybe he's
out looking for his wife and Al-
fred—or maybe Alfred had it in
for him too! But we’re bound to
pick up some trace of either one
or both of them before long.”
But hours passed, with no word
of the fugitive hunchback, his
missing brother, or the Ford coupe.
Then came a break. Rose Destree,
emerging from the anaesthetic, was
stronger and able to talk. The dep-
uty at her bedside sent a hurry-
up call for the sheriff and under-
sheriff- and a stenographer.
The dying girl’s eyes, dark pools
in her bloodless face, were still
haunted by the memory of those
red hours.in the desert.
“Tell us everything you can,”
Sheriff Shay urged her. “Anything
that you think may help us find
Alfred Wells.”
“Have you talked to Raymond?”
the girl asked.
“No—Raymond’s missing too. We
have men posted at both of their
homes. Raymond disappeared after
leaving work at 10 o’clock last
night.”
The girl tensed against the pil-
low.
“Raymond’s, missing? My God,
Alfred must have killed him too.”
“We're looking everywhere for
them,” the sheriff assured her. “We
may be in time to save Raymond.
But tell us the story from the be-
ginning. Why did Alfred Wells
start out on this ghastly shooting
spree? Why did he want to kill
you and his brother’s family? You -
said something about his girl-
friend——”
“Yes. His half-sister. Violet Wells
She’s a beautiful girl, a
Davis.
blonde. Her folks live in Escondido. .
Mr. and Mrs. Clark Davis. They’re
Alfred’s folks, too—his mother and
step-father.”
At a sign from Sheriff Shay, one |
of the deputies hurried out to get i
on the trail of Violet Wells Davis. |
“She’s a sort of serious, idealistic
girl,” Rose: Destree went on. “She
used to visit Alfred in prison, and
when he was paroled, she went
to keep house for him. She said
she thought she could help him go
straight.
“Alfred was in love with her. He
used to say she inspired him to
forget his’crooked past.
“But after a while the family
began to see less and less of them,
and finally it seemed as though
Violet wanted to leave but Alfred
was holding some strange power
over her.
“I don’t know all the details,
but I know the rest of the family
pleaded with her to leave him. She
stuck by him, though.
“Finally, a couple of weeks ago,
she left him. She came to me in
Escondido, and I helped her get
a job in an orange-packing shed.
I promised not to tell anyone
where she was. She said Alfred
had threatened to kill anyone who
took her away from him, and she
was afraid to go near any of the |
family, for fear he’d come after
them!” ~
“T see.” Sheriff Shay frowned
as the stenographer’s pencil raced
along. The story was beginning to
take shape. A strange, dark, twisted
love story, as fantastic as a piece
of horror fiction. The sheriff
thought fleetingly of the hunch-
back Quasimodo in Victor Hugo’s
Rose Destree, the third of: the -fiend’s victims
gave the police vital information before she died.
‘tails,
amily
. She
ago,
noe in
c get
shed.
iyone
Jfred
who
i she
f the
after
wned
-aced
vg to
isted
piece
reriff
nch-
ugo’s
ed she was with me,” the wounded
: girl said. “He thought I was just + showdown,’ he; said. ‘I want to
. a friend of the family. I don’t think :
->I. don’t think he ever suspect-
he. knew even up to the end,
“Jean asked me to come and help
her take ‘care- of: the baby while
Ray was on the night shift. The
last thing Violet said to me, when
I left her in Escondido, was to be-
ware of Alfred. She warned me
that he was perfectly serious in
his threats to wipe-out the whole
family if she didn’t come back.
“I suppose we should have had
him arrested—but we thought he’d
had trouble enough, and we felt
he’d get over it.
“Last night he came to the house
about dusk. Jean and I were alone
with the baby. We were mortally
afraid, but we didn’t dare show it.
He. seemed calm and friendly, but
-we couldn’t guess how much he
knew. You see, it was Jean who had
driven Violet to my place at Es-
condido.”
“He didn’t mention Violet, but
said he’d got a job on a chicken
ranch up by Cajon Pass. He wanted
Jean to drive him out there.
“It seemed such a good chance
to get rid of him, that we agreed.
ea hee Taek, eed “0 ee
Mrs. Jean Wells, above..
was a witness to the crim
“Ma “ ‘Now
ot
_ her, by holding us as hostages. He
Her thirteen-months-old daughter
e. in the desert sage-brush.
pg When we’
“the sage-
AF Bis ee
dled the. baby up,
out, in ‘the
brush, out of sight of fas:
Ester,
“we're going to” have 8
“road, he
=“ rock:=
val,
-know where Violet. isl! (47 <°..5
“We protested that: we didn’t
know. He leered and said he knew
we did, Finally he said he was kid-
naping us and intended to hold
us till he got her back. He said
he’d make’ Raymond take him “to ©
warned us to stay where we were,
out there in the desert, till he
came back. He said he had friends
of his watching us, and we didn’t
doubt it—we were too terrified.
“He made Jean write a note that
he dictated. Something like this—
' « “Honey—Al is holding Rosie
and the baby and me. He wants ©
Violet returned to him. I think it
is better that you do what he says
and go with him, and then you
can come to us.’ .
“And E. think she added a line
oft her own to Ray—‘Don't forget
our slogan, Dear—‘I love you al-
ways.” ;
“I held the baby while she was
writing the note. I’ll never forget
it—that hunchbacked fiend stand-
ing over her, scowling.” She shut -
her eyes for a moment. “Al put
une note in his pocket, then he
took the baby from me, as though
to give her back to Jean.
“He stepped back, then, and
snarled at Jean: ‘You did me an
awful dirty trick, and you know
that no one ever double-crosses
me and lives to tell about it!’
“He turned to me. ‘Don’t scream,
now,’ he said. Then, before we
realized what he intended doing,
he whipped out a pistol and shot
Jean!
“It all happened in a flash. There
was no time to move—not even to
scream. He turned and shot me. I
fell down. I thought I was dying,
then and there. He walked right
up to Jean’s body and shot her
again. Then he came over and shot
me once more. I don’t know how
I kept conscious, but I had sense
enough to lie still so he’d think
I was dead.
“all this time he had the baby
in his left arm. I thought he was
surely going to shoot her, too. He
stood there muttering. Then he
laid little Hester down on Jean’s
breast. After.a while, I heard him
walk away and 1 opened my cyes.
He went straight to the car and
drove off.
“Jean was dead. The baby was
moaning and_ tearing at Jean’s
clothes. It was horrible. There was
blood all over. I tried to pull the
Wega. baby away, but it clung to its
ens ee + mother, and I didn’t have enough
me sl strength left. So I started to crawl
‘ ‘ back to the road—and—I guess
: you know the rest.”
“But wait——” the sheriff inter-
rupted. “You say Wells came to
your house about dusk; it was close
to midnight when we found you.
Do you mean to say you were
, as
Alfred Wells, who conceived and carried out
the deed on the three unsuspecting people.
crawling across the desert all that
time, bleeding from these wounds?”
“I guess so. It seemed like a year.
I never thought I’d make it.” She
lay back and closed her eyes again.
The officers, who had stood spell-
bound during the amazing recital,
plunged into action. Sheriff Shay
phoned to Escondido, asked that
Violet Wells Davis be picked up
at once.
“There's no telling what this
madman may do,” he said. “He
may be on his way to kill her,
now!”
It was clear from Rose Destree's
story that Alfred Wells must have
met his brother, Raymond, as he
left work at the railroad shops,
and accused him of hiding out
Violet-—shown him the note Jean
had written, without telling him
Jean was dead.
was Raymond Wells still in the
power of his murderous brother,
driving out somewhere in the
desert country—or—what was more
likely—had he already shared the
fate of his wife by derlying the
hunchback?
Officers out at the bungalow on
G Street collected more details
about Alfred Wells. A neighbor,
William Stroud, revealed that he
had sold Wells the death gun. It
was a 38 that Stroud had pawned.
Wells, learning of it, offered Stroud
a dollar and a box of groceries for
the pawn ticket, and 51 roud, be-
ing hard up, sold it, never dream-
ing for what murderous purpose
the hunchback wanted the gun.
“He told me he just wanted it
for protection,” ‘Stroud said, “and
I didn’t see any harm in selling
(Continued on paye 28)
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Another neighbor told of see-
ing Wells, only a few days before,
creasing the noses of a boxful of
cartridges, to make dum-dums out
of them. Apparently his murder
foray had not been a berserk in-
spiration, but had been coolly pre-
meditated! :
In Wells’ room, the deputies
found what appeared to be a clue
to his future plans. It was a rail-
road map, dog-eared and with the
rail route from San Bernardino
to Salt Lake City, Des Moines, Chi-
cago, and Detroit heavily penciled.
The officers communicated imme-
diately with railroad special agents,
asking them to be on the watch
for a hunchback riding the freights
—although they believed it most
likely he had continued his flight
in the stolen car. :
Meanwhile, Undersheriff Stocker
had sped to Escondido, where offi-
cers had had no trouble locating
Violet Wells Davis at the home of
her parents. The hysterical family
had not seen Alfred Wells nor
heard from him. They only knew
what they had heard in radio news
bulletins, and they had practically
barricaded themselves in, expecting
the mad hunchback to appear at
any moment.
Stocker, fully agreed as to their
grave danger, arranged to take Vio-
let and her mother and father
at once to a hideout in a hotel
near Los Angeles.
On the way, the honey-blonde
girl, between sobs, revealed further
details of her strange life with her
half-brother.
“I hate him now!” she cried. “I
hope they get him. None of us
will ever live in peace till he’s put
away! And I blame myself. This
wouldn’t have happened if I hadn’t
been selfish and left him!”,
They assured her she .was not
to blame, that she was not re-
sponsible for the vagaries of the
hunchback’s mind, and that she
should have left him long before.
“I thought I could straighten
him out,” she said, “He promised
to go straight. First we lived in
a little cottage on Arrowhead Street
and we were happy for a while. I
kept house for him and tended -to
all his needs. He loved me, I know,
and I guess I loved him—or maybe
it was more pity than love.
“But he began to go to pieces
before long. He got to be insanely
jealous of me. Even before I ever
thought of. leaving him, he accused
Raymond and Jean and the others
of trying to break us up.
“He tried to commit suicide a
couple of times. Once he slashed
his wrists and I -found him’ just
in time. oan ;
“Once he said: ‘I’ll kill them all,
even the baby, if they take you
away from me!’ I tried to warn
them, but they thought I was ex-
aggerating. They wouldn’t believe
Al was serious.
“We moved to G Street, because
he was afraid the neighbors at
the other place were turning me
against him. He used to follow me
and spy on me wherever I went.
And he’d accuse me of all sorts
of terrible things.
“Finally I couldn’t stand it any
longer. I made up my mind to run
away, but I didn’t know where to
go. I was afraid to go to live with
anyone’ of our family—Al would
be sure to track me down and
kill them. Then I got the idea of
going to Rose Destree, and I told
Jean and she drove me out there,
one day when Al was away.
“Oh, I'll never sleep until he’s
caught! It’s horrible!”
Wit8 the girl and her parents |
safely under guard, with strict
instructions to communicate with
no one and to stay in their rooms,
Stocker hurried back to San Ber-
nardino.
The hunt by this time had spread
all over the Southwest. And Sheriff
Shay, taking no chances, had as-
signed guards to all members of
the Wells family whom he could
locate. There was no telling where.
* *
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by George (the real) McCoy
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the mad hunchba
next. The failure
or the car indicate
still be hiding sor
perhaps waiting.
cover of darknes:
Under police pro
Adeline Archer
Beach, an aunt
the hunchback wa
visited occasional):
George Kroh of Fu
Alfred had threat
the time the hu:
rested for robbery
Another brothe:
employed on a rz
spurned the sher
tection, and disp
which he kept ne:
“Al had better
* me,” he declared.
of myself, and h
Other relatives
police and deputie
Scores of tips
to pour in, as the
A mari resemblin
near Indio, hitc
Arizona; Mexican
they were search!
San Luis, on th
hunchback had b
the border in a
dozen suspects
throughout the d
each proved to b
man.
Hundreds of pc
were staked out
ways and prow!
tougher districts .
valley towns.
Tension increas
but still-there wa
deformed ex-con
naped brother.
The next morn
died without reg
ness again.
At the same ‘
. ceived a tip fror.
-. two suspicious-lc
- Ford had driven
, doned cabin in dc
» yon, about six mi
+ of the shooting c
‘late the previou
“ The undershe:
~- with a force of fo
bx surrounded the p
- with shotguns 2
# the cabin was :
= was no sign that
* there,. The manh
® to their routine
} Late that day, :
ly authentic tip
in San‘ Bernardi
of the city was b!
lead, too, came
~ several tense ho
A Los Angeles:
;- Wells positively, :
~ as a hitch-hike
directions on a si
~ lands, and the h
-direction.
: The first defin
| that night, when
> coupe was foun:
f Las Vegas, Neva
~ vice salesman at
> ing of the manhi
~ Ford fitting th:
* been parked in
- on the morning <
- The man who:
~ hunchback. He.
* leaving it in st
‘Cox rushed to
that the license
“It was Alfrec
pay CS Rs
Y's
DOK
al) McCoy
+ pleasure-laden
ttings for every
tain guide to
frolic, Just the
regular, fellow-
knows all the
+ HANDBOOK
riety, burlesque
at a twosome
those with cold
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/BOOK contains
of: Anecdotes,
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the hunchback was known to ha
E visited occasionally, and his’ uncle, --<.
+ -George Kroh of Fullerton, who said Shay shook his head when he heard
> Alfred had threatened his life, at
=which: he kept near the door. z
“Al had better not come near
e,”. he declared. “I can take care:
eee ggaen strike =
=the time the hunchback was ar:
“rested for robbery at Fullertonss
Another brother, Norman Wells,
f myself, and he knows it!” -
Other relatives were guarded
lice and deputies at Fontana. =
i near Indio, hitch-hiking toward”
* Arizona; Mexican authorities said
“they were searching for him near
' San Luis, on the report that a
. hunchback had been seen crossing
the border in a box-car; half a~-
~ dozen suspects were
: throughout the desert country, but
picked up
each proved to be not the wanted
man. -
Hundreds of police and deputies
were. staked out on desert high-
ways and prowled through the
tougher districts of the desert and
- valley towns.
Tension increased as night fell,
but still there was no trace of the
deformed ex-convict or. his kid-~
naped brother.
The next morning, Rose Destree
died without regaining conscious-
ness again.
At the same time, Stocker re-
ceived a: tip from’ a rancher that
_ two suspicious-looking men in a
- Ford had driven up to an aban-
doned cabin in desolate Cable Can-
yon, about six miles from the scene
“> of the shooting of the two women,
‘late the previous day.
-The undersheriff rushed there
with a force of forty men, and they
surrounded the place and closed in
with shotguns and tear-gas. But
the cabin was empty, and there
was no sign that anyone had been
there, The, manhunters went. back
rm
_ in San’ Bernardino,
’ to their routine plodding. :
Late that day, another cgparents.:
ly authentic tip: placed: Wells back
and ‘a. section: .
of the city was blocked off; ‘but this*.
lead, too, came to nothin after.
several tense hours. =<.
A Los Angeles motorist identifi
Wells positively, from photographs, ‘:
as a hitch-hiker who had asked
‘
directions on a side-road near Red-
lands, and the hunt >; * Se in that:
direction.
The first definite clue came ‘tate
that night, when the missing ;Ford
-. coupe was found: in''a garage at
©. Las Vegas, Nevada. Carl“Cox, ser--
vice salesman at the garage; téad+
ing of the manhunt, recalled that a
* Ford fitting the description had
been parked in the garage early
on the morning after the shootings.
The man who had left it was a
“* hunchback. He. had said he was
leaving it in storage for a week.
Cox rushed to the garage, found
that the license numbers checked.
“It was Alfred Wells,..all. Tent,’ ad
“rafter he left the car, he walked
Scores of tips and leads begat;
“to pour in, as the manhunt spread. +:
‘A man resembling Wells was seen -
: =
he told police. “I ‘remember that
Bont turned, with railroad police
cooperating with deputy sheriffs all
along the rail line. Newspapers and
radios warned motorists to beware
Back in San ‘Bernardino, Sheriff
that the car had been found..
“It looks bad,” he said. “It was
the morning ‘after the shooting—
and Alfred Wells was alone, I'm
afraid there’s no hope wee —
his brother alive!” rete ad
While the manhunt went’ on in
spread search for the body of Ray
: Wells, which they were sure would
were assigned to search each 50-
mile segment of roadway. Under-
sheriff Stoeker took off in a plane
~ and scoured the desert country.
Sheriff Shay recruited.a posse
of almost 1,000 volunteer searchers,
and they spread over the desert
in a hunt reminiscent of the grim
search back in 1937 for the bodies
of three little Inglewood girls slain
by a fiend. American Legionnaires,
Boy Scouts, and a dozen other
groups took part in the coordinated
hunt. Many of the searchers bore
guns—for it was still possible the
mad slayer had doubled back, to
kill other members of his family
after throwing the manhunters off
his trail.
A heavy guard was even kept
over baby Hester Wells, at the hos-
pital, on the possibility the hunch-
back might attempt to get at her.
The climax of the desert hunt
came suddenly on May 12, five
days after the shootings.
Two of the volunteer possemen,
O. E. Hawkins and E. E. Thompson,
stumbled over the body of Ray-
mond Wells lying in the brush of
the Verdemont foothills, above San
Bernardino.
He had been shot twice, through
the head, and in the back.
There was no doubt in Sheriff
Shay’s mind that Ray Wells had
been lured out into the desert by
the pathetic note his wife had
given to the hunchback, and had
been killed without mercy, just as
».the women were, only a few hours
later.
¢ [NTENSIFIED, the hunt for the
triple slayer had by this time
-spread throughout the entire West.
“: “But, since the finding of the car,
there was not a single -definite
‘further clue to the hunted man’s
whereabouts. Days went by, and
even the false tips and leads be-
igan to dwindle.
But Sheriff Shay’s men did not
relax for one moment either the
search for the triple killer or the
‘guard over the surviving members
of his family. Violet Wells Davis
and her family were still kept in
strict seclusion. Shay felt it highly
probable that the hunchback would
try to locate her and carry her
away.
The days lengthened into weeks.
Suddenly, on June 7, exactly a
‘month to a day after the desert
massacre, word of the.end of the
‘manhunt came from an unexpect-
ed quarter—from Spokane, Wash- '
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When it was over, Vargas. and
Groves made eye contact, the re-
porter said. “He nodded and point-
ed at Williams as if to say, ‘It’s
over.’ ”
Kathleen Kelly, one of Williams’
appeals lawyers, also wept during
the execution, witnesses said.
Wilson hails execution
After Williams was pronounced
dead, Gov. Wilson issued a state-
ment that said, “After 17 years of
appeals and delays, Williams has
faced the consequences of his ac-
tions and justice has finally been
served. (Williams) acted deliber-
ately. and with premeditation to
rob, sexually assault and murder
three individuals, and his actions
deprived four young children of
their mother and left a wake of
destroyed lives from his crimes.
“Neither I nor the people of this
' state will tolerate or accept excuses
for such crimes. For certain crimes,
justice demands the ultimate pun-
ishment. Williams’ coldly calculat-
_ ed, heartless and senseless murders
| are such crimes.”
The governor earlier had denied
clemency, saying, “Within the
body of Keith Daniel Williams
dwells a malignant heart.”
_ At Williams’ clemency hearing,
the Vargas children said he should
die. “I can’t have my father back,
so my only wish is that justice will
prevail,” Miguel Vargas Jr. said.
Defense attorneys presented
_ statements from relatives. of Salva-
| dor Vargas asking that Williams be
spared.
‘Murdered over bad check = —
Prosecutors said Williams, a
' small-time criminal and drug user
from Lodi, had killed the Vargas
_ cousins in a farmhouse near Mer-
| ced while stealing a $1,500 bad
check he had given to Miguel Var-
gas for a car.
He shot Meza to death, alleged-
ly while raping her near Sonora.
Merced Sheriff Tom Sawyer, who
was one of the witnesses to the
execution, said Williams had told
his accomplice, Robert Tyson, that
he “shot her four times in the head
so he could feel her death quivers
as he had sex with her.”
Williams, known as Danny to
fellow inmates and those who said
he was a changed man in prison,
also told Tyson, “I love to kill,”
Sawyer said.
Friday’s execution came after
the U.S. Supreme Court rejected a
claim by Williams’ lawyers that he
should be spared because he was
mentally ill.
The 9th U.S. Circuit Court of
Appeals in San Francisco already
had refused to stop the execution.
His lawyers said they had only re-
cently obtained 595 pages of medi-
cal records that federal prison offi-
cials had withheld since 1984. They
showed Williams suffered epileptic
seizures and manic-depressive
symptoms — all stemming from an
abusive childhood — and could not
control his homicidal rages, the
lawyers said.
The appeals court said his law-
yers hadn’t justified their failure to
obtain the records earlier and
hadn’t proved that they would
have swayed the jury.
Last hours with minister
Williams spent his last hours
with a Marin County minister de-
scribed as his spiritual advisor. The
California Supreme Court, in an
unusual move, ordered San Quen-
tin officials to allow her to stay
with him until just before he was
moved from a holding cell into the
death chamber, which formerly
was the gas chamber.
Officials tried unsuccessfully to
uphold their rule that only prison
personnel could be with the con-
demned man after 6 p.m.
Williams was Roman Catholic;
the minister is ordained by the
United Church of Christ.
Williams requested a last meal
of fried pork chops, baked potato,
asparagus, French bread “with real
butter,” salad with blue cheese
dressing, apple pie, vanilla ice
cream and a large glass of cold
milk, prison Lt. Joy Macfarlane
said.
She said he had no statement
for the media, adding, “He seems
very comfortable. He’s in good
spirits. He seems relaxed and is not
at all anxious. We just talked. He
was polite.”
No Williams family members
were at the prison. Macfarlane said
Williams had said his goodbyes to
family members a week ago and
had had no contact since.
Outside the prison, actor Mike
Farrell, president of the anti-capi-
tal punishment group Death Pen-
alty Focus of California, said,
“Danny Williams committed a
horrible crime (and) he deserves to
be separated from society.”
But he didn’t deserve to be exe-
cuted, Farrell said, pointing to his
years as a model prisoner and not-
ing that medication during his
years on death row had curbed his
violent tendencies.
One of the most dramatic
speeches was from Derrel Myers,
whose 23-year-old son, Joshua “Jo-
Jo” White, was shot to death in
San Francisco on Jan. 19.
Praising the victims’ family
members who asked that Williams
be spared, Myers said, “I’m very
proud of those of you who have
spoken out against vengeance. If
the man who murdered my son was
on death row tonight, I would be
here and I would speak in favor of
his life.”
His son’s killer is still at large.
Williams’ execution was delayed
for nearly 17 years, first by an ex-
tended political debate over wheth-
er California would reinstate capi-
tal punishment, then by his ap-
peals in state and federal courts.
According to trial testimony,
Williams bought a car from Miguel
Vargas, using a stolen check. Two
days later, he and Tyson went to
the Vargas house to demand the
check back. Williams shot both
Vargas men at their house.
The men took Meza to a remote
location where Williams took her
out of the car and shot her four
times as he raped her, according to |
Tyson’s testimony.
Examiner correspondent Don-
na Horowitz contributed to this
report.
Lr £2 '- GO _ |
San Fant. €lcaniNerR
Lis
@ EXECUTION from A-1
Triple murderer
Williams executed
hand, but there were no incidents,
The prison was to be on lock-
down status until later Friday and
was quiet before, during and after
the execution,
California has executed four
San Quentin inmates since the
death penalty was reinstated in
1978, the last two by lethal injec-
tion. There are 366 men and four
women on the state’s death rows.
As he died, the gray-haired Wil-
Hl
Was on San
Quentin’s death
row for 1978
killing spree
ely tates
Les SARS RE
Sol
that vitae Bias
| on’s death chamber.
SAN QUENTIN — Keith Dan- |
ie] Williams, a triple murderer who —
said he loved to kill, was killed by
lethal injection just after midnight
Friday, the 506th person to be exe-
cuted by the state of California.
The U.S. Supreme Court turned
down Williams’ last appeal less
than two hours before lethal 50cc
doses of pancuronium bromide and
potassium chloride were injected
into his veins in San Quentin Pris-
The injections were begun at
12:03 a.m. and Williams, 48, was
pronounced dead five minutes lat-
er, Department of Corrections
spokesman Tip Kindel said.
He offered no resistance and
made no final statement, Kindel
In the witness room, the adult
daughter of one of his victims wept
uietly, as did one of his attorneys.
i Outside the prison, about 200
demonstrators held a mock funeral
around a black casket, burned can-
dies and prayed to protest capital
punishment. A few pro-death pen-
alty demonstrators also were on
[ See EXECUTION, A-18}
eases uneeeen tasra nanan perenne eames
elu Aq
Ol
cvuvey AOAD
PANU 9]
TWaddV S.LOAIAY LYNOD HDIH ‘s'n
a
O91 NY AY NYS”
he
liams appeared to be trying to talk
By ane D. _— to someone in the small room
and | seorge Rain where 16 press witnesses and 34
others watched.
“He was clearly saying some-
thing to someone,” said Harvey
Levin, a reporter with KCBS-TV
in Los Angeles.
After the tubing was inserted,
“he turned and raised up as best he
could and made eye contact with
somebody” in the witness gallery,
said Merced Sun-Star reporter
Randy Groves.
Williams blinked repeatedly
throughout the process, Groves
said. Witnesses said he made one
heaving motion before he became
still.
Said to be in a good mood
Williams, who was described by
a prison spokeswoman as in good
spirits, smiling and receptive in the
hours before he died, was executed
for the Oct. 8, 1978, slayings of
farmworkers Miguel Vargas, 29,
Salvador Vargas, 43, and Miguel
Vargas’ pregnant girlfriend,
Lourdes Meza, 24.
Miguel Vargas’ son, Miguel Jr.,
26, and daughter, Onix, 24, wit-
nessed the death of their father’s
killer. Onix sobbed during the five
minutes it took Williams to die but
straightened and stopped crying
when death was declared, Groves
said.
Miguel Vargas Jr., holding a
crucifix, remained composed.
Thursday, April 25, 1996
THE PHILADELPHIA INQUIRER
NATIONAL/INTERNATIONAL PART 2
Law aims to hasten executions by limiting federal appeals
Victims’ rights groups and law enforcement officials
support it. Critics contend innocent people will die.
By Angie Cannon
INQUIRER WASHINGTON BUREAU
WASHINGTON — Nearly 17 years
ago, two drifters randomly stopped
at the rural Oklahoma home of
Richard and Marilyn Douglass.
Once inside, they robbed, hog-tied
and. shot the family of four and
raped 12-year-old Leslie. The two
critically wounded children
watched their parents die.
Since then, the Douglass children,
now grown, have watched as the le-
gal system has kept the two killers
alive, despite their death sentences.
Yesterday, President Clinton
signed a bill that would speed exe-
cutions by sharply limiting federal
appeals. That provision was in-
cluded in the antiterrorism bill
Congress passed last week, just be-
fore the first anniversary of the
Oklahoma City. bombing.
“Part of the whole idea of the
criminal-justice system is allowing-
the victims to move on with their
lives,” said 32-year-old Brooks Doug-
lass, who was 16 when his parents
were slain and who was elected to
the state Senate in 1990 pledging to
push for similar legislation.
“If you are having to look over
your shoulder for 17 years, you find
it very difficult to go on if you have
to testify time and time again.”
For nearly 15 years, Republicans
in Congress have been trying to
é ‘
pass a measure restricting death-
penalty appeals. This new provision
strips power from federal judges to
review death-row cases and many
other kinds of cases from state
courts.
The antiterrorism bill also per-
mits the government to deport a sus-
pected terrorist without presenting
evidence to a judge. The govern-
ment would be allowed to exclude
foreigners belonging to suspected
terrorist organizations from enter-
ing the country. .
It authorizes the federal govern-
ment to spend $1 billion over the
next four years to fight domestic
terrorism and requires criminals in
federal proceedings to make restitu-
tion to their victims.
With Senate Republican Leader
Bob Dole looking on, Clinton signed
the bill during a ceremony on the
South Lawn of the White House. In
the audience were victims of terror-
ist attacks, including survivors of
bombings at the Oklahoma City fed-
eral building and the World Trade
Center in New York, and the 1988
bombing of Pan Am Flight 103.
Some wiped away tears as Clinton
signed the bill into law.
“While this is a good day for
America, you can’t really say itisa
happy day,” Clinton said.
The provision limiting appeals
from death row has the support of
law enforcement and victims’ rights
groups. But civil libertarians and
defense attorneys say the provision
will have little impact on terrorism
— and that innocent people will be
executed as a result.
There are 3,061 condemned con-
victs on death row in 38 states, in-
cluding 196 in Pennsylvania, 12 in
Delaware and 11 in-New Jersey.
Most are appealing their cases,
which generally go through at least
two rounds of appeals, once in the
three-tiered state courts and then in
the three-tiered federal courts.
s Knight-Ridder Tribune / HARRY HAMBURG
‘President Clinton signs the antiterrorism bill. Sen. Bob Dole (third
from right), members of Congress and victims of terrorism attended.
Of the state-court-ordered death
sentences that federal courts have
reviewed, about 40 percent have
been overturned, according to the
Death Penalty Information Center,
a Washington organization that op-
poses the death penalty. Since 1970,
59 people have been released from
death row based on evidence of
their innocence, the group says.
“The danger is we could have peo-
ple on death row or incarcerated
who won't be able to get their cases
heard,” said Mark Kappelhoff, an
American Civil Liberties Union law-
yer in Washington. “There is no
doubt in my mind we will have in- .
nocent people executed because of
this. Swift justice isn’t always cor-
rect justice.”
On top of that, cana say fed-
eral appeals will be limited for all
people — not just those in death-
row cases, which make up less than
1 percent of all so-called habeas cor-
pus petitions.
But lawmakers say they want to
end lengthy appeals from convicted
murderers. Currently, it takes about
eight years for a capital case to
move from conviction to execution,
‘according to death-penalty experts.
“This will free the judicial proc-
ess from endless and frivolous ap-
peals from prisoners convicted of
capital offenses while victims and
families wait helplessly by for years
and years for justice to finally be
done,” said U.S. Rep. Deborah Pryce
(R., Ohio).
California Attorney General Dan
Lungren predicted that the law
would reduce the time taken for ap-
peals in the typical California capi-
tal case from 15 years to five. With
438 people on death row, California
has more condemned inmates than
any other state, according to the
Death Penalty Information Center.
The measure limits appeals in
these ways:
© Federal judges can overturn state-
court decisions only if the decisions
are an “unreasonable application of
clearly established federal law.”
@ Inmates who have lost state-court
appeals will get only one chance to
appeal in federal court, curtailing
the practice of repetitive federal ef- |
forts. The only exception is if there
is “clear and convincing” evidence.
the defendant is innocent.
e Instead of delaying indefinitely,
inmates must file federal appeals
within one year of sentencing, and
within six months in capital cases if
the state provides counsel in state-
court appeals.
¢ Federal judges wotild have dead-
lines for deciding appeals. Federal
district judges would have 180 days,
as would federal appellate judges,
the next step. :
Some legal experts say they don’t
expect a flurry of executions, at
least until an expected challenge to
the law makes its way through the
courts.
Should it be upheld, then federal
courts probably would consider cap-
ital cases more quickly. Supporters
of the measure predict death sen-
tences would be carried out within
two years of final state action. -
That wouldn’t be soon enough for
people like Brooks Douglass.
“T deal with families all the time
who always are expressing their
frustration,’ Douglass said. “They
ask: ‘Why does it take 14 or 15 years
to see justice done?’ When you are
talking about that kind of time, you
don’t have justice for anyone.”
G.M. Bush of the Long Beach Press- ~
Telegram contributed to this article. It
also includes information from the
Associated Press.
A10 ©
a
LEXINGTON HERALD-LEADER, LEXINGTON, Ky. Il TUESDAY, MARCH 12, 1996
EDITORINLS
Increase the faith
Public tr trust demands colorblind death sentencing
rosecutors.are barraging the
P= with. advice to kill
Senate Bill 132, the racial jus-
tice in death-sentencing act.
xx Legislators might.be inclined to
appease prosecutors by ducking |
their duty to help make justice col- ‘
orblind. Before ducking, they
should ask:a few questions: : - es
. - Why do‘ prosecutors fear the
kind of scrutiny this bill would al-.
low? What would be revealed by |
statistical sttidies of how the death ~ |
penalty has been dispensed in cer-
tain jurisdictions? Shouldn’t a sys-
tem that is supposed: to be dedicat-
ed to justice welcome self-examina-
tion for patterns of racial bias?
-: And, perhaps most important,
how can racial minorities trust a -
system that is content with the cur-
rent appearance that white lives are
more valuable than black lives?
- In arguing that sufficient safe-
guards against racism already ex-. |
ist, opponents of SB 132 convenient-
ly ignore a 1987,Supreme Court rul-
ing. It specifically excluded statisti-
cal evidence of racial discrimination
as a consideration in death penalty
sentencing. In that ruling, the
Supreme Court acknowledged that
such patterns are troubling, howev-_
er, and invited Congress and state -
legislatures to enact laws allowing °
courts to consider discriminatory —
pavterts in Geathr a enalty oe
ing. : LsiPh
After all, “judges can — and rou-
tinely do — consider statistical pat- :
terns in deciding whether someone
has suffered discrimination on the
job. Why shouldn’t a.similar de:
fense be available to someone fac-”
ing the ultimate penalty? .
It’s telling that one of the few
commonwealth’ S attorneys who |
supports SB 132 answers to many ©
black constituents. Jefferson County
_Commonwealth’s Attorney Marc S. ’
Murphy, in comments written for
the legislature’s judiciary commit-
« tees, recently said his fellow. prose-
cutors exaggerate when they say. -
SB 132 wouid create onerous new
burdens for their overworked staffs
“and give convicted killers another |
- tool to impede the process. “The —
: delay ‘excuse is a thin one — an
example of what happens-when _
those of us in government see a lit-
tle more work coming our way and
~ begin to holler that the ‘sky is |
_ falling,” ” Murphy wrote.
Murphy noted that 1,000 —
~ African-Americans have been mur-
dered in Kentucky ‘since 1977 and
“none of their killers is on Death
Row. All of the convicted murder-
ers on Death Row killed Cau-
: “-casians.”
Contrary to what opponents ;
“say, SB 132 will not kill the death -
_ penalty. If it becomes law and de-
fense lawyers raise statistical argu-
ments, prosecutors could refute that’
evidence simply be demonstrating
- that a crime was so-onerous the
death penalty would have been
sought no matter what the killer’s
race.
Lawmakers are going through
' the motions of approving an
amendment to remove racist lan-
- guage from the state constitution
even though that language, offen-
Sive as it may be, was long ago |
struck down by the courts and has
‘had no force of law for decades. >’
If these same lawmakers really
care about racial justice — and not.
‘just the appearance of political cor-
rectness — they should enact SB
132, increasing public faith in our
" Justice system, before the dogwoods
bloom.’ :
pe ee ee ee ee ae > manne
Page 4 The Hartford Inquirer Wednesday, April 17, 1996
As most of you know, it is easy to fill up
a notebook with ideas for a column. I am
therefore probably going to have a random
selection of events and thoughts for this edi-
tion.
THE DEATH PENALTY
_.Sometimes there are murders that are so
horrible that it is easy to support the “death
penalty”. On a close examination of those
on death row reveals that minorities espe-
cially African Americans are more likely to
be on death row under the federal death pen-
alty statutes than any other group. Just look
at the facts regarding federal death peal
cases since 1988.
The federal death penalty was enacted at
that time. The government has authorized
sixty-one(61) capital prosecutions. Of the
sixty-one (61) defendants, twelve (12) were
Whites, seven (7) Hispanics, two (2) Asians
and forty (40) African Americans in other -
words SIX ‘percent(66%) of the total were
African American. These figures came from
a report prepared by William D.
Matthewman, an attorney who practices law
in Miami.
You will recall that in 1988 the law was
enacted to target “drug kingpins”. You also
are aware that for the most part “drug busts”
nearly always fail to get the real bosses of _
the drug trade. The 1988 law was broadened
eae cae ee aan ae: Si hgpthanis st Unga 0
by Art Johnson foe
€From the Notebook
'
in 1994 and came out as the crime bill. This
bill was designed to include more than fifty
different categories of federal crimes. Attor-
ney Mathewson asks “why the rush to ap-
ply the death penalty”.
His figures go on to show that at least
_ seven (7) federal death row defendants have
appealed their sentences. Attorney,
Mathewson believes that the African Ameri- |
can Defendants have been singled out un- |
‘der this law for the harsh penalties in fact,
he was successful as the lead defense coun-
cil in Miami’s U.S. District Court in having |
his client acquitted and also two (2) co-de-
fendants were likewise acquitted. It was al-
~ leged that the young men in this case com- |
mitted two (2) murders to protect their busi-
ness of distributing crack cocaine.
It is disturbing for anyone who would like
to believe in the harsh punishment of death
to maintain their positions when it appears |
that African Americans are apparently
caught in a discriminatory judicial web.
The findings about these cases should
lead organizations like the Crawford Soci-
ety to review harsh sentencing in the Con-
necticut courts.
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day night saying the appeal did not
_ raise any new issues substantial
- enough to stay the execution.
2
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:
S
Williams was sentenced to die
for the Oct. 8, 1978, execution-style
house. He also was convicted of
Vargas, 29, and his cousin, Salva-
dor Vargas, 40, at a Merced farm-
murdering Miguel’s pregnant girl-
friend, Lourdes Meza, whose body
was found near Sonora about 50
miles northeast of the first killings
EE
murders of dairy workers Miguel
Lodi Triple Murderer
Loses Execution Ruling
PvE YF—FO-76
By Harriet Chiang
Chronicle Legal Affairs Writer
With fewer than four days to
go until his scheduled execution,
triple killer Keith Daniel Williams
lost a bid before a federal judge in
Fresno yesterday to avoid being
put to death at San Quentin.
Williams’ attorneys immediate-
ly filed an appeal in the U.S. Court
of Appeals in San Francisco, a pan-
el that includes several liberal
judges, giving the Lodi man his
best chance of delaying his execu-
tion.
If he fails to win a legal re-
prieve, the 48-year-old inmate will
die by lethal injection on Friday at
12:01 a.m.
Last Thursday, Governor Pete
Wilson refused to grant Williams’
request for clemency. The follow-
ing day, the California Supreme
Court rejected his bid to delay his
punishment.
The condemned inmate’s exe-
cution would come 17 years after
he was sentenced to die for the
1978 Merced murders of Salvador
Vargas, 43, his 29-year-old cousin
Miguel Vargas and Miguel’s girl-
friend, 24-year-old Lourdes Meza.
Williams had bought a car from
Miguel Vargas three days before
the murders and was attempting
to steal back the check he had writ-
ten to him. After shooting the two
men execution style, Williams
EXECUTION: Page A15Col. 1
EXECUTION
From Page Al13
drove Meza to a field several miles
away and shot her four times.
In an order issued yesterday
evening, U.S. District Judge Rob-
ert E. Coyle rejected Williams’
claims that he suffered from a se- -
vere mental illness at the time of
the murders. “Williams’ actions on
Sunday, October 8, 1978 were
planned, goal-oriented, and calcu-
latedly cruel,” Coyle said in his 35-
page decision.
Coyle also dismissed the in-
mate’s argument that recently ob-
tained federal prison records show |
that he was in a manic state at the
time of the killings. The judge said |
there was evidence of his disorder
at least three years ago and that
Williams had failed to show that
he suffered any miscarriage of jus-
tice.
But in his new appeal filed yes-
terday, Williams’ contends that 595
pages of federal prison records he
received on April 19 — 12 years af-
ter they were first requested —
provide proof of his mental illness.
The records were filed when Wil-
liams was an inmate in federal
prison from 1977 until May 1978,
five months before the killings.
San Fr anus¢
at
> CAL onjc fle
L
EN
At execution, |
triple killer had
no final words ©
Two childrenof ||
a victim witnessed
San Quentin death
By Greg Moran
STAFF WRITER
SAN QUENTIN — His chest |
heaved up, a cough sputtered
from his throat, his eyes shu‘.
With that, the final moments in
the life of Keith Daniel Williams
passed: in the profound stillness
of midnight, as he lay strapped to
a gurney in the state’s execution
chamber.
Save for a slight twitch of his
leg two minutes later, the 48-
year-old triple murderer died
motionless, without an observ-
able struggle.
Williams was pronounced dead |
at 12:08 a.m. yesterday, six min-
utes after the lethal concoction of |
chemicals started flowing into his |
veins. He departed with no final
words, no apologies — at least
for public consumption, and un-
der the watchful eyes of two chil- ©
dren — now adults — of one of
his victims.
Miguel Vargas Jr. and Onyx
Vargas stared at the supine Wil-
liams, without tears and with an
air of quiet determination. Mig-
uel Vargas Jr. fiddled with what
appeared to be a crucifix dan-
gling on a chain around his neck.
Just as they had grown up,
Williams had grown old. A bushy
salt-and-pepper beard fell below
his chin,
It had been almost 18 Mars
since Williams — in a spasm of
violence the night of Oct. 8, 1978
— killed their father, 29-year-
old Miguel Vargas, his cousin,
Salvador Vargas, 43, and their
father’s friend, Lourdes Meza,
25. It all was over $1,500.
The two Vargas family mem-,;
bers, along with: other official’
media -representa-'
witnesses,
tives and a handful of Williams’
own witnesses numbered nearly
50 as they stood on risers, like
those designed for a church
choir, around the octagonal
green chamber.
They watched more of the ex-
ecution procedure than was al-
lowed when serial killer William
Bonin was put to death in Febru-
ary.
Media witnesses had com-
plained after that execution that
prison officials did not allow them}
to see the condemned man enter
the chamber, get strapped onto
the gurney and have the intrave-
nous needles inserted. Their ac-
counts of the procedure relied
heavily on what prison. officials
said happened.
A media group sued, arguing
that the job of the press was to,
watchdog the state’s execution’
methods to ensure that they
were not cruel and unusual.
This week, a judge ordered.
prison officials to allow witnesses!
to see everything starting with;
the insertion of needles into the’
condemned. :
It appeared to go efficiently,
save for a problem putting a nee-:
dle into Williams’ heavily-tat-,
tooed right arm. Eventually, it!
slid into a vein on the top of his,
hand.
Three technicians — one on)
either side of Williams and a third’
at his feet — arranged the nee-
dles and lines, beginning at 11:53)
p.m. Two corrections officers,
stood on either side of Williams’
head. It made for tight quarters
in the old gas chamber, a glass-|
enclosed room 7% feet across. |
When the lines were in place,
the technicians left and the two,
guards rotated the gurney 4
quarter turn. Finally alone in the
chamber, Williams — who stared,
at the ceiling, blinking as the nee~
dles were inserted — lifted his
head several times, apparently
trying to look at the people he
knew outside.
One was a woman in clerical
garb, likely his spiritual adviser,
the Rev. Margaret Harrell, who
had spent most of that evening
with Williams. She comforted an-
other woman — said to be be ong,
Williams’ attorneys h
sobbed quietly.
Williams lowered his neva!
The death warrant was read. He’
blinked, several times. The
chemicals began to flow, then the
chest heave, the leg movement,
stillness. The waxy, pale hue of
his face darkened to a grayish
souwa t
See EXECUTION on Page A-5
Execution
Media allowed
to W/.ness more
Continued from A-3
color at the very end.
Williams was the fourth person
put to death in California since the
death penalty was reinstated in
1977, the second this year.
Media witnesses who had attend-
ed previous executions said that
Williams’ procedure was more sub-
dued.
“This one was calmer than the
others,” noted Kevin Fagan of the
San Francisco Chronicle, who had
watched Bonin die.
Williams confessed to shooting
what his appellate lawyers say is
the cousins to death execution-
style. He bragged to a friend that
he killed Meza while he raped her.
Over the years, Williams’ appeals
have focused on allegations of the
inadequacy’ of his trial lawyer and
proof that he was mentally ill at the
time of the murders.
Courts consistently rejected
those claims. Word of the last rejec-
tion from the U.S. Supreme Court
came at 10:30 p.m. Thursday.
There are more than 430 pris-
oners on California’s death row, 23
from San Diego County. It is diffi-
cult to predict who may be next
because each capital case is unique.
Using the legal process as a mea-
surement, 43-year-old Alfred Dyer,
convicted of a double murder in
Oakland in 1980, appears to be fur-
thest along.
a a oY
SAT. 5- 4-96
San Digge
Union —
R/BUNE
Court won’t stop Williams execution
By BOB EGELKO i
Associated Press
SAN FRANCISCO — A federal appeals court
refused Wednesday to block the execution of
Keith Daniel Williams, who is scheduled to die
at 12:01 a.m. Friday for murdering three peo-
ple during a 1978 robbery in Merced County.
The 9th U.S. Circuit Court of Appeals ruled
that Williams’ lawyers had not justified their
failure to obtain records of his mental illness
earlier and had not shown that the evidence
could have changed the jury’s verdict.
The ruling was issued by a three-judge panel.
An 11-judge panel could rehear the case if or-
dered by a majority vote of the entire court.
Williams’ only further appeal would be to the
U.S. Supreme Court.
“I think it’s regrettable but not surprising
that this particular panel has ruled as it has,”
said Michael Kroll, a spokesman for Williams’
defense team. “I expect that an (11-judge) panel
of the full court will revisit these issues.”
Williams, 48, of Lodi, was convicted of mur-
dering dairy workers Miguel Vargas, 29, and his
cousin, Salvador Vargas, 40, at a Merced farm-
«house in October 1978. Prosecutors said he killed
them while stealing a bad $1,500 check he had
given Miguel Vargas for a car. He also was con-
victed of murdering Miguel Vargas’ pregnant
girlfriend, Lourdes Meza, 24, whose body was
found near Sonora about 50 miles away.
His first appeal, rejected by state and federal
courts, claimed his trial lawyer was incompe-
tent for failing to obtain any of his medical
records, and for introducing psychiatric testi-
mony that portrayed him as a bigot who was
likely to kill again.
With the execution date approaching,
Williams’ lawyers said they obtained 595 pages
of medical records that federal prison officials
had withheld since 1984, when the records were
first requested. Based on his psychiatric treat-
ment both inside and outside prison since 1969,
the documents showed that he suffered from
epileptic seizures and a manic-depressive con-
dition, responded well to medication and could
behave in prison, defense lawyers said.
But the appeals court said Williams’ lawyers
had failed to prove that the records could not
have been obtained earlier and presented in his
first appeal.
“Williams himself has known for years, pre-
sumably since at least 1984, that more federal
Bureau of Prisons records must have existed
than those (21 pages) turned over at the time,”
said Judge David Thompson in the 3-0 decision.
Thompson said the new records merely add
further weight to claims Williams had made in
his previous appeal — that he suffered black-
outs, had a head injury, endured an unstable
and unhappy childhood, and had an extensive
history of alcohol and drug abuse — along with
evidence that he adjusted well to prison life.
That evidence “pales in comparison to the
overwhelming evidence of Williams’ careful
planning, methodical execution of that plan, and
the ruthless murders of his three victims,”
Thompson said.
be —
2008
California Supreme Court
ar
- -
‘CALIFORNIA
case were adequate in all respects.?3 No demonstrable prejudice to
defendant resulted from the failure to charge him with the addi-
tional crimes of robbery, kidnapping and rape.
5, “Redundant Multiple-murder Special Circumstances
Defendant next.claims that section 190.2, subdivision (3) of the
1977 death penalty law must be construed to permit charging only
a single multiple-murder special circumstance in a single prosecu-
tion. While acknowledging the propriety of consideration of the
multiple killings as an aggravating factor, he argues that the prolif-
eration of special circumstances based thereon skewed the jury ver-
dict in favor of death. Since a single multiple-murder special-
circumstance finding is sufficient to render a defendant eligible for
the death penalty, defendant argues that only one should be
_ charged to avoid arbitrary imposition of death at the penalty phase.
This court so held in People v. Allen (1986) 42 Cal.3d-1222, 1273.
(See also, People v. Rodriguez (1986) 42 Cal.3d 730, 788; People
v. Harris (1984) 36 Cal.3d 36, 67 (plur. opn. of Broussard, J.).) Any
error in charging more than one multiple-murder special circum-
stance is harmless at the guilt phase, however. It is in the penalty
selection that the cumulative findings may have prejudicial impact.
6. The Kidnapping Special Circumstance
- Defendant, relying on People v. Green, supra, 27 Cal.3d 1, chal-
lenges the finding that he committed the murder of Lourdes Meza
during the commission of a kidnapping, the special circumstance
described in section 190.2, subdivision (a)(17)(i). In Green this
court considered the meaning of the special circumstance element
that a murder be committed “during the commission of” the
related offense and concluded that where the defendant’s intent is
to kill, and the related offense is only incidental to the murder, the
murder cannot be said to have been committed in the commission
of the related offense. To construe the special circumstance other-
wise would be inconsistent with the legislative purpose underlying
all special circumstances—that of distinguishing between those
murderers who deserve consideration for possible imposition of
the death penalty from those who do not. Green held therefore that
the special circumstance of killing during the commission of one
of the felonies enumerated in section 190.2, subdivision (a)(17),
existed only if the killing was to advance the independent felonious
purpose. (27 Cal.3d at p. 61.)
This trial took place prior to our decision in Green. The trial
court was not aware of this construction of the kidnapping special
circumstance and thus did not instruct the jury in accordance with
that decision.24 Defendant argues that this omission requires that
the special circumstance be set aside because he has been denied
the right to have the jury determine a material issue. (People v.
Modest (1963) 59 Cal.2d 772, 730.) This, he contends constitutes
23The court instructed that the special circumstances must be proved beyond
a reasonable doubt; instructed on willful, deliberate and intentional killing in the
course of the underlying offense; instructed on the elements of each underlying
offense; and instructed on the applicability of diminished capacity to the specif-
ic-intent elements of murder and the underlying offenses. Defendant claims no
error in this regard.
24The court instructed the jury that in order to find the kidnapping special cir-
cumstance true “each of the following facts must be proved.
“One, that the murder was willful, deliberate and premeditated, and two, that
defendant was personally present during the commission of the act or acts causing
death, and three, that defendant, with intent to cause death, physically aided or
committed the act or acts causing death, and four, that the murder was committed
during the commission or attempted conmission of a kidnapping. —
“Kidnapping is unlawfully compelling another person against his will and with-
out his consent and because of a reasonable apprehension of harm to move for
a substantial distance where such movement is not merely incidental to the com-
mission of the crime of robbery or rape and where such movement substantially
increases the risk of harm to such person over and above that necessarily inherent
in the commission of the crime or crimes of robbery or rape.
“It is a defense to a charge of kidnapping that the defendant entertained a rea-
sonable and good faith belief that the person alleged to have been kidnapped vol-
untarily consented to accompany the defendant and to the movement involved
in the alleged kidnapping.
“If from all the evidence you have a reasonable doubt whether the defendant
reasonably and in good faith believed that the person alleged to have been kid-
napped voluntarily consented to accompany the defendant and to the said move-
ment, you must give the defendant the benefit of that doubt and find that the
special circumstance kidnapping charge in the tenth paragraph not true.” :
a per se miscarriage of justice within the meaning of article VI, sec-
tion 13, of the California Constitution as applied in Modesto and
People v. St. Martin (1970) 1 Cal.3d 524, 532.) :
We disagree. Assuming that such an instruction would have been
required in this case, the omission could not have prejudiced defen-
dant. The evidence that defendant’s purpose in kidnapping
Lourdes Meza was not simply to kill is more than sufficient. It is
overwhelming. In such circumstances the failure of a felony murder
special circumstance instruction to fully conform to Green is not
prejudicial and the omission does not require reversal. (See People
v. Murtishaw (1981) 29 Cal.3d 733, 142. Cf. People v. Croy (1986)
41 Cal.3d 1, 14.)
The evidence of defendant’s purpose in kidnapping Lourdes
Mesa leaves no room for a contrary conclusion. Appellant and
Tyson had already killed the only other occupants of the farmhouse
when Lourdes Meza was kidnapped. Appellant conceded that he
intended to kill her also. He had no reason to take her from the
house other than to prolong her life for the purpose of the sexual
assault. He already had possession of her wallet, so the kidnapping
was not for the purpose of robbery and there is no suggestion that
it might have been for any reason other than to flee the immediate
scene to avoid discovery while accomplishing the sexual assault.
Thus, unlike Green, supra, 27 Cal.3d 1, where the robbery was an
opportunistic crime committed incidentally during the murder,
here the inescapable conclusion is that the kidnapping had an inde-
pendent, rather than incidental purpose. The jury did not find the
rape special circumstance (§ 190.2, subd. (a)(17)(iii)) true, but that
determination is not dispositive since the jury had only to find
whether or not the murder occurred during the commission or
attempted commission of rape, not whether the kidnapping had a
felonious sexual assault in addition to murder, as a purpose.
The jury found that appellant kidnapped Lourdes Meza. It did
so on the basis of evidence so strong that no rational jury could
have found that he did not have a felonious purpose other than his
ultimate goal of killing her. Upon review of the entire record we
can say with confidence that the omission of an instruction that an
independent felonious purpose is an element of the kidnapping spe-
cial circumstance was harmless beyond a reasonable doubt since
no rational jury could have failed to find that a purpose other than
and in addition to killing her precipitated the kidnapping.
There being no error prejudicial to the defendant at the guilt
phase of the trial, the conviction of defendant on the three counts
of first degree murder is affirmed. The verdicts finding the six spe-
cial circumstances allegations based on multiple murder true are
modified to reflect a single multiple-murder special circumstance.
The remaining special circumstance verdicts are affirmed.
SANITY PHASE
1. Instructions
At the trial on defendant’s plea of not guilty by reason of insanity
(§§ 1016, subd. 6, 1017, 1026) he presented evidence in the form
of the reports of two court-appointed psychiatrists and an electro-
encephalogram (EEG) test, which counsel both read to the jury and
lodged.as exhibits.2° Neither psychiatrist had concluded the defen-
dant was insane. The electroencephalogram was normal.” Before
25The parties had stipulated to presentation of the evidence in this manner.
Defendant’s counsel stated for “the record” that this strategy had been discussed
with defendant and they “were proceeding in this fashion with his consent and
permission.” He also asserted that it was his “belief this is the best interest of my
client to proceed in this fashion.”
Defendant personally affirmed his desire to follow this procedure.
26The report of Max Brannan, M.D., stated: “There is no evidence that he has
any frank mental illness or that he is insane or that he was’ insane at the time of
the alleged incident . . . in my opinion he was legally sane at the time of the
alleged incident and he is legally sane at the present time . . . he did not have
a mental disease or defect that would cause him to lack substantial capacity either
to appreciate the criminality (wrongfulness) of his conduct or to conform his con-
duct to the requirements of the law... -
There is no evidence that he has ever been insane... . [H]e is sane at the pres-
ent time. . . he remains a danger to the health and safety of others, himself
included . . . because . . . he is sociopathic . . . not because of mental illness
but because of personality disorder relating to impulsiveness and acting without
thinking.”
The report of Richard A. LLoyd, M.D., stated: “. . the defendant was legally
sane at the time of the alleged offense . . . he did not have a mental disease or
r
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DAILY OPINION SERVICE
2007
California Supreme Court
has been found to be of the first degree. It follows that the Legisla-
ture could not have intended that evidence sufficient to establish
probable cause to believe the defendant had been “convicted” of
those offenses be presented at the preliminary examination. To
read the statute in the manner suggested by defendant would elimi-
nate multiple murder as a special circumstance.
Both common sense and established rules of statutory construc-
tion preclude that interpretation. The language of section 190.2,
subdivision (c)(5), is clear and unambiguous insofar as it applies
’ at the trial.
The question is not, as defendant contends, one of statutory con-
struction involving section 190.2, subdivision (c)(5), but rather the
quantum of evidence necessary to establish reasonable or probable
cause to believe that a defendant will be convicted of offenses which
render him eligible for the death penalty under this special circum-
stance. The proper application of sections 8727° and 9952! is the
question. The rule is well established. A defendant is “legally
committed” within the meaning of section 995, insofar as the quan-
tum of evidence is in issue, if “it appears from the [preliminary]
examination that a public offense has been committed, and there
~is sufficient cause to believe the defendant guilty thereof.” (§ 872
[now subd. (a)].) “The term ‘sufficient cause’ is generally equivalent
to ‘reasonable and probable cause,’ that is, such a state of facts as
would lead a man of ordinary caution or prudence to believe and
conscientiously entertain a strong suspicion of the guilt of the
accused.” (People v. Uhlemann (1973) 9 Cal.3d 662, 667.) When
review is sought of a magistrate’s order committing a defendant for
trial, the superior court on a petition for writ of prohibition filed
pursuant to section 999a, applies the same test recognizing that
“[e]vidence that will justify a prosecution need not be sufficient to
support a conviction. An information will not be set aside or a pros-
ecution thereon prohibited if there is some rational ground for
assuming the possibility that an offense has been committed and
the accused is guilty of it. A reviewing court may not substitute its
judgment as to the weight of the evidence for that of the magistrate,
and every legitimate inference that may be drawn by the reviewing
court from the evidence must be drawn in favor of the
information.” (Caughlin v. Superior Court (1971) 4 Cal.3d 461,
464-465.)
The same standard is applied to test the sufficiency of the evi-
dence to support the commitment on or inclusion in the informa-
tion of a special circumstance (§ 739). (Ghent v. Superior Court,
supra, 90 Cal.App.3d 944, 955.) Since many special circumstance
allegations overlap the substantive offense or offenses charged, and
| a finding of probable cause as to the latter necessarily establishes
| probable cause as to the identical elements of the special circum-
stance, the magistrate and the reviewing courts need only identify
the additional elements of the special circumstances and satisfy
. themselves that sufficient evidence has been presented to establish
the probable existence of those additional elements.
| In the context of section 190.2, subdivision (c)(5), a court cannot
\ literally find probable cause to believe that a defendant as yet
G
a7
20Section 872: “(a) If, however, it appears from the examination that a public
offense has been committed, and there is sufficient cause to believe the defendant
guilty thereof, the magistrate must make or endorse on the complaint an order,
signed by him, to the following effect: ‘It appearing to me that the offense in the
within complaint mentioned (or any offense, according to the fact, stating gener-
ally the nature thereof), has been committed, and that there is sufficient cause to
believe the within named A.B. guilty thereof, I order that he be held to answer
to the same.’ ”
2l section 995:
“(a) Subject to subdivision (b) of Section 995a, the indictment or information
shall be set aside by the court in which the defendant is arraigned, upon his or
her motion, in either of the following cases:
“(1) If it is an indictment:
“(A) Where it is not found, endorsed, and presented as prescribed in this code.
“(B) That the defendant has been indicted without reasonable or probable
cause. ;
—_ “(2) If it is an information:
“(A) That before the filing thereof the defendant had not been legally commit-
j ted by a magistrate.
“(B) That the defendant has been committed without reasonable or probable
cause.
“b) oe
untried has been convicted. The logical application of sections 872
and 995 to this special circumstance is not as obscure as defendant
suggests, however. For the special circumstance to be found true
at trial, the defendant must be found guilty of at least two counts
of murder, and the count or counts to which the special circum-
stance allegations are appended must be of the first degree. The
additional elements which would justify a verdict of first degree
murder as to which probable cause must be shown are set forth in
section 189. If that evidence is sufficient the magistrate may find
probable cause to believe the defendant “committed” first degree
murder, and based upon that, he “may be” convicted of that
offense. It is not necessary at this pretrial stage that the magistrate
find probable cause to believe the defendant “has been” convicted.
(See also People v. Anderson (1987) 43 Cal.3d 1104, 1148-1149,
rejecting a similar claim under the 1978 law.)
Defendant makes no claim that probable cause as to these ele-
ments was not established in accordance with these standards. The
commitment for trial on this special circumstance was not there-
fore vulnerable to challenge by a section 995 motion, and counsel
cannot be deemed incompetent for failing to make such motion on
the ground suggested.
4. Failure to Separately Charge Crimes Included as Elements
of Other Special Circumstances
Defendant was also charged with two allegations of the special
circumstance, defined in former section 190.2, subdivision (c)(3)(i)
(murder in the course of robbery) and one each of section 190.2,
subdivision (c)(3)(ii) (murder in the course of kidnapping) and sec-
tion 190.2, subdivision (c)(3)(iii) (murder in the course of rape). All
but the last were found true.
Former section 190.4 provided that “[w]henever a special cir-
cumstance requires proof of the commission or attempted commis-
sion of a crime, such crime shall be charged and proved pursuant
to the general law applying to the trial and conviction of the crime.”
Defendant was not, however, charged with, nor were separate ver-
dicts returned on the offenses underlying the special circumstances
—robbery (§ 211), kidnapping (§ 207), or rape (§ 261, subd. (2)).
This court held in both People v. Robertson, supra, 33 Cal.3d 21,
and People v. Velasquez (1980) 26 Cal.3d 425, that an omission
to separately charge the underlying offenses was error, but was not
prejudicial. We reasoned that notice was afforded by the special cir-
cumstance allegation.
Defendant asks the court to reconsider this conclusion, arguing
that the purpose of the requirement that the underlying crime be
“proved pursuant to the general law applying to the trial and con-
viction of crime” was to ensure the accuracy and reliability of the
verdict. The only support offered for the assumption that the reli-
ability of the verdict would be enhanced is that the attention of the
jury would then be properly focused on the “quantum of evidence
as to each element of that crime.” He notes also the possibility that
the jury might return a not guilty verdict as to the crime which
could then be asserted as inconsistent with a finding that the related
special circumstance was true.
As defendant correctly points out, subsequent to Valasquez we
stated in both People v. Green, supra, 27 Cal.3d 1, 59, and People
v. Thompson, supra, 27 Cal.3d 303, 322, quoting Green, that a
valid conviction of the underlying crime is a “necessary condition”
to finding a related special circumstance allegation true. That state-
ment was made in an entirely different context, however, and does
not preclude upholding a special circumstance when the notice
given by the charge was adequate, the instructions given to the jury
required that all of the elements of the underlying crime be found
to exist, and the jury was correctly instructed that the defendant’s
guilt of that crime must be proven beyond a reasonable doubt: In
those circumstances the jury’s attention is focused directly on the
crime and it is proven according to the general law. The return of
only a special circumstances verdict confirming the jury’s finding
that the defendant was guilty of the crime is a defect in form not
substance.”” The instructions on these matters given the jury in this
22We recognize that the omission of the charge and verdict on the substantive
underlying crime results in there being no “conviction” on which a separate sen-
tence may be imposed, and should the murder verdict be set aside, the defendant
may not be held or punished for the lesser offense. A defendant is in no position
to claim prejudice in that regard, however.
“2006 California Supreme Court
CALIFORNIA
Karen, and petitioner’s girlfriend. The prosecutor’s s review of the
*Solice reports made at the time of the arrest and statement of Karen
“do not support the contention by petitioner that an unlawful search
of the Tyson home took place or that any improper threats were
‘made to induce her statement and cooperation.
A second exhibit is an unofficial transcript of the November 28,
1978, interview of defendant by Arizona officers. The interview
- commenced at 4 a.m. and concluded at 4:17 a.m. Petitioner was
advised at the outset of his right to remain silent and that anything
he said could be used against him; that he had a right to consult
‘with an attorney, to have one present while he was being ques-
tioned, and to have one appointed before questioning if he could
not afford to hire one; and that he could exercise his rights at any
time and decline to answer any questions or to make any statement.
Petitioner stated that he understaed this before making his state-
ment.
The third exhibit is an excerpt from the reporter’s transcript of
the trial of Tyson, petitioner’s crime partner, in which Tyson con-
firmed that he had decided to give himself up and contacted Karen
who said that she did not want to run. He therefore instructed her
to get in touch with a detective he had met in the sheriff's office in
Stockton. Again, we find no basis upon which counsel might ae
made meritorious motions to exclude this evidence.
D. . Evidence of Prior Convictions and Criminal Conduct
As his final “example” of errors or omissions of counsel at the
guilt phase, defendant directs our attention to the failure of counsel
to object to admission for the purpose of impeachment of evidence
of defendant’s convictions for motorcycle theft, transportation of
a motor vehicle across state lines, his arrest or conviction for
assault with .a deadly weapon, and his escape.
A settled statement was prepared and made part of the record
pursuant to rule 36(b) of the California Rules of Court on motion
of defendant. As executed by his trial counsel, the prosecutor and
the trial judge, it recites: “7. A Beagle [People v. Beagle (1972) 6
Cal.3d 441] objection was not made, nor was the motion filed
because of trial strategy on the part of Defendant’s counsel. ” This
recital, to which defendant objected as being not properly included,
since it reflected counsel’s thought process, rather than unreported
matters occurring at trial, was made in apparent response to the
declaration made by counsel on appeal in his motion for a settled
statement that he believed that trial counsel had made a Beagle
motion, but that: “If trial counsel did not make such a motion,
defendant needs this information as part of his contention on
appeal that he received ineffective assistance of counsel.” The order
of this court directed the superior court to prepare a settled state-
ment of “any matters the court finds potentially useful on appeal.”
After a hearing on defendant’s objections to the settled statement,
the trial judge denied defendant’s motion to-strike that portion of
the statement, reasoning that trial counsel and the prosecutor had
the right to include the statement.
Defendant has not sought further correction of the record by
application to this court. (Cal. Rules of Court, rule 12(b).) There-
fore, although the recital regarding counsel’s trial strategy may not
reflect an unreported “oral proceeding” that may be settled under
rule 36(b) (see People v. Gzikowski (1982) 32 Cal.3d 580, 584-585,
fn. 2), it is now part of the record and we find no reason to ignore
it. The recital both refutes the claim that the failure to object
reflects incompetence and supports the conclusion reached above
independent of this document, that the introduction by defendant
of this evidence was not compelled by an erroneous ruling by the
court that it would be admitted, but was introduced in furtherance
of the defense strategy of showing that mental illness, defect, or dis-
ease, and drug intoxication reduced defendant’s capacity to harbor
the specific mental elements of the charged offenses.
Defendant argues that the strategy elected was not one which a
reasonably competent attorney would choose. However, counsel
here was representing a defendant who had not only admitted the
offenses, but had described them in detail to the police. In addition,
his accomplice was to testify against him. Defendant suggests no
other strategy that was both more likely to protect him and
“reasonably foreseeable as such before trial.’ ” (People v. Pope,
supra, 23 Cal.3d 412, 424.)
The record on appeal does not warrant an inference, much less
a conclusion, that trial counsel rendered constitutionally inade-
quate assistance in his representation of defendant at the guilt
phase of the trial.
3. Multiple-murder Special Circumstances
Section 190.2, subdivision (c)(5) of the 1977 death penalty law
created as a “special circumstance” authorizing the imposition of
death or life without possibility of parole the fact that a “defendant
has in this proceeding been convicted of more than one offense of
murder of the first or second degree. .” The complaint charged
six special circumstances under this provision, alleging with respect
to each of the murder counts that defendant had also “been
convicted” in the same proceeding of the murder of the other two
murder victims.
Noting that at the pretrial preliminary hearing stage, the defen-
dant literally had not been convicted of any offense of murder,
defendant argues that he was unlawfully committed, without prob-
able cause as to any of these special circumstances. He acknowl-
edges that defendant did not move in the superior court to set aside
the information on this ground (§ 995) and that this omission
would normally constitute a waiver of any defects in the commit-
ment. (§ 996.) He argues, however, that compliance with that
requirement is excused because at that time the law did not appear
to permit a challenge to special circumstances allegations on a sec-
tion 995 motion. (See People v. Superior Court (Grilli) (1978) 84
Cal.App.3d 506 [sentence enhancement allegation does not state
separate offense and therefore may not be challenged on § 995
motion])** and that in any case failure to make the motion to strike
is a further example of trial counsel’s incompetence. '
Defendant makes no attempt to demonstrate that as a result of
the allegedly improper commitment on an information including
these special circumstances he was denied a fair trial or suffered
prejudice. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.) Nor
does counsel’s failure to make the motion demonstrate that defen-
dant was denied a potentially meritorious defense or otherwise
denied the caliber of representation to which he was entitled under
the Sixth Amendment or article I, section 15 of the California Con-
stitution.
We infer that defendant’s theory of prejudice under either
approach is that had these special circumstances been stricken they
would not have been found true and thus would not have been
bases for eligibility for the death penalty. 19 Even were we to expand
the Pompa-Ortiz concept of prejudice at trial flowing from defects
in the preliminary examination, or recognize omissions by counsel
related to the conduct of the preliminary examination as a basis for
reversal of a subsequent conviction on grounds of ineffective coun-
sel (cf. In re Hannie (1970) 3 Cal.3d 520, 528) that relief would not
be warranted here since a section 995 motion made on this ground
would lack merit.
We do not dispute the logic of petitioner’s argument that evi-
dence that a defendant has been “convicted” in the same proceed-
ing of another murder cannot be presented at the preliminary
hearing on a complaint charging multiple murders and related spe-
cial circumstances under section 190.2, subdivision (c)(5). It is
clear, however, that the requirement that the defendant “has been
convicted” of other murders in the same trial is a jurisdictional pre-
requisite to the conduct of the penalty trial authorized by former
section 190.4. That finding cannot and need not be made until the
defendant has been found guilty of the murders charged and one
18Ghent v. Superior Court (1979) 90 Cal-App.3d 944, decided after the
December 13, 1978, preliminary examination in this case, distinguished Grilli
and held that the sufficiency of evidence underlying special circumstances allega-
tions may be tested on a section 995 motion. This court thereafter reached the
same conclusion approving Ghent in Carlos v. Superior Court (1983) 35 Cal.3d
131, 137, and. Ramos v. Superior Court (1982) 32 Cal.3d 26.
19 Jnlike the situation of a defendant who must stand trial on counts charging
a transactionally unrelated offense that might have been stricken on a section 995
motion, and who may suffer prejudice from the admission of evidence regarding
the commission of that offense, here the evidence upon which the section 190.2,
subdivision (c)(5), special circumstances were based was admissible regardless <
the special circumstances charged. Thus defendant suffered no prejudice at the
guilt phase of the trial.
«
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DAILY OPINION SERVICE
California Supreme Court 2009
this evidence was presented the prosecutor, in his opening state-
ment, explained to the jury that the court would instruct on the con-
cept of legal insanity and the finding would be “dependent upon
whether you find for [sic] mental illness or mental defect, the defen-
dant lacked a substantial capacity to either appreciate the wrongful-
ness of his conduct or the criminality of his conduct or whether or
not the defendant was able to conform his conduct to the require-
ments of the law.” __
The court instructed the jury, after first explaining that mental
illness or abnormality was not necessarily the same as legal insan-
ity: “A person is legally insane if, as a result of mental disease or
mental defect, he lacks substantial capacity either to appreciate the
criminality of his conduct or to conform his conduct to the require-
ments of law.” The court also instructed, however: “A person whose
brain has become diseased or damaged by the use of intoxicating
liquor, drugs or narcotics so as to render him incapable of knowing
or understanding that his act was wrong, is legally insane.” Other
instructions informed the jury that temporary legal insanity was
fully recognized and that irresistible impulse was “not legal insanity
unless as a result of mental disease or mental defect a person lacked
substantial capacity to appreciate the criminality of his conduct or
to conform his conduct to the requirements of law.”
Defendant argues that the court’s instruction regarding
drug-induced brain damage, noted above in italics, erroneously
stated the M’Naghten definition of legal insanity rather than the
“substantial capacity” definition adopted in People v. Drew (1978)
22 Cal.3d 333, which was correctly stated in the remaining instruc-
tions. The correct instruction, he suggests, was that derived from
Drew and People v. Kelly (1973) 10 Cal.3d 565: “A person is legally
‘ insane, if, as a result of mental disease or mental defect, either tem-
porary or permanent, caused by the long continued use of (alcohol)
(drugs) (narcotics) even after the effects of recent use of (alcohol)
(drugs) (narcotics) have worn off, he lacks substantial capacity to
either appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law. [1] Legal insanity must be
settled insanity and not merely a temporary mental condition pro-
duced by recent use of (alcohol) (drugs) (narcotics).” (CALJIC No.
4.02 (1978 rev.).)
The People concede, and we agree, that the court erred in giving
the instruction in M’Naghten language. The error, however, was
harmless.
In Drew this court noted that in the absence of a statutory defini-
tion of insanity many courts in this country had adopted that of
the common law courts of England enunciated in M’Naghten’s
Case (1843) 10 Clark & Fin. 200, 210 [8 Eng. Rep. 718, 722], that
a person was legally insane if “at the time of the committing of the
act, the party accused was laboring under such a defect of reason,
from disease of the mind, as not to know the nature and quality
of the act he was doing; or, if he did know it, that he did not know
he was doing what was wrong.” We concluded that this test was
inadequate in its failure to encompass mental illness which did not
affect cognitive abilities to this degree, but did render a person inca-
pable of conducting him or herself in accordance with the standards
he or she knew to be required by law. We therefore adopted the def-
inition of legal insanity recommended by the American Law Insti-
tute, or the “ALI test” — “ ‘A person is not responsible for criminal
conduct if at the time of such conduct as a result of mental disease
or defect he lacks substantial capacity either to appreciate the crim-
inality [wrongfulness] of his conduct or to conform his conduct to
the requirements of law.” ” (People v. Drew, supra, 22 Cal.3d 333,
345.)?” That definition of insanity encompassed mental defect or
defect which caused him to lack substantial capacity either to appreciate the crim-
inality, wrongfulness, of his conduct or to conform his conduct to the require-
ments of the law. . . the defendant probably does have a personality disorder.”
Each physician had noted defendant’s statement regarding his consumption of
alcohol and drugs in reaching his conclusions. Each had reviewed the EEG report
subsequent to making his report and had stated that his opinion was not changed.
Elwood W. Hopkins, M.D., who had administered the EEG reported:
“Impression, normal awake EEG.”
274 statutory definition reinstating the M’Naghten test has since been adopted,
supplanting the Drew/ALI definition. (§ 25, subd. (b); People v. Skinner (1985)
39 Cal.3d 765.)
illness regardless of etiology and thus applied to drug-induced men-
tal defect or illness. rf
We are confident that the error did not prejudice defendant in
the circumstances of this case. The proper definition was twice
included in the court’s instructions, and had been explained in the
prosecutor’s opening statement. The instruction on drug-induced
insanity was supplemental to the basic instruction defining insanity
under which the jury was to find defendant insane at the time of
the offenses if he either lacked capacity to understand.that his con-
duct was criminal or lacked capacity to control his conduct. If the
jury understood the instructions to be conflicting, the inconsistency
was only as to the second prong of the Drew/ALI definition. Thus
the jury could have understood the rule to be that if it found mental
defect or illness caused by drugs (including alcohol) legal insanity
existed only if defendant did not know his conduct was wrong. If
he did know this, it was not relevant that the drug-induced mental
defect or illness rendered him incapable of conforming conduct.
There is no direct evidence in the record of mental defect or ill-
ness; no direct evidence that defendant did not or could not appre-
ciate the wrongfulness of his conduct; and no direct evidence that
as a result of mental defect or illness defendant was unable to con-
trol his conduct. All of the expert evidence offered by defendant
was that defendant was legally sane under the Drew/ALI test. In
addition, the jury had rejected the evidence of diminished capacity
offered by defendant at the guilt phase of the trial, returning ver-
dicts which by necessary implication reflect findings that defendant
did not suffer from mental defect or illness of a type that destroyed
his ability to harbor malice, i.e., to understand the law’s proscrip-
tion of acts highly dangerous to human life, and his obligation to
conform his conduct to that law (see People v. Cruz (1980) 26
Cal.3d 233, 244; People v. Conley, supra, 64 Cal.2d 310, 324), or
any other mental element of the charged offenses.
The only question is whether, notwithstanding this cognitive
ability, but for the erroneous instruction, the jury might have con-
cluded that defendant suffered from a drug-induced mental defect
or illness as a result of which he lacked the capacity to refrain from
committing three intentional, premeditated, and deliberate mur-
ders. The only theory on which this conclusion might have been
reached is that defendant’s pattern of criminal conduct, one which
commenced prior to his heavy drug use was circumstantial evi-
dence of mental defect or illness caused by that use.2® We find this
reasoning far too speculative to warrant a conclusion that the error .
was prejudicial. In the absence of any evidence deserving of consid-
eration that as a result of mental defect or illness defendant lacked
substantial capacity to control his actions the error did not preju-
dice defendant and there was no miscarriage of justice. (Cal.
Const., art. VI, §13; People v. Cruz, supra, 26 Cal.3d 233,
251-252.)
2. Adequacy of Counsel
Appellant claims, as he did with respect to counsel’s preparation
for trial of the guilt phase, that counsel “wholly failed to investigate
the factual underpinnings of the defense, basing this assertion only
on the failure of the record to reflect investigative activity. He notes
that the record includes no motion for appointment of an indepen-
dent psychiatrist or psychologist to aid the defense (see Evid. Code,
§ 730; People v. Lines (1975) 13 Cal.3d 500, 507) and none for the
appointment of other experts or with which to obtain the medical
records relevant to defendant’s earlier hospitalization in a mental
health facility. As evidence of incompetency of counsel, the failure
of the record to reflect such indicia of investigative effort has no
28 though defendant argues that the “essence” of his insanity defense was his
longstanding use of alcohol and drugs, this theory was not articulated to the jury.
None of the three examining physicians found brain damage of any sort, and the
two psychiatrists who opined on the question found neither mental defect nor
mental illness from any cause. In his argument to the jury counsel for defendant
asked only that the jury make its own decision as to sanity in light of defendant’s
history, how he explained the past incidents to the doctors, and “What you know
about the case,. . . drug usage and. . . his physical condition. . . .” In closing
he expressed his own opinion that defendant was sociopathic, stating this was
“important in the light of the court’s instructions, impulsive acts without thinking
and could commit the same offense again towards others or himself. In fact he
says it himself.”
But T<didn’t ‘voice.
~ always’ run-.away,? 1 said,
“, get too bad’ The main thin;
‘AL from doing something ras
be he-really meant it when he
he’d’ go’ straight. And, anyw
probably get tired of-ha'
ter hanging around.*
4
was. afraid for Mother’s*and J
and ‘Ray’s sake, But I was!scared for
myself, ‘too, even if°I didn’t let on.
There was ‘something. repulsive about
“Alfred and T felt that, too. But what
could’ Ido? - ,
Ray drove me to Sam Bernardino.. I
made him stop..two. blocks from Al’s
‘ci J aribosey. - T have to report
hem an check
or :
ou I do hard work?” «
ut that isn’t what I wanted
If you‘run away by.yourself you'll get
) bumped) Tf y
stay and be a good girl
‘hair on your. pretty
derstand?”
wiped in his chair, shoulders
in. He was breathing hard and
lis €yes were bloodshot. What manner
of person was he? Did he mean what
he’d just said? Was I to be his pris-
oner? How could I conceal the repul-
sion and fear I had of him? All I could
-do was sit ‘there trembling while he
talked on: <>
I. won't h
Di
place. I wanted to avoid a scrap, if I .. “1 got the mob in back of me,” he
could, between Al and Ray. ‘
. Then with a-heavy heart I walked
toward the house. Al sat in the kitchen
just finishing dinner. He said, “I knew ~
you’d come, Vi.” There was no sur-
prise in his face, just a faint, smug
smile. “Sit down. I want to tell you
something.” : ‘
* His voice didn’t sound too reassur-.
ing. °
“I told you I got to go strdight,”
continued,
he’
“Tm out on parole and
said: “They’re gonna help me keep an
eye on you every minute of the day
and night. If you or anybody from the
family goes to see the cops I’ll know
ten minutes later. That's how power-
ful the underworld is.”
I thought he must be bragging, but
his'manner and the way he looked at
me were enough in themselves to
frighten anyone. Did he really mean it
when he said I’d be watched?
“Al shoved a cup of coffee before me.
Mrs. Jean Wells, Ray’s wife:
the innocent victim of a malicious revenge
Nervously I gulped it down. My mind
. Whirled furiously. What was to be-
come of me? Why all this maniacal
insistence on my living with him?
hat was the true motive in back of
it?
I felt Al’s eyes hard on me, and
bruskly he spoke again. “And no boy
friends, understand? If you look at
another man I’m gonna rub him out.”
His hand reached for his hip pocket.
For a second he fumbled in it and
hauled out a dark, shiny object—a
gun. He placed it on the table.
“If you squeal to the parole officer
that I have a gat the mob will take
care of you and the rest of the bunch.
Nobody ever doublecrosses Alfred
Wells without payin’ for it. Get it,
Sis?”
Yes, I got it. I was trapped. What
could I do? Dare I chance leaving
him?. Was he only bluffing? But what
if he wasn’t? I thought of Ray, and
my other brother, Norman, Mother and
Jeanie who was going to have a baby.
Nothing must ever happen to them. I
felt I had to suffer anything to pro-
tect their lives and happiness.
Little did I know, however, what
designs Al had on me, what humilia-
tions and acts of sordid violence I’d
have to bear for sixteen interminable
months.
That very same night I was to find
the tragic fate that was in store for
me. I cried and prayed. All my life
the horrible memory of those pain-
The killes shot both Rose Destree
and Jean Wells, then left this baby
crying in the desert and clinging
to the skirts of her dead mother
She became
racked hours will remain burned in
my mind. I never can forget...
When at last I had dropped off, I was
brutally awakened again, by a savage
shouting and rumbling coming from
the kitchen. Gray dawn was filtering
through the shades. I sat up in bed,
held my breath and listened. It was
Al’s voice. He roared and ranted, bel-
lowing hoarse, inarticulate cries in
which the clatter of breaking dishes
mingled.
IT jumped out of bed and ran into
the kitchen. There he stood dressed
in striped pajamas, his face purple
with rage. Seeing me, he grabbed a
chair and hurled it at my feet.
“You talked in your sleep,” he
“You said you’re gonna leave
DIDN’T know what to answer. Had
I actually said that?
I was sure then I had, not knowing
that this outburst of maniacal violence
was an act, planned and calculated
with ice-cold reasoning.
He was to throw such a fit almost
every day in the months to come.
“I’m going to blow my top,” he would
threaten. The mere announcement of
it was enough to throw deadly terror
in my heart. Those were times when
anything could happen.
That night when he pretended I had
talked in my sleep, I felt trapped. I
did the best I could to soothe and baby
the monster. His distorted face sud-
denly relaxed, the tone of his voice
changed to sugary cooing.
“IT love you, Vi. You must never
leave me. I’d commit suicide if you
did.”
(Continued on Page 38)
~ ]
quiet, menacing tone. “If you try to 5
.Keep her from me I’m gonna polish ©
you off. All of you.”. His eyes jumped
around the table from one to another,
“All of you,” he repeated. “Get me?”
Ray jumped to his feet. “I’m gonna
call the cops,” he said angrily. ---.. “3!
“Go ahead, Brother,” Al teased. -
“Get ’em: But you’re. gonna find out
that it won’t do you any good. They'll -
come and see me here eating dinner tn
with you, Your little brother, Al.. Pu.
say you're tryin’ to frame me because
I’m an ex-con. What will the cops do, _
Brother? Well, let . me’ tell - you; ~
Nothin’, see? The cops ‘can’t do any-
thing against a guy. who’s eatin’ his ~
dinner peacefully.° Did I harm ‘you?
Or Mother? Or anybody else? Now
See, the law only does something after
a guy pulls his stuff. They got to have -
something against you, see?” .- = >
Mother said, “Ray’s not going to get
hon cops, but. Vi won’t go. I won’t let
er.” ? a aad
Al’s eyes were. on me again. “Now,
Vi, I know you love your little brother,’
Al. You want him to go straight. You:
“want to help him, don’t you? - See,
“If you. took» at anot
Wells threatened, “I’m gonna rub him out”
ie Rew ot
her - man,” Alfred
plate. He was enjoying the unpleasant-
ness and disquiet he had created.
When he ‘had finished, he teetered
dack in his chair and looked around
with a-gloating expression. “It’s nice
to: be home again,” he said, making his
. voice as sugary as he could. “Too bad
I ‘can’t stay longer than one night.”
-°Too bad he could stay that. long.
Mother asked, “Got a job in San
Bernardino?”
-. “You bet,” Al said. “The parole
board looks to that. But I’ve got to
g0 back because I promised some
friends of mine I’d be there by to-
morrow.” > ,. :
“What friends?” my stepdad asked.
~~ “Fellers I met in San Quentin.”
OBOPY said anything, but we all
* got the hint. Al’s chums were a
bunch of ex-cons:
' Next morning angry shouts coming
from the kitchen woke me up. I heard
‘Raymond’s. voice clashing with. Al’s.
-Throwing a wrap over my shoulders, I
hurried to see what was going on.
~ Ray’s strong voice hit my ear, “And
I’m telling you that I’m not leaving
need you.ifI’m going to go straight:.. the house -until you get out of here.
I need you. I love you, Sis. When I
saw-you in San Quentin I knew you
were what the doctor ordered,” =...
« _ All this sounded.strange, disquiet-
ing, as“I eouldn’t quite get what he
was driving at. I was afraid. without,”
knowing. why. I thought then it was.
just the way: Al affected people.
I tried to calm him. “We'll see. Now -
finish your dinner: Den’t make us all.
unhappy.” (6 cst jon' ee
is food, hardly chewing
He bolted
it,.. withou ‘once “looking up: from “his
And before I really get mad, come with
me and I’ll,put you on the bus—”
“I threw the kitchen door open.
_Al stood near the stove, straddle-
gged, his hands in his pockets, his
oe
ose: Destree, on her: death-bed:.
‘We were terribly afraid and did
-as he told. us.”° Rose is shown here
“with the nurse who eased the pain _
‘of .the «dying girl’s tast hours
~ te
©
chin. stuck: out:
pom to see the malformed, hunch-
aa
broad-shouldered. brother. But there
was something malicious about it, too.
Al knew Ray wouldn’t harm him.
trouble.” He sounded like a hissing
snake, ready to strike. “Vi goes with
me or I’m gonna ock the whole
bunch of you off.” :
work,” I. pleaded. “Alis) just shooting
off his mouth. No use | dubl
I'm i ta ‘talk to"'him..” Please: go,
ou’re too: hot-tempered.
ain’t
got no business buttin’ in. I’m gonna
give you three days. If Vi isn’t out in
San Bernardino by then I’m gonna.
wipe out the whole rotten bunch of
you. Ever heard of the underworld?
Okay, Ma. The underworld sticks to-
gether. If you doublecross me they’ll
take care of you. Blast your brains
out. See? So don’t call the cops.”
As we all stood petrified he whirled
toward me. His face expanded in a
belligerently. ‘It was’
cked runt challenging my tall,
Al ‘smirked. “You’re looking for:
I grabbed Ray by. the arm. “Go to.
yellow-toothed smile. “See you in San...
Bernardino, Vi. .I know you’re sensible.
You ‘don’t. want Ma to get. harmed.”
He scowled. I’m gonna let you in on
a secret. I’ve done a lot- more than
I’ve been sent up for. I_ know my way
around. And what have the cops got
on: me??? at! at
He looked at. Mother and’ Jeanie.
“The cops. got nothin’ on'me.”
HE TURNED on his heel, stumbled
* out the door and was gone.
- What’ would;'we do?..Did he mean
i -all the threats he hurled’ upon us?
ake things tougher..than
Would: he actually kill as’ he said?
- And..why. this*unexplainable, frenzied
insistence “that. 1. go live’ with. him?
Did “he really intend to go straight?
Or’ did“he want me as. an accomplice
for some sinister scheme?
For two days we argued. We all
knew about Al’s record, -Wé knew that
' he was dangerous. I began to feel that
IP’'d-have to give in and go live with
him so that no harm would come to
those I loved. But I didn’t say any-
thing at first. I let the argument go
on. Ray went to see the police, but
they told him there was nothing we
could do. There had been no crime,
no tangible evidence of anything
against the law. We were offered the
argument that our paroled relative
should be given a chance.
“If you don’t give him a break, who
will?”
I thought that over. There was some
truth in it.. fh made up my mind and
listened to everything that was said,
and when, after all the talking, they
a
This weird and ‘hor cperienc
of mine started ona warm, golden,
Autumn day in 1939; when my mother.
took me along on one of her visits t
Alfred, who ‘is the son of my° dead
father by his first marriage,
| HADN'T seen Alfred in several years’
and couldn’t help feeling sorry ‘for
him when I met him again that day.
His face was so wan and pale. He-
looked so pathetic, with the big hump
on his left hip, his malformed back and
dragging leg.
He first stared at my mother with
what I thought was an expression of
deep gratitude. His arms stretched out
toward her and he drew her close—as
close as.the prison bars would allow,
For at that time Alfred was an inmate
of the San Quentin State Penitentiary,
serving a fifteen-year-to-life sentence
for robbery. ~. | Soe
Then his eyes swerved to meet mine..
Instantly a strange glow lit up in them.
I never knew there could be so much
tenderness in ‘those fish-eyes. which —
always had frightened me when J was
a kid. me Se
His lips trembled. “Vi,” he mur-*
mured, “you’ve sure grown up to be a
looker—you must be almost. eighteen.
Boy!. It does a guy good to have a_
sister like you.” CP aes
He was playing a perfect act, ‘but I i
never knew that until it was too late.
We talked- He said he was sorry for
everything he had done.. He'd reform,.
‘It was to save the lives of Mrs. Violet Davis, her mother, and_
ren shown here, that Violet Wells lived sixteen months of terro
Bis
he swore. If he only would get a pa-
role. He’d work hard and blot out the
shame he had brought upon our good
name. I believed him.
When our time was up he grabbed
my hands.
“Vi,” he said, “when I get out of the
pen I'll get a little house of my own
and you’ll come and live with me. Will
you take care of your poor brother, Vi?
Promise me that. Will you, Vi? Will
you help me toe the straight and nar-
row?”
Before I could answer, the prison
guard ushered us away.
My eyes were moist. Mother must
have had a _ premonition of what
was to come, because she warned me
on the way to the bus depot: “You stay
‘away from him, Vi. All his life he
was a no-good and he’s not going to
change.”
I wasn’t so sure. I felt sorry for him.
But Mother probably was right. He
had been a no-good since early boy-
hood.
At the age of twelve he broke into
a friend’s apartment and stole two
guns. “I needed them for a stickup,”
he told police when he was caught.
Dad, still alive then, sent him to a
reform school in Ione, California,
where he remained for two years.
When he got out he threatened Father.
“Some day I’ll get your hide for
that,” he said.
Twice guns were taken from him,
guns he had stolen or some pal had
slipped him. I know that Father was
afraid of him, but it was a sudden ill-
ness which took Father from us, and
saved him from death at the hands of
his own son,
At that time we still lived in La
Junta, Colorado, my home town. Be-
fore we left for San Bernardino and
Long Beach, California, Al had proved
by his attitude and the scrapes he got
into that he had not reformed. But
my mother didn’t give up hope. She
kept on admonishing him, got him out
of jams time after time, paid off the
victims of his criminal exploits.
It was. all in, vain. He was a born
ingrate. Kind advice he repaid with
snarled threats. He boasted of his un-
derworld connections.
“I’m going to become. bigger than
Dillinger,” he used to brag, and Ma
didn’t know if she should cry or laugh
at such words coming from a mis-
shapen sixteen-year-old youngster who
was hardly five feet tall.
In those years he held only one hon-
est job. When we moved to Long
Beach Mother got him work in a cafe.
He polished glasses and fried ham-
burgers, but it was only a front for
peddling moonshine. A waitress
squealed. Al got into another jam, and
my mother got him out of it once
more.
Then for years he was on his own.
We didn’t know what he was doing.
But he returned from time to time,
cried on my mother’s shoulder—and
threatened.
“Tf you don’t forgive me I’m going
to kill myself. You’ll see!”
What strange quirk of his ugly mind
made him say that, I don’t know.
Mother was afraid he might mean it.
She placated him, babied him along.
He promised to reform. But he didn’t.
He always ran off again. My mother
and older brothers held no illusions
about what he was doing, how he paid
for his flashy duds and shiny cars. But
there never was any proof.
7 cops got him, as they get every
crook in the end, early in 1935, in
Santa Ana, when he tried to shoot it
out in a robbery which had gone
wrong.
Thanks to his record in California, he
was sentenced to from fifteen years tu
life in the State Penitentiary at Fol-
som, First he tried to be tough. One
day he slugged a guard, made a dash
for freedom, but was nabbed before he
reached the prison gate. This action
resulted in his transfer to San Quentin
as an incorrigible criminal.
But Al was smooth and shrewd. He
realized force wouldn’t get him very
far. So he pretended to be repentant.
He swore he’d reform. He became a
-AD—5a
‘there- never’ had. been: this. determined
vi¢iousnéss and~<hatred in his voice.
The -contact~ inthe Big House with
“hardened*criminals seemed to have
“made him worse. He used his disfig-
urement to play on our sympathies.
It} was one of his emotional weapons.
_-What’re your plans?” Mother asked
A :
md shrugged’ anxiously, breaking the silence at last.
Ps" direction.’ She He ‘lifted his cold fish-eyes up to
Jher bewilderment’ her: “Didn’t I tell you in San Quen-
i tin?”
Mother” didn’t answer. Al’s lips
Slowly ; “seemed to
melt, His curling hinned into a.
fawning ‘smile is Ea haat Neg
“Well, Vi,” he exclaimed, “ain’t you
the prettiest’ cookie I ever laid my eyes
on? Come on, ‘give your brother a
§ kiss.” Se ai
, I shuddered: There was a threaten= ‘
a ing undertone in his: sudden friendliz ie
ness. It was like, “Do as I say, or élse.” -
‘I looked at Ray, who sat across from
me. I saw his jaw tighten. I saw. the.
* antagonism and_ resentment in . his
je y eyes. Al also observed—but he knew
~* "Ray wouldn’t hurt him, a crippled lit-
: tle fellow.
“Come on, Vi, kiss your big brother,”
Al said, teasing me and goading Ray.
i “You don’t want any trouble, do you?”
H Raymond jumped up. His face was
j pale, his hands trembling. “Get out of
t here, you rat, before—”
i My’ stepfather, Clark Davis, stepped
i
|
1
between the two. “Take it easy, fel-
“ft did the best § could,”
writes Violet Wells, “to soothe
and baby the monster”
curled in an ugly, crooked grin. He
was enjoying our discomfort. “I came
here to get Vi,” he said.
Instant fear gripped me. I almost
had forgotten that he had asked me
to come and live with him.
I heard Mother’s firm voice. “Vi
can’t go.”
Al laughed. It was a sharp, harsh
laugh which was to send fear and ter-
ror through me many times in the
future,
“Vi’s comin’ with me,” he said in a
ED
OF
ric
said, “at the
and Santiago
you should in-
3249 Forty-
{ ask another
hird and San-
cks from the
ough the sand
seg among the
HEART... A CAST-OFEF
HUSBAND ...A JEALOUS
THESE MIG
MILITARY L¢
by :
Edward 8. Sullivan
It was not far from there that Joe Sole, gangster and sus-
pected counterfeiter, had been found shot to death in his car
on a windy night in 1933, a week before he was to testify in
federal court.
It was near that spot that Samuel Daugherty, Philadelphia
mobman, was riddled with bul- WHY DID HE DIE?
lets and dumped in a ditch— :
hi d h Roy V. Lockwood (right) was
is murderers never caught. quiet and reserved and well
Decidedly, thought Corporal liked by his regiment (left).
Thornton, the desolate duncs The finding of his body in the
lonely dunes (top) revealed him
in a different light.
wy SO UNUD Ye, WO, NetdecQa Usa (35
= SEE ES
See eae E
SLAIN THE
OLD, CLAMMY FOG crept in from the Pacific and spread
its ghostly fingers among the sand dunes by San Fran-
cisco’s ocean beach. These dunes, rolling hills of sand
swept in by great winds from the ocean and dotted with a
coarse growth of sage, are a desolate and unfriendly. place in
the best of weather. When the ocean fog crawls in-and
shrouds them with its moist blanket, they are the home of
mystery—and more than once they have been the stalking-
ground of death. — .
Thoughts akin to these chilled the mind of Corporal Thorn-
ton of Taraval Police Station, as he listened to the guarded
voice that came to him over his desk telephone on the foggy
evening of October 4, 1934. . ,
SCORNED SWEET
WIFE ... A WRONGED
SULTOR-ANY ONE OF
ROMANTIC
“There’s a man asleep or drunk,” the voice said, “at the
wheel of a car, parked at Forty-third Avenue and Santiago
Street. He’s slumped over the wheel. I think you should in-
vestigate.”
“Who is this speaking ?”
A pause. Then—“This is Carl Evans, of 3249 Forty-
eighth Avenue.”
The receiver clicked before the officer could ask another
question. He frowned at the telephone. Forty-third and San-
tiago—that was far out in the dunes, a few blocks from the
ocean, where only a few paved streets cut through the sand
mountains, and one or two lonely houses rise among the
sage-brush.
on aw!
federal
It wz
mobma
lets an
his mu:
a
were no place for a man to be asleep or drunk in his car.
He picked up the telephone again and called the Bureau of
Inspectors, where the microphone of San Francisco’s police
radio system is located. He glanced at the clock as he did
so and noted it was exactly 6:20 Pp. M.
Pe. Georce SEAvERS and John Buckley, nosing
through the fog in their radio patrol car, jerked to at-
tention as the radio blasted suddenly into life:
“Calling Taraval Car Number One—Go to Forty-third
Avenue and Santiago, investigate a man in a parked car—
supposed to be asleep—”
Buckley stepped on the accelerator and the car jumped
ahead, scattering the swirling wraiths of fog. He headed
straight west, where the setting sun over the ocean was a
pale yellow ghost in the fog.
“That’s a funny place to park for a snooze,” Seavers com-
mented. “He might wake up with a bump on his head and
his pockets pea.
46
“Well, it gives us HEADQUARTERS OF TROOP
something to do, The murdered man was stationed at the
ot Presidio, 1500-acre military reservation on
anyway, said Buck- the tip of the San Francisco peninsula, over-
ley. “This fog patrol looking the Golden Gate.
is getting monotonous.”
They sped up deserted Santiago Street, slowing as the
houses became fewer and arms of sand reached out onto the
pavement. Steering carefully through a litter of broken glass
and sand, Buckley swung into Forty-third Avenue.
“There he is, all right.”
The two patrolmen parked their car and walked up to the
machine that stood near the corner, with its front wheels
ovér the curb and in the sand, It was a Buick Victoria coupe,
a dark gray hulk in the fog.
A man’s head lolled out of the left-hand window. Buckley
_ touched him on the shoulder.
“Wake up—”
The words froze on his lips, as the head rolled around and
he stared down into the man’s face. It was smeared with
‘ha gais
* blood; th
forehead
battered \
blows an
of the b
the bac!
mass of
pulp.
Seaver:
“His s}
too!”
Buckle)
“He’s s
Seaver:
call-box, ;
Know
for eleme
amined de
It was col
The ambulance raced up, careening through the fog with siren scream-
ing and red spotlight bathing the lonely dunes with ‘an eerie glow. The
steward examined the man in the car with an’ expert hand. He shook his
head. . ,
“IT can’t do any good here. He’s dead.” °- ‘
The suri had set now and the rising wind moaned among the sand hills,
as the surf of the Pacific boomed a funeral dirge.
The body was’still warm when the big squad car of the Bureau of In-
spectors bearing Lieutenant Edward Pootel and a deputy coroner
screeched to a stop. Close on their heels were Inspectors Allen McGinn
and Harry Husted of the homicide detail, routed from their supper tables,
when the electric word “death” flashed over the police switchboard.
Automobile headlights and flashlights fought back the clammy curtain
of fog as the inspectors went grimly about their task. Husted searched
the death car, played his flashlight over the ground nearby.
“There’s no weapon anywhere,” he announced. “It couldn’t have been
suicide.”
The deputy coroner smiled grimly. “It’s murder. He. was shot twice
through the head, from close range. Look at the powder burns. Either
of the shots would have killed him. There’s another bullet in his right
side. It looks as though his face had been battered with the butt of the
gun. His nose is broken.”
“How long has he been dead ?”
“Less than an hour !” y
The murdered man, as revealed by the uncertain lights, was a dark-
haired, clean-shaven man of about thirty-five. He wore corduroys, a
leather jacket, and an olive-drab shirt. He was slumped against the left-
hand door of the car.
McGinn frowned medi-
tatively as he fingered the
texture of the blood-
soaked shirt.
(Continued on
page. 72) :
“ROOP
oned at the
servation on
blood; the nose and CRACKED THE CASE
Inspector Harry Husted
forehead had been (above) and Inspector Allan
iinsula, over- battered with heavy McGinn (right) followed many
vate. blows and one side’ blind rye in their investiga-
of the head, near tion of the Lockwood death,
ing as the the back, was a te ne. tae “~~
: , n t
ut onto the mass of bloody wei ‘a uaded alice: —
roken glass pulp.
» Seavers circled the car and peered in the other window.
“His shirt’s all bloody! He’s been shot through the body,
d up to the 4 too!”
ont wheels 4 Buckley touched the battered head.
toria coupe, ‘ “He’s still warm—maybe he’s alive! Call the ambulance—”
Seavers leaped into the police car and raced to the nearest
v. Buckley 2 call-box, several blocks away.
. Knowing that the man, if alive, was too critically wounded
for elementary first aid, Buckley did not touch him, but ex-
around and : amined details of the scene. He felt the radiator of the car.
reared with ‘ It was cold. He looked at his watch—exactly 6 :24.
ss
et EDO R awe tae Swabs
‘
i
i
fi
High court appears unlikely to delay
California’s second lethal injection
Execution n by lethal injection
ADMINISTERING fe
DRUGS :
THREE CONSECUTIVE DRUGS
1 Sodium pentothal:
—_ Ultra- short-acting drug Medical use:
causes unconsciousness. As anesthesia
2 Pancuronium bromide:
Lethal dose paralyzes Medical use:
» Between
doses, saline
is inserted to
clean the line.
State Penitentiary,
State University School
eath Penalty
other victims.
Williams first met Miguel Var-
gas and Meza a few days before
the killings, when the couple
stopped at a yard sale Williams
was holding to get rid of goods
from a camper truck he had hi-
jacked.
Attracted by Vargas’ Plymouth
Roadrunner, Williams offered
him $1,500 for the car. Vargas
thought it over for a day, then
decided to sell, at which time Wil-
liams wrote him a check from a
stolen checkbook.
The two men agreed that Var-
gas would hold on to the car's
pink slip until the check cleared,
but it was an agreement Williams
had no intention of keeping.
He and accomplice Robert Ty-
son, now serving multiple life
sentences for his role in the mur-
ders, drove to the rural house
where Vargas, a farmworker,
muscles and lungs.
Heart is not affected.
Muscle relaxant
during surgery
3 Potassium chloride: Lethal »* vee Potassium:
dose stops heart; shuts down
its electrical activity, causing
cardiac arrest.
%%** Abundant
substance
in cells
KNIGHT-RIDDER NEWS SERVICE
was living. . -
Returned with guns drawn
Welcomed into the home, Wil-
liams and Tyson waited for sever-
al visitors to leave. Then they
left, only to return with their
guns drawn.
Within minutes, Miguel and
Salvador lay face down and dead
on the floor of an upstairs bed-
room. Each had two .22-caliber
bullet wounds to the head inflict-
ed by Williams.
Before murdering the cousins,
Williams had ordered Tyson to
take Meza downstairs and kill
her. But Tyson balked, ‘so Wil-
liams forced the terrified and
pregnant young woman into the
back seat of the car with him and
ordered Tyson to drive.
As Tyson drove through Oak-
dale and then east toward Sono-
ra, Williams repeatedly raped
Meza. Finally, around 11 p.m., he
had Tyson stop the car in a se-
cluded area near Tuolumne and
led Meza into the darkness.
Tyson later testified that after
about 15 minutes he heard four
shots and a single outcry.
When Williams returned to the
car, Tyson said, he boasted that
he had shot the woman while
having intercourse with her.
While Williams’ guilt is beyond
dispute — both he and Tyson
gave confessions — his appeal
lawyers argued that he did not
deserve the death penalty be-
cause his acts were the outcome
of fetal alcohol syndrome and
other mental impairment, not
brought to the attention of the
jury in the penalty phase of the
trial.
Defense lawyer criticized
They say Williams’ trial attor-
ney, Roland Howard, had never
tried a death penalty case and
failed to introduce any mitigating |
evidence or a single witness dur- |
ing the penalty phase. And be-
yond that, says Michael Kroll,
spokesman for Williams’ current
legal team, Howard had problems
of his own.
‘He was an alcoholic at the
time, was involved in a bitter di-
vorce, was stalking his wife and
harassing his neighbors and chil-
dren,” Kroll said. -
Howard could not be reached
for comment. But numerous state
and federal appeals judges over
the years have remained uncon-
vinced that Williams was denied
a fair trial.
That was not the only concern
of death penalty opponents who
planned to protest the execution,
however.
Father Lyle Grosjean, an Epis-
copal priest from Palo Alto,
planned to lead a 25-mile “Walk
of Life” from the Palace of the
Legion of Honor in San Francisco
to San Quentin, something he has
done for every scheduled execu-
tion since Cary! Chessman’s in
1960.
“When someone kills someone,
we have to make sure they are
never in a position to do that
again,” Grosjean said. ‘““But when
we say tu a 6-year-old that killing
is wrong, and then we say, ‘and
therefore people who kill get
killed,’ it shows the fundamental
ridiculousness of the death penal-
ty.”
~
Page One « Friday, May 3, 1996
San Jose Mercury News * From
>
Robert T. Johnson, District Attorney in the Bronx,
in his office yesterday before a news conference at
which he said he would “weigh the facts” against
Edward Keating/The New York Tim
Angel Diaz, the man accused of fatally shootin
Officer Kevin Gillespie last week, but added that h
had “grave concerns about the death penalty.” |
Prosecutor Resists Death Penalty Pressure
By RACHEL L. SWARNS
NEW YORK, March 29 — Bridling
at what he described as Gov. George
E. Pataki’s ‘“‘heavy-handed”’ efforts
to force him to seek the death pen-
alty, District Attorney Robert T.
Johnson of the Bronx said today that
while he had not ruled out capital
punishment in the case of a man.
accused of killing a police officer, he
would not be pressured into making
a decision.
And to make that point clear, Mr.
Johnson threatened to take Mr. Pa-
taki to court if the Governor tried to
remove him from the case.
‘You have seen fit to impose dead-
lines and ultimatums on me, to make
no secret of your ‘will’ to supersede
me,”” Mr. Johnson wrote in a letter
he faxed to Governor Pataki. ‘‘You
say that ‘No one, including a district
attorney, can substitute his or her
sense of right and wrong for that of
the Legislature.’ Quite frankly, Gov-
The Bronx District
Attorney is at odds
with the Governor.
ernor, that is precisely what you are
trying to do.’’
Mr. Pataki had demanded to know
by 1 P.M. today whéther the District
Attorney would oppose capital pun-
ishment in all cases. Mr. Johnson
said he had never ruled it out alto-
gether, although before the killing of
Officer Kevin Gillespie last week, he
had said that his intention in poten-
tial capital cases was “not to utilize
the death penalty provisions of the
statute.”
In a news conference in his office,
Mr. Johnson promised to ‘‘weigh the
facts” against Angel Diaz, the man
accused of fatally shooting Officer
' Gillespie. ‘But I tell you I have
grave concerns about the death pen-
alty,”’ Mr. Johnson said. ‘And the
facts have to outweigh those grave
concerns.”
Governor Pataki responded with
his own news conference. He said he
1
was dissatisfied with Mr. Johnson’s
letter and reaffirmed that he would
consider replacing him on the case
with a prosecutor .who would seek
the death penalty.
“The letter the District Attorney
sent me is full of the usual anti-
death-penalty rhetoric and in my
opinion does not provide the assur-
ance that I needed that this would be
looked at objectively,’’ Mr. Pataki
said.
“Clearly in my mind,” he said,
“the killing of Officer Gillespie, the
murder of a police officer trying to
apprehend people who have a long
record of violent felonies, is exactly
the kind of crime the death penalty
was aimed at. 1 am unaware at this
point of any facts that would pre-
clude the death penalty being
sought.”
Under state law, once Mr. Diaz
has been indicted, Mr. Johnson will
have 120 days to decide whether to
seek the death penalty. Mr. Diaz,
who was arraigned today, will likely
be indicted soon, prosecutors said. In
the meantime, as the two politicians
duel with fired-off faxes and hastily
arranged press conferences, they
are also leading the state into un-
charted legal waters.
While state law grants Mr. Pataki
the power to remove district attor-
neys in specific cases, it is a right
that has been rarely exercised.
It is unclear how soon Mr. Pataki
could actually seek to remove Mr.
Johnson, given that a prosecutor has
four months to investigate whether a
. case should be tried as a capital
crime.
And while New York’s highest ap-
pellate court has left open the ques-
tion of whether Mr. Johnson could
sue the Governor in an attempt to
remain on the case, a lower court
has clearly ruled that he has no such
right.
“We're certainly going into un-
charted waters,”’ said Stephen Gill-
ers, a professor of legal ethics at
New York University’s law school.
“There are very few opinions on this
issue. But the few that there are all
favor the Governor.”
But Mr. Gillers also said that the
strength of Mr. Pataki’s argument is
much diminished because Mr. John
son has not yet ruled out the deat
penalty. State law allows prosect
tors wide discretion in deciding wha
penalties they will seek. And th
- Bronx District Attorney has, as lx
explained in his letter to the Gover
nor, “left the door ajar, howeve
slight,” on the death penalty. :
“The District Attorney’s answet,
it seems to me, eliminates the Gor
ernor’s justification for displacin
him,” Mr. Gillers said. ‘‘All the lav
requires is.that each district attor
ney consider seeking a death sen
tence in a death-eligible case. Som
district attorneys will seek it often
Some district attorneys will seek t
rarely. And both will be complying
with their official responsibilities.”
xpec ick
®) (pected to pick up
TRIB
Next at San Quentin is set for Friday
promi 55 YR
SAN QUENTIN — Keith Daniel Williams’ expected
execution Friday morning will be the first in what
death penalty experts believe will be a rapid string of
executions unprecedented in California history.
Barring any last-minute stays, the 48-year-old
triple murderer will become the second California
prisoner put to death in less than two months, in the
fastest pace since 1992 when the state began exec-
uting prisoners after a 25-year lull.
While the next execution isn’t scheduled for an-
other year, experts say the pace will continue to be
quicker than in the past because of new laws that
limit a condemned prisoner’s appeals and for the first
time put a time limit on death penalty appeals.
Wednesday, three judges from the San Francisco-
based 9th U.S. Circuit Court of Appeals refused
Please see Execution, A-11
Pace of executions
Tee Miia aie fina
LOS ANGELES TIMES
AUR 5-2- 1¢
Williams
ee
@ Witnesses
will see
most of the
execution
process of
Keith Daniel
Williams, a
judge rules.
A-11
witcaman tl
Appeals Court Refuses to Block
Execution of Killer on Friday
From Associated Press
SAN FRANCISCO—A federal
appeals court refused Wednesday
to: ‘block the execution of Keith
Daniel Williams, who is scheduled
to ‘die at 12:01 am. Friday for
murdering three people during a
1978 robbery in Merced County.
The U.S. 9th Circuit Court of
Appeals ruled that Williams’ law-
yers had not justified their failure
to obtain records of his mental
illness earlier and had not shown
that the evidence could have
changed the jury’s verdict.
The ruling was issued by a
three-judge panel. An 11-judge
panel could rehear the case if
ordered by a majority vote of the
entire court. Williams’ only further
appeal would be to the U.S. Su-
preme Court.
“I think it’s regrettable but not
surprising that this particular
panel has ruled as it has,” said
Michael Kroll, a spokesman for
Williams’ defense team. “I expect
that [an 11-judge] panel of the full
court will revisit these issues.”
Williams, 48, of Lodi, was con-
victed of murdering dairy workers
Miguel Vargas, 29, and his cousin,
Salvador Vargas, 40, at a Merced
farmhouse in October 1978. Pros-
ecutors said he killed them while
, stealing a bad $1,500 check he had
' given Miguel Vargas for a car. He
also was convicted of murdering
Miguel Vargas’ pregnant girlfriend,
Lourdes Meza, 24, whose body was
found near Sonora about 50 miles
away.
By Philippa Fletcher
MOSCOW, March 14 (Reuter) - Russia, under pressure from the Council of
Europe to end capital punishment, has been rejecting appeals for mercy and
feverishly sending people to their deaths, a veteran writer and intellectual
said on Thursday.
In a letter to be published in Friday's Izvestia daily, Lev Razgon, a
member of a presidential commission set up to consider pardons for those
sentenced to death, slammed Russia's recent record on capital punishment.
Razgon, now in his 80s, spent more than 15 years in Stalinist labour
camps, where all his family perished. He is a strong opponent of capital
punishment, which has wide popular support in Russia.
“In recent years, when all indicators fell catastrophically, the most
terrible indicator of all remained at its previous level -- the number of
executions,'' said the letter, referring to the sharp economic collapse which
accompanied market reform.
“It seems that the country does not want to part with its bitter
reputation as a country of firing squads,'' he wrote.
Razgon said falling use of the death penalty in 1992-94 showed Russia
moving away from its totalitarian past and approaching the position in a
majority of European states, something which played a role in Moscow's
admission to the Council of Europe. é
‘But from then on a phenomenon started which could not but arouse
concern,'' he said.
“In 1995, 86 people were sentenced to death by shooting. This year, 30
appeals for pardon were rejected in February alone,'' he said. Razgon said
only 19 pardons were rejected in the whole of 1994 and the figure was much
lower in 1992 and 1993.
Razgon attributed the hurry to misconceptions by law enforcement officials
that a rising murder rate could be reversed with executions.
He said officials were also worried about severe overcrowding in prisons
and obligations entailed by Russian membership of the Council of Europe.
The Strasbourg-based Council of Europe admitted Russia last month despite
serious misgivings over its human rights record.
Membership carries an obligation to abolish the death sentence within
three years and the Council recommended that Moscow impose a moratorium on
executions immediately.
3-16-1996 America Online: TGSquidMan Page l
1454 817 FEDERAL SUPPLEMENT
including multiple murder, robbery, kidnap-
ping, and rape.
After a three and one-half week trial, the
jury found Petitioner guilty of murdering M.
Vargas, S. Vargas, and Meza in the first
degree. The jury also determined that Peti-
tioner was sane during the commission of the
offenses, and recommended the death sen-
tence.
The California Supreme Court affirmed
Petitioner’s conviction and sentence and de-
nied his first habeas corpus petition on
March 24, 1988. Williams, 44 Cal.3d 883,
245 Cal.Rptr. 336, 751 P.2d 395. The court
summarily denied his second habeas petition
on February 17, 1989. Petitioner’s convic-
tion became final on October 11, 1988, upon
the Supreme Court’s denial of his petition for
a writ of certiorari.
III. Discussion
A. Claim A
Petitioner alleges that prosecutorial mis-
conduct during the guilt phase of his trial
resulted in the violation of his Fifth, Sixth,
Eighth, and Fourteenth Amendment rights.°
Specifically, Petitioner claims that the prose-
cutor, Larry Howard (L. Howard),’ violated
his right to due process by failing to correct
Tyson’s testimony, which he knew to be per-
jurious, and that the guilt and penalty phase
verdicts must, therefore, be reversed.
5. The jury found that Petitioner premeditated the
murders and willfully and deliberately commit-
ted them with express malice aforethought, com-
mitted the murders during a robbery, and used a
firearm in the commission of each offense. The
jury also found the robbery, multiple murder,
and kidnapping special circumstances to be true.
6. Rule 2(c) of the Rules Governing Section 2254
Cases in the United States District Courts pro-
vides that a petition ‘‘shall specify all the grounds
for relief which are available to the petitioner ...
and shall set forth in summary form the facts
supporting each of the grounds thus specified.”
Although Petitioner asserts violations of the Fifth.
Sixth, Eighth and Fourteenth Amendments, he
presents substantive argument regarding only a
Fourteenth Amendment due process claim. The
court restricts its review of Claim A accordingly.
Similarly, the court restricts its review of Peti-
tioner's subsequent claims to those substantively
argued.
At Petitioner’s trial, Tyson testified as fol-
lows:
Q [L. Howard]: [D]id I or anyone from
the district attorney’s office make any
promises with respect to any charges that
would be filed against you?
A: No. I was told that whatever was
filed against me would be up to the
grand jury.
Q: Have any promises been made to
you as far as you’re concerned for your
testimony here today?
A: None.
RT Vol. V 1004:18-25 (emphasis added). Ty-
son further testified on cross-examination:
Q [Roland Howard]: At the time you ap-
peared in Superior Court to be sentenced
for the three murders that you were con-
victed of, didn’t you have discussions with
the district attorney’s office regarding
what disposition of your case in terms of
sentence would be made in terms of their
recommendation of sentence at the time?
A: No.
Q: In exchange for your cooperation.
A: No.
RT Vol. V 1009:16-24.
[1] The court conducted an evidentiary
hearing on Claim A, limited to the issue of
Tyson’s alleged perjury at Petitioner’s trial
and the prosecutor’s knowing use thereof.’
7. The prosecutor, Larry Howard, is not to be
confused with Petitioner's trial attorney, Roland
Howard.
8. If established, ‘‘[pJrosecutorial misconduct in a
state criminal proceeding will be grounds for a
writ of habeas corpus unless the prosecution can
show that the error was harmless beyond a rea-
sonable doubt.’ Brown v. Borg, 951 F.2d 1011,
1014 (9th Cir.1991) (citing Chapman v. Califor-
nia, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17
L.Ed.2d 705 (1967)). Accordingly, notwithstand-
ing the limitation in the order granting the evi-
dentiary hearing, the court realizes that, in con-
sidering this claim, the question is not whether
the legally admitted evidence was sufficient to
support the verdicts, but rather whether the state
has proved beyond a reasonable doubt that the
error complained of did not contribute to the
‘ verdict obtained. Sartrenwhite v. Texas, 486 US.
249, 258-259, 108 S.Ct. 1792, 1798-1799, 100
L.Ed.2d 284 (1988) (citing Chapman, 386 US. at
24, 87 S.Ct. at 828).
1452
life without possibility of parole instruction
did not preclude jury from considering any
relevant mitigating evidence.
75. Constitutional Law ¢=268(11)
Criminal Law 1213.3
Homicide 311
State court’s failure to countermand
guilt phase instruction in capital murder trial
that jury was not to be influenced by pity or
swayed by sympathy did not violate defen-
dant’s right to constitutional imposition of
death penalty; “sympathy instructions” do
not violate either Eighth or Fourteenth
Amendments to United States Constitution.
U.S.C.A. Const.Amends. 8, 14.
See publication Words and Phrases
for other judicial constructions and def-
initions.
76. Criminal Law ¢633(1)
United States Constitution does not
guarantee defendant a perfect trial, but in-
stead mandates a fundamentally fair trial.
J. Robert Jibson, California State Atty.
Gen., Asst. Deputy Atty. Gen., Sacramento,
CA, for respondents.
David A. Nickerson, Mazer and Nickerson,
San Francisco, CA, for petitioner.
DEATH PENALTY CASE
ORDER DENYING AMENDED
PETITION FOR A WRIT OF
HABEAS CORPUS
COYLE, Chief Judge.
I. Introduction
Petitioner, Keith Daniel Williams, filed an
amended petition for a writ of habeas corpus
1. The state tried and convicted Petitioner pursu-
ant to the 1977 version of California's death
penalty statute, Cal.Penal Code §§ 190-190.6.
Unless otherwise noted, references are to the
1977 statute.
2. Ina letter to the court dated October 19, 1992,
Petitioner argues that, pursuant to Hendricks v
Vasquez, 974 F.2d 1099 (9th Cir.1992), he is
entitled to an evidentiary hearing on all claims
alleging ineffective assistance of counsel. The
court disagrees; the Ninth Circuit clearly did not
go that far in Hendricks. Moreover, even if Peti-
tioner’s interpretation of Hendricks is correct,
and assuming, arguendo, that the challenged con-
817 FEDERAL SUPPLEMENT
pursuant to 28 U.S.C. § 2254. Petitioner
challenges his state court conviction on three
counts of first degree murder with special
circumstances, and his death sentence.!_ Pe-
titioner sets forth nineteen claims of alleged
federal constitutional error which he con-
tends require a reversal of his guilt, sanity,
and/or penalty phase verdicts.
Petitioner requested an evidentiary hear-
ing on Claims A, B, C, E, F, G, H, and I.
The court granted and conducted an eviden-
tiary hearing on Claim A.?
After careful review of each claim present-
ed in the amended petition and all supporting
documentation, including the entire state
court record, all papers filed by the parties,
and the evidence presented at the evidentia-
ry hearing, the court finds that no claim
submitted by Petitioner warrants federal ha-
beas relief. Accordingly, the amended peti-
tion for a writ of habeas corpus is denied as
set forth herein.
II. Facts 2
This case involves the shooting deaths of
Lourdes Meza (Meza), Miguel Vargas (M.
Vargas), and Salvador Vargas (S. Vargas) by
Petitioner. The events leading up to the
killings began on Friday, October 6, 1978,
when Petitioner met Meza and M. Vargas at
a yard sale at the Galt home of Robert Tyson
(Tyson) and Karen Tyson (K. Tyson).
At the yard sale, Petitioner, having noticed
and admired M. Vargas’ car, expressed a
desire to purchase it. Petitioner subsequent-
ly obtained M. Vargas’ permission to test
drive the car. After the test drive, Petition-
er reiterated his interest in buying the car.
duct constituted error, Petitioner is not entitled
to an evidentiary hearing on his ineffective assis-
tance of counsel claims because he has failed to
demonstrate prejudice.
3. A complete factual background is set forth in
People v. Williams, 44 Cal.3d 883, 245 Cal.Rptr
336, 751 P.2d 395 (1988), cert. denied, 488 U.S.
900, 109 S.Ct. 249, 102 L. Ed.2d 237 (1988), and
infra notes 16 & 17. The evidence is undisputed
except as to the extent of Petitioner's drug and
alcohol consumption and its possible effect on
his mental state
we
The sale, however, was not consummated
that day.
While subsequently informing the Tysons
of his intent to purchase the vehicle, Petition-
er commented that he had discovered the
automobile registration in the glove box dur-
ing his test drive. He surmised that it would
be easy to obtain possession of the car and
registration by loading Meza and M. Vargas
in the trunk and dumping them in a field.
On Saturday, October 7, 1978, M. Vargas
returned to the Tysons’ home to consummate
the sale of the car. Petitioner passed a
stolen check in the amount of $1,500 to M.
Vargas and took possession of the car. The
parties agreed that M. Vargas would retain
the registration until Petitioner’s check
cleared the following Monday.
Later on October 7th, M. Vargas returned
to the Tysons’ home displaying a “wad” of
bills and offering to purchase a gun from
Petitioner. Petitioner declined to sell the
gun at that time. However, the parties dis-
cussed the possibility of a subsequent meet-
ing at M. Vargas’ home regarding the sale of
the gun.
The next day, Sunday, October 8, 1978,
Petitioner and Tyson, armed with handguns,
drove from Galt to the Merced farmhouse in
which M. Vargas lived with Meza and his
cousin S. Vargas. Petitioner’s intent in trav-
elling to Merced was to commit robbery; he
had also discussed killing M. Vargas and
Meza.
Upon arriving at the farmhouse, Petitioner
and Tyson discovered that guests were visit-
ing their intended victims. Consequently,
Petitioner and Tyson temporarily: postponed
their felonious plans, left their guns in the
car, and joined the others in the house.
They found M. Vargas and Meza downstairs
entertaining three visitors. S. Vargas had
already retired upstairs to rest.
After the guests departed, M. Vargas re-
expressed his interest in buying Petitioner's
gun. Petitioner and Tyson then exited the
house and retrieved their guns from the car.
Upon re-entering the house Petitioner held
4. The state charged Tyson with three counts of
murder. At his trial, which occurred prior to
Petitioner's, the jury found Tyson guilty on all
WILLIAMS v. VASQUEZ
Cite as 817 F.Supp. 1443 (E.D.Cal. 1993)
1453
his gun on M. Vargas. M. Vargas thought
Petitioner was joking, and Tyson reinforced
this misperception by pulling away Petition-
er’s arm. Tyson later justified this interrup-
tion of Petitioner’s actions, informing Peti-
tioner that his own gun was not loaded and
reminding him that S. Vargas was sleeping
upstairs.
Shortly after this incident, Petitioner invit-
ed M. Vargas to join Tyson and him for a
drink. When M. Vargas declined, Tyson
suggested that Petitioner and he buy some
beer and bring it back to the farmhouse.
Petitioner and Tyson then left the farmhouse
on the pretext of buying beer; they used this
time to discuss strategy.
When Petitioner and Tyson subsequently
re-entered the farmhouse they found M. Var-
gas downstairs and S. Vargas and Meza up-
stairs. Petitioner put the plan in action,
running to the second floor and ordering
Tyson to bring M. Vargas upstairs and take
Meza downstairs and shoot her.
After Tyson and Meza went downstairs,
Petitioner shot both men in the back of the
head, killing them. Tyson, however, did not
shoot Meza. Instead, he and Petitioner took
her from the farmhouse and drove toward
Sonora. En route, Petitioner had inter-
course with Meza.
Upon reaching an unpopulated area, Peti-
tioner and Meza exited the car. They
walked to a field a short distance away where
Petitioner shot Meza four times and left.
Petitioner and Tyson then returned to Galt;
Tyson remained in Galt, while Petitioner
headed for Southern California.
The next day, Monday, October 9, 1978, a
relative of the slain men discovered their
bodies lying in a pool of blood. Authorities
did not locate Petitioner’s third victim until
Friday, October 13, 1978, when Tyson sur-
rendered and led them to Meza’s naked body
in a secluded area near Sonora.
The state charged Petitioner with three
counts of first degree murder‘ with firearm
enhancements and ten special circumstances,
counts, and the court sentenced him to three life
terms in prison with the possibility of parole.
WILLIAMS v. CALDERON 1465
Cite as 52 F.3d 1465 (9th Cir. 1995)
finally, that the defense attorney stated that
Doe’s attorney, rather than Doe, bore the
burden of proof in this case. The defendants
counter that the remarks were proper, based
on the instructions given the jury, and that
Doe’s failure to object to the remarks during
the closing argument, amounts to a waiver of
this issue on appeal.,
[21] It is true that “neither trial tactics
nor mere temerity will excuse counsel’s fail-
ure to object to a remark made in closing
argument.” Carmel v. Clapp & Eisenberg,
P.C., 960 F.2d 698, 704 (7th Cir.1992) (cita-
tions omitted). At trial, Doe’s counsel made
no objections to the defendants’ closing argu-
ment, yet now tries to raise its impropriety
on appeal. Any potentially improper state-
ments should have been called to the atten-
tion of the trial judge, in order that she
might be given a timely opportunity to cor-
rect any prejudice that might result from
such remarks. The plaintiffs’ failure to do
so, waives this issue on appeal.
[22,23] Furthermore, “[tJhis court has
repeatedly explained that ‘improper com-
ments during closing argument rarely rise to
the level of reversible error.’” Valbert v.
Pass, 866 F.2d 237, 241 (7th Cir.1989) (cita-
tion omitted). The plaintiff has a heavy bur-
den when she seeks a new trial based on
improper remarks during a closing argument
and from our review of the record, we are of
the opinion that Doe has not even come close
to meeting her burden. We disagree with
Doe’s argument for the bulk of the comments
she alleges were improper were clearly based
on the testimony received as well as the jury
instructions given. As explained above,
those instructions were proper. Thus the
defendants’ reference to the “missing” wit-
ness and evidence does not constitute error,
especially in light of the fact that Doe’s attor-
ney proposed a missing witness instruction.
- Furthermore, admission of the CWLA and
DCFS standards was wholly appropriate as
was defense counsel’s reliance on them dur-
ing closing. Finally, the judge properly in-
structed the jury that the plaintiffs bore the
burden of proof in this case; therefore, Doe’s
contention that she was prejudiced when the
defense attorney told the jury that the plain-
tiffs’ attorney bore the burden of proof is
without merit. The district court was well
within its discretion to deny the motion for a
new trial because the defense attorney’s re-
marks in closing argument were proper.
AFFIRMED.
Ww
fe) E KEY NUMBER SYSTEM
T
/~ Keith Daniel WILLIAMS,
Petitioner-Appellant, =~
Zr
Vv.
Arthur CALDERON, Warden,
San Quentin State Prison,
Respondent-Appellee.
No. 93-99006.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Dec. 14, 1994.
Decided April 7, 1995.
Federal habeas corpus petition was filed
after petitioner’s first-degree murder convic-
tions and death sentence were affirmed on
direct appeal by the California Supreme
Court. The United States District Court for
the Eastern District of California, Robert E.
Coyle, Chief Judge, 817 F.Supp. 1443, denied
writ. Petitioner appealed. The Court of
Appeals, Poole, Circuit Judge, held that: (1)
no ineffective assistance of trial counsel re-
sulted from alleged inadequate investigation
of possible diminished capacity defense or
other potential mitigating evidence; (2) peti-
tioner failed to establish entitlement to inde-
pendent psychiatrist; (3) failure to properly
instruct on kidnapping special circumstance
was harmless error; (4) penalty-phase jury
instructions adequately guided jury; (5) state
trial court was not required to modify death
sentence; and (6) petitioner was not entitled
to more broad evidentiary hearing.
Affirmed.
282 83 FEDERAL. REPOR : 281 (9th Cir. 1996)
peal, 44 Cal.3d 883, 245 Cal.Rptr. 336, 75]
P.2d 395, and his first federal] habeas petition
was denied, 52 F.3d: 1465, petitioner filed
successive claim for habeas corpus relief.
The United States District Court for the
Eastern District of California, Robert °F.
Coyle, Chief Judge, denied petition, and peti-
tioner appealed. The Court of Appeals,
David R. Thompson, Circuit Judge, held that:
(1) successive claims filed before Antiterror-
ism and Effective Death Penalty Act: was
signed were not subject io ‘Act’s requirement
of preapproval by Court of Appeals; (2) al-
leged newly discovered evidence did not ‘sat-
isfy cause requirement for raising. successive
claim; (3) petitioner failed to demonstrate
cause for failing to raise remaining claims in
earlier petition; and (4) case was not “excep-
tional” one warranting recall of earlier appel- :
late mandate.
Affirmed.
1, Habeas Corpus <=205 oe
Successive habeas claims filed but not
ruled upon before Antiterrorism and Effec-
tive Death Penalty Act was signed into. law
were not subject to Act’s requirement. of
advance approval by Court of Appeals. 28
US.C.A. § 2261.
2. Habeas Corpus <=843 .
Appellate court reviews for abuse of dis-
cretion district court’s decision not to review
merits of habeas claims when claims are
abusive or successive, :
3. Habeas Corpus ¢=897, 898(1)
District court. abuses its discretion in
denying abusive or successive habeas claims:
if court’s decision is based on erroneous legal
conclusion or on clearly erroneous. finding of
fact. ee
4. Habeas Corpus 897, 898(1)
Different factual basis or argument as-
serted to support same legal theory advanced
in previous habeas proceeding does not con-
Sutute new ground for relief and-is succes-
sive. Ses © 2 Eos ie :
» Habeas Corpus <=897 ©
Successive habeas ‘¢laiing may. hot be
considered unless petitioner can demonstrate.
283
j eall
sent “exceptional” case ager 2
a we andate affirming earlier denial of ha
of m: | 2
: ie CALDERON
of corpus.
a oe : =
: ed, 16. Federal Q 1s has inherent authority
6. Re: Court of Appeals ume jurisdic-
ey to recall its mandate and to assume
pei H tion over closed aEpom
vel ESS oo 5 :
a #1 17, Federal Courts ¢-956.1 . andat
Tela Court of Appeals will recall its - a
oe i : : : x ae ce
Some . ly in “exceptional” cases, when ae stice.
pedages only. -necessary to prevent inju
pric Fe " exists or when- neces oe eos
0 el cove Se
Bry Saas i
petit@ars; *
og ; : isco, Califor-
sneer . Mazer, San Francisco, Vall 0!
Bi 4 Richard B. : Cali-
ae rial ee David A. ee =
ee stitioner-appellant.
a at
Bi ‘3 J. Robert Jibson, Supervis a lifornia, for
qu Pa ae General, Sacramento, [a
kne ie g : nited States District
du wyne the U é
ee Appeal ‘from ‘strict of California,
se yt for the Eastern District of iding.
aoe he E. Coyle, District Judge, Pres
mall 0) ne :
2 Before: POOLE, THOMPSON 3
SWAB yer TROTT, Circuit Judges
for ‘fai : : | “DAVID R. THOMPSON, Cireuit ae :
ees : : ‘ 3 - sta e
penaltymited : Keith Daniel Williams is a a eae
agree a has been sentenced to
petitioy is execution is schedule ond
dence.i fae a.m. Williams has filed a oe,
PS ‘ : . : ° + urt.
tioner: tHisider en habeas petition in the ee
formatig@writ, “Cer © t court relied upon the 6
sniical Fin g The district cour Death Penalty Act of 199 ,
Pp i ism and Effective 305-01 (1996y (to be’ codi-
‘oj. 142° Cong. Ree.
Per ied at 28 U.S.C. § 2261) (Act ee
a ] Ged jurisdiction to hear the ae eras
: ing an orde
this court granting ae
Lae filing. of the. second, Pa
ce ed by section 2244(b)(3)(A) of ne ae:
a Te fore court also concluded the
), and ruled it
apl- illiams’s claims.
ae required dismissal of Williams's ¢
no — 41:22,
= etition: filed: Apr
ee Williams's latest petit ril -26,
ES latest a aa his amended petition Bee leks
ee 1996 ge Nlliomss rd, ene ee wiliains’s
ae : urposes of clarity, -we is sec-
nek ee spennion and amendment as ipsa amma
a ee Sige ees
Out: “ond petition. 3
iN
vet WILLIAMS v.. CALDERON .
Cite as 83 F.3d 281 (9th Cir. 1996)
om with minor criminal records that
e them i in the lower criminal history cate-
have not regularly or frequently en-
in criminal conduct. Similarity of of-
‘is a relevant predictor of future crimi-
ang
aie
qfio: are not already demonstrated recidi-
who. are not already in the highest
ea: on, ‘we have never previously upheld an
ard departure in‘a Category VI case on
‘Ground advanced by the majority; rath-
hee departures from Category VI have
vays been: reserved for the most egregious
inal ‘offenders. :
n Category VI, all-of the defendants have
epeatedly engaged in criminal conduct over
é‘course of a number of years. There is no
Shitcant difference i in the likelihood of re-
rd a large’ number of‘crimes ‘of the same’
“0 similar type. - Accordingly, in determin-.
ig‘ which Category VI defendants deserve
Fextraordinary punishment, we have always
‘looked to. the egregiousness of their conduct,
snot tito: the wholly irrelevant ‘question of
‘whether the offenses they: have committed
ere similar in nature.
The. majority ; concludes ‘that a iefaae
‘like: Segura who has committed seventeen .
ffenses, several’of which are similar in na-:
‘ture; is significantly more likely to commit.
* further crimes than a defendant like George
| * who, over virtually the same period of time,
: ‘has committed nineteen different offenses, a
+. number. of which are more. serious and more’
e violent ; ‘than _,those“ committed by: Segura. ..
, The: majority . reaches:, this: conclusion, . and ;.
thus ‘justifies the-added punishment,-imposed..;
by. the district court; notwithstanding the fact.
similar high risk of further recidivist conduct.
The difference between the two, the majority
declares,,is that Segura has committed a
number of immigration offenses. To me,
that is.an obvious and complete non sequitur.
In fact, I see no possible justification whatso- ‘
ever for an upward departure from Category
VI.in this case. The majority’s holding is
clearly, unprecedented and contrary to our
prior law.
While there are rare cases when a depar-
ture from Category VI is permissible, this is
plainly not one of them. Here, we are con-
fronted with a defendant who has committed
a number of immigration violations, but
whose criminal record has not escalated in
seriousness or violence, and, in fact, whose
record is essentially non-violent. Immigra-
tion offenses may not be popular these days,
but compared to other moré violent crimes,
they are clearly not the most egregious.
Yet the majority singles Segura’s case out
as the “unusual” one that warrants added
punishment. Because Segura’s immigration
violations unquestionably do not render his
conduct more egregious than that of other
defendants in the same criminal history cat-
egory and because those offenses do not in
any way suggest a significantly greater like- .
lihood of: recidivism, I must respectfully dis-
sent.
Ww
fo) E KEY NUMBER SYSTEM
S
Keith Daniel WILLIAMS,
Petitioner-Appellant,
&
Arthur CALDERON, Warden,
San Quentin State Prison,
Respondent—Appellee.
No. 96-99009.
United States Court of Appeals,
Ninth Circuit.
Argued April 30, 1996.
Submitted:May 1,-1996.
Decided May 1, 1996.
., After -his capital: munden conviction. and
that.both: defendants ;unquestionably pose: a.. death ‘sentence were affirmed on .direct. ap-:
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284
Alternatively, the district court ruled that
if the Act did not apply retroactively to
Williams’s case, Williams failed to show cause
and prejudice for bringing his successive and
abusive claims, and denied his habeas peti-
tion. _
We hold that the district court had juris-
diction to entertain Williams’s second petition
without first obtaining an authorization order
from this court under section 2244(b)(3)(A) of
the Act, because we treat. the entirety of
Williams’s second petition filed in the district
court as having been filed before the Act was
signed into law.
We do not decide whether the remainder
of the Act governs Williams’s second pétition.
Even if the remainder of the Act applies to
Williams’s case, it does not enhance his abili-
ty to obtain federal habeas relief. .
We conclude Williams’s second petition
raises both successive and abusive claims,
and Williams has failed to demonstrate cause
and prejudice. for raising these claims at this
late date, nor has he shown that a miscar-
riage of justice would result from our refusal
to review these claims. We, therefore, af-
firm the district court’s denial of Williams’s
petition for a. writ of habeas corpus, and we
deny his application for a stay of execution.
We also deny Williams’s motion to recall our
mandate in Williams v. Calderon, 52 F.3d
1465 (9th Cir.1995).
BACKGROUND
i September 1978, Williams and Robert
Tyson robbed a couple, stealing their camper
and its contents, including a checkbook. «In
October 1978, Williams; ‘Tyson, and :-others
held a garage sale to sell, among other
things, the contents of the camper. . Miguel
Vargas and Lourdes Meza attended the ga-
rage sale and| Miguel expressed an interest in
selling his car to Williams and buying a gun
from Williams which Williams had cre
stolen from his emplcyer.
'- “Phe next: day; Miguel and: Meza returned
to’ Williams's ‘home: to*‘cortiplete the.‘sale of
the’ car. A check’ that had‘béen ‘stolen from
the camper was used to: ‘buy: ‘the car. After
Miguél and Meza léft! Williams folmed a plan
83 FEDERAL REPORTER, 3d SERIES
to go to Miguel and Meza’s home to rob
them, to retrieve the check, and to kill them.
The following day, Williams and Tyson,
armed with fully loaded weapons, arrived at
Miguel’s and“ Meza’s’ home. Miguel, Meza,
and Salvador Vargas were at their home.
Williams shot and killed Miguel and Salvador
and then left the home with Tyson and Meza.
After having intercourse with Meza in the
car, Williams drove to an abandoned field
and killed her, leaving her. body in.the field.
During this time, Williams was under the
influence of alcohol, morphine, codeine, her-
oin, and marijuana.
Williams ‘was dhiareed with —_ counts of
murder,: with special circumstances under
California’s 1977. death penalty statute.
Williams pleaded ‘not guilty by reason. of
insanity. After: Williams was examined. by
two psychiatrists and found sane, his defense
proceeded on.a theory of: diminished capaci-
ty. In 1979, a jury found him to be:sane,
convicted him on the three counts of murder,
found nine of ten special circumstances true,
and returned’a sentence of death."
The California. Supreme | Court affirmed
Williams’s direct appeal and denied his. first
habeas corpus. petition which had. been, ,con-
solidated with his. automatic appeal. People
v. Williams, 44 Cal.3d 883, 245 Cal. Rptr. 336,
751 P.2d 395 (1988). The United States Su-
preme Court denied Williams’s petition for
certiorari. Williams v. California, 488°U:S.
900, 109 S.Ct. 249, 102 L.Ed.2d 237. (1988).
Williams then filed a second petition: for
habeas corpus relief with the California Su-
preme '' Court.—~The California Supreme
Court denied this second petition in an un-
published decision.
In 1989, Williams filed his first federal
petition for a writ of habeas corpus. The
district court denied this petition on the mer-
its. : Williams v. Vasquez, 817 F.Supp. 1443
(E.D.Cal:1993). We affirmed: Williams -v.
Calderon, 52 F.3d 1465 (9th Cir.1995). We
also denied Williams’s request for rehearing
-and suggestion for rehearing, en bane,
On February 20, 1996, the’ Supreme Court
denied ‘Williams’s petition for certiorari. . ——
US. —, 116 S.Ct: 987,':133: L:Ed.2d: 863
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CALIFORNIA
- asa result of the commission of rape and finding the rape special
circumstance untrue:
.. Itisclear from this sequence of events that the jury rejected evi-
-dence ‘that’ the: murder occurred during the commission or
attempted commission of rape or as a result of the Commission or
attempted commission of rape. It is not clear that the jury necessar-
ily found there had been no rape. If any inference is possible, it is
that the jury did believe there had been a rape, for otherwise the
quéstion about the time of the murder in relation thereto would
have been superfluous. Inasmuch as the verdicts do not establish
an acquittal of rape, however, we need not decide whether it is per-
missible to draw such inferences.
Defendant objects also to the court’s consideration of his prior
commitment to the Youth Authority on grounds that the commit-
ment offense, theft of a motorcycle, did not involve force or threats
of force. There is merit to defendant’s claim that this commitment’
should not have been considered. It was not relevant to any of the
factors enumerated in section 190.3 and could only have been con-
sidered an aggravating factor. In the context of the ruling it is clear
that the.judge did not consider the underlying offense only for its
probative value in establishing the possibility that defendant suf-
fered from mental disease or defect.
Nonetheless, we cannot conclude that consideration of this
minor offense by a judge who had reviewed all of the evidence and
recited. numerous other substantial factors in his ruling was
prejudicial.5! The judge found “ample evidence” to support the
verdicts of death and expressly tied his determination not to mod-
ify the verdicts to the fact that there had been an “intentional kill-
ing of three people” by a defendant who had stated he “might do
it again.” We are satisfied beyond a reasonable doubt that any error
in considering the Youth Authority commitment was harmless. We
do not agree that the court’s reference to defendant’s calm demea-
nor during the trial was improper. A defendant’s demeanor may
reflect remorse, or otherwise arouse sympathy in either jury or
judge. Because the jury, and the Judge in deciding whether to mod-
ify a verdict of death, must be permitted to consider any evidence
that is relevant and potentially mitigating (People v. Lanphear,
- Supra, 36.Cal.3d 163, 167), this is relevant to appropriate consider-
ation.
Defendant’s claim that the court should not have considered
irrelevant statutory factors, and his suggestion that in finding them
absent he necessarily found aggravation lacks merit for the reasons
discussed above. Awareness and consideration of the factors the
state considers particularly relevant to the penalty decision is no
less important to the judge in reviewing the jury’s decision than to
the jury.
Defendant also attacks the court’s recital that the only explana-
tion for his conduct offered by defendant was his hatred of Mexi-
cans. This, he claims, is inaccurate as defendant ‘offered several
other explanations, among which were drugs and alcohol. We find
no impropriety. The court did not accept defendant’s evidence of
drug and/or alcohol intoxication. Although there was another
motive for the killing, robbery, defendant’s willingness to kill was
clearly influenced by his dislike of Mexicans. We cannot and do not
require the court to blind itself to this in determining whether any
belief in moral justification or other mitigating factor was present.
PROPORTIONALITY
Finally, defendant claims that the death penalty is dispropor-
tionate to the offenses in light of the facts of the offenses, his back-
ground, and his personal characteristics. This. claim, made in
anticipation that the decision-of the Court of Appeals for the Ninth
Circuit in Harris v. Pulley (9th Cir. 1982) 692 F.2d 1189, would
control the type of proportionality review to be given by this court,
was premature. (See Pulley v. Harris, supra, 465 U.S. 37.) Although
we believe that proportionality review is not constitutionally man-
51Defendant also claims that consideration of the robbery in the John Street
Park in Modesto was error because the jury had not found beyond a reasonable
doubt that defendant committed that offense. This claim lacks merit for the rea-
sons discussed above—the evidence was introduced by defendant. We need not
decide, therefore, whether the judge must apply the same standard of proof in
ruling on a motion for modification as does the jury in its determination of the
appropriate penalty.
dated (see People v. Rodriguez, supra, 42 Cal.3d 730, 778), we
have, as the court in Pulley noted we would do, reviewed the record.
“We have concluded that the evidence supports the special circum-
stances of multiple murder, murder in the commission of robbery,
and murder in the commission of kidnapping. We have also con-
cluded that no error affected the verdicts of guilt, the special cir-
cumstances, sanity, or penalty. No basis appears upon which to
conclude the death penalty in this case is disproportionate or other-
wise violates the Eighth Amendment to the United States Constitu-
tion or article I, section 17 of the California Constitution.
The judgment is affirmed. :
Lucas, C. J., Panelli, J., and Arguelles, J., concurred.
MOSK, J.:
I concur in the judgment. I am of the opinion that there occurred
no prejudicial error going to guilt, that the multiple murder special
circumstance finding is unquestionably valid, and that there
occurred.no prejudicial error going to penalty.
I cannot, however, join in the opinion of the court: | disagree
with the majority’s conclusion that the felony murder special cir-
cumstance findings are valid.
To begin with, I believe that advancement of an independent
felonious purpose is an element of the felony murder special cir-
cumstance and as such should have been instructed on in connec-
tion with each of the felony murder.special circumstances alleged
in this case. We held as much in People v. Green (1980) 27 Cal.3d
1, 61-62. The majority choose not to dispute this point and, in my
view, simply cannot do so.
Further, contrary to the majority’s conclusion, I believe that fail-
ure to instruct on the independent-felonious- purpose element is
not subject to general harmless-error analysis, and that on this
record the error cannot be held nonprejudicial. My reasons are as
follows. :
In People v. Kimble ( 1988) 44 Cal.3d —, I demonstrated that
failure to instruct on an element of a special circumstance is auto-
matically reversible, subject to the following exceptions: (1) the
erroneous instruction was given in connection with a special cir-
cumstance allegation that was not found true; (2) the defendant
conceded the issue underlying the element; and (3) the issue was
necessarily resolved adversely to the defendant under other, prop-
erly given instructions. (Id. at pp. — - — (conc. opn. of Mosk, J .).)
In my opinion, none of the exceptions is available on this record:
first, the erroneous instruction was given in connection with each
of the felony murder special circumstance allegations found to be
true; second, defendant did not concede the issue of independent
felonious purpose; third, the issue was not necessarily resolved
adversely to him under other, properly given instructions—indeed,
it was not even presented for the. jury’s consideration.
In summary, I would conclude that the trial court erred by failing
- to instruct on independent felonious purpose with regard to the fel-
ony murder special circumstance allegations. I would further con-
clude that on this record the error cannot be deemed harmless with
respect to the allegations found true.
Nevertheless, since the multiple murder special circumstance is
unquestionably valid; death-eligibility has been established. In
view of that fact and in the absence of prejudicial error at the guilt
or penalty phase, I am compelled to concur in the judgment.
KAUFMAN, J::
Notwithstanding the numerous trial errors and defects identified
in the majority opinion, I have concluded that on the basis of the
entire record there is no reasonable possibility that absent these
errors and defects, the jury would have reached determinations
more favorable to defendant. I therefore concur in the judgment
affirming the convictions, the special circumstances findings as
modified and the penalty of death.
Cal.)
and * * * there carefully examined the
pistol which had been introduced in evi-
dence in the murder case against Weber.
* * * T recognized in this pistol so marked
and shown to me as aforesaid, the pisto!
which I bought from the sailor and which
I sold to the man in Oakland on the 30th
day of September, 1904.” As to this affi-
davit the brief of the people states that,
“if the trial court had been convinced of the
truth of this affidavit, a new trial would
have resulted. More than this, it is prob-
able that if the trial court had not been fully
satisfied that the statements in this afli-
davit were absolutely false, a new _ trial
would have been granted.”
Considering that this affidavit was prepared
by counsel eminent in the law on behalf of
a client convicted of the most horrible crime
of matricide, it is certain that the affidavit
contains everything pertinent to the case
which the affiant was willing to have appear.
Yet, this affidavit is open to grave suspicion
as well from the statements which it con-
tains, as from the absence of statements
which it should contain. Affiant knows noth-
ing of the sailor from whom he bought the
pistol; he went to the beach with several
companions who were all surprised at the
way in which the pistol shot, yet the name
of no one of these companions is given; he
sold it to a nian employed in a repair shop
in Oakland, but neither the name of the man
nor of the shop is stated. Yet, while he can-
not remember the sailor’s.name nor state
the name of his companions, nor the name of
the man to whom he sold the pistol, nor the
shop in which he worked, he is not only able
to remember that the pistol in question was
an Iver-Jolnson old model, 32-caliber short,
but that its number was 19,554. He ean re-
member also the very day of the month—
September 30, 1904—upon which he sold the
pistol. He swears that he wrote to Weber's
attorneys and told them what he knew. No
corroboration even of this is offered by the
attorneys. But a circumstance of even greater
suspicion is that his affidavit failed absolutely
to give any evidence of his location or where-
abouts. It is to be remembered that a wise
discretion is vested jin the trial court in deter-
mining the weight to be given to the state-
ments contained in affidavits upon motion for
new trial. This discretion is to be exercised
in determining the diligence shown, the truth
of the matter stated, and the materiality
and probability of the effect of them, if be-
lieved to be true. Moreover, it is to be re-
membered that a trial court is justified in
regarding with distrust aflidavits of newly
discovered evidence in motions for new trial,
People vy. Howard, 74 Cal. 547, 16 Pac. 394:
People v. Sutton, 73 Cal. 248, 15 Pace. 86;
People v. Freeman; 92 Cal. 359, 28 Pac, 261;
People v. Gonzales, 143 Cal. 605, 77 Pac. 448;
Oberlander y. Fixen, 129 Cal. 690, 62 Pac.
254; People vy; Russing, 130 Cal. 449, 62 Pae.,
PEOPLE y. WEBER. 681
742, 80 Ain, St. Rep. 141; People v. Warren,
180 Cal. 683, 63 Pac. 86; People v. Buckley,
143 Cal. 875, 77 Pac. 169; People v. Sing
Yow, 145 Cal. 2, 78 Pac. 235. Potent as this
affidavit might have been, if believed, it may
not be said that the trial court did not ex-
ercise a sound discretion in discrediting it,
and so in denying the motion in support of
which it was brought forward, ;
We have thus disposed of all the legal
questions which in our view demand detailed
consideration. That the verdict was the re-
sult of passion and prejudice upon the part
of the jury cannot be affirmed from the record
before us. The community in which the de-
fendant and his family resided was doubtless
shocked at the atrocity of the crime, and was
doubtless intensely interested in the arrest
and conviction of the perpetrator. But
when the hand of the law fell upon the son
as the criminal, the very horror of the charge
must have caused a suspension of judgment
in the mind of every right-thinking person.
It was almost unbelievable that a son and
brother could have done so foul a deed, and
that the trial was had and eoncluded in such
a condition of arrested public judgment,
seems to be borne out by the fact that de-
fendant scarcely exhausted one-half of the
peremptory challenges allowed him by law
before obtaining a jury of his fellow-citizens
before whom he was put upon his trial.
There was for this court naught to do but
to aflirm the judgment and order appealed
from; and it is so ordered.
We concur: COOPER J.; ANGELLOTTI,
J., SLOSS, J.; SHAW, J.; LORIGAN, J.
NOTE.—Justice McFARLAND being unable
to act, Justice COOPER, one of the justices
ot the District Court of Appeal for the First
Appellate District, participates herein pro tem-
pore, pursuant to section 4, art. 6, of the Con-
stitution,
BEATTY, C. J. (dissenting), The murder
of the Weber family was one of those atro-
cious crimes which always arouse an intense
desire to discover the perpetrator, and bring
him to justice. Such a state of feeling per-
vading a whole community increases the dan-
ger that one upon whom suspicion first hap-
pens to fall may be convicted upon evidence
which, in cases of a less aggravated character
would not be deemed thoroughly satisfactory
proof of guilt. This fact makes it peculiarly
the duty of the courts in such a case to en-
force with scrupulous care every right which
the law accords to persons accused of erinie—
rights accorded not for the purpose of screen-
ing the guilty, though capable at times of
being perverted to that end, but solely in or-
der to guard, as far as may be consistent with
the practical administration of justice,
against the danger of convicting the innocent.
I cannot persuade myselt that on the trial this
defendant’s rights were duly preserved. The
evidence against him was wholly circun-
684
There are other minor errors disclosed by
the record which I do not care to discuss.
It is enough to say that the defendant was
denied his substantial rights in respect to
the testimony of a witness of doubtful repu-
tation, upon the vital point in the case.
For these errors, the judgment and, order
of the superior court should be reversed.
—_—_
(149 Cal. 307)
PEOPLE y. TREBILCOX. (Cr. 1,291.)
(Supreme Court of California. June 11, 1906.)
1. CRIMINAL LAW—VOLUNTARY INTOXICATION
—INSTRUCTIONS.
In a prosecution for murder, .an instruc-
tion on voluntary intoxication as furnishing
no excuse for crime should contain the phrase
“when sane and responsible.”
{[Ed. Note.—For cases in point. see vol. 14,
Cent. Dig. QOriminal Law, § 1830; vol. 26,
Cent. Dig. Homicide, § 605.]
2. SAME—DEFENSES—UNCONTROLLABLD OR IR-
RESISTIBLE IMPULSE--MOTIONAL INSANITY.
Uncontrollable or irresistible impulse, or
emotional insanity, beginning on the eve of
the criminal act and ending with its consum-
mation, is no legal defense to the crime.
[fd. Note.—Ior cases in point, see vol. 14,
Cent. Dig. Criminal Law, § 64; vol. 26, Cent.
Dig. Homicide, § 44.]
3. SAME—INSTRUCTIONS.
Iiequests to charge in a criminal case,
based on a supposititious state of facts, to the
existence of which there was no evidence, were
properly refused. : :
{Isd. Note.—For cases in point, see vol. 14,
Cent. Dig. Criminal Law, § 1979.)
4, HomMIcIpDE—DEGREES OF OFFENSE.
Where deceased placed herself between de-
fendant and A., or for any reason got in range,
and defendant fired, intending to strike A., and
not then intending nor expecting to strike de-
ceased, but killed deceased, defendant was guilty
of murder in the first degree, and not man-
slaughter.
[kd. Note.—For cases in point, see vol. 26,
Cent. Dig. Ifomicide, § 23.]
5. CRIMINAL LAW—ARGUMENTATIVE INSTRUC-
TIONS.
In a prosecution for homicide, instructions
which are purely argumentative in asking the
jury to pay particular attention to particular
circumstances, as tending to show the irresponsi-
bility or insanity of the defendant, were proper-
ly refused.
[{Isd. Note.—For cases in point, see vol. 14,
Cent. Dig. Criminal Law, §§ 1959, 1960.]
In Bank. Appeal from Superior Court,
Nevada County; I’. T. Nilon, Judge.
William J. Trebileox was convicted of
murder, and he appeals. Affirmed.
Chas. W. Ikitts and John Mulroy, for ap-
pellant. U. S. Webb, Atty. Gen., J. C. Daly,
Dep. Atty. Gen., and Geo. L. Jones, Dist.
Atty., for the People.
TIENSHAW, J. Defendant was convicted
of the crime of murder in the first degree,
and the death penalty was imposed. Upon
his appeal the only complaint which he
makes is of errors of the court in giving and
refusing to give instructions. In general it
may be said that the jury was instructed
86 PACIFIC
, Dan.
REPORTER, (Cal.
with great care and clearness. The instruc-
tion upon voluntary intoxication of which
complaint is made omits the phrase “when
sane and responsible.” This is an important
qualification and should always be given;
but its omission in this case is covered by
other qualifying instructions. People Vv.
Mcthever, 132 Cal. 332, 64 Pac. 481.
Instructions 5 and 6, given at the plaint-
if('s request, were to the effect that “uncon-
trollable or irresistible impulse” or “emotion-
al insanity,” beginning on the eve of the crim-
inal act and ending with its consummation,
had no legal standing in this state as a de-
fense to crime. In this the court adopted the
rule and language of People v. Hoin, 62 Cal.
120, 45 Ain. Rep. 651, and People v. Kernagh-
an, 72 Cal. 622, 14 Pac. 566, a rule which
ever since, without wavering or hesitation,
has been adopted by this court. The murder
was committed in the presence of an eyewit-
ness. The defendant shot and killed his own
wife. ‘The testimony for the prosecution
showed that at 9 or 10 o’clock of the morning
of the homicide he was seen and appeared
sober and rational. He then went to a gun
store and purchased a_ pistol, which was
loaded for him. About 11 o’clock he went to
a saloon, where he drank beer and appeared
to be intoxicated, saying: “There will be
three funerals before night.” From the sa-
loon he went to the residence of his wife,
knocked at the front door, which was opened
for him. and said to the witness William
Allen: “Iere Lam. You get out.” THe drew
the pistol from his pocket, pointed it at Allen
and said: “I have a good mind to kill you.”
Defendant’s wife appeared and asked what
was the matter. She stepped to one side.
He said to his wife: “You son of a bitch; I
will kill you’? — and fired and she fell.
Within the hour he rettirned to the saloon,
saying to its proprietor: “Hello, Dick! I done
it. I have shot my wife.” To the city mar-
shal, who arrested him, he said: ‘‘I surrender,
I have killed my wife. I was drove to
it.’ The marshal said to him that she might
not be dead, and he replied: “If she ain’t, I
intended she should be.”
Some of the instructions which the court
refused to give at the request of the defend-
ant were properly refused as being wholly
outside of the evidence in the case, or as be-
ing based upon a supposititious state of facts
to the existence of which there was not the
slightest testimony. For example may be
quoted defendant's proposed instruction 2:
“Tf it be a fact that Mrs. Trebileox placed.
herself between Charles Allen and the de-
fendant, or for any reason got in range and
the defendant fired intending to strike Allen,
and not then intending nor expecting to
strike Mrs. Trebilcox, then the defendant
cannot be convicted of murder in either the
first or second degree, and can be convicted
of no crime higher than manslaughter.”
This instruction is quoted as an example of
those which were presented to the court and
ab aly
yor
ee
SRR eR aR HET DARE E
=
Cal.) PEOPLE vy.
ings of the police commissioners of San Fran-
cisco that the license of the defendant to deal
in second-hand goods had been reyoked after
a hearing of charges of receiving stolen
goods and soliciting a thief to steal. ‘This evi-
dence was excluded on an objection by the
prosecution.. The objection, of course, was
valid upon. technical grounds, but there is
no doubt that the evidence of the police com-
missioners themselves, if they had been placed
upon the stand, would have been admissible
as to his reputation. he defense also offered
to prove by a certified copy of a San Francis-
co ordinance that the selling or keeping for
‘sale of black-jacks and brass knuckles (the
weapons of thugs and assassins) was a mls-
demeanor. This evidence was also excluded
on objection by the prosecution, and the rul-
ing was erroneous. The offer was not to
proye specific instances of misconduct on the
part of Carr, which would have been inadmis-
sible, but only to show that the business
which he had admitted that he was carrying
on both by his direct and cross examination
was a contraband and disreputable business.
It was clearly competent and relevant to the
question of his character.
A more important error was committed by
the court in ruling upon an objection to a
question asked the witness Abrams, who had
testified to the good reputation of Carr. The
cross-examination of this witness developed
the fact that his favorable testimony was
based solely upon reports that Carr was in the
habit of making prompt payments to the
wholesale dealers who supplied him with
goods. The following questions, answers, rul-
ings and exceptions then ensued: “Q. Have
you ever heard discussed the fact as to what
business he carried on? <A. No sir. Q. Have
you ever been told that his license to carry on
business has been revoked? A. I am not
aware of that fact. Q. Ilave you ever been
told that he had a lengthy examination before
the board of police commissioners and that
his license was revoked? (The prosecution ob-
jected to the question as being wholly irrele-
rant, immaterial and incompetent.) The
Court: The court is certainly of the opin-
ion that the questions are asked for the pur-
pose of the question, not the answers. I don’t
think you can change the mind of the court
upon it. These matters the court ruled out
as being grossly immaterial, and the court
cannot help but hold and rule that they are
asked for the purpose of questions and not
the answers, and the court must sustain the
objection. (The defendant excepted to the
remarks of the court and to the ruling of
the court.) This ruling was clearly erron-
eous, and the error was aggravated by the
unmerited rebuke administered to counsel in
sustaining the objection.
I entirely dissent. from the view of this
question taken in the opinion of the court.
The witness had not answered the first
question asked him, in what is conceded to
have been a proper line of cross-examination.
WEBER. . 683
Ife had evaded it. Ile was not asked whether
he knew that Carr’s license had been revoked,
but whether he had heard the matter dis-
cussed. Ilis answer that he was not aware
of the fact might have been literally true,
although he had heard the matter discussed.
Counsel then, as he had a perfect right to do,
asked him the same question in a more
specific form, and had a right to an an-
swer. It is a peculiarity of the rule of evi-
dence relating to the impeachinent of wit-
nesses that you cannot prove by direct evi-
dence specific instances of improper or crim-
inal conduct for the purpose of discrediting
them, but‘if a witness is called to rebut evi-
dence of bad reputation, he may be asked
on cross-examination if he has not heard of
such specific instances of misconduct. The
cases cited in the opinion of the court sustain
this proposition, and it is sustained by
abundant authority elsewhere. ‘The first
branch of the rule was invoked success-
fully against the defendant when he offered
to prove by the record of the board of police
commissioners that they had revoked Carr’s
license after an investigation of charges of
receiving stolen goods, ete. But when he
endeavored in a perfectly legitimate manner
to avail himself of the other branch of the
rule, not only was his right to do so denied
him, but his counsel was censured by the
court in the presence of the jury, in language
clearly implying that he was seeking in bad
faith to get before the jury matters which
they were forbidden to consider. Suppose
that, instead of sustaining the objection of
the district attorney, with a plain intimation
that nothing more would be heard from the
defense, the court had overruled the objec-
tion and compelled the witness to give direct
answer to the question, and suppose, as is
not improbable, that he had admitted having
heard of the action of the police commis-
sioners, of what value would the testimony
of this witness have been? Instead of re-
butting he would have confirmed the evidence
offered on the part of the defense. It may be
said that this was a small matter not of
sufficient importance to justify an order for
a new trial, but in my estimation it was not
a small matter. Carr was the most important
witness for the state, and if it can be sup-
posed that uncontradicted proof of his bad
reputation for honesty and integrity would
have induced one or more jurors to reject
his testimony the defendant would not have
been convicted of a most horrible and un-
natural crime, and sentenced to an ignomin-
ious death. Evidently the prosecution did
not consider it a trifling matter, and neither
they nor the court had any reason to suppose
the question was asked in bad faith. If
they expected it to be answered in the neg-
ative, the answer could have been given
in far less time than it took to interpose the
objection,. and that would have ended the
matter to their advantage.
(82
stantial, and aside from the testimony of
the witness Henry Carr (who swore that
during the month of August preceding the
murder he had sold to the defendant at his
shop in San Francisco the identical pistol
which was found in the Weber barn 12 days
after the murder) was utterly inconclusive.
It showed, it is true, that the defendant had
an opportunity to commit the murders and
set fire to the house before he left the prein-
ises at about 6.30 p. m. on November 10th.
But it showed, also, that there was ample
time for some other person to have entered
the house, to have committed the murders and
kindled the fire between the time of his de-
parture and the first signs of the fire. It
showed, also, that he had a possible motive
for the murder of the whole family in his
supposed desire to sueceed to his father’s
whole estate, and there was proof of one or
two circumstances justifying a suspicion of
his guilt. But altogether this evidence was
insufficient to make out the case against him
beyond a reasonable doubt. With the addi-
tion of Carr’s testimony, however, if true, the
proof was complete. The only defense, there-
fore, which he could make was to meet the
testimony of Carr either by direct rebuttal
or by impeachment of his character. De-
prived of a fair opportunity to do this, he
was in effect deprived of his whole defense.
In view of the capital importance of this
item of evidence, I think the interests of jus-
tice demanded that he should have been given
the fullest and fairest opportunity to meet it.
Ile was, on the contrary, studiously and pur-
posely deprived of such opportunity, Isxtraor-
dinary precautions were taken prior to the
trial to keep from him all knowledge of this
witness, and of the testimony he was expected
to give, and in opening the case in a speech an
hour and a quarter in length, counsel for the
prosecution made no allusion to this essential
link in their chain of evidence, so that the
first knowledge the defendant had of the
name or existence of Henry Carr,,or of nis
residence or business, was derived from his
testimony as a witness in the midst of the
trial. This course of procedure is justified
upon the ground ,that there is no Jaw which
obliges the prosecution in a criminal case to
make an opening statement to the jury, or if
one is made, to disclose any more of the case
than they deem sufficient. It is true that
there is no violation of the letter of any law
in concealing from the prisoner and his coun-
sel the name and the expected testimony of
a witness who has not testified before a grand
jury, but there is a violation of the spirit
and policy of our law which has always re-
quired the names of all witnesses examined
before a grand jury to be indorsed upon the
indictment, and which, since prosecutions by
information have been authorized, requires
the testimony produced before the committing
magistrate to be reduced to writing and filed
as a publie record. The policy of these laws
is evident, and they are 10 the interests of
86 PACIFIC REPORTER.
(Cal.
justice. It does not accord with our ideas of
justice, and has no tendency to promote its
ends, to keep the most important witness
against a prisoner in ambush until the mo-
ment when he is called upon to make his
defense. If a witness that is to be called to
support a criminal charge bears a good repu-
tation, and can be depended on to tell the
truth when placed upon the stand, there is no
occasion to keep him in hiding, and if, on
the other hand, he is a person of doubtful an-
tecedents, engaged in unlawful business in an
unsavory locality, there is all the more rea-
son that the accused should not be deprived
of any legitimate means of exhibiting him in
his true character before the jury which is
to weigh his testimony.
The argument upon which the course of the
prosecution in this particular is defended is,
in substance, this: We knew that the de-
fendant was guilty, and if he had been in-
formed of what we expected to prove by
Ilenry Carr, he was ‘capable of resorting to
any illegitimate means of preventing or re-
butting lis testimony, which means, I sup-
pose, that he would have suborned him to
keep away from the trial, or would have
suborned witnesses to impeach or contradict
him. This is an argument which begs the
whole question which it is the sole purpose
of a trial to determine; the question, that is
to say, whether the defendant is guilty. It
assumes his guilt in advance as a justification
for depriving him of a fair opportunity to
show that the evidence against him is false
or untrustworthy, and it ignores the funda-
mental principle upon whieh our entire
system of criminal procedure is based, viz.,
that the defendant in every eriminal action
is presuned to be innocent until he is proved
to be guilty.
But, after all, it ‘cannot be said that in the
matters so far considered there is any ground
for reversing the judgment and order of the
superior court. The prosecution did not
transgress the letter of any law and there
was no ruling of the court in this connection
which can be pronounced erroneous. The
preceding discussion, however, will be seen
to have a material bearing upon an erroneous
ruling made during the eross-examination
of a witness called to sustain the reputation
of Henry Carr at a later stage of the proceed-
ings. The cross-examination of Ienry Carr
showed that he kept a second-hand store
on Dupont street, San Franciseo, between
Pine and California; that unger the pretext
of buying articles and agreeing to sell them
back to the vendor at an advance, he was
really doing a pawnbroker’s business without
a license, that among other articles in which
he dealt were black-jacks and brass knuckles.
Several witnesses, including a former police
judge and oflicers of the police, testified that
his reputation for truth, honesty and integ-
ritv was bad, and that they would not believe
him under oath. The defendant also offered
to prove by a certified copy of the proceed-
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cage he was making. Perhaps, as he helped
install the two steel chairs, he.asked him-
self what a man would think of as he sat
there, waiting for the end. He may even
have pictured himself in those seats. Others
have done so.
At last the job was finished. With the
rest of the crew, Wells was sent to other
work in the prison’s shops and soon was
lost in the throng of gray-clad workmen.
Long afterwards came the day when he
appeared before the State Board of Terms
and Paroles, pleading for his freedom. He
said he had learned his lesson; that he
knew at last that crime did not pay. He
had been a good prisoner, he told the board.
All he wanted was another chance.
They listened to his story and decided
to grant his plea. On November 24th, 1939,
Wells walked out of the penitentiary, a free
man again on parole.
He returned to Los Angeles and took
the job that had been promised him. For
a year he worked hard and lived as a
model citizen. Once a month he reported
to the parole officer, presented a statement
of his earnings and said he was saving
money.
It seemed that he was making good. The
parole officer came to look on him as a
rehabilitated man who had realized the
error of his ways.
Then, unexpectedly, came a chance meet-
ing with a boyhood friend from Colorado.
It brought fateful news, though Wells did
not realize then how this word was to
change the course of his whole life.
The friend told Wells that his young
half-brother, Raymond, was living in San
Bernardino, a few hours’ ride away. The
two had not heard from each other in
years, not since the crippled boy had run
away from home.
So Wells went to San Bernardino and
walked right into trouble.
He found that his half-brother, just
twenty-four, had married. Raymond and
his wife introduced Alfred to an attrac-
tive eighteen-year-old girl, Violet Wells,
his half-sister who had been a baby and
scarcely noticed by him when he was a
boy in Colorado.
@ WITH A gracious manner and a happy
smile, Violet said the things no other girl
ever had said to him before. There was
a note of understanding in her voice. It
wasn’t sympathy for his deformity. Wells
didn’t look for that. It was just a way she
had that warmed his heart. And for the first
time in his troubled life, Alfred found him-
self in love.
Before long the others discovered it.
There were frank discussions when Violet
was away. Raymond and his wife told him
that this would never do.
Each time Alfred flew into violent rage.
He told them to mind their own affairs;
that now he was tasting happiness for the
first time in his life; that they had no right
to interfere.
They tried to reason with him. “If you
love her you must consider her—not your-
self,” they pleaded.
At last he agreed to go away.
Before he went he wanted one last talk
with Violet. He suggested to Raymond’s
wife that the girl drive with him to Cajon
Pass, where they could discuss his future
and make new plans.
Violet said she would be glad to go. Per-
haps it would be well, she ventured, if her
friend, Rose Destree, accompanied them.
’ Rose knew his problem and felt for him in
his dilemma.
On the afternoon of May 8th, 1941, he
drove with them to the quiet, isolated pass.
They left the car and sat down under a
clump of trees. “Now let’s talk it over,”
said Violet. “We’re alone and no one can
disturb us here.”
“I’m ready,” said Wells, reaching sud-
denly into his hip pocket.
An instant later he pulled out a revolver.
The girls saw it and screamed.
There was a blinding flash. Violet fell
over—dead.
Rose, seventeen, scrambled to her feet,
screaming for help.
There was another shot. The girl reeled,
then crumpled to the ground, a gaping
wound in her chest.
Then Wells dashed for the machine and
drove furiously to the Santa Fe shops
where his half-brother was employed.
“Violet’s been hurt—up by the pass,” he
told Raymond. ‘‘Come with me. We haven’t
a moment to lose.”
Speeding over the winding mountain
road, Alfred related fanciful details of an
auto accident. Near the scene of the
tragedy they left the car and started over
a trail. Raymond walked ahead.
He did not see his half-brother draw a
gun. A few moments later he fell dead in
his tracks, a bullet in his back.
Hours later passing autoists found the
bodies. Rose, rushed to hospital, died that
night but not before she had muttered the
name of the slayer. Alfred Wells had van-
ished.
M A SEARCH began and .went on for
months until at last, picking up the trail,
they found him hiding in the “hobo jungles”
near Seattle, Washington. He was brought
back to San Bernardino, tried before a jury,
and found guilty of murder in the first
degree.
Sullen and defiant, he stood before Judge
Frank A. Leonard to hear his sentence.
“It is the judgment of this court,” the
Judge began, “that you be put to death in
the gas chamber at San Quentin Prison—
and may the Lord have mercy on your
soul.”
Wells knew better than the Judge what
that sentence meant. His lips moved but
the words could not be understood. Then
he slumped back into his seat.
From his first days in San Quentin’s Con-
demned Row he became a prison problem.
He cursed his guards and tried to fight with
the doomed man with whom-he lived.
He was bitter and pugnacious. When
others read, he cursed. When it was time to
exercise he refused to move.
The guards tried kindness. It made him
worse than he had been before. They took
harsh measures and tried discipline. Wells
said he didn’t care.
Every day found him a graver problem.
And his keepers knew they were in for
trouble.
Then one night a guard made a routine
inspection of his cell. He got there none
too soon. The condemned man had torn
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a metal strip from his wash basin and
fashioned it into a dagger.
A few days later they found a piece of
his bucket handle sharpened to a deadly
point.
By now they were at their wits’ end but
the next day something happened. It was
Easter Sunday.
Over the prison’s radio system, with ear-
phones in every cell, a soft-spoken woman
sent an Easter message to the men locked
up inside the walls. Mrs. Clinton T. Duffy,
the warden’s wife, addressed them as a
kindly friend.
“Easter is a time to think of God—your
God and mine,” she said. “He watches over
you and He watches over me. Fill your souls
with the love of God. Think of His teach-
ings, think of the Bible and try to live by
its holy teachings.”
She went on, quoting Scripture, pleading
with her unseen listeners to find strength
and comfort in spiritual faith.
@ NEXT DAY a pack of letters came to Mrs.
Duffy from the cells. She read them all
but there was one that touched her heart
more than any of the others.
“Read this,” she told her husband. “Just
see how grateful this chap seems to be for
what I said.”
Warden Duffy scanned the note; then
looked at the signature. He could hardly
believe his eyes. He was staring at a name
that meant much to him yet nothing at all
to his wife. The name was Alfred Wells.
That night the guards reported that Wells,
for the first time, had given them no trouble.
To their amazement, Condemned Row’s
problem man was reading a book—the Bible.
Mrs. Duffy answered his letter with a
friendly, grateful message. She quoted
from the twenty-third psalm and told the
man awaiting death to remember that the
Lord was his shepherd.
Wells replied to her promptly, telling of
the comfort he was getting from the Scrip-
tures. He had not even thought of them
since he was a child but the Easter mes-
sage had rekindled a spark that he did not
know existed.
“T’ve been reading from Isaiah today,” he
wrote. “No doubt you know it well. When
you have time, won’t you write me and let
me know how you interpret the following
lines...”
And so there began a steady correspond-
ence between the warden’s wife and the
doomed man she would never see. Twice
a week and sometimes more often letters
passed ag the two exchanged views on re-
ligion and on simple questions of philos-
ophy.
As the weeks “passed into months, Mrs.
Duffy recognized in Wells’ letters from
Death Row a changing nature and a broad-
ening interest. What she could not see was
the change being wrought in the man him-
self, From a bitter, belligerent character,
he was turning into a thoughtful, consider-
ate person, friendly to his guards, interest-
ing to his fellow convicts.
But he was living on borrowed time. And
there came that drab day in December,
not long before Christmas, when he penned
his last letter to his unseen benefactress
and wrote his thanks for what she’d done.
That afternoon they took him to the little
solitary cell in the death house.
Next morning he was led to the gas
chamber that he had helped to build. San
Quentin’s one-time bad man _ dropped
meekly into his chair.
They heard him muttering prayers as the
steel door was clamped shut. Through the
glass window they saw his lips moving, his
eyes turned Heavenward.
A few minutes later Wells, like Haman of
whom he had read in the Bible and com-
mented upon, died in the death machine he
had helped to make for others. Another
drama of the Big House was at an end.
81
rand 4.50;
me and «4.79;
Main killers
3,75. Best
ind 2,50 to
and 6.50;
medium to
n light 3.00
quality ght
75 and 5.20;
0 and 8.00;
; plain kind
4,50; choice
od kind 6.00
0 and 6.00;
gnmon killers
t steady:
.25
receipts 16,-
closing 25-40
: underweights
$10.70, late top
0.40@10.60; 260-
50: best light
: $9.25@9.75; ship-
idover 2,000.
500: weighty fed
shipper account,
fter better grades
d; several loads
moter grade light cat-
) medium grade un-
heifers barely
bulls weak and
down; outside
demand for thin as
0s closing more ac-
tround steady with
good to choice 67-
100; bulk at out-
est loads to ship-
other classes - lit-
fed western ewes
around 68-70-l1b.
Arthur D., white, hanzed
% i PY a 4 a : i 2 oe ~ e
San Quentin ‘(Sen Francisco
+ a ss
STRANGE AS IT SEEMS-—By JOHN HIX
Per further proof addrnss the author. medoging a stampod envesope for reply.
Reg. U. 8 Pat Of.
A jury
place on th
West’s attorneys appea
day, Sept. 27, the Supreme
State denied the appeal.
sentenced to hang on Friday, Dec.
The sentence was carried out.
A week later,
to die—the execution w
e third Friday
On Friday, Dec. 13, last
West, climbed 13 steps to
scaffold at San Quen
California to pay with his life for a mur-
der that he had commit
utes after the trap was sprung, West was
declared dead.
The strange sequence of 13’s an
days that ran throu
viction began on a
1934, when West killed a
mms oh eT tg!
“
SOME PAITERFLIES
[Be
:
APPEDK WP
AND K
, N
Va, donou
BAN 609, 1S
i MI Abes PATER
F444 wert
j rl Pertigny,
1 Cis 4
Bee. 13, 1935
AS
HAVE YELLOW
BLOO,
LAY LARCH -
“te COWING , HEBitdy
LARCH TREE LEANING
BT AN ANGLE OF
MORE THAN
Nittany, a,
oe
year, Arthur D.
the top of the
tin Penitentiary in
ted. Just 13 min-
d Fri-
gh his crime and con-
Friday in October,
fellow soldier.
found him guilty of first degree
murder—returning the verdict on Friday.
on Friday, he was sentenced
as ordered to take
in April, 1935.
led, but on Fri-
Court of the
West was re-
13.
Strange as it seems, not all animals
have red blood. A great many lower
forms of animal life have colorless blood,
and others have blood of various colors.
The blood of many species of butterflies
is yellow, and that of some marine worms
is greenish. Lack of haemoglobin in the
blood of lower animals accounts for its
colorlessness, and the presence of other
substances in its place accounts for the
variety of blood colors that can be found
among invertebrate animals.
The larch tree in the above drawing
grew normally in an upright position until
April, 1931, when a windstorm uprooted
it and blew it over. The falling tree
crashed against the roof of a store and
was held in that position. Since then
the tree, strong and firmly rooted, has
continued to grow in an almost horl-
zontal position. .
Tomorrow: Washington, The Loser.
NEW YORK. STQCKS
ing
<5
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oles in 100's
Adams Express
Reduction
Juneau
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NEW YORK,
partial official
Web.
rie Stock exchange;
Low
High
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162 Pure Oj;
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39 Iadlo Is
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14 Rey Tol
15 Sateway
10 St. Jose;
$2 Schentey
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26 Servel
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$80 Simmons
7 Skelly O
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185 Socony —
226 Sou Pac
176 Sou Ry @
130 Sparks Vg
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426 Stand Br
3. Stand
87 Stand
107 Stand
72 Stand
155 Stand
140 Stone
7 Superior
39 Swift &
40 Tenn Cog
44 Tex Cor @s¢
49 Tex Gult®
68 Tex Pac
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60 Tide Wa
350 Timk De
34 Tim Re
da Pransante
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170 Walworth
190 Warren 1}
17 Wess Oil
38 West Uni
100 Westingh
24 West El
92 White M
60 WiMson &
31. Woolwotr
4 Wrigley
195 Yell Trk
19 Youngstoy
15 Zenith R
14 Zonite P
Total sale
previous day
two years ac#
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Ne
‘*
4
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NEW YO
today’s high
bonds of the
(Doll:
Sales in $1000
Treas 4!
38g
4s
Con
|D) Vol. 3, No. 18
rime Pete CHiN
ALLL Fact Storia from Official SOULS
WEST, Arthur D.} hanged CASP (SF) De€ember 13, 1935
Who's
THROUGH
in America
@ Exhausting every pos-
sibility of clemency,
MRS. ELIZABETH TIL-
FORD, 50-year-old mother
of nine children, went to the
gallows at Woodstock, Ont.,
recently for the poison mur-
THE MONTH’S BEST CASES
THE ENIGMA OF THE VANISHING MADONNA.....
288 oo oats « Saehe 0 EW Catale « canis SiR T. R. Porter 5
The amazing story of the disappearance of pretty June St.
Clair, one of Nebraska’s strangest cases.
ILLINOIS’ PETTING PARTY TRAGEDY . Ray Brennan 8
Scientific detection methods crack Chicago's shocking riddle
of the girl’s body in the sewer.
“THE LAW SAID I KILLED MY BRIDE”
......Joseph J. Meluch and Harold L. Zimmer 14
From a prison cell comes this gripping drama of impas-
Youngest %
congregation
had been m
and her you
ty-two, wer
congregatior
ot them that
time the doc
devote
ger. of. her third husband. sioned love, stark violence and grim tragedy. 1929
aintainis. er twmnocenc
to the last, the psalm-singing, SMASHING ARIZONA’S POLYGAMY CULT 0 ws. © © 8 wite
black-gowned woman walked
across the jail yard to a
structure which normally
serves as a coalshed. There
she mounted a _ makeshift
Scaffold, quickly dropped to
Elizabeth Tilford her death
... Judge E. Elmo Bollinger and Wesley Gordon 22 pias
HOW I CAPTURED MISSOURI’S PASSION SLAYER. .
teeeeeeeses... Sheriff Henry J. Drury 26
In the wild days of the Capone regime in Chi- The inside story of an amazing case of unrequited love and : ing me
GENARO was a well kepe crimson violence that shocked the Middle West. That M
Fur. But ‘recently things SOLVING CALIFORNIA’S RIDDLE OF THE NIGHT Clair call
ac 5 . _ e © a Md
That's one reason police were LIFE BEAUTY, T.N. Koening and JohnA. Henshall 32 H
mystified when Genaro was
A former Sacramento police chief gives the lowdown on the
blasted down by a hoodl .
aetounatued oo Phe strange fate of Cherry de St. Maurice.
shotgun squad as he stood in
a tavern near the University
of Chicago. An _ examina-
tion disclosed that the once
Prosperous mobster had just
35 sin his pockets!
see say's 5 + eae eas ..M. B. Lay and A.D. Nunn 38
@ Friday always was a ji
for ARTHUR D.WES KENTUCKY’S JIG-SAW CORPSE AND THE MYSTERY What d
3 Wehed Woe on Petded OF THE MISSING HEAD ........ 1. re “Pretti
October 5, 1934. He was Pepe Gspato———|
convicted of murder on Fri- ies
day, January 25, 1935, was sentenced to hang on
Friday, February 1, and went to the gallows at San
Quentin on Friday, Decem-
ber 13
Re
.. .Sergeant Everett F. DeWitt and Ollie M. James 42 swered
How a dog uncovered one of the South’s most shocking ca
crimes—and how clever sleuths solved it.
SHORT FEATURES or
to refer to himself as “the
Dillinger of the | South,” STRAIGHT FROM HEADQUARTERS ............. 6
other. lurid titles. ‘He had The editor writes about the crime problem.
prin, Lt (RS STERILIZE HABITUAL CRIMINALS... .A.R. O’Brien 7
n April, 1934, he bumped A California prison director’s views.
off a 17-year-old kid who had Rs
accompanied him on some PHOTO FLASHES OE ow ae hl Mn kt Bee ewe es 20
of his forays. And _ that New pictures of lovely ladies in the news.
proved curtains for Bow- 7
oral ge ie ag BEAUTY MAKES FINAL EXIT.................. 31
ric chair a ddyville, Ky., ps : : e Dol s Daw
Nest: Bowman prison January 10. The tragic picture story of Dolores Dawn.
BANDITS ON A HONEYMOON .................. 36
@ On Christmas Day, A lusi D s Detective Pl F
1934, State Highway Po: n exclusive DARING DETECTIVE Photo Feature.
trolman E. D. Milan was slain by two negroes, rf 9 #
CORNELL LUSTER and HARRY HILL. On DARING DETECT TIVE’S SHOW UP Pay Ree agaee fe Es wie s at
December 20, 1935, the killers paid their debt to so- Pictures and description of a notorious kidnaper.
ciety in the electric chair at
the state penitentiary, at Co- PICKUP MURDER Peep e 6G eRe © eet hee eee ee ee et ts 66
lumbia, S. C A short short on a recent tragic mystery.
On Thursday night,
January 16, the Sing Sing
chair received AI,BERT
HOWARD FISH, aged de-
generate whose shocking
murder of little Grace Budd
went unsolved for years.
Clever,.tireless detective
work finally unmasked the
sadistic killer, brought him
to the justice that he had
evaded so long. Albert Fish
DARING DETECTIVE is published monthly by Country Press, Incorporated, at 1100 W. Broad.
way, Louisville, Ky. Entered as second-class matter at the Post Office at Louisville, Ky., under
the Act of March 3, 1879, with additional entry at Greenwich, Conn, Editorial offices, Country
Press, Incorporated, 22 West Putnam, Greenwich, Conn. ALL MANUSCRIPTS AND PHOTOS
MUST BE SUBMITTED AT THE AUTHOR’S RISK, ACCOMPANIED BY RETURN
POSTAGE AND ADDRESSED TO THE GREENWICH OFFICE. Price 10 cents a copy
$1.00 a year in the United States and possessions. Printed in U. S$. A. Copyrighted 1936
Advertising forms close the 20th of the third month preceding date of issue. Advertising offices
New York, 1501 Broadway; Chicago, 360 N. Michigan Ave.; San Francisco, Simpeson-Reilly,
1014 Russ Bldg.; Los Angeles, Simpson-Reilly. 536 S. Hill St.
4 DARING Dt
raiaswall maya, eek phil (Gp Lrantisee Cpyonihe BAY AREA/CALIFORNIA
By Harriet Chiang
Ckronicle Legal Affairs Writer
With time running out, a feder
al appeals court yesterday refused
to stop tomorrow’s scheduled exe-
cution of Keith Daniel Williams,
ieaving him with little hope of be-
ing spared from San Quentin’s
death chamber.
Following the decision by a
three-judge panel of the U.S. Court
of Appeals in San Francisco, Wil-
liams’ attorneys said they would
ask the court to reconsider its deci-
sion to rehear his case. If Williams
is unsuccessful, the inmate’s law-
yers are sure to file an appeal with
the U.S. Supreme Court.
The 48-year-old Williams is
scheduled to be executed by lethal
injection tomorrow at 12:01 a.m.
His execution would come 17 years
after the Lodi man was sentenced
to die for the 1978 Merced murders
of Miguel Vargas, 29, and his cous-
ie) ®
im oe an
ad! ase sagt
in, Salvador Vargas, 40, and Var-
gas’ pregnant girlfriend, Lourdes
Meza, 24.
~ Ina separate legal battle, a fed.”
eral judge earlier in the day order-
ed prison officials to allow the pub-
lic to witness the entire lethal in-
jection process of the scheduled
execution — from the insertion of
the tubes in Williams’ arms to the
moment at which the inmate is de-
clared dead.
US. District Judge Vaughn
Walker ruled in favor of two me-
dia organizations that complained
that a curtain was drawn while se-
rial killer William Bonin was being
prepared to die and that they were
allowed to witness only the last
few moments of the Feb. 23 execu-
tion.
“There
Amendment right of public ac-
cess” to executions, said Walker in
ruling from the bench. The public,
he concluded, has a right to view
Stay of I
is a limited First’
executions “from at least the time
just before the intravenous tubes
are inserted to just after death.”
The state attorney immediately
appealed Walker’s order, arguing
that lifting the curtain would jeop- -
ardize the safety of prison staff
taking part in the execution. But
late yesterday, the U.S. Court of
Appeals in San Francisco denied
the appeal, letting the order stand.
Earlier in the day, Deputy Attor-
ney General Karl Mayer warned
that prison officials might drasti-
cally limit the number of media
witnesses for tomorrow’s sched-
uled execution.
There are 15 media representa- °
tives from newspapers, including:
The Chronicle, and radio and tele-
vision scheduled to witness the ex-
ecution. ;
In. his plea to the U.S. Court of -
Appeals, Williams said his trial
lawyer was incompetent for fail-
ing to introduce any evidence that
om orrow s Execution
he was mentally ill at the time of
the murders. He claimed that his
condition and his positive response
to medical treatment was docu-
mented in more than 600 pages of -
federal prison records. However,
he said the U.S. Bureau of Prisons
failed to turn over most of the doc-
uments until April 19 — 12 years
after his attorneys first made the
request.
Similar claims were rejected by"
a federal judge in Fresno as well as
by the California Supreme Court.
In rejecting Williams’ appeal
yesterday, the three judges said
the inmate’s attorneys could have
obtained the federal records much
earlier in the appeal process had
they exercised due diligence. In-
stead, they took a “dilatory ap-
proach to pursuing the records,” |
making a request in 1984 and 1991,
and then waiting five years before
making a similar request.
Chronicle staff writer Kevin Fagan
contributed to this report.
a" ie @ Ee a
a <a BE Brea adh
& mm BS Go BREE see
A
SAn Francs
AXA 11M eLR
* Wednesday, May 1, 1996 A-5
COUNTY SHERIFF'S DEPARTMENT /UNDATED FILE
|
Keith Daniel
Williams, who
shot one of his
three victims
four times while
he raped her,
was mentally ill,
but has
responded well
to treatment,
d-fense
lawyers say.
Condemned Killer a Different Man, Lawyers Say
They cite success of treatment |
for mental illness in execution appeal
By Kevin Fagan
Chronicle Staff Writer
Keith Daniel Williams’ life be-
gan, like those of so many other
men on San Quentin Prison’s
death row, in a haze of physical
abuse, booze and poverty.
It degenerated through mental
illness and a grimly predictable,
ever-escalating string of thefts and
assaults until it peaked at the age
of 31 in a sadistic fury that left
three people murdered in the
farmlands of the Central Valley.
Early this Friday, 17 years lat-
Wed. S- |- GG SAW Francisco Chronicle
“aUIOY S,UOSA], 78
ayes puvd & ye SeSIEA [ONS UIsnod
_ SSaTasuas PUP sIqII
-10Y,, SEM BLET Ul prp ay Jey sAes
pjo-1e9A-67 SIY pur ‘gp ‘sesdieA JOp
“BABS JOU — SBUTITEY OY} UT 103e]
gor[duroo0e JURJONIeI sty — OSA],
qWoeqoy pue surelIM voy ‘WyeH
jo uMo} AaT[eA [eNO ay} UT Aep
Jaq0190 Ajsnp “joy au uRsaq I]
‘azIT SITY SuruTTNO Jeliq ssid & UT
‘uled} BSUaJep SULIT UsAq
)SS9]9SU9S PUD 3]q1410H,
er, the 48-year-old killer is sched-
uled to pay for that fury with his —
life when he becomes the second:
man to die by. lethal injection at.
San Quentin.
Given the unusually brutal, de-
liberate nature of his crimes — the
planned execution of two men, Sal-
vador and Miguel Vargas, and the
murder during rape of their friend
Lourdes Meza, all to avoid paying
for a car — there wouldn’t seem to '
be much to like about Williams.
Even his defense team says there
wasn't — back then.
But that was a different man,
“J9y WIM
XasS pey oy se SsJaAIND Yyeop Joy
«2Jh UeUMY J0J
[29} plnoo ay os pesy oy} Ut sowT
qyoodsel ou sey oy uMOYsS ATIR—II
sey oH ‘Wes siq} uo aJoy je}
ay] ApoqAue pool },u0p am yoog
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euop s,ey yeyM oJed 1,U0p ]J,,
Ino} Jou joys oH,, ‘Ajasie} pres
JOAMES ,\UBWIOM 9} sem JI,,
IN BAY AREA
@ Keith Daniel
Williams’ lawyers
have now
appealed to a
0} pey sey oy SJaJapinul 3y} [Ie Jo
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federal appeals
panel in S.F.
defense lawyers say: a manic-de-
PAGEAI2°
pressive drug abuser who could:
not control his blackouts and ho-
micidal rages.
The man Williams’ public de-
fenders appeals team. knows today
as “Danny” is a pleasant, gray-hair-
ed grandfather figure who likes to
read Irish and English history
« PIP oY
-JIM 0} Spuezul Jooueds WWM O4M
yey potolus oy ‘poo Alvar sem
‘IQAMES WO] JJlIoysS paolo
oH, ‘sjeodde suena sunysty
SI pue uoNoesoid [eUIsIIo oy}
uo pedjey oymM ‘Iooueds uopJ0r
AsuIOyYy yMsiq AjuNo0D psdJ9/
pres ,‘olay punowe saey Ajyjensn
aM SAn3 peq 94} 0} paredwi0d uae
Aqeos payoo] ‘wy ye poyYoo, ysnf
noA way ‘oy Ang & sem STULL,
“Aes Ady} ‘IOTI[LY @ SABMTE ‘IOTTD]
B90UO ‘Sleep SUTIELLI Se Sosndxo
books, they say — thanks to being
‘on medication for more than a de-
cade.
“TI can’t really speak to that oth-:
er Danny, because that is not the
Danny I know today,” said Kathy
Kelly, who as one of his key de-
fense attorneys has spent more.
time with him in recent months
than anyone. “When he’s on his
medication, he is respectful,
thoughtful, caring — he is like the
grandfather everyone wants.”
That is the side of Williams that '
was evident, when medicated,
even before his murder spree,
Kelly said. And armed with 600
new pages of evidence about Wil-
TREATMENT: Page A5 Col. 1
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(]
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Wed S=[- 4b
SAN FRANCISCO EXAMINER
pAS
Killer of three to die Friday
Unless the courts
decide to intervene,
Keith Williams will
be second in state to
get lethal injection
By George Raine
OF THE EXAMINER STAFF
The three murders that Keith
' Daniel Williams committed 18
years ago were so grotesque that
Tom Sawyer, who doubles as the
sheriff and coroner of Merced
County, says it’s hard for him. to
describe them to decent people.
It’s not only the murders, it’s
what Williams, scheduled to die by
lethal injection at San Quentin
Prison early Friday, said at the
time. After shooting his third vic-
tim, a woman, Sawyer said Wil- .
liams told his partner, “I love to
kill.”
“Within the body of Keith Dan-
-iel Williams dwells a malignant
heart,” Gov. Wilson said last week
as he denied Williams’ petition for
_ clemency.
Absent a stay by the 9th Circuit
Court of Appeals or the U.S. Su-
preme Court, Williams, 48, is
scheduled to be executed at 12:01
a.m. Friday. He would be the sec-
ond person executed by lethal in-
jection in California and the fourth
to die in the state since capital
punishment was reinstated two de-
cades ago.
Williams’ attorneys say medical
records from before the murders
show that he was mentally ill and
' responded well to treatment, infor-
mation, they say, that was not
available to the Merced County ju-
ry when it found Williams guilty of
three counts of first-degree murder
with special circumstances — rob-*" 7M ,
Williams shot Meza in the head
bery, multiple murder and kidnap-
ping — that justified the death
penalty.
According to court documents,
Williams and his partner, Robert
Tyson, began their crime spree in
September 1978 by robbing and
shooting the owners of a camper in
Modesto and then selling the con-
tents of the camper at a yard sale.
At the Oct. 5 sale, Williams and
Tyson met Miguel Vargas; the next
day, Williams bought Vargas’ car,
writing a check for $1,500 from the
checkbook stolen from the camper
owners.
On Oct. 8, realizing the theft of
the checkbook would be discov-
ered, Williams and Tyson went toa
dairy outside Merced where Vargas
lived with his cousin, Salvador
Vargas. Williams ordered the cous-
ins to lie on the floor and shot both
of them twice in the back of the
head. He and Tyson then kid-
napped Lourdes Meza, a friend of
the victims, and drove her to the
woods near Sonora.
According to Sheriff Sawyer,
four times while he raped her, then
told Tyson, “I love to kill.”
Sawyer says Williams “should
have died for his crimes long ago.”
But opponents of the death penal-
ty say his execution would be an
expression of political expediency.
“This is a transparent political
ploy on behalf of district attorneys
and the governor to make them
look like they are strong against
the death penalty in an election
year,” said Lance Lindsay, the di-
rector of Death Penalty Focus, an
anti-capital punishment group.
Anti-death penalty demonstra-
tors will begin a 25-mile march
from the Palace of the Legion of
Honor to San Quentin, beginning
at 7.a.m. Thursday.
“TI think there is a concern we
not become the next Texas, where
they’re doing about two executions
a month,” Lindsay said “We do
not want the next bloodbath to
begin here in California.”
Clemency
for triple murderer ™
FRIDA bY Ut 26 - 76
ASSOCIATED PRESS
SACRAMENTO — Gov. Pete
Wilson yesterday denied clemency
| for Keith Daniel Williams, sched-
uled to be executed next week for
the 1978 murders in Merced Coun-
ty of three people.
Williams, 48, was convicted of
the execution-style slayings of two
cousins, and the murder of the
cousins’ friend.
“For certain
crimes, justice
demands the ul-
timate punish-
ment. Williams’
premeditated
and brutal mur- |.
ders of these
three individu-
als are such
sishpe tage, Keith Daniel
for excuses is Williams
over.”
Prosecutors said Williams shot
Miguel and Salvadore Vargas while
breaking into their home to steal
back a $1,500 check he had written
earlier from a stolen checkbook.
Williams then had sex with their
friend, Lourdes Meza, in the back of
a car. He shot Meza and left her
naked body in a field. He was ac-
quitted of raping Meza.
Williams’ execution by lethal in-
is denied
jection is scheduled next Friday at -
San Quentin prison.
According to Williams’ attorney”
and a summary of the crimes by the:
State Attorney General’s Office,
Williams bragged to his partner’
that he was having sex with Meza at
the moment he shot her. tf
San Francisco attorney Richard.
Mazer, Williams’ lawyer, said his’
client suffers from mental illness,
which contributed to the crime. i
Merced County Sheriff Tom:
Sawyer said at Williams’s clemency
hearing that Williams’ execution®
was overdue. u
“Williams’ conviction for these:
legal appeals that have spanned 18:
~
monstrous acts set off a flurry rN
aN
\
Mm
~
NN
|
e
years and caused some 54 separate: “SS
court actions. There is no reason’:
for Williams to live one minute’:
longer,” Sawyer said. 3
In an appeal filed this week in {
federal court in Fresno, Williams":
lawyers say nearly 600 pages of;
records contain evidence that prob-7
ably would have persuaded jurors to*
convict Williams of lesser charges.
The documents include medical” * “~~
records that prove his claims of*
mental illness at the time of the-
crimes, the defense lawyers con--
tend. The records were filed when”
Williams was an inmate in federal*
prison from 1977 until May 1978,»
five months before the killings. +
id
1
Le -
eS
.
Latest }
halt ex«
gets Cor
By Claire Coope
Bee Legal Affairs W
~ SAN FRANC:
appellate court
Tuesday by a pl
scheduled execu
iel Williams - be
evidence that feaeral prison. au-
thorities failed to disclose earlier.
Defense. lawyer Richard. Mazer |
said he received 595 pages of med- '
ical evidence less than two weeks »
ago, showing that the jury that
- sentenced: Williams to death.in.
1979 wes-not fully informed of his °
physical and mental problems or *
of a.dramatic change he. ‘under-.
went after receiving treatment.
But three appellate judges, who
heard the case by telephone from
offices in San Francisco, San Die-
go and Boise, Idaho, hinted
strongly that Mazer should have
- asked a court to’ subpoena the
prison records years ago.
“Your client’s known this from
the very get-go,” said Judge Ste-
phen S. Trott of Boise. “Your cli-
ent has believed for years that
there must be more records.” *
Deputy Attorney General Rob-
' ert Jibson noted that U.S. District |
Judge Robert E. Coyle, who turn-
ed down Williams’ appeal in Fres-
no on Monday, concluded that the
evidence would have done Wil-
liams little good if it had been in-
troduced in his trial. —
The judges asked Mazer to file a
final document today. They did
not say when they would rule.
Williams, 48, was convicted of
murdering cousins Salvador and
Miguel Vargas and their friend
Lourdes Meza in Merced County
in 1978 while stealing from them
a check he had used to buy a car
fram Mitiiel Varvas. S- /- vAé
Sa CT Crito
CA Bee
San
cl <—— _— WEDNESDAY, MAY 1, 1996
A Plea to Postpone.
Friday's Execution
Defense says evidence was withheld
By Harriet Chiang
Chronicle Legal Affairs Writer
Lawyers for condemned killer
Keith Daniel Williams yesterday
urged a federal appeals panel to
postpone his scheduled execution
Friday, claiming that US. prison
officials refused for years to turn
over crucial records that could
have spared his life.
Williams’ attorneys made the
plea at a special conference call
hearing before a three-judge panel
of the U.S. Court of Appeals i in San
Francisco.
The appeal was filed immedi-
ately after U.S. District Judge Rob-
ert E. Coyle issued an order Mon-
day evening denying the inmate’s
request for a stay of execution.
The hearing focused on 595
pages of federal prison records
that Williams’ lawyers say prove
that the Lodi man was mentally ill
at the time of the murders and
that he responded positively to.
treatment while incarcerated.
Judge Stephen Trott of the US.
Court of Appeals questioned why
the defense lawyers were unable
to obtain the documents before
now. He sounded amazed that they
_ were unable to get the documents
until April 19 — 12 years after
their initial request — after a sec-
retary called a person at the ar-
chives. “Why didn’t the secretary
do it a hell of a lot earlier?” asked
Trott from his chambers in Idaho.
During yesterday’s hearing,
Williams’ attorney Richard Mazer
‘insisted that defense lawyers did
all they could to obtain the federal
documents, making requests in
1984, 1991 and earlier this year.
But both Trott and Judge Cecil
Poole of San Francisco asked Ma-
zer why he did not request a sub-
poena from Coyle ordering the bu-
reau to turn over the records. They
appeared dissatisfied with Mazer’s
response that Coyle would not al-
low them to conduct any discov-
ery, the process of searching for
any relevant documents. Judge
David Thompson of San Diego also
wondered why Williams’ lawyers
could not come up with these doc-
uments in 1989 when they filed a
federal appeal.
Trott noted that Williams must
have known about the records and
could have told his attorneys.
“Your client has a hard time show- |
ing cause (for a new hearing) if at |
all times he knew there must be -
these records in the federal bu- :
reau of prison,” the judge said.
“And that’s why we wrote time
and time again,” Mazer responded. |
Barring a last-ditch legal re- \
prieve, Williams will be executed |
by lethal injection early Friday at ;
12:01 a.m.
The condemned inmate’s exe-
cution would come 17 years after
he was sentenced to die for the
1978 Merced murders of Salvador
Vargas, 43, his 29-year-old cousin
Miguel Vargas and Miguel’s girl-
friend, 24-year-old Lourdes Meza.
Fran Cis Ce
<o Chroni
pote ee ges
SAW FANE] $ co
State Court
Refuses to
Halt Execution
Justices say Williams’
appeal Ma oe ey
7-27
SA! Harriet Chiang
Chronicle Legal Affairs Writer
The California Supreme Court
yesterday refused to stop next
week’s scheduled execution of
convicted killer Keith Daniel Wil-
liams, ruling that his last-ditch ap-
peal came too late to prevent him
from facing his death sentence.
Yesterday’s order means that
Williams must rely on the federal
courts for a legal reprieve to save
him from San Quentin’s death
chamber. The 48-year-old death
row inmate has an appeal pending
in the U.S. District Court in Fres-
no.
Williams was sentenced to
death in connection with the 1978
murders in Merced of cousins Mig-
uel and Salvador Vargas, and their
friend Lourdes Meza. Barring a
last-minute stay, Williams will die
by lethal injection Friday at 12:01
a.m.
In denying Williams’ appeal,
the state Supreme Court issued a
one-page order signed by acting
Chief Justice Ronald George sum-
marily rejecting each of the in-
mate’s arguments.
Steve Telliano, a spokesman for
the state Attorney General’s of-
fice, said they are confident that
Williams’ death sentence will be
carried out. “Our state attorney
stands ready to continue to defend
Mr. Williams’ conviction all the
way up to next Thursday night,”
Telliano said.
In his appeal, Williams charged
trial prosecutors with failing to
turn over to his defense lawyer
federal prison records document-
ing his mental illness and his posi-
tive response to medication.
His lawyers say that they re-
ceived 600 pages of documents on-
EXECUTION: Page A18 Col. 5
TOonM
fense lawyers have already filed
a separate appeal with U.S. Dis-
The state Supreme Court in
San Francisco denied an appeal
State high court
rejects killer’s appeal |
from convicted triple murderer
Keith Daniel Williams on Friday
and refused to block his.sched-
uled May 3 execution, leaving
him with a final appeal rem
ing in federal court. The
said Williams
EXECUTION
From Page Al5
ly last Friday — 12 years after they
made the request.
Williams also claimed that he
was involuntarily drugged during
his trial and that a crucial prosecu-
tion witness was coerced by police
into testifying against him.
In denying his pleas, the state
Supreme Court said that the infor-
mation should have been brought
forward much sooner in the ap-
peal process.
“No sufficient justification has
been offered to explain the delay
and no fundamental miscarriage
of justice has been demonstrated
to excuse it,” the court said.
trict Judge Robert Coyle in Fres-
cials, docu-
the cous- .
no, saying newly released medi-
cal records, previously withheld
by federal prison offi
sentenced to death for the 1978
murders of cousins Miguel and
Salvador Vargas and
From Mercury News Wire Services
ins’ friend, Lourdes Meza, in
competence. Williams, 48, was
Merced County.
ment Williams’ mental illness
and prove his trial lawyer’s in-
ain-
justices
’ lawyers had wait-
g his trial, vio-
lating his right to a fair trial. De-
Seas Jose
CA Merkcury News
prosecution witness was coerced
and that. Williams was forcibly
medicated during his trial. The
court also rejected a defense
claim that prosecutors had with-
held Williams’ medical records
ed too long to file claims that a
before and durin
Killing Baffles Cops
Los Angeles ra "27 = 76
Kiyokatsu Yoshihara, 22, of Yo-
kohama, Japan, was found stabbed
to death recently in his apartment.
Police said they have no immedi-
ate motive or suspect.
Associated Press
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Associated Press pe that ‘prosetitues had withheld Williams’ ing that the time about the witness aided
a wy medical records before and during his pe . the medication were filed too late, the state continue to defend all challenges to Mr.
SAN FRANCISCO — The state Supreme. violating his right toa fair trial. » ‘court has made it harder for defense law-* Williams’ conviction and sentence between :
Court denied an appeal from convicted tri- ' ’. Defense lawyers have already filed a Sep. -yers ‘to. one those claims, before federal’ now and the execution next, Friday, morn
ple murderer Keith Daniel. Williams on Fri- arate’ appeal: with U.S. District’ Judgé Rob-. courts. § : sess
day and refused to block his scheduled May: ert Coyle in Fresno, saying newly released “Nobody. on the defense teat ie 5
3 execution, leaving him with a final appeal ‘medical records, previously withheld by... that the state. Supreme’
remaining in federal court. ~ federal prison officials, document: Williams’ “even the most meritorious
_-. The justices said Williams’ lawyers: had=* mental illness and: sprove: ‘his trial: lawy yer's Michael Kroll, a spok ssman fo
waited too long to file claims that a prose- » incompetence. “That is their habit, convicted of fatally. shooting ‘ther
‘cution witness was coerced and that Wil- © The other claims had to. be filed? ‘in’ ‘the Steve Telliano, spokesman for Attorne stealing a $1,500 check that he‘ and hig
liams was forcibly medicated during his tri-state Supreme Court before they could be. ‘General Dan ‘Lungren, said. Lungren. friends had used to uy, a car from. M
al. The court also rejected a defense claim submitted to the poy courts. Bur, me rul- ? agreed with the purl es. ee es area.
ing,” ‘Telliano said,
Williams, 48, was ‘sentenced to death’ ie
the 1978 murders. of ‘cousins Miguel :
Salvador’ Vargas and the cousins’. frien
Lourdés Meza, in Merced County.. He ‘was
O Noreen I NIN EN ENE NE NEN IN ENENININENINININI ANI ANI NEI ANIANINGANI ANI ANI ANI ANI ANI ARIANIANT ANI ANDANI ANP ANI ANF ANPLN OOOO
OW ee a
DAILY OPINION SERVICE
2017
California Supreme Court
of the trial, taking into account the statutory aggravating and miti-
gating factors.
1. Instructions
During his argument to the jury the prosecutor had told the
jurors that they would be instructed that if aggravating circum-
stances outweighed mitigating “it says you shall impose death.”
Referring to this argument the court then instructed the jury other-
wise, stating that “the law does not say you shall do one or the
other.”4° No instruction was given restricting the jury’s discretion
beyond that directing them to consider the evidence and the aggra-
vating and mitigating circumstances. No instruction was given at
this phase of the trial that restricted action on the basis of sympathy
or mercy toward defendant. (Cf. People v. Lanphear (1984) 36
Cal.3d 163; People v. Easley (1983) 34 Cal.3d 858.) The jury had
been instructed prior to submission of the guilt and special circum-
stances issues that “in determining whether the defendant is guilty
or not. . . you must not be governed by mere sentiment, conjec-
ture, sympathy, passion, prejudice, public opinion or public
feeling,” but no comparable limitation was imposed at the penalty
trial. As there is no obligation to instruct expressly that sympathy
for a defendant may be considered (see People v. Allen (1986) 42
Cal.3d 1222, 1276), there was no error in this regard.
A. Guiding Jury Discretion
_ Defendant claims nonetheless that the instructions given were
constitutionally inadequate because they failed to “channel” the
jury’s discretion by affording the “clear and objective standards”
or “specific and detailed guidance” held by the United States
Supreme Court to be required by the Eighth Amendment. Defen-
dant’s argument, based on isolated language in the court’s decisions
in Gregg v. Georgia (1976) 428 U.S. 153, 198, and Proffitt v. Flor-
ida (1976) 428 U.S. 242, 253, is directed first to the statutory
scheme, the 1977 death penalty statute itself (former §§ 190-190.5).
He acknowledges the contrary conclusion of this court expressed
in People v. Frierson, supra, 25 Cal.3d 142, and reaffirmed both
in People v. Jackson (1980) 28 Cal.3d 264, 315-317 and People v.
Harris (1981) 28 Cal.3d 935, 964, but urges reconsideration. We
find no necessity to do so.
Any issue as to the adequacy of the 1977 death penalty law in
this regard has been resolved by the United States Supreme Court’s
opinion in Pulley v. Harris, supra, 465 U.S. 37, 53, where the court
said: “By requiring the jury to find at least one special circumstance
beyond a reasonable doubt, the statute limits the death sentence
to a small sub-class, ‘provide[s] jury guidance and lessen{s] the
chance of arbitrary application of the death penalty,’ Harris v. Pul-
ley, 692 F.2d, at 1194, ‘guarantee[ing] that the jury’s discretion will
be guided and its consideration deliberate,’ id, at 1195. The jury’s
‘discretion is suitably directed and limited so as to minimize the
risk of wholly arbitrary and capricious action.’ Gregg, 428 U.S. at
189. Its decision is reviewed by the trial judge and the State
Supreme Court. On its face, this system, without any requirement
or practice of comparative proportionality review, cannot be suc-
cessfully challenged under Furman and our subsequent cases.”
39See footnote 35, ante, p. 2015.
401, contrast to instructions which convey the impression that death is a man-
datory penalty (see People v. Brown (1985) 40 Cal.3d 512, 544, fn. 17), the
instructions here did not limit the jury’s discretion in selecting the appropriate
penalty. The full instruction stated:
“Now, ladies and gentlemen, if during the course of the argument you thought
you heard any comment about the law as being that it says that you shall impose
a sentence of death if you conclude that the aggravating circumstances outweigh
the mitigating circumstances, or you shall impose mitigating—excuse me, life
imprisonment without the possibility of parole if you feel that mitigating circum-
stances outweihh the aggravating circumstances, I tell you that’s not the law that
applies to the case.
“You may use those. As the way in which you go about this. But the way in
which you go about it is up to you. And the law does not say you shall do one
or the other.
“It is now your duty to determine which of the two penalties, death or confine-
ment in the state prison for life without possibility of parole, shall be imposed
on the defendant.
“After having considered all of the evidence in this case and having taken into
account all the applicable factors upon which you have been instructed, you shall
determine whether the penalty to be imposed on the defendant shall be death or
confinement in the state prison for life without possibility of parole.”
B. Correcting Reference to Mandatory Penalty
Defendant also argues that the instructions were inadequate
because the court interjected the admonition to disregard the pros-
ecutor’s argument, based on language in the- 1978 death penalty
statute, that imposition of the death penalty was mandatory if the
jury found that aggravating circumstances outweighed mitigating.
He Claims that this admonition and the related instruction that
“you may use those. . . . But the way in which you go about it is
up to you. . . the law does not say you shall do one or the other”
were ambiguous. The latter reference to “those” might, he suggests,
be understood to mean either that the jury could consider the aggra-
vating or mitigating circumstances, or that the jury could deter-
mine the penalty in the manner proposed by the prosecutor.
We disagree. The court properly and with some prescience, cor-
rected the prosecutor and thereby avoided error of the type that
necessitated reversal of the penalty in People v. Easley, supra, 34
Cal.3d 858, 884-885. That instruction adequately and correctly
advised the jury that they were free to consider the relevant aggra-
vating and mitigating circumstances but were not required by the
law to impose either penalty based upon the outcome of a mechani-
cal weighing process.
C. Consideration of Nonstatutory Aggravating Factors
Defendant claims that the instructions also permitted the jury
to consider aggravating factors not authorized by statute. He rea-
sons that because the instruction did not mandate consideration
of the statutory factors, it permitted the jury not only to disregard
them, but also to consider other nonstatutory factors. Again, we
disagree. The jury was expressly instructed that in determining the
penalty “you shall consider, take into account and be guided by”
the statutory factors. This obligation had also been emphasized
during closing arguments by both the prosecutor and defendant’s
counsel. The clarifying instruction which defendant now claims
created ambiguity as to this responsibility was clearly directed only
to the earlier statement by the prosecutor.
It is also urged that because the court instructed the jury that all
evidence offered at the guilt phase might be considered, the jurors
may have relied in part on nonstatutory aggravating factors, i.e.,
the evidence of defendant’s past criminal conduct which did not
involve the use of or threat to use force (former § 190.3, subd. (b))
in its decision. The instructions did, however, include this limita-
tion in advising the jury of the factors to be considered. Any further
limitation on the jury’s consideration of defendant’s past criminal
conduct would have precluded consideration of that evidence for
the purpose for which defendant introduced it, and upon which he
based his penalty-phase plea for mercy, that his decision and judg-
ment had been affected by his drug use, and that “[e]very incident
that was brought into the case, whether it be the incident in
Modesto or whether it be other conduct. . . were all situations in
‘which drugs was [sic] heavily involved. We cannot erase one from
the other. . . drugs do have an effect on a person’s mind, some-
times they affect his culpability . . . he’s not somebody that is
devoid of a history, and that history is significant . . . -
D. Proof of Prior Crimes Beyond a Reasonable Doubt
For the same reason we reject defendant’s claim that the court ©
erred in failing to instruct the jury that before the prior criminal
conduct could be considered in determining the appropriate pen-
alty, the crimes must be proven beyond a reasonable doubt. A plu-
rality of this court stated in People v. Robertson, supra, 33 Cal.3d
21, 53, that the rule of People v. Stanworth (1969) 71 Cal.2d 820,
840, was applicable to jury consideration of other-crimes evidence
during the penalty phase of a capital trial conducted under the 1977
death penalty law. Stanworth held that “[i]t is now settled that a
defendant during the penalty phase of a trial is entitled to an
instruction to the effect that the jury may consider evidence of
other crimes only when the commission of such other crimes is
41This conclusion is buttressed by the fact that after the prosecutor’s opening
penalty-phase argument, and the court’s conference with counsel during a recess,
defendant’s attorney advised the jury at the outset of his argument that “if some-
thing comes out that it’s mandatory, you don’t hear that in the instructions, your
obligation would be to disregard whatever counsel may have said about some-
thing being mandatory and use your judgment and discretion.”
.
.
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c
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te
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:
DAILY OPINION SERVICE
California Supreme Court 2015
In the light of these shortcomings we cannot say that had any or
all of this evidence been presented it might have affected the ver-
dicts. The petition therefore must be denied insofar as it seeks to
invalidate the convictions and the findings on sanity. We consider
below the relevance of the additional evidence to the penalty deci-
sion and whether counsel’s failure to obtain and present it may
have affected that decision.
PENALTY PHASE ERROR
Defendant challenges the penalty phase proceedings that led to
the imposition of the judgment of death on several grounds. .We
conclude that although the jury erroneously considered the three
murders as six special circumstances, and counsel inexcusably pur-
sued the insanity plea, thereby again putting before the jury defen-
dant’s threat to kill again if released from prison, neither requires
reversal of the judgment of death. We also conclude that none of
defendant’s other arguments has merit.
The jury was instructed under standard penalty-phase
instructions,?° that it should consider any special circumstances it
had found true as factors relevant to the appropriate penalty. The
jury found the six charged multiple-murder special circumstances
true. Presumably, these special circumstances were considered as
factors relevant to the penalty determination. No purpose of the
state is served in the consideration of more than one multi-
ple-murder special circumstance inasmuch as the culpability factor
which this special circumstance finding reflects is that the defen-
examination, EEGs, skull series, and brain scan were normal, and that the history
was inconsistent with a diagnosis of seizure disorder. “The episodes are virtually
always precipated by anger and are directed in character indicating that they are
not due to disordered cerebral electric activity.” This physician concluded that
treatment was primarily psychiatric.
Copies of laboratory, occupational therapy, and other reports also accompany
these Clairemont Hospital reports. They include one reporting a normal brain
scan, normal EEG, normal skull X-ray, and normal electrocardiogram.
The second set of exhibits is from the Federal Correctional Institution at Ter-
minal Island where petitioner was hospitalized for lumbosacral sprain, on Janu-
ary 16, 1978. On discharge, while in convalescent status he complained that the
medication given him was ineffective. These records include an April 12, 1977,
consultation request which recites that petitioner “had seizure [accompanied by]
contusions” and had not been taking his Dilantin; and a consultation report that
petitioner was, as of April 25, 1977, taking his Dilantin, and complained of dou-
ble vision. On admission to the Federal Correctional Institution, petitioner com-
pleted a medical history on-which he reported that he had been treated for
“blackouts” in San Diego, had been hospitalized for a head injury, had been
rejected for military service for “mental reasons,” and had suffered frontal head-
aches. A clinical history notes petitioner’s report of a head injury in 1968 ina
motorcycle accident, and another in 1977 while at the Federal Correctional Insti-
tution, and a concussion in 1973 from a bomb explosion which resulted in partial
loss of hearing in one ear, “no sequela.”
35This instruction (CALJIC No. 8.88.1), given in the language of former sec-
tion 190.3, directed the jury to consider the following factors, if applicable:
“A. The circumstances of the crime of which the defendant was convicted in
the present proceeding and the existence of any special circumstances found to ~
be true.
“B. The presence or absence of criminal activity by the defendant which
involved the use or attempted use of force or violence or the expressed or implied
threat to use force or violence.
“C. Whether or not the offense was committed while the defendant was under
the influence of extreme mental or emotional disturbance.
“D. Whether or not the victim was a participant in the defendant’s homicidal
conduct or consented to the homicidal act.
“E_ Whether or not the offense was committed under circumstances which the
defendant reasonably believed to be a moral justification or extenuation for his
conduct.
“FWhether or not the defendant acted under extreme duress or under the sub-
stantial domination of another person.
“G. Whether or not at the time of the offense the capacity of the defendant to
appreciate the criminality of his conduct or to conform his conduct to the require-
ments of law was impaired as a result of mental disease or the effects of intoxica-
tion.
“H. The age of the defendant at the time of the crime.
“I. Whether or not the defendant was an accomplice to the offense and his par-
ticipation in the commission of the offense was relatively minor. ‘
“J. Any other circumstance which extenuates the gravity of the crime even
though it is not a legal excuse for the crime.”
The jury was also instructed: “You must not consider as to aggravation any
evidence of criminal activity by defendant which did not involve the use or
attempted use of force or violence or which did not involve the expressed or
implied threat to use force or violence.”
dant has committed more than one murder. This factor is present
regardless of the number of murders in excess of the one of which
the defendant is convicted. Although the jury may properly con-
sider that number as an aggravating factor, when multiple murder
is identified as a special circumstance the potential impact may be
greater. First, as a special circumstance, multiple murder is singled
out as a factor which the state identifies as having particular rele-
vance to the penalty decision. In addition, and of potentially
greater significance, the multiple-murder special-circumstance
findings could have an unwarranted impact on the jury’s selection
of the appropriate penalty ifthe jury is influenced by the sheer num-
ber of special circumstances which in some cases increase in geo-
metric proportion to the number of victims. Thus, consideration
of more than one multiple-murder special circumstance serves nei-
ther the legislative purpose of identifying those murderers whose
crimes make them eligible for the death penalty, nor the overriding
constitutionally mandated purpose of channelling or focusing the
discretion of the jury so as to avoid arbitrary and capricious impo-
sition of the death penalty. (See Pulley v. Harris (1984) 465 US.
37, 53; California v. Ramos (1983) 463 U.S. 992, 999.)
Therefore, failure to instruct the jury at the penalty phase. to con-
sider only one multiple-murder special circumstance was also
error. We see no possibility that this error affected the verdict. (Peo-
ple v. Allen (1986) 42 Cal.3d 1222, 1281.) The impact, if any, of
the error was inconsequential and cannot reasonably be character-
ized as a constitutional defect in the sentencing process. (Zant v.
Stephens (1983) 462 U.S. 862, 888-889; see also Barclay y. Florida
(1983) 463 U.S. 939, 957.) .
The error here resulted from the instruction to the jury that it
should consider each of the special circumstances it had found true
as an aggravating factor. Because the jury had found six multiple
murder special circumstance allegations true, when there should
have been only a single special circumstance, the instruction could,
theoretically, have led the jury to base its assessment of defendant’s
culpability on the sheer number of special circumstances rather
than on the underlying conduct. After consideration of the entire
record in this case, we conclude that the possibility that the jury
may have based its penalty decision, even in part, on the sheer
number of special circumstances it had found true, rather than on
defendant’s conduct, is far too remote and speculative to suggest
that the jury would have reached a different verdict had it consid-
ered the murders as a single special circumstance. Review of the
record here reveals no reference by the prosecutor to the multi-
ple-murder special circumstances during his penalty-phase argu-
ment. The jurors were well aware of the actual number of victims
and their consideration of multiple murder as an aggravating factor
which the state identifies as being particularly relevant to the pen-
alty decision was permissible. Only were we to assume that the jury
for some reason believed that-the murders were more heinous
because they generated six multiple-murder special-circumstance
allegations through the cross-charging would the failure to limit the
multiple-murder factor to a single special circumstance result in
prejudice. Nothing in the manner in which this case was tried, or
in the penalty phase argument and instructions, affords a basis on
which to speculate that the jury may have been influenced by the
number of multiple-murder special circumstances. We conclude,
as we did in People v. Allen, supra, 42 Cal.3d 1222, 1281-1283, that
the error was harmless.
We must also consider whether this error in combination with
the impact of defense counsel’s conduct of the sanity and penalty
phases of the trial affected the penalty decision. Counsel presented
no evidence in mitigation at the penalty phase of the trial.2® At the
trial on defendant’s plea of not guilty by reason of insanity, which
immediately preceded the penalty trial, however, counsel intro-
duced the evaluation of one appointed psychiatrist even though
both experts had concluded that defendant was sane. His decision
to do so rather than withdraw the plea put before the jury evidence
of a potentially prejudicial nature. The only explanation for this
36t4¢ had however presented evidence of defendant’s troubled youth, hospital-
izations, and possible mental defect, the mitigating evidence on which he relied,
during the guilt phase.
2016 California Supreme Court
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CALIFORNIA
decision offered by counsel was that he wanted to preserve for
appeal his claim of error in the denial of a separate jury to hear the
Sanity-phase testimony, and that he decided to let the jurors make
what they would of the opinion.
In the circumstances of this case, this decision was not one that
competent counsel would make for tactical reasons. There is no
present authority for the proposition that a defendant is entitled
to a separate jury at the sanity-phase of a trial. Even accepting that
an attorney might make a motion for a separate jury in order to
lay a foundation for an appellate argument seeking to have such
a right recognized, in this case there was no evidence that defendant
was insane. Counsel’s explanation that he wanted to preserve the
claim of error for appeal, and therefore proceeded with the sanity
phase rather than withdrawing the plea of not guilty by reason of
insanity, ignores the impact this lack of evidence would have on
whether an appellate court would consider the merits of the sepa-
rate jury argument. Nor is this explanation adequate to justify the
decision to read the psychiatrist’s report into the record, rather
than calling the expert as a witness if counsel believed it possible
that the expert would offer any evidence on which a verdict of not
guilty by reason of insanity might be-returned.?” In electing to read
the report to the jury, counsel placed before the jury evidence that
counsel should have recognized could be prejudicial to his client
at the penalty phase. Not only was the jury reminded of the expert’s
guilt-phase testimony that defendant had stated that he was very
prejudiced against Mexicans, but at the sanity phase defendant’s
scorn for rehabilitation and prediction that he would kill again if
released were made known to the jury.38
No limitations were placed on the purposes for which the jury
was permitted to consider the evidence presented at the sanity
phase of the trial. At the penalty phase the jury was instructed that
they should consider all of the evidence presented at the earlier
phases in making their penalty decision. Defendant’s counsel was
aware that this evidence would be considered by the jury, and the
evidence was certainly not overlooked by the prosecutor in his clos-
ing argument. Referring to another part of the psychiatrist’s report
he reminded the jurors that they had heard defendant talk about
his prior violent conduct “when he talked to the psychiatrist. That
is he told him that he had almost previously killed the people in
a robbery. [1] He told them that he had previously cut up a junkie.”
And in his closing argument, advising the jury that it must choose
between life without possibility of parole and death, the prosecutor
reminded the jury that the psychiatrist believed defendant had no
conscience, and that he had told the doctor that “[ijf I’m out in 20
years, I’d do it all over again.”
Counsel read this report to the Jury shortly before noon on April
10, 1979. The penalty trial was conducted the following morning.
At 2:33 p.m. on April 11, 1979, the jury returned its verdicts of
death.
37Counsel explains further in a declaration filed in the habeas corpus proceed-
ing that he read the report rather than call the expert because he believed any testi-
mony would be duplicative, the expert having testified at the guilt phase, and thus
by reading the report he would save time and the county’s money. This reasoning
does nothing to alter our conclusion that this was not a competent tactical deci-
sion.
38The report included the following: “He said that if he had his way he would
call off this whole bunch of crap. He said he thinks this whole trip is a bunch of
‘S.” He said he would just like to get it over with and take what is coming to him.
“He does not think jail will do him any good, but he is not saying he wants
to go to a hospital. He said jail is not hard on him but out there is hard on him.
“He said that if he does twenty years in prison he will get out and probably
do the same thing again. He said he does not understand what is going on out
there.
“He has been in institutions off and on with some regularity for more than half
of his lifetime, since he was 13 years of age.
“
“He sums it up by telling me that, one, he rejects authority and always will.
Two, he does not go for the rehab bullshit. Three, he goes by the same code of
ethics whether he is inside or outside of jail. Four, he is very prejudiced against
Mexicans.
“I think he remains a danger to the health and safety of others, himself
included. The reason I say this is because I think he is sociopathic, impulsive and
acts without thinking and could commit the same offense again toward others or
himself, in fact he says this himself.”
Counsel’s tactical decision, leading to the introduction of highly
prejudicial evidence at the sanity phase, evidence which was con-
sidered by the jury in determining the penalty, was not within the
range of acceptable performance by attorneys representing criminal
defendants.
Nonetheless, as we have noted earlier, even an inexcusable omis-
sion or lapse by counsel does not warrant reversal on grounds that
a defendant received constitutionally inadequate representation
unless the defendant was prejudiced by counsel’s conduct. (Strick-
land v. Washington, supra, 466 U.S. 668, 690, 41 Cal.3d 29, 83.)
Strickland was a capital case. In that decision the United States
Supreme Court, for the first time considered the meaning of the
constitutional requirement of effective assistance of counsel in
cases in which “actual ineffectiveness” was claimed. The court rea-
soned that because the purpose of the requirement is to ensure a
fair trial, “[t]he benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper func-
tioning of the adversarial process that the trial cannot be relied on
as having produced a just result.” (466 U.S. at 686.) The same stan-
dard applies to the penalty phase of a capital case since a sentencing
_ proceeding is “sufficiently like a trial in its adversarial format and
in the existence of standards for decision . . . that counsel’s role
in the proceeding is comparable to counsel’s role at trial—to ensure
that the adversarial testing process works to produce a just result
under the standards governing decision.” (Id. at pp. 686-687.)
Reversal of a conviction is not required, therefore, unless the defen-
dant first demonstrates that counsel’s performance was actually
deficient, and then demonstrates that his defense was prejudiced.
“This requires a showing that counsel’s €ITOrs were so serious as
to deprive the defendant of a fair trial, a trial whose result is unreli-
able. Unless a defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown
in the adversary process that renders the result unreliable.” (Id. at
p. 687.) “An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceed-
ing if the error had no effect on the judgment.” (Id. at p. 691.)
We have concluded above, and the People do not dispute, that
in some respects counsel’s performance in his defense of appellant
fell below the standard to be expected of competent, experienced
criminal defense counsel. Only the second question need be
addressed here. Did counsel’s failures deny appellant a fair penalty
trial, or stated otherwise, can it be said that the verdicts of death
in this case are the result of a breakdown of the adversarial process
at the penalty phase which renders these verdicts unreliable?
“When a defendant challenges a death sentence. . . the question
is whether there is a reasonable probability that, absent the errors,
the sentencer—including the appellate court, to the extent it inde-
pendently reweighs the evidence — would have concluded that the
balance of aggravating and mitigating circumstances did not war-
rant death.” (Strickland v. Washington, supra, 466 U.S. 668, 695.)
“[A] court making the prejudice inquiry must ask if the defendant
has met the burden of showing that the decision reached would rea-
sonably likely have been different absent the errors.” (Id. at p. 696.)
Applying the standards and the techniques suggested by the
United States Supreme Court for making the prejudice analysis to
the facts of this case, we conclude that defendant has not carried
this burden. Given the overwhelming number of aggravating fac-
tors, and the quality of the representation that counsel did offer at
the penalty trial, that trial was not fundamentally unfair. There was
no breakdown in the adversarial process, and it is not reasonably
likely that the result would have been different but for counsel’s
failings.
: OTHER PENALTY-PHASE CLAIMS
No evidence was presented at the trial on the question of penalty.
The jury was instructed prior to argument by counsel that the Peo-
ple bore no burden of proof, and that the reasonable doubt stan-
dard was inapplicable. Following argument, the court instructed
the jury to consider all of the evidence presented during any part
«
i
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CALIFORNIA
2014 California Supreme Court
found no evidence of diminished capacity. Defendant’s ability to
produce conflicting evidence four years later does not in itself
_establish that the factual inquiry was inadequate. The proper test
is whether the original inquiry by counsel was adequate in light of
the facts he knew or should have known at the time the inquiry was
taken.” ©
Even were we to conclude that counsel should have sought
another opinion or opinions, it does not appear reasonably proba-
ble that a more favorable determination would have been reached
but for counsel’s failure to locate the two experts who now state that
they believe defendant was unable to form the intent to kill, or to
deliberate, premeditate, or harbor malice, and was in a dissociative
State at the time of the offenses. None of these mental states was
a necessary element at the guilt phase where it seems clear that the
verdicts of first degree murder were based on a felony-murder the-
ory. Defendant’s own testimony established both that he intended
to steal, and that the killings took place in the perpetration of rob-
bery. Neither the declaration of Dr. Satten nor that of Dr. Smith
suggests that defendant was incapable of having or did not have the
intent to steal when he went to the home of Miguel, Salvador, and
Lourdes or that this intent did not exist at the time he robbed and
killed them.
The questions to be addressed in applying this standard of preju-
dice are: does this record now. demonstrate that if counsel had
obtained the records from Clairemont Hospital and the Federal
Correctional Institution and made them available to the experts
who examined petitioner, or had he obtained the services of
“independent” or more knowledgeable experts, the diminished
capacity defense would have been significantly stronger? Might the
medical records have affected the jury’s determination of whether
petitioner lacked the mental states which are elements of first
degree murder at the time of the homicides? Might the records have
- convinced an expert that he lacked these mental states and thus
enabled counsel to offer evidence on the question in the form of
expert opinion?
In the opinion of Dr. Satten the records which trial counsel did
not obtain, and which the examining experts therefore did not con-
‘sider, would have supported a conclusion that petitioner suffered
from gray-outs or black-outs at the time of the offenses. In the opin-
ion of Dr. Smith the examining experts should have recognized that
petitioner suffered from alcoholism which brought about these con-
ditions, and could not harbor the requisite mental states. Thus each
declarant believed that the additional evidence might have per-
suaded the jury that petitioner did not intend to kill the victims,
had not premeditated or deliberated the killings, and did not har-
bor malice when he shot the victims.
Considered in light of the entire record it does not appear reason-
ably probable that these opinions or the records of defendant’s ear-
lier hospitalization would have affected the verdicts at the guilt and
sanity phases of the trial. Defendant’s statement to California offi-
cers, and his trial testimony demonstrated his recall of many details
of the events leading to the murders of at least two of the victims.
He admitted preplanning most of those events. The jury heard one
of these confessions, as well as the testimony of petitioner and that
of Tyson and Karen. The jury therefore heard direct evidence of
preplanning activity by petitioner, and of his detailed recall of the
events. The opinions of the declarants offer only circumstantial evi-
dence of inability to harbor the requisite mental states.
The declaration of Dr. Satten does not relate the diagnosis of
explosive disorder and its accompanying “partial dissociation” to
the evidence that petitioner had good recall of the events and had
preplanned them.??
33In his own testimony petitioner exhibited good recall of the events leading
up to and those subsequent to the killing of Salvador and Miguel Vargas. It seems
inconceivable that. this could be the product of the “secondary memory”
described by Dr. Smith. After detailing the various drugs and alcohol ingested
on the day prior to the murders, petitioner testified about the trip to the murder
scene, stating that “we went through Lockford after we left Galt . . . and we
picked up a six-pack in Lockford. And then we went into another little town out-
side of Oakland—not Oakland, Oakdale. Then we picked up another six-pack
there. And then we shot on into Merced. We drove around a little bit, stopped
in some places and then we went to the bar. And we had two, two beers there.”
It is also noteworthy that both experts considered only defen-
dant’s mental state at the time of the offenses, notwithstanding the
substantial evidence that the crimes were preplanned. It is well
established that where such intent has been formed and continues
to control a defendant’s actions in committing an offense, his intox-
ication while committing the crime does not negate the intent ele-
ment of the offense. (See People v. Hough (1944) 24 Cal.2d 535,
542; People v. Coleman (1942) 20 Cal.2d 399, 410.) Finally, the
medical records themselves do not support the defense of dimin-
ished capacity that was presented on the basis of defendant’s past
drug and/or alcohol intoxication. They do-not confirm the belief
of petitioner’s mother that petitioner suffered from epilepsy, or
mental defect as the result of a head injury except to the extent that
they incorporate petitioner’s statement of that history and indicate
that while in the Federal Correctional Institution petitioner had
taken Dilantin. No diagnosis of epilepsy or brain damage was
made, and the Clairemont reg ort found that petitioner’s psychiat-
ric problems were inconsistent with a seizure disorder, noting that
his violent episodes were precipatated by anger and were directed
in character rather than being the product of disordered cerebral
electric activity.
He also recalled the number of Valium tablets he took en route to the scene, and
described the activity after leaving with the third victim, Lourdes Meza, in the
car. “We stopped at a Kwik Shop or 7-Eleven Store to get gas. And first Bob was
going to get out and get some beer. And, like I said, the chick made a lunge
towards either the door or something and I backhanded her, slapped her or some-
thing. Bob knocked her back in the seat. I told Bob to get back in the car and |
went into the bar—or into the store and got a six pack of beer.”
Petitioner also described the events immediately preceding the killing of Salva-
dor and Miguel, when he and Robert Tyson had briefly left the Vargas house and
Tyson told him that Salvador was in the house. Petitioner explained that when
they reentered “Bob’s supposed to have—when we go in the house, whoever was
downstairs, Bob’s supposed to watch them on the floor and watch them. Now he’s
got a gun. And the gun was loaded. . . . And I was to go upstairs and check out
this other Mexican male. I didn’t know if he had a gun.” After they had entered
and petitioner had gone to the second floor he saw “Lourdes was coming out of
the bathroom. And this other Mexican male was coming out of this bedroom .
. . - I told him ‘down.’ I kept trying to tell him to get down. . . he didn’t under-
stand what I was saying. . . they put their hands up. . . Salvador then, the male
got down to the floor at some time. . . . I hollered for Bob ‘to come up to bring
the other Mexican male upstairs. And Bob led the other Mexican male upstairs
or-he didn’t lead him, he — Mexican male was in front of him. He had the gun
on him, brought him upstairs. . . . Bob started hollering something in Mexican.
That’s when Miguel went down and the other Mexican male went down on his
hands and knees.”
John Harris, a Merced County detective interviewed petitioner after petition-
er’s arrest in Arizona. He testified that petitioner had confessed to him that he
had killed the three victims and that he and Tyson had discussed the matter
before arriving in Merced, and that he, petitioner, had pulled the trigger on all
three. Petitioner told Harris that he and Tyson had located the victims’ residence,
talked with the victims for a short while, left, and then after deciding what each
was to do, petitioner went upstairs, while Tyson stayed downstairs. Petitioner told
Harris that he had located a male and a female upstairs, and told Tyson to bring
the male upstairs. He placed him on the floor, shot him in the head and they took
the female with them. Tyson left the house holding the female by the hair. They
purchased beer in a town outside of Modesto, and drove to Tuolumne, and had
intercourse with the female. In Tuolomne County petitioner took the female from
the car in some hills and shot her in the head four times. Petitioner told Harris
that he had shot each of the male Mexicans two times, and after killing the female
he thought about killing Tyson because he was “sniveling.” They then drove back
to Tyson’s residence where petitioner picked up the two females and left. A tape
of petitioner’s statement to Harris was played to the jury and admitted in evi-
dence.
34The first of these exhibits, the Clairemont General Hospital (San Diego)
“Admitting Form” which indicates that petitioner was admitted on May 20, 1976,
as a psychiatric patient with an admitting diagnosis of “Bable Schizophrenic
Effective Psychosis,” and a final diagnosis of “Explosive Personality and Affective
disorder (depression).” He was discharged on May 20, 1976, with a notation
“improved.”
This document is accompanied by a “Discharge Summary,” as well as detailed
reports regarding the initial examination .and impression. A physician’s
“impression” dictated on May 21, 1976, was that petitioner suffered from an
undiagnosed psychiatric disorder, was an ex-hyperactive child with a history of
sociopathy, and “might well have primary affective disorder, although explosive
personality and epileptiform, or a temporal epilepsy seizures cannot be ruled
out.”
The report of a neurological consultation by a different physician dictated on
May 25, 1976, recited the history given by petitioner of blackouts, often preceded
by heavy drinking, and explosive outbursts, but concluded that the neurologic
3—
WAKE at night and scream in ter-
ror. There he is again—my half-
brother, Alfred. The hunchback, I
see his face before me and tremble in
fright. -
Can I ever forget? Will the night-
mare of those long sixteen months ever’
pass?~ Those months were worse than
death, for always there was the fear
of death. Fear for myself and for
those I loved: Alfred made fear a
weapon to weaken my resistance. . 2
But always there is his face. His
thin, crooked mouth which spat threats _
of death and the cold fish-eyes that
gleamed like ice. Sometimes the night-
mare is so real I can hear his sardonic
chuckle, feel his hot breath brush my
cheeks. My throat aches and becomes
dry as though his hands agajn were
clawing me. I live again his slave and
the victim of his diseased jealousy.
For sixteen months I lived in mortal
terror. How I wish now that I had
died in the hunchback’s | strangling
hands. I would give everything in the
world to have been the prey of this
monster rather than. feel now that
somehow I was responsible for the
deaths of three innocent loved ones.
For sixteen months I had known it
would be either they or I. The
hunchback said so and I learned to be-
lieve him. He threatened to kill me,
or anybody who would try to bring
about my freedom. I believed those
threats.
HOSE terror-filled days happened
through no fault of my own. I don’t
see, even now, how I could have acted
differently. When I went to live with
Alfred Horace Wells, he said that I
would help him straighten out the
hopeless mess he had made of his 31
years of life. Instead of becoming his
guide and inspiration, however, I be-
came a toy of his vicious imagination
and depraved instincts—the hunch-
back’s “love-slave” as the papers all
over the country called it.
My half-brother’s love-slave a8
The story which I am going to tell in
these pages is incredible, sometimes
hard to tell at all. There are limits
to what can be said publicly. But
1 shall try my best, and I only hope
that the horrors and agonies I went:
through will teach others one lesson:
A rat always will remain a rat. Crimi-
nal instincts in some individuals are
deeply rooted, and words of remorse
and resolutions mean nothing if they
sh—s
Passion Slaying of the Hypnotic Romeo.
[Continued from page 33]
Two patrolmen were coming in with a
veiled young woman.
“This is the woman who brought Wal-
ter Samples to the hospital,” explained
one of the blue-coated officers. “It wasn’t
hard to trace her. She left in a taxi and
another cabbie at the door spotted her.
We didn’t have much trouble finding her.”
Lieut. Miller regarded the woman be-
fore him thoughtfully. “Sorry to incon-
venience you but we suspect that your
friend, Mr. Samples. died from poisoning.
What do you know about it?”
“Nothing. Mr. Samples was my dear-
est friend and legal adviser in business
matters since my husband died three
years ago. On Tuesday morning Mr.
Samples telephoned me that he was very
ill. I hurried to his home and tried to get
a doctor over the phone but everyone I
called seemed to be out of his office. So
I drove him to the hospital.”
“Why were you afraid of being seen?”
The woman shrugged. “Just cautious.
Mr. Samples told me he believed he'd
been poisoned and I didn’t want to get
mixed up in it if I could keep from it.”
“Had been poisoned? He said it just
that way, eh? So he must have suspected
someone of doping the milk intentionally.
He never suggested he could have taken
the poison himself, accidentally. Is that
right?”
“I told you what he said. That’s all I
know.”
Miller smiled. “It'll do for a starter.”
The little cottage on Driver street had
Alfred Wells (shown above with officers) was arrested at Spokane,
Raymond Wells, the latter’s wife, and Rose Destree, friend of family
on the desert near San Bernardino, Calif. Miss Destree crawled from t
66
a forlorn, abandoned air about it as the
five headquarters men approached. All
shades were down; papers and dead leaves
swirled about the porch. Work with a
set of special keys soon snapped the lock
open and the detectives were inside.
Through a small living room, frugally
but neatly furnished, the men walked.
What appeared to be a bedroom at their
right was closed, with a heavy steel lever
lock that seemed incongruous on such a
flimsy portal.
The small kitchen opened off the liv-
ing room. It, too, was in order. Inside
the refrigerator, Miller found a pint milk
bottle containing about half a teacup of
bluish-gray liquid. The ghastly color in
itself seemed to hint at its hidden viru-
lence.
Miller’s forehead wrinkled as he ex-
tended the bottle to Sergt. Williams.
“Take this to Dr. Rigdon and’ask him
to analyze it.”
Noting the name of the dairy on the
cap, Miller turned to Sergt. Johnson:
“Check with the company and the driver
who serves this street; see what you can
find out.”
He nodded to Sergt. Wiebenga. “You
scout around the neighborhood. Find out
all you can about Samples. And ask about
milk. See if any neighbors take milk
from this dairy, or if they know of any-
one who does or if they even remember
seeing anyone carrying a bottle of milk
the past few days, particularly at night
or early in the morning.”
As the three homicide men departed,
Miller said to Sergt. Wilson: “Now, we'll
see why Walter Samples had such a big
lock on his bedroom door.”
The portal resisted the detectives’ ef-
forts to open it longer than had the front
door but finally they were rewarded by
the snapping of the bolt. As the door
swung open the two investigators gaped
ip-utter astonishment.
The room of the placid, mild-voiced
little bachelor was a photographic art
gallery! Covering almost every available
inch of space on the walls were photo-
graphs of women. Nor were they pic-
tures clipped from magazines or news-
papers. All were genuine, original
photographs.
The two detectives stepped into the
room and examined the pictures more
closely. They saw that written saluta-
tions decorated the majority of them from
“Affectionately Yours” to “Eternal
Love and Devotion,” followed by a
woman’s name.
Yet the most astounding thing was the
unbelievable number of photographs ad-
miring feminine acquaintances had sup-
plied to Samples’ collection. Miller and
Wilson counted a total of 150 photographs
on Samples’ bedroom walls. Each was
of a different woman and in the majority
of cases the women were young and
attractive.
The pictures were carefully removed
and piled together. The detectives saw
that’some of them were more than 30:
Wash,, charged with the murder of his half brother,
shown in hospital before she died). Slayings occurred
€ — and spread the news which started a manhunt.
years old trom «
backs, but a go:
made in the
“They're al
friend's name,”
“Maybe some of t
plenty.”
Miller nodded.
he said. “At any
schedule to find
The rem:
house were s¢
drawer and «
emptied and tabulat
prising dearth ot
kind, The onl
able to find were
of Samples 11
have to be notified
delay, the officers
Numerous scraj
on them were un
several paper-
were painstaking]
of the books an it
attention.
“Here's a recor:
five hundred dolla:
three years ago t
named B. Hamilto:
“Wasn't one of
‘Hamilton’?”
Wilson began
stack. After sever:
one loose and hand:
it is.”
Miller's eves
with satisfaction.
the picture. B. H:
He scanned the pi
young when this
The photograp}
vivacious little bri
QO vrwenry Fee
Mr. Johnson, “I >
building of a ney
went out. In the
The word Eveready’:
c—~—%
/-
~uentin (San Bernardino, b-4-1942
Trailing Texas’
Scarface Slayer
(Continued from page 39)
for years. Davis was listed as a fugi-
tive from the Eastham Prison Farm
of the Texas penitentiary in June,
1929. Police had been on the lookout
for him, but he had never been seen
in Amarillo.
A dozen questions whirled through
the captain’s brain. Had the 19-
year-old convict returned to his old
haunts to head the new crime wave?
If so, who was his companion? Cain
knew of only one_man who could
give the answer—Colquit Davis, D.
I’s 21-year-old brother who was in
Amarillo. He was under a two years’
suspended sentence for car theft.
“T may be on the wrong trail,” Cain
admitted to Chief McDowell, “but I
think we’d better check up on the
Davis brothers.”
“That ought to be easy,” McDowell
said. He ordered a handful of photos
printed and told his detectives to
show them to witnesses of the day-
light robberies. “See if they recog-
nize the Davis boys,” he instructed.
No Luck
Cain and McDowell also went to
work on the new lead. They could
not locate Colquit but soon learned
that R. L. Davis, father of the young
convicts, was living in Dalhart. They
drove there immediately and talked
with his wife.
“We ain’t seen D. I. nor Colquit in
months,” she said. “I don’t think
they’re in this part of the country.
D. I. would be a fool to come here
when he knows he’s wanted all over
Texas.” ,
McDowell and Cain spent the day
in Dalhart, but they could find no
trace of the missing brothers.
News awaited them back in Ama-
rillo.
_ A number of robbery witnesses who
looked at the photos of the Davis
boys said they were “pretty sure”
they resembled the gunmen.
Moreover, the car stolen from Tom
Tillman had been spotted . driving
north. A gas station attendant re-..
ported that two men and two girls:
were in it. “They asked about the
highway to Wirt, Okla.” he said.
“They claimed they had_kinfolk
there.”
Amarillo officers wired ahead and in
Ardmore, Okla., Deputy Con Kiersey
and Undersheriff Vernon Cason
went after the stolen car. They found
it parked beside a small cottage in
Wirt. While Cason stood guard at
the front ‘door, Kiersey walked
around the house and entered through.
the kitchen.
In ‘a few seconds Cason heard a
snarling curse, “Put down that gun
and get your hands up!”
44
Cason stiffened. Kiersey never
cursed a prisoner or used vile lan-
guage. That command could mean
‘only one thing--some ‘one had. the
pe
drop on him. ae ;
Cason was around the house in an
instant. -But ‘asahe reached’ the’
threshold of the, rear door a man or
somebody fired at him. Cason reeled
backward and went down before 4
second shot. Inside the house Kier-
sey was grappling with another man
who broke away. Kiersey pursued
him and his companion. They fired
point-blank at him and he fell mor-
tally wounded. Then they took both
officers’ guns, raced around the house,
leaped into their automobile and
roared away.
An hour later Cain and Deputy C:
W. Farley arrived from Amarillo—
too late.
Davises Chased
Con Kiersey was one of Oklahoma’s
most colorful officers. His sudden
death started a widespread manhunt.
Every highway was blocked, and
every officer went on special duty.
A description of Kiersey’s stolen auto-
@
Strange Justice
Justice brought a strange
death to Alfred Horace Wells,
33-year-old hunchback, who was
executed in the California lethal
chamber he had helped to build,
for slaying three persons on the
San Bernardino desert.
mobile—a Chrysler 70 sport sedan
with red wire wheels and_ license
512-100—was radioed to officers in
Texas, Oklahoma, Kansas and New
Mexico. But somehow the killers es-
caped. Governor Holloway of Okla-
homa offered a $500 reward for each
of the ‘gunmen.
Meanwhile Clark Cain and Ard-
more officers questioned occupants of
the house in Wirt, where Kiersey “was
rested. the trio, and herded. them out
into the hallway. There one of them
held two revolvers;against his ribs
while the second,stisarmed him. De-
tective Davis was marched down the
stairs with his hands high over his
head? -
When they reached the street the
“oficet darted into a_ store and
slammed the ‘door. The bandits fled.
After Detective Davis called head-
quarters, Wichita,.saw some oldtime
gunfighting scenes re-enacted. The
bandits were trailed to a garage.
Though completely surrounded, they
opened fire. More than 50 shots were
exchanged before a huge, red Chrysler
roared from the building through a
fusillade of bullets and disappeared.
But there were only two men in the
car. The third lay wounded inside
the garage.
He was rushed to a hospital where
he gave his name as Jack Carter.
That was all he would say. “And
you won't get any more out of those
other fellows if you ever catch them,”
he growled. “They'll do just like
oa fight till there ain’t nothing
left.””..
“Jack Carter” ‘was soon identified
§:fingerprint records as D. I. Davis.
‘d without divulging any infor-
(
ited 43 : - :
mation about his companion.
Another Robbery
Again Amarillo was patrolled by
armed volunteer police. But that
night while the town held its Christ-
mas parade, bandits robbed another
store and stole a Buick sedan belong-
ing to Dean Kirk.
There was one witness. He swore
that the driver of the car looked like
Colquit Davis and described his com-
panion as a “halfbreed Indian.” —
Police hurriedly consulted their
files. ‘They decided that Davis’ com-
panion was Chief Bonner, alias Cher-
okee Joe. Though the wires buzzed
and West Texas was armed to the
teeth, the bandits escaped.
A: day later Sheriff John Fry of
Randall County found Dean Kirk’s
abandoned automobile in Canyon
City, only 18 miles from Amarillo.
McDowell and_ Sheriff Thompson
killed and Cason was ‘seriously: », drove to Canyon. With Sheriff Fry
wounded, Besides the owners, theré’ “they searched the entire town, but the
were two girls from Amarillo who
said they were “visiting.”
They made no effort to conceal in-
formation. “We came up here yes-
terday with Colquit and D.’I. Davis,”
‘the older one said. “They told us
they were hot in Amarillo.”
Cain wired Amarillo, and wanted
bulletins for the two desperados were
flashed all over the Southwest.
The next act in the crime drama
shifted to Kansas. In Wichita, Kan.,
Dr. H. C. Curtis answered a knock
on his door. Three dirty, unshaven
men demanded that he dress a wound.
Dr. Curtis asked a few questions.
The answers were confused and un-
certain, so he made an excuse to go
into an adjoining room for bandages
and telephoned the police. * ‘4
Detective Glen Davis responded, ar-
quarry had escaped again.
There was a bloodstained shirt and
a leather coat with three bullet holes
in the automobile. “That means one
of them is wounded,” McDowell said.
“Be won't travel far or fast now. All
we've got to do is keep on our toes
and remember .Colquit Davis will
probably never be taken alive.”
The climax came in the raw chill
of the next morning, December 15.
At the town of Dawn, a small rail-
road switch station eight miles from
Hereford, a man crawled painfully
from a boxcar and hobbled wearily
away. Daylight was just breaking.
There was only one witness but he
lost no time in calling Officer Emmett
Hale at Hereford.
Hale drove down the highway
which paralleled the railroad a quar-
FRONT PAGE DETECTIVE
923
can’t believe
1 them but a
1 . know, a
\ things,”
Visitors that
know. She
is dead and
't of woman
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I'd say pri
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vt day, the
went over
had been
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indicated
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used for
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had
Y aeclan HORACE WELLS, 32-year-old hunchback,
recently was executed in the gas chamber at San
Quentin, Calif., state prison. He paid the extreme pen-
alty for the murder of three persons who he said ob-
jected to his attentions to his pretty half-sister, Violet
Wells, 18. ‘
Wells mumbled a prayer as he entered the chamber—
which he helped build several years ago while serving a
term for robbery—and he closed his eyes as he inhaled the
lethal fumes. He was dead in exactly 1014 minutes. The
state advisory pardon board had refused to recommend
that the governor commute the death sentence to life
imprisonment.
The victims were Raymond Wells, 24, his half-brother ;
Raymond’s attractive wife, Jean, 19, and Jean’s friend,
Rose Destree, 17, who were cruelly shot with home-made
dumdum bullets, May 7, 1941, at Cajon Pass, near San
Bernardino, Calif. Wells accused his relatives of obtain-
ing a job for Violet on a distant ranch to keep her away
from him. He regarded the Destree girl as an accomplice
in the separation plan.
The details of this famous
case and its solution by Cal-
ifornia police appeared in
STARTLING DETECTIVE for
Nov., 1941.
Alfred H. Wells, shown with
lice officer, recently died
in the gas chamber he helped
build at San Quentin prison.
He paid the extreme penalty
for murdering Raymond Wells
and his attractive wife, right,
and Mrs. Wells’ pretty friend, |
Rose Destree, below. .~ *
=
eine mmc ine ar apm ater"
seaneeee ENE OAC CC
Ré TECTIVE _
SYARTLIAE
=
50
ee AN SS i alia ia
By EUGENE B. BLOCK
* What was the secret of the prisoner in condemned
row and
life after
HE strange story of Alfred Wells
Tecan in Pueblo, Colorado, thirty-
three years ago. He was born there,
the son of poor parents.
At the age of fourteen months, he
suffered a bad fall which caused an in-
curable injury to his spine. Eight months
later his mother died and an aunt took
the deformed little fellow into her home,
eager to give him the care and affection
that he needed.
She tried her best to make him happy
and to comfort him through the pain that
came from his injury. He couldn’t play
with other children. Nor did he even look
like them, with his hunched back and
wistful eyes.
School days came and with them more
trouble. He was taunted by his class-
mates, ridiculed for his deformity. Per-
haps he could have hardened himself to
their vicious jibes but there were the
frequent spells of violent pain that
brought almost unbearable suffering,
His aunt, a religious woman, tried her
best to comfort him with faith. She read
the Bible to him and made him learn
long passages by heart. At bedtime they
What event happened there to change his
the date for execution had heen set?
talked about the Good Book and the aunt
gently explained the meailing. of its
teachings.
But her efforts were of no avail. The
boy’s suffering, in mind and body, soon
brought out the worst in his nature, just
as’in some cases it brings out the best.
He became sullen, untruthful, sneaky.
His teachers called him a problem child.
There were instances of petty thefts;
of utter disregard for the counsel of the
aunt who was constantly trying to help
him. And then, rebelling against disci-
pline, he ran away, heading for the Far
West,
In Southern California he soon ran
afoul of the law. ‘Juvenile authorities
tried to reason with him but he was bitter
and defiant. At sixteen they branded him
an incorrigible and sent ‘him to the re-
formatory at Preston. ,
Restraint: served only to make him
worse. Again he was subjected to the
cruel jibes of older boys, harassed for his
deformity, mocked When he complained
of pain.
When it came time for his release, the
authorities shook their heads. They knew
PTL
7 4
hiatal HEMP R Hy NyaRe
Young Wells rode trains from state tc
state, roaming aimlessly about, doing as
he pleased regardless of the law. He was
arrested for vagrancy, for petty larceny
and for other minor crimes, And finally,
in Buffalo, New York, came the first
He managed to talk himself into
another chance and rode the beams back
Always it was a lone highwayman, a
ruthless young man with a deformed
back, operating behind an automatic. One
night he appeared in a suburb of Los
Angeles; the next it was in near-by
Orange County. Despite the efforts of
police and sheriffs’ deputies, he con-
tinued to elude the law.
@ MONTHS PASSED and then, one
night in September, 1934, a scowling
young man stepped into a service station
in an outlying section of Los Angeles and
poked a gun into the attendant’s face.
“Let’s have yer cash—then hop into
that bus,” the gunman commanded,
pressing the muzzle of his automatic
against the other’s cheek,
The man at the gas station handed over
$25 and Promptly took his place at the
wheel of his little runabout, parked
alongside the pumps.
The man with the hunched back
jumped in and barked his orders.
“Now drive till I tell you to stop,” he
directed,
His victim drove him for
blocks until he was told to halt.
“Hop out,” snapped the robber. A
moment later he was speeding away—
alone,
Police on motorcycles took up the
chase. In an hour they had the service
station bandit, Alfred Wells.
This time it was a sentence to San
Quentin Penitentiary,
A hardened young man took his place
at the looms of the big jute mill in a long
line of, ‘“‘fish,” as all newcomers are
known and went about his work. Six
months later he was ready for a per-
manent assignment.
He had a natural aptitude for tools and
there was a job for such a man. San
Quentin was about to install a compli-
cated gas chamber to take the place of
the hangman’s noose, Wells was just the
man they needed to do the work
required.
For months he labored with a small
picked crew, bolting bars together, mak-
ing delicate adjustments, Day after day
peace officers and others came to watch
them, wondering how the new death
machine would work. They asked them-
selves if it would be more humane than
the scaffold; if it would work faster; who
would be the first to die there.
And Alfred Wells listened to their dis-
cussions and went orf working.
What he thought of his uncanny handi-
work, what his inner emotions may have
been, no one knows. He had learned to
speak only when he Was spoken to. And
no one cared what a convict thought.
Perhaps he, too, wondered who would
die in the gas (Continued. on page 81)
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young women protested they didn’t
know, but the hunchback ignored their
pleas. .
“I've got a gun here.” He patted his
hip pocket. “I’m kidnapping you, and
I’m holding you till I get her back!
I’m going to leave you here with the
baby, and make Ray take me to Beryl.
It’s no use your trying to get away.
I've got a man watching you. And if
you try to cross me, I will kill Ray!”
He produced paper, pen and flash-
light and ordered Jean to write a note
while Rose held the little baby. The
terror-stricken mother wrote as he
dictated:
Honey—A1 is holding Rosie and
the baby and me, He wants Beryl
returned to him. I think it is best
that you do what he says and go
with him, and then you can come
to us.
Jean’s intuition or premonition
prompted her to add a postscript of
her own:
Don’t forget our slogan, Dear—]
love you always.
The ‘hunchback put the note into
his shirt pocket. He took the baby
from Rose as though to hand her back
to Jean. Then he suddenly whipped out
a revolver. “You did me a dirty trick,
Jean!” he snarled. “No one ever
crosses me and lives to tell about it!”
With that, he pulled the trigger and
shot his sister-in-law point-blank, be-
fore she could even scream. Then,
with the baby still in his left arm, he
whirled and shot Rose Destree as she
stood paralyzed with horror.
Muttering obscene curses, the
hunchback limped over, took deliber-
ate aim and shot the prostrate Jean
again. Just as coolly he turned back
and pumped another bullet into Rose.
The girl, still conscious, lay still and
pretended to be dead. Al then laid
little Hester gently down on Jean’s
breast and limped off into the darkness.
Rose, though agonizingly wounded,
managed to crawl over to her friend.
Jean was dead or dying. The baby was
moaning and yanking at her blood-
stained clothes. Rose tried to pull the
baby away but didn’t have the strength.
Realizing she couldn’t stay conscious
very long, she started to drag herself
in the direction of the highway.
y was eleven p.m. before a passing
rancher heard Rose’s pitiful cries
and found her lying bleeding in the
brush. She slumped unconscious in his
arms. He called the San Bernardino
sheriff; and Deputy Bill Lungstrom
raced out to the scene in a dead heat
with the ambulance. At first they had
thought it was a hit-run case. Then the
medicos saw that the girl had been
shot, and Lungstrom followed her trail i
of blood and found Jean Wells and
the whimpering baby. Jean was dead.
Rose Destree was rushed to the
County Hospital, where physicians
operated immediately to remove two
SOEUR EE Sore ET pee
.38 slugs, one from under her heart.
The girl fought valiantly for life, but
she had no chance. However, before
dawn she rallied enough to gasp out
the story to Undersheriff James W.
Stocker.
Stocker rushed to the home of Ray-
mond Wells but found it dark and
silent. Ray hadn’t been seen since he
got off work at ten o’clock. Neither was
there anyone at Alfred’s bungalow.
Stocker, fearing for the worst, secured
the license number of the black Ford
from the other brother in Fontana and
broadcast an all-points alarm.
The next morning Sheriff Emmett L.
Shay and his deputies interviewed
everyone concerned and pieced to-
gether the whole bizarre history. “It’s
all my fault!” blonde Beryl sobbed.
Assuring her that she wasn’t at fault,
the sheriff took Beryl secretly to a
place, where she would be safe, and
assigned a woman deputy to guard
her. He also placed guards at the
homes of other members of the family.
oe Destree died while 500 armed
officers and volunteers, including
Ray’s co-workers, searched the moun-
tain and desert area in automobiles,
on horseback, afoot and in airplanes.
Late the next night, the missing
Ford was found in a garage in Las
Vegas, Nevada, where the hunchback
had parked it the morning after his
murderous foray, He had been alone.
On the fifth day of the hunt, two
possemen found the body of Raymond
Wells, shot through the head and in
the back, in the Verdemont foothills
above San Bernardino.
The hunt for the monstrous triple
killer spread throughout the West. On
June 7th, exactly a month after the
desert massacre, police of Spokane,
Washington, got a tip that a hunch-
back section hand who lived in a hobo
jungle was carrying a gun. Sergeant
John Domit drove out and picked up
the man, who identified himself as
Alfred Blake, a Montana sheepherder.
But his fingerprints soon identified him
as Alfred Wells, and his .38 matched
the murder slugs.
At first. he protested innocence,
then admitted killing his brother in a
fight, but not the two women. Finally,
brought back to San Bernardino, he
made a full confession. “I want the
gas chamber,” Wells told District At-
torney Jerome B. Kavanaugh. “After
all, I helped build that thing when I
was up in San Quentin!” He referred
to the state’s new lethal gas chamber
which had recently replaced the gal-
lows. A checkup confirmed the fact
he had worked on its construction.
Wells tried unsuccessfully to hang
himself in his cell. On October Ist, a
Superior Court jury made it possible
for him to get his wish, after de-
liberating only fifteen minutes, and on
December 4, 1942, the murderous
hunchback was put to death.
Note: Zhe name Beryl Taylor is
fictitious.
CRIME DETECTIVE
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CRIME DETECTIVE
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F OE Oe ee ee
ter, a puppet in the hands of this sanc-
timonius Svengali.
‘
HE minister told me just what to
do that night,” Kruta said. “I was
to take Wanda out—then lead her to the
place where we used to neck together.
He told me exactly what to do when |
got her there. ‘Make love to her,’ he
told me, ‘and then get behind her and
choke her until she falls down. If she
isn't dead, then hit her with something
until she is.’ That's what he said, and
that’s what I did.”
The youth shuddered. “I couldn't help
it. He made me. I killed her with the
rock. Then I took her purse and the
money in it, and I went to Philadelphia.
But I couldn’t stand hanging around.
Mr. Dworecki said he’d meet me there,
but he didn't. I came back to get money
to take me real far away, but he would-
n't see me. And he never gave me the
hundred dollars he promised me for
killing her.”
Hours later, Dworecki admitted his
guilt, but blamed his wayward daugh
ter for his crime. “I had to do it,” he
said. “She was ruining my reputation”
When Dworecki came to trial with
Kruta on October 8, 1939, the jury was
less concerned with his reputation as a
minister than his wretchedness as a
human being. They promptly found him
guilty of murder in the first degree, and
on March 28, 1940, he paid for his
crime in the electric chair of the state
penitentiary at Trenton.
Howard Kruta, his puppet in crime,
was allowed to plead guilty to murder
in the second degree, and sentenced to
life imprisonment in jail
Note: The name Howard Kruta is
fictitious since, because of his youth, he
is now free after early parole,
“GIVE ME
THE GAS CHAMBER!’”
(Continued from page 23)
she would be safe there, and promised
to tell no one where she was. The
next day Beryl went to work at an
orange-packing shed, and it seemed
her problems were solved,
But she couldn’t get the malignant
little ex-con and his threats off her
mind.
After a week or so, Beryl got in
touch with her mother and stepfather,
who lived nearby, and told them her
fears. They went with Ray to see Al.
They found him sitting alone in the
dark, chilly bungalow apartment.
“Bring her back! I want her back!”
was all he would say to them.
Later, Al’s mother wrote him a
soothing letter beseeching him to real-
ize that living with him wasn’t good
for Beryl. He replied, declaring his
love for the blonde and repeating
his vow to kill whoever had taken her
away. .
A few nights later, Al came to Ray’s
house to demand Beryl’s address.
Ray and Jean told him they didn’t
know where she was, and when Al
became abusive, his brother threw him
out bodily.
Nothing more was heard from the
ex-con for a while. He was apparent-
ly nursing his raging bitterness in
solitude. The family relaxed.
HEN, at dusk on the evening of
May 7th, Al unexpectedly ap-
peared at Ray’s home on Fifth Street.
Ray was working the night shift. At
home with Jean and the baby was
Rose Destree, who had come up to
San Bernardino for a week’s visit with
the young brunette mother, who had
also been a schoolmate of hers.
Terrified at first, the girls were re-
assured when AI spoke calmly and
rationally and apologized for the
trouble he had caused and the wild
threats he had made. He had been
thinking things over, he said, and
realized that what had happened was
for the best. Now he wanted to get
out of town for a while. He had gotten
a job at a chicken ranch over in the
desert by Cajon Pass. His brother
in Fontana had loaned him his car to
drive up there. Since he wasn’t sup-
posed to drive while on parole, and
someone had to bring the car back
anyway, would Jean mind driving him?
The girls readily agreed. It seemed
such a good chance to get rid of the
sinister little ex-con, They bundled up
the thirteen-month-old baby and got
into the battered black 1932 Ford
coupe, Jean taking the wheel, Rose
holding the baby and Al sitting be-
tween them.
At Al’s direction, his pretty sister-
in-law headed up U. S. 66 into wind-
ing Cajon Pass, which divides the San
Bernardino from the San _ Gabriel
Mountains and leads into the vast
Mojave Desert. As they headed down
the other side into the desert country,
Al told Jean to stop. “The ranch is
right over there,” he pointed. “We
have to walk over there. I want you
girls to see the place.”
They didn’t want to go. It was a
dark and lonely spot. But they thought
it best to humor Al. They followed
him, Jean carrying the baby. He led
them into the tangle of mesquite.
When they were well out of sight of
the road, Al stopped and ordered them
to sit down on a rock. His voice and
manner had abruptly changed.
“Now we're going to have a show-
down,” he informed them. “I want to
know where Beryl is!” The terrified
CRIME DETECTIVE
CRIME DETECTIV:
.
assion for his teen-
aptive, who obeyed
iid not love him, he
nis frustration by
other women and
other. He was happy
) a death sentence.
>d on parole in
1aded their mother
art from the rest
keep house for
ted on the good
> herself should
self. Her mother
knew her boy
to an yther
Al as
ont plane
House,
modest
ardino, at
She
1
nad saved
twenty-four-
vorked
scene
1rCQ a
-Siste is his
bors f oddly-
mooners. For a
hast { and
1 to
m
Beryl and the rest of the family that he had learned
his lesson. He applied himself to his humble job, and
it looked as though young Beryl had beeri right. Maybe
all Al had really needed, all along, was the inspiration
of a good and understanding woman. Raymond and
others of the family didn’t especially like the uncon-
ventional living arrangement, but they decided it was
none of their business,
Misshapen Al worshiped beautiful Beryl with dog-
like devotion. Her affection for him could pass for
love though actually it was founded on pity and youth-
ful enthusiasm. But soon an ugly shadow began to
cloud their unorthodox bliss; Al developed a streak
of unreasonable jealousy. He didn’t want any other
man to look at Beryl. He insisted she stay strictly at
home all the time -he was at work. When they went out
together, he bristled belligerently when men glanced
admiringly at his gorgeous companion, and, more than
once, Beryl had to drag Al away from an incipient
fight when a passing youth gave her an appreciative
wolf whistle.
“T'll kill any man who looks at you!” the hunchback
raged. On other occasions, his bitterness turned inward.
“I'm no good for you,” he told the frightened young
honey-blonde. “You don’t love me, you just feel sorry for
me. Nobody could love me. I’m going to kill myself!”
Several times Al actually slashed his wrists and drank
strychnine, but Beryl’s frantic ministrations saved his
life.
A some’ months of this, the high inspiration of
her dedicated mission began to wear off, and Beryl
found herself regretting her self-sacrificing move. It
was obvious that no one, not even she, could change the
bitter ex-con’s twisted nature.
Beryl confided her troubles to her sister-in-law, nine-
teen-year-old Jean Wells, Raymond’s pretty brunette
wife. With Al’s grudging permission, she sometimes
visited Jean, who had a new baby girl. Jean and Ray
urged Beryl to leave Al. “You've done all you can for
him,” Ray advised. “Nobody can help him. He’s sick.” ~
Their mother, too, learned of the situation and ad-
vised Beryl to come back to the family home near
Escondido, down in San Diego County. Still another
half-brother over in Fontana invited her to live with him
and his wife. But Al got wind of what, was going on and
furiously forbade Beryl to see any of the family.
“I'll kill anyone who ever takes you away from me!”
he vowed. “Remember that, Beryl! Get that straight.
I don’t care if it’s my own mother or brothers. I'll kill
them all, even the baby. Don’t you ever forget that!”
Terrified, Beryl slipped out the first chance she got,
to warn Ray and Jean of Al’s murderous determination.
At quit his job at the yards and stayed home most of
the time, watching every move Beryl made. When
she went out shopping by herself, she often spotted him
trailing her at a distance. Finally, she had to take a
part-time job to support them. Al spied on her constantly
at work, either in person or through his ex-convict pals,
with whom he was again consorting. They gave up their
little house and moved to a bungalow court on G Street.
By this time, Beryl lived in a constant nightmare of
terror and wanted nothing more than to get away and
never see the evil hunchback again. Knowing this, Al
daily repeated and embellished his threats to ‘kill the
whole family if she left him.
Renee Wells met Beryl on the street one day in
the spring of 1941 and was shocked to see how
pale and harassed she looked. “If you don’t get out of
there, Sis,” he told her, “I’m coming after you, and
we'll see if he kills me!”
“He'll kill you for sure, Ray! And he'll kill Jean and
the baby!” Beryl sobbed. .
Beryl had no peace at all now. Her hunchback slave-
CRIME DETECTIVE
master was on the verge of an explosion. Every day she
expected Ray to come for her, and she was positive such
a move would trigger Al to berserk slaughter. Finally,
she could stand it no longer. She had to get away, and
she figured out, or thought she did, a way to do so with-
out involving the family and bringing down Al’s ven-
geance on them. So she packed her things one night when
Al went out, and took a bus down to Escondido. There
she hurried to the home of her old school chum, seyen-
teen-year-old Rose Destree.
yeaa at the story the weeping Beryl poured out,
Rose—a plump, capable country girl—assured Beryl
(Continued on page 70)
SHE DIED A HEROINE...
Though critically wounded, Rose Destree crawled through brush
to get help for friend Jean who had been shot, and for herself.
rm
»
roe
The Quaker Abolitionist
Book Review
.. Breaking the Cycle: West Virginia Vio-
lence and Criminal Justice Listening Proj-
ect, by Rick Wilson. (Available from the
American Friends Service Committee for
$10 plus $2.50 for shipping. Write to AFSC,
Literature Resources, 1501 Cherry St,
Philadelphia, PA 19102.)
By Geoff Huggins
While nearly everyone senses the accel-
erating breakdown in community that is
widespread in this country, few see what
can be done to counter it. This creates an
atmosphere of anxiety and fear and leads
to scapegoating, especially toward those
who come up against the criminal justice
system. States such as Texas and Virginia
step up the pace of executions because
powerless and reactionary officials feel
the need to appear to be doing some-
thing.to stem the tide of crime. In most
of the 12 states that don’t have the death
penalty there are repeated efforts to rein-
state capital punishment.
As we try to slow the wave of ven-
geance, voices of reason are too often
drowned out by the frenetic messages of
hard-line legislators and death-penalty ad-
vocates. Too often, messages containing
sensible responses to violence and crime
don’t get heard. Reaching the public re-
quires well thought out, cleanly reasoned
and convincing arguments. Breaking the
Cycle: West Virginia Violence and Crimi-
nal Justice Listening Project, by Rick Wil-
son of the American Friends Service
Committee’s West Virginia Economic Jus-
tice Project, fills this need.
West Virginia is one of the enlight-
ened states that does not have the death
penalty. Hence, Breaking the Cycle, the
result of 50 in-depth interviews conduct-
ed throughout West Virginia, does not di-
rectly address abolition. The book is, how-
ever, quite relevant to abolitionists, as it
probes the root causes of an inadequate
criminal justice system, identifies how we
can prevent violence before it starts, and
seeks ways to break the pattern of prison
recidivism.
The Listening Project is a powerful
nonviolence tool developed by the Rural
Southern Voice for Peace (RSVP) in
Burnsville, N.C. RSVP has been very effec-
tive in increasing communication and un-
derstanding among people in small-city
On Listening and Being Heard |
and rural environments. The Listening
Project has resolved community conflicts,
aided in organizing people, educated the —
public, and brought positive personal
change to interviewers as well as those in-
terviewed. The interviews do not pretend
to be scientific. Rather, they help bring
about a better understanding of a commu-
nity issue while providing a safe atmo-
sphere that promotes an exchange of
deep feelings. Active listening and con-
structive dialogue foster creative ideas
and change on both sides. The good with-
in all of us is recognized, and the pro-
cess shows that truth can act through
everyone.
The interviews employ a carefully craft-
ed survey form and are conducted by two
people. One takes notes, allowing the oth-
er to become deeply involved in the pro-
cess. In the West Virginia Criminal Jus-
tice survey, the questionnaire contained
20 open-ended questions about violence,
the criminal justice system, domestic vio-
lence, prisons and ideas on how to break
the cycle of violence. Interviews were
- conducted with prisoners, police and cor-
rections officers, social service providers,
educators, youth workers, crime and do-
mestic violence victims, activists and “av-
erage” citizens. “It was an experience
that shattered stereotypes,” Wilson writes
in the introduction. “We found prisoners
sympathizing with the low pay of guards,
police officers advocating community de-
velopment, sheriffs and jail administra-
tors lamenting the impersonal treatment
prisoners receive at regional jails. We
heard horror stories of child abuse, do-
mestic violence, racial gangs, and prison
rapes. And we collected a wide variety of
ideas to respond to these issues.” »
Breaking the Cycle is a modest-sized
book (125 pages) with 25 short:chapters.
The pace is rapid and Wilson is‘e¢onomi-
cal with his words, stepping aside to let
the powerful messages come through. Un-
like many reports of survey results, it
avoids boring the reader with statistics
_ by alternating chapters that describe ques-
tionnaire responses with chapters that
present absorbing vignettes of 12 of the
people interviewed. These profiles bring
the responses to life, adding a personal
and concrete quality to the book.
The chapters that review responses to
the survey are presented thematically, or
as a summary of responses to a particular
question. Examples are: the causes of vio-
lence, violence prevention, the criminal
justice system, violence and racial con-
flicts in prison, and cau§es and: preven-
tion of recidivism. Major themes of re-
spondents are described, then followed
by sample quotations.
“This is a book aboug hope,” Wilson
writes at the conclusiorfof his introduc-
tion. And in the face of current hard-line
thinking and callous rh¢toric about pun-
ishing those caught in the criminal jus-
tice system, hope is sorfly needed.
Can we find hope byfkilling those who
kill others? Can we findthope by building
more prisons and ensugng the further en- —
trenchment of a systemithat incarcerates
more people per capita than any other
country on earth? (Our jincarceration rate
is eight to 10 times higher than industrial-
ized nations in western/Europe.) Can we
find hope in a system thiat severely pun-
ishes prisoners and teaches them well the
lessons of violence, virtually ensuring
their return to prison on a more severe
justice system are acu
faults and possess man}
change. As Wilson wrifés, “The problems
discussed here are immense. But if there is
any theme that recurred in all the inter-
views, it was that one pérson can make a
difference and that the ¢ollective action of
a concerned people has/unlimited
potential.”
Geoff Huggins is a member of Hopewell Meet-
ing in Clearbrook, Va.
Page 6
“~ #
left three
s
., two min-
n Page A-19
and Williams, 48, was
pated in a
pronounced dead five minutes later.
getting nervous
Y prison spokeswom-
, who added that he
ted almost
spree
y chemical injection last night,
ost 18 years after he partici
Friday
See EXECUTION o
“96
pree of violence that
unty farm workers dead.
Prison spokesman Tip Kindel said the exe-
SAN QUENTIN — Keith Daniel Williams
Williams was described as
as midnight approached b
an Lt. Joy MacFarlane
cution process began at 12:03 a.m
By Greg Moran
was executed b
alm
utes behind schedule,
STAFF WRITER
nocturnal s
Merced Co
°Q
2
2
Qa
2
va
A 1978
police photo of Keith
Triple killer is execu
18 years after Merced
Daniel Williams.
After arrest
Execution
Keith Daniel Williams
killed 3 farm workers
Continued trom A-1
_nontheless remained polite and
respectful.
Earlier, at dinnertime, a prison
official reported Williams was in
“good spirits . . . relaxed” as he met
with his spiritual adviser, Margaret
Harrell.
e ordered a final meal of fried :
pork chops, baked potato, aspara-
gus, a Salad with blue cheese dress-
ing and french bread with “real but-
ter,” MacFarlane said. For dessert,
he asked for apple pie with vanilla
ice cream, and a large glass of cold
milk.
He shared the meal with Harrell
and they finished it all, MacFarlane
said. Harrell left about 11:15 p.m.,
as dictated by prison protocol.
Williams was the second person
executed in California this year, the
fourth since California reinstated
capital punishment in 1977. His ex-
ecution came nine weeks after Wil-
liam Bonin — nicknamed The F ree-
way Killer — was put to death for
killing at least 14 boys. ~
Williams became the second Cali-
fornia man — Bonin was the first
—.to die by lethal injection, which
replaced death by cyanide gas after
federal courts ruled that the state’s
gas'chamber constituted cruel and
unusual punishment.
Williams had been on death row
since 1979 — only five other in-
mates have been there longer. Of
the state’s total of 436 condemned
prisoners, 23 are from San Diego
County, according to the Attorney
General’s Office.
Like the death-sentence protest-
ers who traditionally gather outside
the gates of San Quentin state pris-
on; nearly 20 people congregated
last night outside the state building
on. Front Street in downtown San
Diego to protest the execution.
The demonstrators, all members
of the anti-capital punishment
group Death Penalty Focus of San
Diego, carried placards that read
“Capital Punishment = ‘Legal Homi-
cide’” and “Not in My Name.”
“I think Danny Williams’ execu-
tion is repulsive. It’s a repulsive
government act,” said protest coor-
dinator Kyle Marie Wesendorf, a
local criminal defense attorney.
“It’s meeting violence with vio-
lence.”
Williams was sentenced to death
for killing Miguel Vargas, 29; his
cousin, Salvador Vargas 40: and
Lourdes Meza, 25, a mother of four
and friend of Miguel Vargas. They
were shot execution-style on Oct.
8, 1978.
The two men were killed in an
upstairs bedroom of a house at a
nen err tet EER Nien: be.te
Triple Killer Prepares to
Die as Appeal Rejected
= Execution: Lawyers say he should be spared because
of mental illness. He has been on death row 17 years.
By RICHARD C. PADDOCK
TIMES STAFF WRITER
SAN QUENTIN—Triple mur-
derer Keith Daniel Williams, who
has lived on San Quentin’s death
row for 17 years, prepared to die by
lethal injection early this morning
after a federal appeals court re-
jected a final plea to save his life.
Despite his lawyers’ contention
that he should be spared because
he is mentally ill, Williams, 48, was
Slated to become the fourth inmate
executed in California since capital
‘punishment was reinstated in 1978.
Williams was convicted of the
1978 murders in Merced of two
men and a pregnant woman he
‘hardly knew in an attempt to steal
back a bad check he had written.
In the final hours leading up to
the execution—scheduled for one
minute after midnight— Williams’
supporters said he was attempting
to achieve a state of calm in order
to face his death.
“He is going through this ter-
rible, terrible process of watching
the clock move to the month, the
day and the minute of his death,”
said Michael Kroll, a spokesman for
the defense team. “He is remorse-
ful, indeed haunted. He has dreams
about the murders. He wishes he
could turn the clock back, but of
course he can’t.”
Earlier in the day, Williams’
hope for a reprieve all but vanished
when the 24 active judges of the
U.S. 9th Circuit Court of Appeals
denied his request to convene a
special 11-judge en banc panel to
consider his appeal.
James S. Thomson, an attorney
for Williams, called the decision
“absolutely outrageous’’ and
charged that judges involved in the
case had not even read the briefs
filed by the defense.
“It’s shocking no court would
intervene in such a tragic case,”
Thomson said. “It is a complete and
utter travesty of justice.”
The defense team was preparing
late in the day to seek a last-
minute stay from the U.S. Supreme
Court. But given the high court’s
past opposition to delaying execu-
tions, there was little likelihood
that a stay would be granted.
‘The Supreme Court also was
considering whetlier to overturn a_
temporary injunction issued. by a
federal judge Wednesday granting
the media and other witnesses the
right to see the entire execution
process—not just the final moment
Please see EXECUTION, A17
oa eo .- = “>
FRIDAY, MAY 3, 1996 A17
1 & §
*
EXECUTION: Triple
Murderer Awaits Death
Continued from Al 8
when the condemned man is in-
jected with deadly drugs.
With an earlier federal court
declaration that California’s gas
chamber constitutes cruel and un-
usual punishment, lethal injection
now is the only method of capital
punishment allowed here and in
some other states. The state's ex-
ecution procedure calls for the
condemned man to walk into what
is the former gas chamber and be
strapped to a gurney, then injected
with three drugs that render him
unconscious, paralyze his muscles
and stop his heart.
As many as 50 witnesses, includ-
ing a spiritual advisor who has
been aiding Williams, were sched-
uled to view the execution, which
comes barely two months after ae
“Freeway Killer” William Bonin Keith Daniel Williams
was put to death at San Quentin.
Pare" est a oe eee I ee aa Se oe ay
Wife’s plea: Janice Gay, whose hicsbawd Kenneth Gay is on death row, held up a sign in protest of
PAUL SAKUMA Associated Press
the death penalty yesterday outside the state prison at San Quentin. Keith Daniel Williams,
who murdered three people, died there fro
Fri. S-_3- 96 San eCGo
small dairy farm just outside Mer-
ced. Meza was taken away by Wil-
liams and an accomplice, Robert L.
Tyson, to a remote area near Sono-.
ra, about 50 miles northeast.
There, she was shot four times by
Williams, whom authorities say lat-
er bragged to Tyson that he was
having intercourse with the woman
when he shot her.
Tyson turned himself in a few
days later. He was later convicted
of all three slayings and sent to
prison for life without parole.
Williams was caught in Kingman,
Ariz., where he confessed to inves-
tigators. He was sentenced in April
1979.
Williams’ appeals have focused
on his trial lawyer and on his mental
history. His appellate lawyers have ~
tried unsuccessfully to convince
courts that Williams’ trial lawyer
did shabby work, denying Williams
his constitutional right to effective
legal representation, and that Wil-
liams was mentally ill at the time of
the murders.
Appeals in the past two weeks
have been based on 600 pages of
medical records that his lawyers
received earlier this month from
the federal Bureau of Prisons.
In court papers, appellate attors
_ ney Richard Mazer argued that the
records a Cae suffered
from epilepsy and manic depression
for years before the murders. The
evidence, he contended, ought to
have been introduced at trial and
should be reason enough for a new
trial.
But appeals courts have rejected
these claims over the years.
And on Monday, federal Judge
Robert Coyle said the court record
shows no connection between Wil-
liams’ manic depression and the
murders.
Williams “exhibited numerous in-
stances of planned, calculated ac-
tions” that day, the judge conclud-
ed. The 9th U.S. Circuit Court of
Appeals rejected the appeal
Wednesday.
The catalyst for the killings was a
$1,500 check that Williams gave
Miguel Vargas for the purchase of
Vargas’ car. The check had been
stolen from a couple in a robbery
and Williams, knowing it would
bounce, decided to retrieve it, ac-
cording to court records.
He drove 75 miles to Merced,
shot. the brothers, spirited Meza
away and killed her.
A native of Pittsburg in Northern
California, Williams was. the prod-
uct of a nomadic, abusive childhood,
according to his defense lawyers.
a aa injection at 12:08 a.m. today.
UMon-TRILB,
His mother drank heavily whee
she was pregnant, and he demon-
strated “classic signs” of fetal alco-
hol poisoning, according to the peti-
tion for clemency that he filed with
Gov. Pete Wilson. The plea was
rejected last week.
Williams was beaten repeatedly
_ by his stepfather when he was
young, his attorneys contended. His
family followed the crop-picking
seasons through the West, and one
year, Williams attended 12 schools.
He eventually dropped out of junior
high, barely able to read and write.
He also suffered several head in-
juries. One — sustained in a motor-
cycle accident — left him in a coma
for several days. In his early teens,
he began abusing drugs; that led to
a virtually unbroken stint in juvenile
and adult jails and prisons, accord-
ing to records of the case.
‘His lawyers have argued that
since arriving on death row and
receiving medication for his mental
illness, Williams has been well-be-
haved.
He was the 16th person executed
in the United States this year, ac-
cording to the Death Penalty Infor-
mation Center in Washington, D.C.
Staff writer P.J. Huffstutter.
rontiibytee to this report.
ws
a
as
ct
MeRcRy New:
>
ism
But a three-judge panel of the 9th U.S. Circuit
Court of Appeals sounded skeptical.
The panel told Mazer to file additional argu-
ments before noon today. If the appeal is denied,
Judge Cecil Poole asked sarcastically whether
the defense could seek a rehearing.
Mazer had ever heard of a subpoena. Judge-Ste-
his treatment in federal prison and must have
phen Trott said Williams himself had known of
known that records existed.
abruptly released April 19.
hat
ed his case were withheld by
prison officials fo
’ mental illness,
—/~9%6
but the lawyer was asked
avior and other evidence t
San ore CA
y because of evidence in newly ob-
er Richard Mazer said 595 pages
Wed a decade and then
SAN FRANCISCO (AP) — Keith Daniel Wil-
tained medical records,
liams’ lawyer asked a federal appeals court Tues-
day to block the convicted triple murderer's exe-
cution Frida
Defense lawy
of records documenting Williams
good prison beh
Execution-case records draw skeptic
why he hadn’t gotten the records earlier.
might have help
| |
Latest bid to
halt execution
gets cool reply
By Claire Cooper
Bee Legal Affairs Writer
SAN FRANCISCO — A federal
appellate court) seemed unmoved
Tuesday by a plea to stop Friday’s
scheduled execution of Keith Dan-
iel Williams because of medical
evidence that federal prison au- ~
thorities failed to disclose earlier.
Defense lawyer Richard Mazer
said he received 595 pages of med-
ical evidence less than two weeks
ago, showing: that the jury that
sentenced Williams to death in
1979 was not fully informed of his —
physical and mental problems or
of a dramatic change he under-,.
went after receiving treatment.
But three appellate judges, who
heard the case by telephone from
offices in San Francisco, San Die-
go and Boise, Idaho, hinted
strongly that Mazer should have
asked a court to subpoena the
prison records years ago. .
“Your client’s known this from
the very get-go,” said Judge Ste-
phen S. Trott of Boise. “Your cli-
ent has believed for years that
there must be more records.” *
Deputy Attorney General Rob-
ert Jibson noted that U.S. District
Judge Robert E. Coyle, who turn-
ed down Williams’ appeal in Fres-
no on Monday, concluded that the
evidence would have done Wil-
liams little good if it had been in-
troduced in his trial.
The judges asked Mazer to file a
final document today. They did
not say when they would rule.
Williams, 48, was convicted of
murdering cousins Salvador and
Miguel Vargas and their friend
Lourdes Meza in Merced County
in 1978 while stealing from them
a check he had used to buy a car
fram Mitel Vargas. ;
““ S$-1-SL
| CA Bee
ies | €
Stn Frants ss
TUESDAY, APRIL 30, 1996
bye jf
_ Judge Denies Petition
From Triple Murderer
One final appeal before Friday execution
By Harriet Chiang
Chronicle Legal Affairs Writer
With fewer than four days to
go until his scheduled execution,
triple killer Keith Daniel Williams
lost a bid before a federal judge in
Fresno yesterday to avoid being
put to death at San Quentin.
Williams’ attorneys immediate-
ly filed an appeal in the U.S. Court
of Appeals in San Francisco, a pan-
el that includes several liberal
judges, giving the Lodi man his
best chance of delaying his execu-
tion.
If he fails to win a legal re-
prieve, the 48-year-old inmate will
die by lethal injection on Friday at
12:01 a.m.
Last Thursday, Governor Pete
Wilson refused to grant Williams’
request for clemency. The follow-
ing day, the California Supreme
Court rejected his bid to delay his
punishment.
The condemned inmate’s exe-
cution would come 17 years after
he was sentenced to die for the
1978 Merced murders of Salvador.
Vargas, 43, his 29-year-old cousin
Miguel Vargas and Miguel’s girl-
friend, 24-year-old Lourdes Meza.
Williams had bought a car from
Miguel Vargas three days before
the murders and was attempting
to steal back the check he had writ-
ten to him. After shooting the two
men execution style, Williams
drove Meza to a field several miles
away and shot her four times.
In an order issued yesterday
evening, U.S. District Judge Rob-
ert E. Coyle rejected Williams’
claims that he suffered from a se-
vere mental illness at the time of
the murders. “Williams’ actions on
Sunday, October 8, 1978 were
planned, goal-oriented, and calcu-
latedly cruel,” Coyle said in his 35-
page decision.
Coyle also dismissed the in-
mate’s argument that recently ob-
tained federal prison records show
that he was in a manic state at the
time of the killings. The judge said
there was evidence of his disorder
at least three years ago and that
Williams had failed to show that
he suffered any miscarriage of jus-
_ tice.
But in his new appeal filed yes-
terday, Williams’ contends that 595
pages of federal prison records he
received on April 19 — 12 years af-
ter they were first requested —
provide proof of his mental illness.
The records were filed when Wil- —
liams was an inmate in federal
_ prison from 1977 until May 1978,
five months before the killings.
meonmnn San Francisco Chronicle. _ say AREA/CALIFORNA
Court Denies Stay of Tomor
By Harriet Chiang
Chronicle Legal Affairs Writer
With time running out, a feder-
al appeals court yesterday refused
to stop tomorrow’s scheduled exe.
cution of Keith Daniel Williams,
leaving him with little hope of be-
ing spared from San Quentin’s
death chamber.
Following the decision by a
three-judge panel of the U.S. Court
of Appeals in San Francisco, Wil-
liams’ attorneys said they would
ask the court to reconsider its deci-
sion to rehear his case. If Williams
is unsuccessful, the inmate’s law-
yers are sure to file an appeal with
the U.S. Supreme Court.
The 48-year-old Williams is
scheduled to be executed by lethal
injection tomorrow at 12:01 a.m.
His execution would come 17 years
after the Lodi man was sentenced
to die for the 1978 Merced murders
of Miguel Vargas, 29, and his cous-
in, Salvador Vargas, 40, and Var-
gas’ pregnant girlfriend, Lourdes
Meza, 24.
~ Ina separate legal battle, a fed-~
eral judge earlier in the day order-
ed prison officials to allow the pub-
lic to witness the entire lethal in-
jection process of the scheduled
execution — from the insertion of
the tubes in Williams’ arms to the
moment at which the inmate is de-
clared dead.
US. District Judge Vaughn
Walker ruled in favor of two me-
dia organizations that complained
that a curtain was drawn while se-
rial killer William Bonin was being
prepared to die and that they were
allowed to witness only the last
few moments of the Feb. 23 execu-
tion
“There is a limited First
Amendment right of public ac.
cess” to executions, said Walker in
ruling from the bench. The public,
he concluded, has a right to view
executions “from at least the time
just before the intravenous tubes
are inserted to just after death.”
The state attorney immediately
appealed Walker's order, arguing
that lifting the curtain would jeop-
ardize the safety of prison staff
taking part in the execution. But
late yesterday, the U.S. Court of
Appeals in San Francisco denied
the appeal, letting the order stand.
Earlier in the day, Deputy Attor-
ney General Karl Mayer warned
that prison officials might drasti-
cally limit the number of media
witnesses for tomorrow’s sched-
uled execution.
There are 15 media representa-
tives from newspapers, including
The Chronicle, and radio and tele-
vision scheduled to witness the ex-
ecution.
In. his plea to the U.S. Court of -
Appeals, Williams said his trial
lawyer was incompetent for fail-
ing to introduce any evidence that -
LZ
row 's Execution
he was mentally ill at the time of
the murders. He claimed that his
condition and his positive response
to medical treatment was docu-
mented in more than 600 pages of:
federal prison records. However,
he said the U.S. Bureau of Prisons
failed to turn over most of the doc-
uments until April 19 — 12 years
after his attorneys first made the
request.
Similar claims were rejected by :
a federal judge in Fresno as well as
by the California Supreme Court.
In rejecting Williams’ appeal
yesterday, the three judges said
the inmate’s attorneys could have
obtained the federal records much
earlier in the appeal process had
they exercised due diligence. In-
Stead, they took a “dilatory ap-
proach to pursuing the records,”
making a request in 1984 and 1991,
and then waiting five years before
making a similar request.
Chronicle staff writer Kevin Fagan
contributed to this report.
=e maa
ay
‘riple:
mee, i oats aa 3
without flinching —
‘er a dimmed media glare,
Com.
L .
- Said
€ ap-
her
D
f writer Sam Stanton
16 members of the me-
ase» Pere among the witnesses
> lorning to the execution of
isks fees Williams.
"om {Stanton
hag [Writer
rs {QUENTIN - It has become
~ froutine now.
we urderer is strapped onto a
va py7like platform inside San
tin’s infamous and now obso-
le 2as chamber, has two needles
ul in his arms, then is slowly
.. {silently put to death. .
5 farly Friday morning, a few
utes after midnight on a bril-
nt moonlit night; it Was the
rn_of Keith Daniel Williams to
e.
} The 48-year-old killer of three,
vho had been awaiting the fulfill-
‘ment-of his:sentence for 18 years,
‘went quietly. He showed none of
the bravado he displayed during
his murders in October 1978.
There was no defiant final
statement; no last expression of
remorse. After a failed attempt to
convince the U.S. Supreme Court
to spare him, Williams died at the
end of intravenous needles that
carried heavy doses of a sedative
and then drugs that stopped his
heart and respiratory system.
Two female prison employees
inserted the needles into Williams
as he lay strapped to the gurney
platform. He stared straight at
the ceiling of the apple-green gas
chamber as the women hovered
over him in an almost motherly
fashion.
Two muscular prison guards
stood either side of his shoulders
at the head of the gurney, hands
clasped in front of them. A third
man, dressed in a plaid Western
shirt, stood at Williams’ stock-
inged feet.
But all 50 sets of eyes in the
chamber witness area were fo-
cused on the women and the job
they were performing.
One had white hair and wore a
white sweater top. The other was
brunette, and wore a brown pais-
ley outfit. Both donned surgical
gloves and worked out of a small,
blue plastic basket they rested up-
tion was quiet, methodical
on Williams’ groin area.
While they worked, plucking
needles, tape or other supplies
from the basket that lay upon his |
brand-new, prison-issue. blue
jeans, the inmate never appeared
tolook atthem.'! ©... |
He stared straight up, blinking
rapidly but belying no emotion or
apprehension that what-he knew .
was coming.
- His mustache and bushy gray
beard lay limp upon his face,
which was the pasty shade of gray —
one sees in longtime prison in-
mates.
The only clue that he was facing
his own death was the sheen of
perspiration that coated his waxy
skin. a oe ‘
And although there appeared to |
be some slight difficulty in finding |
an appropriate vein in his right
arm, Williams never flinched, |
never spoke, never looked toward
them.
Instead, he appeared deter-
mined not to reveal any emotion,
not to gaze out at the children of
the people he had slain or the law-
men who had come to see him die.
When he did turn his head, it
was toward a woman in a cleric’s
collar, apparently the spiritual ad-
viser with whom he had spent his"
last hours, and his tearful attor-
ney, Kathleen Kelly.
The women in the chamber
worked methodically and quietly,
appearing to speak only when
each needed help from the other
and only communicating with
each other as they stood on each
side of the inmate.
One needle was placed into his
left arm and the connecting tube
secured with white gauze tape.
The other went into the top of a
scorpion tattooed on his right
hand.
After the women left the cham-
ber, one guard hovered over Wil-
liams briefly to apply some tape to
his left arm and to speak to him
briefly. Then the guards bent
down and rotated his gurney
counter-clockwise 45 degrees and
appeared to lock it into place.
Everyone but. Williams cleared
the chamber.
Then one of the clear plastic
_ tubes connected to the needles de-
livered:a lethal mixture that b
12:08 a.m. had left him dead me
| the table, a mere 15 minutes after
the process had begun. —
At another time, perhaps, such
a scene would have evoked great
controversy and protest, particu-
| larly in’ California. But ‘such up-
roar has largely faded ‘since the
state. resumed executions in 1992
after-a 25-year hiatus.
_And with Williams’ execution —
the fourth. in four years and the
second in just six weeks — it was
peinly pegent ‘that such events
e no longer focal poi
public or the media. mee one
While 350 media members had
applied for entry to the prison
when Robert Alton Harris was put
to death by gas in 1992 and more
than 100 had come in February
when William George Bonin be-
came the first to die by injection,
only 83 asked to be let through the
prison gates for Friday’s execu-
tion.
| Even one of the coveted 17 slots
| for media witnesses went unfilled
\because one news organization
\didn’t bother to apply.
And although there were court
battles waged throughout the
night on various issues, there
were few signs of the nervousness
|
|
|
and self-protecting silence that
has enveloped prison officials for
past execution_rituals.
With his normal avenues of ap-
peal exhausted, Williams had
been sentenced to die at 12:01
a.m. Friday. The state was only
one minute late in achieving that
goal.
At 12:02 a.m., after he had been
hooked up to the lines that snaked
‘ out of the chamber through holes
drilled in its metal walls, a San
Quentin prison official read the of-
ficial sentence from a piece of note
paper and then loudly announced
to the witnesses gathered around
the outside of the chamber: “The
execution shall now proceed.”
Six minutes later, Williams was
dead.
In the witness area, there was
virtually no emotion. among the
relatives of his victims. Rather,
they appeared almost deteched
waiting for the pronouncement of
his death.
The daughter of victim Miguel
Vargas, 25-year-old Onix Vargas,
stood silently watching her fa-
ther’s murderer die. Her only
movement was to clasp the shoul-
der of a man standing in front of
her. Miguel Vargas Jr. stood near-
by, not moving or showing emo-
tion.
Relatives of his other victims —
Vargas’ 43-yer-old cousin Salva-
dor or 25-year-old Lourdes Meza —
may also have been there. But
prison officials do not release
names of such witnesses, and
none were recognized either by
face or by showing grief or relief.
The only tears in evidence were
those of his attorney.
Williams moved twice during
the death process: once when the
drug flow began and he coughed
slightly and breathed deeply, then
two minutes later when his right
leg twitched.
Three minutes after that a pris-
on official read the notice that he
had been declared dead.
Within an hour, after the rest of
the media had been briefed by
witnesses on what had occurred
inside the chamber, Department
of Corrections spokesman Tip
Kindel informed the media repre-
sentatives who remained of Wil-
liams’ final words:
He had none.
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2012
California Supreme Court
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(3) Counsel called no witnesses at the penalty trial although he
had considered calling the aunt. The aunt had attended some early
trial hearings, but had stopped coming to court. Counsel had been
advised that the aunt was ill, and that she did not know petitioner
well. Petitioner’s mother had been called at the guilt phase and her
testimony would have been duplicative. Neither petitioner nor his
mother suggested anyone else who could testify, although counsel
did inquire of them.
' d. A declaration and supplemental declaration of Joseph Satten,
M.D., a board-certified psychiatrist who has qualified as an expert
and has both examined and testified regarding the mental condi-
tion of criminal defendants on many occasions. Based on his
review of the reports of the psychiatrists who examined petitioner
in advance of trial, and the medical records from Clairemont Hos-
pital and the Federal Medical Institution, and his understanding
that a diminished capacity defense was presented at trial, Dr. Sat-
ten opined in his declaration that the medical records could have
helped present a significantly stronger defense. The records would
verify statements of petitioner that otherwise appeared to be
self-serving; would lead to additional areas of inquiry; and create
some sympathy for defendant because they reveal his attempt to
deal constructively with the psychiatric symptoms linked to the
crime.
Dr. Satten, who at that time had not examined defendant,
offered his analysis and conclusions regarding petitioner’s mental
state at the time of the offenses. His “Presumptive Diagnosis” was
“intermittent explosive disorder (DSM-III 312.32); rule out
Epilepsy” and “Substance Abuse, alcohol and heroin (DSM-III
305.0X, 305.5X.)” :
Dr. Satten, in his accompanying discussion, states that petition-
er’s description of his mental state “suggests a dissociative process
and the possibility of an Intermittent Explosive Disorder,” and that
a change in an individual’s state of consciousness generally mani-
fested by some degree of amnesia usually accompanies the violent
outburst. He believes that the evidence shows that petitioner’s
offense took place during an episode of “at least partial
dissociation,” and that petitioner did not have the capacity to form
the mental states necessary to first degree murder, that he could not
form the intent to kill, or meaningfully premeditate, deliberate, or
harbor malice. He also believes that it is possible that during this
period petitioner met the then applicable legal test of insanity in
that he could not conform his conduct to the requirements of the
law.
e. Also accompanying the traverse as an exhibit was a declaration
of Dr. David E. Smith, who is both a physician and pharmacologist
and has extensive experience in treating substance abusers and in
teaching, consulting, and testifying as an expert in this field. His
review of the materials led him to believe that petitioner suffered
from the disease of alcoholism, and that an adequate diagnosis of
petitioner’s mental condition could not be made without a more
complete history than that obtained for petitioner at the time of
trial.
Dr. Smith concludes that the examining psychiatrists were not
familiar with the disease of alcoholism and had they been they
psychiatrists because he believed the testimony would be duplicative of the testi-
mony given by one at trial. Reading the report would also save time and money.
Petitioner, to whom counsel had explained the proposed procedure, agreed, say-
ing “essentially, ‘you’re the lawyer.’ ”
Had counsel been aware of the Spencer decision he would not have attached
much importance to it. He did not expect to prevail at the sanity phase and did
not attach much importance to the psychiatrists’ reports. He intended to allow
the jury to make of them what it would. He did not consider excising irrelevant
or prejudicial matter from the reports, or moving to limit the use of the reports »
or statements therein by petitioner.
Counsel had discussed with petitioner the decision that petitioner would tes-
tify. He did not make a motion pursuant to People v. Beagle (1972) 6 Cal.3d 441,
to prevent impeachment of petitioner with evidence of his prior convictions. He
believed the priors would be admissible for impeachment purposes and decided
to bring them out on direct to limit their potential impact and because he believed
they were relevant to the diminished capacity defense inasmuch as the offenses
had occurred during or following a period of drug or alcohol abuse by petitioner.
Counsel has no recall of the prosecutor eliciting testimony from petitioner about
an uncharged escape, and believes that such evidence was irrelevant and inadmis-
sible.
ple for the tucn vs +
would not have concluded that petitioner was able to form the —
intent to kill, to premeditate, harbor malice, or meaningfully and
maturely reflect on the gravity of his actions. He concludes that
petitioner was suffering from acute alcohol intoxication, which in
an individual suffering from alcoholism often leads to “gray-outs”
or “black-outs” and diminished mental capacity.
Dr. Smith also asserts that the view of the examining psychiatrist
that an intoxicated person could not perform complex physical
tasks such as driving or running up and down stairs indicates the
psychiatrist’s unfamiliarity with alcoholism, and is “medically
incorrect.” Persons with petitioner’s history, he states, “when
intoxicated with alcohol, manifest pathological intoxication with
a marked personality change and become hyperactive, aggressive
and assaultive. It is also possible that these personality changes and
assaultive behaviors will be accompanied by a marked memory
impairment.”
He also explains that when a person has a “gray-out” or
“black-out” there is a loss of primary memory while secondary
memory is retained. Petitioner described this symptom to the
examining psychiatrist when he said that it was as though he were
“watching a movie that had lots of breaks in it, black spots.” Dr.
Smith declares that when a person loses primary memory but has
secondary memory he is able to reconstruct events through the sec-
ondary memory and is able to piece together the events he cannot
actually recall. Although Dr. Smith had not then examined defen-
dant he believed that at the time of the offense petitioner could not
harbor the specific mental states that are elements of first degree
murder. : /
Because neither expert had reviewed defendant’s two confes-
sions, and neither had examined or interviewed him prior to offer-
ing his opinion regarding defendant’s mental capacity, the court
granted permission to file additional declarations by Dr. Satten and
Dr. Smith. —s :
In his original declaration Dr. Satten had stated that he was of
the opinion that defendant’s offenses occurred during an episode
of “at least partial dissociation,” and that defendant did not have
the capacity to form the mental state necessary to first degree mur-
der, that he could not form the intent to kill, or meaningfully pre-
meditate, deliberate, or harbor malice. He also believed that during
this period defendant met the then applicable legal test of insanity
in that he could not conform his conduct to the requirements of
the law. After his review of defendant’s confessions, and a
one-and-one-half-hour interview of defendant, Dr. Satten declared
that his opinion and the diagnosis which he had reached previously
were unchanged, “particularly . . . with regard to the death of the
two male victims. While there is more evidence of petitioner’s abil-
ity to form the mental states necessary to constitute first degree
murder with respect to the female victim it is still my opinion, after
a review of all the material in this case and a personal interview
with petitioner, that he could not meaningfully form the requisite
mental states to constitute first degree murder because he was still
significantly in a dissociative state and also under the influence of
drugs and/or alcohol at the time of this killing.” Dr. Satten would
testify to this opinion were he called as a witness.
In his postexamination declaration Dr. Smith stated that it was
apparent to him during the examination of defendant that defen-
dant was on medication and still has “substantial residual neurop-
sychic impairment.” He believes that at the time of the offenses
defendant was suffering a psychotic episode, that he was chemically
dependent on drugs and alcohol as a result of which his behavior
was directed at the single goal of obtaining those substances, and
that in his compulsive behavior defendant ingested drugs and alco-
hol triggering “toxic psychosis.” Any interruption of the goal-
oriented activity would produce a “rage reaction.” The greater the
intoxication, the greater the reaction, until a complete break with
reality occurs. In his opinion defendant was in a toxic psychotic
state at the time of the killings. One indication of such a psychotic
episode, in the opinion of Dr. Smith, was defendant’s loss of pri-
mary memory of the events, which Dr. Smith believed was evident
in the trial testimony by defendant and during his examination of
defendant. Dr. Smith declared that in his opinion defendant could
not form the intent to kill, premeditate, deliberate, harbor malice,
tat
2010 California Supreme Court
x
CALIFORNIA
more probative value in this context than it did with regard to
counsel’s representation at the guilt phase. It establishes neither an
actual failure to investigate nor a basis for concluding that evidence
supportive of the insanity plea was available and was not offered
as a result of counsel’s failure to discover it. A factual basis, not
speculation, must be established before reversal of a judgment may
be had on grounds of ineffective assistance of counsel. (Strickland
-y. Washington (1984) 466 U.S. 668, 690; People v. Pope, supra,
23 Cal.3d 412, 425; People v. Stephenson, supra, 10 Cal.3d 652,
661.) --
Defendant next argues that the failure to object to the appoint-
ment of the same psychiatrists to determine his competency to
stand trial (§ 1368) and sanity at the time of the offense (§ 1026)
constituted ineffective assistance. He does not suggest that there
existed any doubt with respect to his competence to stand trial.
Neither defense counsel nor the prosecutor had requested a compe-
tency examination, and the court had not indicated that a doubt
existed as is required by section 1368, when the examination is
undertaken because of a doubt as to a defendant’s present mental
competence.
The record reflects an order by the judge that the psychiatrists
examine defendant and report on his sanity at the time of the
offenses, his present “sanity,” and whether at the time of the
offenses he suffered from diminished capacity to form the specific
intent to kill, to. deliberate, to premeditate, to harbor malice, and
to meaningfully and maturely reflect upon the gravity of his con-
templated acts. There is no indication in the record of the reason
for the order apart from the entry of the insanity plea. Arguing that
counsel should have objected to this procedure, defendant notes
that incriminating statements made during a competency examina-
tion have been subject to exclusion under a judicially created
immunity (see Tarantino v. Superior Court (1975) 48 Cal.App.3d
465, 469-470) whereas statements made to psychiatrists appointed
under section 1026 are admissible at the guilt phase if a defendant
places his mental state in issue and thereby waives his privilege
against self-incrimination to that extent. (People v. Arcega (1982)
32 Cal.3d 504, 521; In re Spencer (1965) 63 Cal.2d 400, 412.)
Again, the failure to object is an insufficient basis from which to
infer that counsel rendered ineffective assistance. Defendant points
to no statements made to these experts and admitted at trial that
might have been excluded had the subject of competency to stand
trial not been included in the order. Inasmuch as sanity at the time
of the offenses was in issue, and a diminished capacity defense was
anticipated, it was apparent to all that the psychiatrists would
probe extensively into both the circumstances of the offenses and
defendant’s social and mental history, and that the testimony or
reports would be admissible at the guilt phase. Since nothing that
defendant might reveal about his commission of the offenses that
was relevant to present competency would be irrelevant on the
issue of diminished capacity, there was no reason to object, and
since competency to stand trial had not been questioned, there was
no purpose for a request for appointment of different psychiatrists
to opine on that subject.
Defendant also questions counsel’s tactical decision to read into
the record the psychiatrists’ reports which concluded that he was
sane and supported a conclusion that he was guilty of the charged
offenses. As noted above, there is no question but that this was a
tactical decision in the making of which defendant participated.”?
He expressed his understanding of and agreement to the procedure.
Defendant’s statements to the psychiatrists regarding his history
29Many of the statements made to the psychiatrists which defendant now says
were harmful and should not have been laid before the jury are those which might
have supported a conclusion that some undiagnosed mental illness or defect
accounted for defendant’s homicidal conduct. THese included his statements that
when drinking, “I get into another frame of mind. It’s hard for me to relate to
that frame of mind now, a lot of it I don’t remember. | don’t understand my
actions.” In reference to the day of these killings he said: “I think it was something
that was building up in me. Prior to that, I had almost killed three people in an
armed robbery. The night before, I had almost killed my old lady. I was just pretty
crazy.” He also said: “It’s like looking at me as a different person, like looking
ata side of me I don’t understand. This trip’s been happening foralong time. .. .
I don’t think I’m crazy, but something is not right when you just shoot three peo-
ple for the fuck of it because you’re pissed off.” ;
“were consistent with the evidence already admitted at the guilt
phase. The alternative procedure would have been to withdraw the
insanity plea. It is not possible to conclude on the appellate record
that counsel’s tactical decision not to do so was one beyond the
range of tactical decisions that competent criminal defense attor-
neys would make. (People v. Pope, supra, 23 Cal.3d 412, 424.)
Defendant’s statements to the psychiatrists were relevant to
: defendant’s strategy of attempting to convince the jury that the psy-
chiatrists were wrong, and that he did, in fact, suffer from mental
illness or defect amounting to legal insanity. Defendant’s claim on
appeal that counsel should have sought a limiting instruction is
patently meritless. Had counsel sought an instruction that the state-
ments could be considered only to show the information upon
which the psychiatrists’ opinions that he was sane were based, he
could not have asked the jury to consider the statements as evi-
dence of legal insanity, an issue on which he bore the burden of
proof by a preponderance of evidence. (People v. Drew, supra, 22
Cal.3d 333, 348-349.) :
Finally, defendant claims that counsel’s incompetence is demon-
- strated by his failure to object to the erroneous instruction on
drug-induced insanity in which the M’Naghten rather than the
Drew/ALI test (see ante, pp. —-— )* was used to define legal insan-
ity. We have concluded above that any error in this regard was not
prejudicial. Therefore, counsel’s failure to object to the erroneous
instruction does not afford a basis for reversal on grounds of inef-
fective counsel. (Cf. People v. Nation, supra, 26 Cal.3d 169.)
There being no prejudicial error during the trial on defendant’s
plea of not guilty by reason of insanity, and insufficient evidence
to support the claim of constitutionally ineffective counsel at this
phase-of the trial, the verdict finding that defendant was sane at the
time of the commission of the offenses is affirmed.
THE HABEAS CORPUS PROCEEDING
Defendant’s petition for writ of habeas corpus is based on his
claim, also made on appeal and briefly discussed above, that trial
counsel failed to afford constitutionally adequate representation in
defending him against these charges. We found no basis for reversal
in the several aspects of counsel’s conduct considered earlier in this
opinion. Because the major thrust of the claim that counsel failed
to afford an adequate defense lies in the alleged failure of counsel
to investigate, and to obtain and offer evidence supportive of the
diminished capacity defense which was presented, omissions which
allegedly affected the guilt, sanity, and penalty phases of the trial,
it is appropriate to consider the habeas corpus petition at this junc-
ture. :
Under the procedures governing petitions for writs of habeas
corpus, the petition in this case might have been summarily denied
for failure to state a prima facie case entitling petitioner to relief
on grounds of incompetent counsel. Although petitioner alleged
that counsel failed to adequately investigate and adequately pres-
ent his diminished capacity defense, he failed to allege facts demon-
strating that: (1) based on facts that counsel knew or should have
known competent counsel would have undertaken further investi-
gation; or (2) such investigation would have produced additional
evidence that might have affected the verdicts; or (3) counsel’s
omissions otherwise resulted in prejudice.
The court nonetheless issued an order to show cause.3° We did
so for two reasons—because this is a capital case in which we did
not wish to risk the possibility that petitioner had failed to make
his allegations sufficiently complete because he was unaware of the
proper habeas corpus procedures, and because he may have been
led by language in In re Saunders (1970) 2 Cal.3d 1033, 1043, to
believe that alleging failure to investigate alone establishes a right
to relief. The order to show cause having issued, however, peti-
tioner now bears the burden of establishing his right to relief. (See
People v. Frierson (1979).25 Cal.3d 142, 160.)
When the basis for the petition is the failure of counsel to afford
*Typed opinion pages 67-68.
30Normally, the issuance of an order to show cause is “an implicit preliminary
determination that the petitioner has made a sufficient prima facie statement of
specific facts which, if established, entitle him to habeas corpus relief under exist-
ing law.” (In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4.)
DAILY OPINION SERVICE
2013
California Supreme Court
or meaningfully and maturely reflect on the gravity of his actions.
He would testify to this effect if called as a witness.
4. Disposition
A comparison of the factual allegations of the petition and trav-
erse with those of the return satisfies us that there are no disputed
factual matters requiring resolution. A reference is not necessary.
(People v. Frierson, supra, 25 Cal.3d 142, 160; In re Lawler, supra,
23 Cal.3d 190, 194.)
Based on the exhibits and declarations summarized above,
defendant contends that he has met his burden on habeas corpus
of showing that counsel was on notice that a potentially meritorious
defense might be available, that counsel failed to investigate that
defense, and that as a result of counsel’s failure he was denied that
defense at trial. He argues that counsel’s failure to investigate
resulted in the complete withdrawal of several potentially meritori-
ous defenses and deprived counsel of an informed basis upon
which to make choices concerning the presentation of “any”
defense at trial. In these circumstances, it is claimed, prejudice
must be presumed and the judgment set aside. The alternative
would be to compel the court to speculate on the effect of counsel’s
omissions.
The rule espoused by defendant is appropriate in cases in which
defense counsel wholly fails to investigate a potentially meritorious
defense of which he is or should be aware, and as a result the
defense is withdrawn or counsel is incapable of making an
informed tactical decision with respect to whether the defense
should be offered. (See People v. Shaw (1984) 35 Cal.3d 535; Peo-
ple v. Mozingo (1983) 34 Cal.3d 926; In re Saunders, supra, 2
Cal.3d 1033.) In People v. Frierson, supra, 25 Cal.3d 142, defen-
dant’s counsel presented what this court described as an
“undeveloped theory of diminished capacity,” by offering evidence
that on the day of a capital murder the defendant had ingested
mind-altering drugs. Counsel had not consulted any experts or had ~
the defendant examined to explore a diminished capacity defense,
and offered no experts to assist the jury in understanding the poten-
tial impact of the drugs on the defendant’s mental capacity. In
those circumstances we concluded that it was unnecessary to con-
sider the possible impact of counsel’s omissions on the outcome of
the trial. We cautioned, however, that we were not holding that
counsel must seek psychiatric or expert advice in every case in
which drug intoxication was a “possible” defense, but when it
appeared to be the sole potentially meritorious defense in a capital
case, and counsel elected to present it, “counsel must be expected
to take those reasonable measures to investigate the factual frame-
work underlying the defense preliminary to the exercise of an
informed choice among the available tactical options, if any. In the
present Case, we need not speculate as to the likely prejudicial effect
of counsel’s omissions, for counsel’s failure to take reasonable
investigative measures actually resulted in the presentation to the.
jury of an incomplete, undeveloped diminished capacity defense.”
(25 Cal.3d at p. 164.)
This case is not Frierson, however. Here counsel concededly
failed to obtain a medical record which one expert subsequently
concluded reflected a prior incident of violence which could have
been precipitated by the mental condition which the expert has
concluded existed at the time of the offenses charged here. This is
not a case in which counsel failed to investigate defendant’s mental
condition, however. To the contrary, although unaware of the
availability of funds under section 987.9 to engage experts, counsel
did have defendant enter an insanity plea, and thereby brought
about the appointment of two psychiatrists who examined defen-
dant and offered their opinions not only on his sanity at the time
of the offense, but also on whether his capacity was so diminished
that he was unable to or did not harbor the mental states which are
elements of the charged offenses. Although defendant states that
counsel did not engage “independent” experts, those who were
appointed were neutral, court-appointed experts. In these circum-
stances, it cannot be said that counsel failed to investigate the
diminished capacity defense which he did present. The problem is
that the investigation, so far as it went, failed to produce evidence
supportive of the defense. The rule of Frierson, supra, 25 Cal.3d
142, therefore, is not dispositive.
Defendant proceeds on the assumption that having identified
counsel’s omissions he has established ineffective assistance in the
preparation and presentation of his defense. Before such a conclu-
’ sion may be reached here, where counsel did investigate and obtain
the services of experts in evaluating defendant’s mental state, we
must consider: (1) whether, having the opinions of two experts that
defendant was not legally insane and did not suffer from dimin-
ished capacity, counsel was under a duty to seek additional opin-
ions; and, if so (2) whether his failure to do so prejudiced the
defense. This analysis is required whether counsel’s performance
is to be measured under the guarantee of counsel found in article
I, section 15 of the California Constitution, or under the Sixth and
Fourteenth Amendments to the United States Constitution. Under
the former, we stated the rule in People v. Fosselman (1983) 33
Cal.3d 572, 584: “[I]n cases in which a claim of ineffective assis-
tance of counsel is based on acts or omissions not amounting to
withdrawal of a defense, a defendant may prove such ineffective-
ness if he establishes that his counsel failed to perform with reason-
able competence and that it is reasonably probable a determination
more favorable to the defendant would have resulted in the absence
of counsel’s failings. (Pope, supra, 23 Cal.3d at p. 425; People v.
Watson, supra, 46 Cal.2d at p. 836.)” Under the Sixth Amendment
standard the defendant must establish either that there was a break-
down of the adversarial process such as to warrant a presumption
that the conviction is insufficiently reliable to satisfy the Constitu-
tion (United States v. Cronic, supra, 466 U.S. 648, 662), or that
counsel’s omissions were likely to have affected the outcome of the
trial. (Strickland v. Washington, supra, 466 U.S. 668, 696.)
Addressing the first question, we conclude that counsel’s failure
to seek the advice of “independent” experts may not be character-
ized as constitutionally inadequate assistance. Defendant has
offered declarations by attorneys engaged in the representation of
criminal defendants in whose opinion defense counsel should have
sought appointment of a psychiatrist to advise him prior to entry
of the not guilty by reason of insanity plea on whether to enter that
plea, and should have obtained the advice of a psychopharmacolog-
ist. They opine that failure to do so in this case was “inexcusable.”
But defendant has not demonstrated that the experts by whom he
was examined were not qualified or that counsel had reason to
believe they were not qualified to determine whether defendant’s
mental capacity was diminished at the time of the offenses. His
' present experts have concluded that, because the appointed psychi-
atric experts did not arrive at the same diagnosis as they did, the
appointed experts are unfamiliar with alcoholism and drug depen-
dence. We cannot accept the opinion of one expert that because
another has reached a contrary conclusion with respect to a diagno-
sis the other is unqualified. Defendant himself does not so argue.22
Defendant’s attorney did that which we held in Frierson, supra,
25 Cal.3d 142, was required. He made “reasonable efforts to inves-
tigate the factual framework underlying the defense” of diminished
capacity in an attempt to obtain additional evidence in the form
of expert opinion to bolster the defense. Competent representation
does not demand that counsel seek repetitive examinations of the
defendant until an expert is found who will offer a supportive opin-
ion. Defendant’s claim here is not unlike that made in In re Gris-
som (1978) 85 Cal.App.3d 840, where the court admonished that
defense lawyers are not expected to practice the legal equivalent of
defensive medicine by ordering multiple tests in the hope that one
will produce useful information, “tests they forego at peril of being
branded incompetent.” (/d., at p. 849.) As we observed in People
v. Stanworth (1974) 11 Cal.3d 588, 613: “[c]ounsel did undertake
an inquiry to determine the mental capacity of defendant and. . .
32The record reveals that Dr. Max Brannan, one of the appointed psychiatric
experts who examined defendant, was a graduate of the Tulane University Medi-
cal School. He had a rotating internship, followed by a residency at Folsom State
Prison. He practiced general medicine until 1958 when he returned to school for
a four-year residency in psychiatry. He had been specializing in that field since
1962, and was in a continuing education program at the University of California
at Davis at the time of trial. He had testified frequently as an expert, on behalf
of both defendants and the prosecution.
Neither report by the court-appointed psychiatrists was accompanied by a cur-
riculum vitae detailing their qualifications.
DAILY OPINION SERVICE
California Supreme Court 2011
the quality of representation guaranteed by article I, section 16 of
the California Constitution, the petitioner must not only prove that
counsel inexcusably failed to make particular investigations or
objections, or failed to introduce particular items of evidence, but
must also demonstrate that the omissions resulted in the denial of
or inadequate presentation of a potentially meritorious defense.
(People v. Fosselman (1983) 33 Cal.3d 572, 583-584.) It must also
appear that the omission or omissions were not attributable to a
tactical decision which a reasonably competent, experienced crimi-
nal defense attorney would make. (People v. Frierson, supra, 25
Cal.3d 142, 158.) This showing demonstrates that “trial counsel
failed to act in a manner to be expected of reasonably competent
attorneys acting as diligent advocates.” (People v. Pope (1979) 23
Cal.3d 412, 425.)
Thus, to be entitled to reversal of a judgment on grounds that
counsel did not provide constitutionally adequate assistance, the
petitioner must carry his burden of proving prejudice as a
“demonstrable reality,” not simply speculation as to the effect of
the errors or omissions of counsel. (People v. Stephenson (1974)
10 Cal.3d 652, 661.) Errorless counsel is not required, moreover.
(In re Saunders (1970) 2 Cal.3d 1033, 1041.) The petitioner must
demonstrate that counsel knew or should have known that further
investigation was necessary, and must establish the nature and rele-
vance of the evidence that counsel failed to present or discover. If
that evidence relates to a diminished capacity defense, the failure
to discover or present the evidence will be considered prejudicial
only if it might have caused a reasonable jury to conclude that the
defendant actually lacked the mental capacity that constituted an
element of the charged offense. (See People v. Robertson (1982) 33
Cal.3d 21, 43-44.)
The standards by which competence of counsel is measured
under the Sixth and Fourteenth Amendments, to which we have
referred earlier in this opinion, parallel those applied under article
I, section 16. Except in cases in which the circumstances give rise
to a presumption of ineffectiveness because it is “so unlikely that
any lawyer could provide effective assistance,” as when insufficient
time to investigate and prepare has been allowed (United States v.
Cronic (1984) 466 U.S. 648, 661) actual prejudice must be shown.
The defendant must demonstrate either that counsel’s conduct of
the trial brought about a breakdown of the adversarial process justi-
fying a “presumption that [the] conviction was insufficiently reli-
able to satisfy the Constitution” (id. at p. 662), or that there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reason-
able probability is a probability sufficient to undermine confidence
in the outcome. (Strickland v. Washington, supra, 466 U.S. 668,
694.) “A court making the prejudice inquiry must ask if the defen-
dant has met the burden of showing that the decision reached
would reasonably likely have been different absent the errors.” (Id.
at p. 696.)
1. The petition.
Petitioner claims specifically that counsel was aware of, but
failed to obtain medical and psychiatric records that would have
supported and corroborated the diminished capacity and insanity
defenses; that being unaware that funds for that purpose were avail-
able under section 987.9 counsel had failed to obtain the services
of an investigator or independent experts to assist in developing
the defense; that counsel had failed to consult medical and psychi-
atric experts before entry of the plea of not guilty by reason of
insanity; and that counsel had failed to investigate penalty-phase
evidence. '
He also claims that counsel had failed to call as witnesses at the
penalty phase petitioner's mother and sisters who would have
offered mitigating evidence.
The petition is accompanied by several exhibits, among them the
medical records that had not been obtained by counsel; a declara-
tion of trial counsel; declarations by three attorneys whose practice
includes criminal defense who offer their opinions that trial counsel
had not afforded the quality of representation to be expected of
competent criminal defense attorneys; and a declaration by a psy-
chiatrist who, based on his review of the medical and psychiatric
reports and materials supplied by appellate counsel, opines that
had the medical and psychiatric records been available at trial and
to the examining psychiatrists a stronger defense could have been
presented.
2. The return z
In the return respondent asserts that the judgment is valid, and
that petitioner has not demonstrated that he was denied constitu-
tionally adequate assistance by his trial counsel. Respondent con-
cedes that in some respects counsel’s performance fell below that
expected of reasonably competent defense attorneys, but argues
that counsel’s omissions did not prejudice petitioner in that it is
not reasonably probable that a more favorable result would have
followed absent counsel’s omissions.
In particular respondent noted the absence of any evidence that
psychiatric experts exist who would have offered testimony more
favorable to petitioner on the question of his mental capacity at the
time of the offense and points out that the records which petitioner
claims counsel should have obtained would not have supported the
theory of diminished capacity pursued at trial, or any other theory
of diminished capacity that would have been consistent with the
evidence presented.
3. The traverse
The traverse repeats the claims made in the petition upon which
petitioner bases his assertion that he was denied effective assistance
of counsel at trial, and incorporates by reference the petition and
exhibits accompanying it. Additional exhibits accompany the trav-
erse.
Among the exhibits which accompany the petition for writ of
habeas corpus are:
a. Medical records from Clairemont Community Hospital in San
Diego. Petitioner was admitted to that facility as an emergency
patient on May 20, 1976.
b. Medical records from the Federal Correctional Institution at
Terminal Island. Petitioner was a patient in that facility in Febru-
ary 1977.
c. A declaration by petitioner’s trial counsel in which he states:
(1) He had not obtained the services of a defense investigator,
law clerk, second attorney, or independent experts for petitioner’s
trial. He made no formal motion to obtain funds for these purposes
_and was unaware of section 987.9. Had he been aware of that provi-
sion he would have sought funds under it. He did make two infor-
mal inquiries prior to trial about funds for defense purposes, and
discussed the availability of funds in chambers with the trial judge.
He had also discussed funds with the administrator of the investi-
gatory budget for contract attorneys. He understood from both that
no funds were available.
(2) The diminished capacity and insanity defenses were based
primarily on petitioner’s long history of alcohol and drug abuse.
Counsel had been advised by petitioner’s mother of his San Diego
hospitalization for psychiatric reasons. Both court-appointed psy-
chiatrists made reference to the possibility of such hospitalization,
and both mentioned that records of the hospitalization might exist.
Counsel had also been advised by petitioner’s mother that peti-
tioner had been seen by psychiatrists on a number of occasions
while incarcerated in federal prison. Counsel did not obtain any
medical or psychiatric records, although petitioner’s mother stated
that she would inquire about the San Diego hospitalization. Nei-
ther she nor counsel mentioned the matter again. Counsel did not
discuss obtaining the records with petitioner.??
31The declaration also stated that the only persons interviewed by counsel in
connection with the case were petitioner, petitioner’s mother and aunt, and the
two court-appointed psychiatrists. He did not interview prosecution witnesses,
but had available the transcript of the earlier trial of Tyson, which he believed
covered the same factual issues and made interviews with prosecution witnesses
unnecessary. The interviews with the court-appointed psychiatrists were for the
purpose of determining the accuracy of the reports and whether their testimony
would be consistent with the reports. The not guilty by reason of insanity plea
had been entered for the purpose of obtaining the services of the psychiatrists and
thereby information relevant to the diminished capacity defense. Counsel at no
time believed that petitioner was legally insane. His purpose in letting that plea
stand was to preserve for appeal a claim of error in denying his motion for sepa-
rate juries for the three phases of the trial. He expected the sanity phase of the
trial to be very brief. He read the reports into the record instead of calling the
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REAL DETECTIVE
went inside and came out in a minute with
a bundle. They all drove away.”
“What kind of a car did he have?” Fos-
ter asked.
“A Ford coupe. I think it belongs to
his brother who works for the railroad.
Al came back a little after eight. I was
watering the lawn. He said he had to get
a coat, because he wrapped his around the
baby.”
“What about his half-sister, the one who
keeps house for him?” Stocker asked.
“She’s been gone a week or so.”
“T know that, but according to the story
we got he was sore because she left.
Thought his brother and the girl he killed
had something to do with it.”
Mrs. Cline smiled. “He was sore, all
right, plenty sore.” ‘
“Couldn’t he get someone else to keep
house for him?”
Mrs. Cline turned expressive eyes at
the deputy sheriff. “He might have gotten
another housekeeper but that wouldn’t be
~~ the same. Violet was a very pretty
girl.”
The two officers thanked the woman
and drove away. Was this the explanation
for the ex-convict’s murderous rampage?
Mrs. Cline’s implication had been clear
enough. Evidently Alfred regarded Violet
Wells as more than a housekeeper. LPer-
haps that was why she had left him. Per-
haps the girl had realized her half-brother
was in love with her and had gone away
to break off this unnatural relationship.
T SEVEN o’clock Thursday morning a
grim conference was held in the sher-
iff’s office. The case was clear enough. Al
Wells, in a fit of rage, had lured his
sister-in-law and Miss Destree to the desert.
. After shooting them he had used the note
described by Rose Destree to force his
brother to accompany him.
“We'll talk to Violet,” Shay said, “she
may be able to help us.”
eputies Cram and Lungstrom were as-
signed to check again the contents of the
little bungalow on Kingman Avenue.
Foster and Stocker directed the operations
of hundreds of southern California peace
officers who were thrown into the search
for David Wells. But by Thursday night
only a few meagre scraps of new informa-
tion had been developed. Cram and Lung-
strom had found where Alfred Wells had
procured the murder weapon. William
Stroud, a neighbor of the hunchback, told
officers he had pawned a .32 Hopkins and
Allen revolver and that on Wednesday, Al
Wells had offered him a dollar and a box
of groceries for the pawn ticket.
The two deputies mentioned this detail
to Mrs. Cline and she recalled seeing Al’
Wells working on a box of cartridges.
“He was creasing the ends with a pocket
knife and rubbing them with garlic,” she
said.
Violet Wells told Sheriff Shay that for
16 months she had lived in fear while
keeping house for her half-brother. She
said Wells had threatened to kill her if she
left him, that. he had boasted of other
murders, that he had forced her to stay
in the house, a virtual prisoner, through
his threats to harm other members of her
family.
Thursday night an excited railroad em-
ployee burst into the sheriff’s office and
demanded to see Shay. “I think I know
where Al Wells is hiding,” the man shouted.
Deputies quickly ushered him into the
sheriff’s presence.
“T knew Al real well,” he explained.
“There’s a cabin up in Cable Canyon where
we used to spend week-ends. He used to
take his girl up there. I drove up tonight
just on a hunch and there was smoke com-
ing from the chimney. I’m sure Ai is
hiding there.”
Gi atoceit MINUTES LATER a posse of fifty
armed men roared away from the court-
house. It had been arranged they would
meet at a spot two miles from the cabin
and go forward on foot.
As the carloads of officers arrived at the
rendezvous, Shay and Stocker assigned
each man to take up his position in a circle
they planned .to throw around the cabin.
The officers were told to move in as
quietly as possible and to stay at least
three hundred yards from the cabin itself.
It was midnight when the last man ar-
rived. “We'll wait for daylight and all go
in together,” the sheriff announced. “If
Wells is inside he can’t get out and if we
rushed in now he might slip through our
fingers in the dark.”
Stocker realized there was another rea-
son for the sheriff’s decision. Rushing that
mad killer in the daylight would be dan-
gerous enough, to do it at night would be
almost foolhardy.
Through the cold morning hours the
deputies fingered their guns and waited.
When the first faint light of dawn broke
through the trees the sheriff. gave the sig-
nal and started in towards the cabin. The
officers took advantage of what cover there
was but at best the odds were with the
man inside,
Twenty yards from the house the sheriff
ordered a halt. “Keep me covered if you
can,” he whispered to the nearest deputy.
Then, gun in hand he raced across the
intervening space to the shelter of the
cabin wall. Cautiously the sheriff worked
his way to the door and kicked it open.
Fifty guns covered that doorway. Fifty
pairs of eyes strained to catch the first
glimpse of movement within the cabin.
“Come out, Wells, you haven't a
chance,” Shay ordered.
The trap had been well planned. Every
avenue of escape was blocked. But there
was no response to the sheriff’s challenge.
Carefully that officer leaned around the
doorway to where his eyes could view the
interior, The cabin was empty.
Weary and dejected the posse returned
to San Bernardino. If the crazy killer had
been in the cabin he had left nothing be-
hind to indicate his presence there.
But at the sheriff's office there was
encouraging news of another sort. Carl
Cox, a garage employee at Las Vegas,
Nevada, had read an account of the mur-
der in his morning paper. The description
of Alfred Wells and the murder car tallied
with a little hunchback who had stored a
Ford Coupe with Cox at five a.m. Thurs-
day morning. Cox called the police who
had checked the license number of the
car and notified San Bernardino officers
of the discovery.
Alfred Wells had been alone when he
stored that car. His brother had been
with him when he left San Bernardino the
night before. Where was David Wells
now?
Shay and Stocker felt that at least they
had something definite to work on now.
The highway between San Bernardino and
Las Vegas was marked off in fifty-mile
sections and squads of deputies were as-
signed to search each section. Stocker,
in a plane piloted by Frank McFadden,
flew back and forth over the Las Vegas
route at low altitude.
Cox had reported that after leaving the
car Wells had walked off towards the
Union Pacific yards. Inspector K. P. De-
line ordered railroad officers to search all
freight trains on the road.
In the hospital gallant little Rose Destree
began to lose ground. At eleven o’clock
Friday morning she died.
Throughout Friday and Saturday the
search for the double killer and_ his
missing brother continued. On Sunday
morning a gigar
thousand member
Santa Fe shop
David Wells, set
slopes of Cajon
E. Thompson
‘of the volunteer
ing for about a:
to rest. “We o
out,” he said to
killed a guy ow
go to hide his b«
Thompson look
ing. “I’d head u
the brush is thic’
“Then why a:
down here?”
Thirty minute
tected the odor
found David We!
ing at the blind:
mile from the p
been murdered.
the head and the
It was now tr
snuffed out by
taliation for a fz
Days passed i:
settled into a gri
Alfred Wells ha:
Pretty Violet
went into hiding
California. An
Adeline Archer,
ington Beach, w
third brother,
gun as he went ;
Gradually ney
forgot the vici
Sheriff Shay, F:
relax. Alfred |
hiding forever.
hunted man wer:
sent and _s!}
ississippi Rive:
Then on Jun
lustful carnage
_ Domit an
pokane, Wash:
were making a:
jungles of that ci
In a deserted
cattle pens, the °
hunchbacked ma:
>
At the door t!
to further com;
screen in the d
near the latch «
“Tf this was
have been neces
get in and out,
Back in the hy
members of the
what they kne
Something about
traveling back «
“Say,” he ask
that tall, hands:
He remember:
granted a divor:
haps longer. T!
interest in the s
recalled it there
Evelyn Cransto
a student at Seb:
ment to West V:
years later the
started by the ¢
“John?” she
seen or heard f:
se of fifty
the court-
rey would
the cabin
‘ved at the
assigned
in a circle
the cabin.
ye in as
cy at least
abin itself.
st mai. ar-
and all go
unced. “If
. and if we
rrough our
wther rea-
ushing that
ild be dan-
it would be
hours the
and waited.
dawn broke
we the sig-
cabin. The
cover there
re with the
e the sheriff
ered if you
rest deputy.
across the
‘ter of the
eriff worked
ked it open.
rway. Fifty
ich the first
the cabin.
haven’t a
med. Every
But there
's challenge.
around the
ld view the
ssse returned
izy killer had
t nothing be-
here.
there was
r sort. Carl
Las Vegas,
» of the mur-
he description
ler car tallied
lad stored a
- am. Thurs-
morning a gigantic posse of more than a
thousand members composed principally of
Santa Fe shop men, fellow workers of
David Wells, set out to comb the rugged
slopes of Cajon Pass.
IE. Thompson and O. E. Hawkins, two
of the volunteer possemen, had been walk-
ing for about an hour. Hawkins paused
to rest. “We ought to figure this thing
out,” he said to his companion. “If you'd
killed a guy out here where would you
go to hide his body?”
Thompson looked around before answer-
ing. “I’d head up into the foothills where
the brush is thicker.”
“Then why are we wasting our time
down here?”
Thirty minutes later the two men de-
tected the odor of decaying flesh. They
found David Wells, his unseeing eyes star-
ing at the blinding sun, less than half a
mile from the place where his wife had
been murdered. He had been shot through
the head and the body.
It was now triple murder. Three lives
snuffed out by a little ex-convict in re-
taliation for a fancied wrong.
Days passed into weeks. The man hunt
settled into a grim determined siege. But
Alfred Wells had apparently vanished.
Pretty Violet Wells and her mother
went into hiding at a ranch near Hanford,
California. An aunt of the killer, Mrs.
Adeline Archer, 607 Alabama St., Hunt-
ington Beach, was under police guard. A
third brother, Norman, carried his shot-
gun as he went about his labors.
Gradually newspapers and the public
forgot the vicious triple murder. But
Sheriff Shay, Foster, and Stocker did net
relax. Alfred Wells couldn't remain in
hiding forever. Circulars describing the
hunted man were sent to every police de-
partment and sheriff’s office west of the
Mississippi River. ;
Then on June 7, one month after that
lustful carnage on the desert, Sergeant
John Domit and officer Mangam of the
Spokane, Washington, police department,
were making a routine check of the hobo
jungles of that city.
In a deserted area beyond the westside
cattle pens, the two officers came upon a
hunchbacked man walking the ties.
REAL DETECTIVE
“Wherere you going, buddy ?” Domit
called.
The hunchback jerked his head towards
the mountains. “Back to work.”
The two officers moved in closer. “What
have you got there in your hand?” Man-
gam asked.
“Pocket knife,” the hobo replied edging
away.
Acting on impulse the burly patrolman
locked his arms around the little man’s
shoulders. “Frisk him) John, I. got a
hunch.”
Domit’s exploring fingers produced a
nickel plated .32.
“What are you doing with this?” he
demanded.
“I’m a sheep herder. I got a permit to
carry it.”
“We'll just see about that,” Domit re-
plied.
At headquarters the hobo gave his name
as Alfred H. Blake of Trout Creek, Mon-
tana. He claimed to have been employed
on a sheep ranch west of Spokane.
Mangam and Domit got out the San
Bernardino wanted circulars. “Ever see
this guy?” Domit asked.
“Kinda looks like me, don’t it?” the hobo
admitted.
“We'll soon know,” the sergeant replied.
“After we take your fingerprints.”
When the self styled sheep herder’s fin-
gerprints matched with those on the mur-
der circular, captain of detectives Angus
MacDonald went to work on the suspect.
After an hour of questioning the hunch-
back admitted his true identity. “I killed
Dave, all right,” he said, “I told him I’d
kill him if he took my girl away from
me.”
But Alfred Wells steadfastly denied
shooting his sister-in-law and Rose Destree.
Wells was returned to San Bernardino.
Ballistics experts announced the gun taken
from the killer at the time he was arrested
had been used in all three murders.
The long manhunt was ended. Violet
Wells and her mother came out of hiding
and the killer’s beautiful blonde half-sister
announced her willingness to testify against
the man whose love had turned to mur-
derous hate.
89
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way you want it—merely tighten or loosen the laces
—and presto! your mid-section is “‘Trim-Shaped’’!
OUR HOLLYWOOD IDEAL IN DESIGN
Here’s the secret of Trim-Shape—it’s made
Pr h (stretches wu 14 Only
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inches high, front and rear) elastic material, 98
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Bi Washi reserves its
‘s potice’ wie (CONTINUED FROM PAGE 63)
unber of the
irdino officers
done when he
her had been
Bernardino the
David Wells
air-cooled pouch of fine, soft double yarn ives re
ogee protection, healthful uplift without :
aid.
ve izing
The discussion disclosed that the young
husband, after becoming an ex, had quietly
departed for parts unknown.
At the door they made another discovery
to further complicate their problem. The
screen in the door had a fresh hole in it
near the latch on the inside.
“Tf this was an inside job it wouldn’t T™ EX-HUSBAND, Johannes Borgwardt,
have been necessary to break the screen to a young German immigrant, had all the
“Trim-Shape has done marvels for m
paunchy abdomen.” —Dr. G. B. I.,
FITS COMFORTABLY SNUG — YOU
LOOK INCHES SLIMMER AT ONCE
it at least they
bulging ‘*corporation’’ and m
work on now, get in and out,” sputtered Stacey. physical characteristics to make a taihivee | mine Sean ot eer wa gaeior.
Bernardino and Back in the house the deputies questioned idol. He was tall and handsome. His con- | body cam tell you're wearing one!
ff in fifty-mile
yuties were as-
tion. Stocker,
ink McFadden,
the Las Vegas
tinental habits and his broken speech were SEND NO MONEY
intriguing. He had come to Columbiana
County to work as a farm hand some time | TRIAL.
before the romance with Evelyn Cranston | ¢snts, Paitin when, package arrives.
began. While he was working in the vicin-
ity they’d met at a church social,
Coroner Devon came out to summon the
members of the family and again they told
what they knew of the night’s events.
Something about the girl sent Stacey’s mind
traveling back over the months.
“Say,” he asked, “whatever became of
that tall, handsome husband of yours?”
He remembered now that she had been
‘ter leaving the Is. J. WEGMAN CO., Dept. 415
{ towards the granted a divorce a year or so back, per- officers to the death scene. Bene Hollyweed Blvd.,
ector K. P. De- haps longer. The case had developed some _ “The charge caught her squarely on the 1 ollywood, Cal. {
rs to search all. interest in the sedate rural county. As he _ side of the head and face,” he told the in- TrehShape. Ok will pay penemany a genuine Holiywocd &
: recalled it there had been romance between _vestigators. “She couldn’t have lived Over: (: Mr cere ee aes it"ror prompt refund.” ” fj
de How Deere Evelyn Cranston, then in her ‘teens and half an hour. With the report of the gun B cscs Hee ine alzeoteyour, alge (20 faba emedsuire Ml
st eleven o'clock a student at Sebring High School, an elope- _ and the crashing glass there must have been | § worn, $3.98. : ‘ ry
ME CePA ment to West Virginia and marriage. Two a terrific racket.” NAG sce etd eke eae e SR CEk sss» tiie Tees trees
hoary years later there'd been a divorce action Then Stacey, who had been going | nA eee a oneiebies |
| Saturday the started by the girl. through the house, came in, Bu Kone pantpnid If you ‘encione’ $2.08 ot B.08) "Mari
killer and his
-d. On Sunday
“John?” she replied. “Oh, we haven't
seen or heard from him for over a year.”
“The barefoot man was not only in the | Il
house but he went upstairs,” he declared.
Lox.
TRIM-SHAPE 'S OBTAINABLE ONLY FROM us. §j
California customers, please add 3% sales tax.
(us ecs, Ab
Destree kept her eyes tightly
closed and dug her fingers in-
to the hard ground to keep from
serenming in agony.
Nerves, numbed by the shock of
the two bullets, had begun to re-
act. and red waves of pain and
nausea were sweeping over her.
But she clung doggedly to a shred
of consciousness, and she could
hear the killer panting and mut-
tering to himself, and the crunch
of his feet on the dry sage-brush.
“J mustn’t move,” she kept tell-
ing herself. “I mustn’t--he must
think I’m dead! If I move he'll
shoot me again!”
The steps came closer and she
could feel his burning eyes glaring
down at her. She held her breath
and pressed her face into the
ground, tense against the searing
pain of the bullets in her body.
Her dress was soaked with her
own blood, warm and moist.
The agonizing moments pulsed
by. till it seemed the pain would
wrench her apart, and a scream
started to well up in her throat.
Then, as though from miles away,
she heard the killer give a grunt
of satisfaction, and the crunching
footsteps began again. For long
moments there was no sound but
the steady crackle of the sage as
the steps gradually receded. Then
a whimpering moan came from
nearby, and Rose Destree, with her
fading consciousness, knew that
she was not the only survivor of
the bloody nightmare.
Had the killer deliberately left
them wounded, to face long and
tortured deaths in the desert, in-
stead of dispatching them with
final bullets?
Without raising her head, Rose
Destree opened her eyes. She could
see dimly, through a red mist that
transformed the desert moonlight
into a bath of blood.
The killer was a misshapen black
shadow hurrying across the sage-
brush toward the highway. He was
leaving them—he was not coming
back ,
Her vrain reeling with pain, Rose
Destree raised herself on one el-
bow.
A few feet away lay a huddled
shape, with blood glistening red
in the moonlight. There was an-
other pitiful whimper.
“Jean!” the wounded girl called,
digging her elbows into the earth
and trying to scramble across the
rock-strewn ground. “Baby!”
The scene that confronted Dep-
uty Sheriff Bill Lungstrom when
he arrived at that lonely spot in
Cajon Pass, in the bleak Sierra
Madre Mountains above Califor-
nia’s Mojave Desert, late on that
night of last May 7, was hardly
less ghastly than the nightmare
Rose Destree had witnessed
through a red mist of pain.
He had sped out from San Ber-
nardino on a_ telephoned report
that an injured girl had been
found lying beside the road in Ca-
jon Pass. An ambulance was al-
ready on the way. A hit-and-run
case, Lungstrom speculated as he
sent the big official car roaring
up the mountain road, in the hot
desert night.
A group of white-faced men flag-
ged him to a stop, at a lonely spot
where the road twisted through a
wilderness strewn with sage and
boulders.
4
G "Desiree kept nerve Rose
| TRIPL Hg
TILLER .
By EDWARD S. SULLIVAN
oft Os,
of
an
Special Investigator for
SENSATIONAL DETECTIVE
DETECTIVE
MAY, 1942 Cases
CONTENTS
TRAPPING CALIFORNIA'S TRIPLE KILLER - - 4
By EDWARD 8S. SULLIVAN
A phantom fiend strikes again and again until——
“| TRIMMED THE SUCKERS FOR SEX” --- 8
By MARION BURKE
The most daring exposé of a decade. Don't miss this.
SCARLET SIN OF THE FISHING PARTY FIEND
By GEORGE A, COOLEY
The “perfect crime"—conceived in a devil's mind.
DEATH STALKS AT MIDNIGHT - - - -. -
By LAWRENCE RHODES
Young punks with quick trigger fingers bring sudden death.
WHO KILLED THE WARDROBE MISTRESS? - -
: By STEPHEN D. MANSON
A bizarre murder mystery in the colorful theatrical world.
SOLVING LOS ANGELES’
MURDER ON THE RUN ENIGMA .- - - - -
. _By THOMAS A, ESKEN
A new sidelight on America's most infamous killer,
ROBERT C. JOHNSON, Editor
SENSATIONAL DETECTIVE CASES is published monthly by Histrionic ~
Publications, Inc., at 225 West 34th Street, New York City. Vol. 2, No.t.*"
Copyright, 1942, by Histrionic Publications, Inc. Entered as second class matter
at the Post Office, New York, N. Y. under the Act of March 3, 1879. Single:
copy price, 10 cents; yearly subscription, $1.20. The publishers will handle all
submitted manuscripts and pictures with care, but such material must be
accompanied by sufficient postage for return and is submitted at the author's risk.”
s
“She looks like she’s dying, Offi-
cer! She’s been shot——” |
“Shot twice, in the abdomen and |
under the heart. We tried to stop |
the bleeding.”
“We're waiting for the ambu- >
lance——” : j
Deputy Lungstrom examined the
wounded girl expertly, saw at once
that the men were right and that
it was no hit-run case. Blood was
spreading over the crude bandages,
from two wounds in her body, one {
dangerously near the heart. The |
girl was only half conscious. A thin |
foam of blood bubbled at her lips. |
Despite the lines of agony on
her face, he could see that she |
was young—not more than seven-'
teen or eighteen—and beautiful.
The men crowding around hia $
i
were all talking at once. Quieting
them down, Lungstrom shot quick
questions and got a connected 1
story, as he played his flashlight }
over the scene and wished the am- |
bulance would come. ‘
The men identified themselves |
as Lester H. Bellah, B. Bjorkman }
and his son, Lars Bjorkman, ranch- |
ers. Passing on the highway, they
had heard faint cries for help and
had seen the wounded girl lying
in the brush beside the road.
“Looks like she might have been
thrown from a car,” the deputy
sheriff commented, noting her lac-
erated hands and the torn spots
on her house-dress and her thin
cloth coat. “We'll have a look
around, for tire-marks.”
“I don’t know,” the elder Bjork-
man interrupted. “Just before you
came, she was muttering something
about having crawled across the
desert for hours. And she was try-
ing to say something about some-
one else being hurt—but she pass-
ed out before she could tell us.
“We were going to look, but we
didn’t want to leave her alone. One
of us had to go for a telephone—
and we thought there might be
someone: out, there with a gun.”
-Lungstrom sprayed his flashlight
on the sage-covered desert beside
the highway. There was a dark
stain of blood where the girl had
lain, and farther on, away from
the road, the brush. was, broken
and there was more blood.
“Wait here,” he said abruptly.
“I’m going to see where she came
from. Maybe she wasn’t thrown
from a car, at that!”
Unlimbering his revolver, he
strode off toward the broken bush.
The flashlight showed more blood
—a trail of it—and scraped earth
where the girl had dragged her
bleeding body across the sage and
rocks.
To the San Bernardino deputy’s
desert-trained eyes, the trail was
easy to follow. Now and again he
stopped, squatted down with his
gun ready, and looked carefully
all around- him. The moonlight
shadows were deceptive—the gun-
ner who had shot the girl—if in-
deed she had not shot herself—
might be lurking behind’ any rock
or bush.
_ But there was no motion any-
where, no sound save the small
noises of the hot desert night and
the voices of the, excited ranchers
from the road. There was nothing
in that: moonlit desert wilderness
to indicate that horror had stalked
there—nothing but the grim evi-
dence of the blood-spattered trail
_-across the broken bushes.
- 2eruarnoa
owes
As Lungstrom walked on, he
heard the distant roar of a motor,
and, looking down the pass, he
saw that it was the . ambulance
coming—its red spotlight cleaving
- the darkness like a devil’s finger.
He walked faster. The trail led
almost straight back from the road.
Now and again there were broader
patches of blood on the shrubs
and earth—where the girl had lain
to gather strength to go on.
What had -given her that
strength, when she was obviously
dying? And what had brought her
out into the middle of- this lonely
wilderness in the first place? There
could be a dozen answers.
A sudden faint sound interrupted
the deputy’s speculations. He stood
stock-still. The sound was repeated.
It was a whimpering moan—like
that of a small animal or a child.
‘Tt came from behind a_ boulder
just ahead.
Lungstrom rounded the boulder,
gasped, and pocketed his gun. He
knelt down and stared for a long
moment. .
He had come to the end of the
bloody trail. ;
Huddled on the _ blood-soaked
ground was the form of a woman—
or rather a young wisp of a girl.
Her face was upturned, her eyes
staring ‘glassily at the sky.
It was not she who had moaned.
She was dead. Lungstrom could see
that at once.
But what held him transfixed
was the little form huddled at
her breast, that moved and turned
in the flashlight glare. It was a
curly-haired infant, wrapped in a
thin blanket. There was blood on.
the blanket, blood on the tiny
hands that clutched at the girl’s
torn dress. ~
The baby shut its eyes tightly
and whimpered again.
Lungstrom laid down his flash-
light, took off his coat, and picked
the baby up; it clung to the dead
form of the girl with all its tiny
might. The officer had to grasp
each grimy little hand and pry
it loose.
He laid the baby gently on his
outspread coat and examined it
carefully. It was not wounded, The
blood was all from the dead wom-
an. *
Then he stood up and called to
the men on the highway.
“Help!” he called. “Over this
way—another woman—and a ba-
by!”
When the ranchers and the am-
bulance men came running up,
Lungstrom instructed them to call
for more deputies and for the
coroner. -
The ambulance stewards effi-
ciently took care of the infant and
the dying girl beside the highway.
Lungstrom walked in a circle
around the scene of the bloody
horror. One of the men drove a
car over the sage-brush and parked
it to give more light.
There was nothing there but the
body of the dead girl. No discarded
gun, no clue of any kind to what
had happened.
Other officers arrived and spread
out over the moonlit desert. Still
they found nothing. Not even a
dropped purse or other key to the
identities of the two bullet-riddled -
girls.
They could not have shot them-
selves; neither could one have shot
semen
It was at this lonely spot in Cajon Pass that
the killer perpetrated h
the other in a murder-suicide pact
—-for the gun could not have dis-
appeared in that case.
Some inhuman gun-wielder had
shot them both twice through the
bodies and left them to die, that
was clear. And the infant would
have surely died also when the
searing desert sun came up.
The baffled deputies could form
no theory, could find no starting-
point in their hunt for the killer.
Conceivably, a man from some
twisted motive might have taken
a girl out in the desert and killed
her; but here were two girls—and
the baby.
The best the officers could do
was telephone the sheriff’s office
to broadcast an alarm for all au-
thorities to be on the watch for
any suspicious characters, armed
and dangerous.
One salient fact that stood out
above the mystery and confusion
was the courage and fortitude of
the mortally wounded girl who had
crawled in agony to the highway
to summon aid for the other girl
and the baby. And it was from
her tortured lips, as she lay in the
LDS ANEZL ES VOY
is dastardly outrage.
emergency room at the San Ber-
nardino County Hospital in the
small hours of the morning, that
Undersheriff James W. Stocker and
a grim little circle of officers got
their fragmentary details of the
desert slaughter.
She identified herself as Rose
Destree, seventeen years old, of
Escondido. The dead woman was
Mrs. Jean Wells, nineteen, of 1068
Fifth Street, San Bernardino. The
baby was Mrs. Wells’ thirteen-
months-old daughter, Hester.
“Who shot you?” the undersher-
iff pressed. “What happened?”
“Tt was—it was Al—Alfred Wells,
Jean’s brother-in-law. He shot us
and left us there. I tried to crawl
to the highway. It took me hours—
j——”.
“where does Wells live? Where
can we look for him?”
“He lives somewhere on G Street,
in town here. I don’t know——”
“Did he have a car? How did
he get away?”
“He was driving a Ford coupe.
It belongs to his brother in Fon-
tana.”
The girl was gasping for breath
“a,
Mt Pisgah Crater
The above map shows territory surrounding Cajon
Pass which is directly north of San Bernardino.
and her eyes were beginning to
close again. One of the doctors
touched the undersheriff’s arm: and
began to draw him away.
“why did he shoot you?” Stocker
pressed, hoping for some further
clue to aid the manhunt.
“He must have been crazy. He
blamed us for taking his girl away
from him—*his half-sister. He was
in love with her. She took care
of him when he got out of prison,
and——”
“He’s been in prison? He has a
record?”
“Yes—he was in San Quentin—
for robbery, I think.”
The girl’s eyes closed and the
doctors refused to allow further
’ questions. But Undersheriff Stock-
er had enough for the time being.
He hurried back to his office and
set half a dozen men to combing
through the files.
The record of Alfred Wells was
easily located. Mention of a brother
Raymond, living at 1068 Fifth
Street, and of another brother in
Fontana, identified him positively
as the wanted man.
He was known to the police un-
der several aliases. Back in 1927,
he served an eighteen-month term
in Pennsylvania for a Pittsburgh
robbery. In September of 1934, he
was arrested in the act of robbing
a service station at Fullerton, Cal-
ifornia, and drew a term of from
five years to life in San Quentin.
He was paroled on November 24,
1939. There were records of numer-
ous other arrests for various mis-
demeanors.
“Here’s our man!” the under-
sheriff said jubilantly, putting his
finger on a photograph of Alfred
Wells in the big San Quentin photo
book. ‘“‘And he'll be easy to identify.
He’s a hunchback! Thirty-one
years old. Let’s see——”
The photo showed Alfred Wells
as an evil-looking, twisted man
with heavy black brows and sullen
eyes.
The undersheriff ordered extra
prints of the photo struck off, and
broadcast a detailed description of
the hunted gunman on the radio
and the statewide police teletype.
“_priving a Ford coupe,” the
broadcast read. “Known to be arm-
ed. Use extreme caution, as this
man is dangerous.”
For an hour the telephone and
telegraph wires hummed_ while
Stocker organized the manhunt.
Officers sped to the Raymond
Wells home on Fifth Street, found
it dark and deserted. From the
neighbors, they learned that young
Rose Destree had been visiting Mrs.
Wells for several days, helping her
take care of the baby. Raymond
Wells worked on the night shift
at the Santa Fe Railroad yards.
The neighbors knew Alfred Wells
by sight-—-knew him as a mean-
tempered, hunchbacked man who
-occasionally visited his brother and
sister-in-law. They had not seen
him for some time. They recalled
that a Ford coupe had been parked
in front of the Wells home for the
past several days, and had seen
Raymond driving it one or twice.
At the railroad yard, the officers
learned that Raymond Wells had
left for home at the end of his
shift, several hours before. But
there was no sign that he had been
home. They obtained a description
of him, and his name was added
to the broadcast pickup order.
2
WILLIAMS, James Charles, wh, gassed CA (Riverside) February 16, 1940
WYEKXXMEXXAAKMERXENAR
In the CRIME
SPOTLIGHT
Spanish-American war veteran
Harry Gips of Denver, Colorado,
built up fancied grievances against two
f s nurses. He obtained a gun, and
day, in a flare-up of temper, he
s and critically wounded both the
urses. Then he killed himself. Gips
was not regarded as a mental case.
Paul R. Ladue, co-owner of an ad-
ertising agency in Dallas, Texas,
came suspicious of the chalk-white
nearance of the drinking water in
office. He had the water analyzed
Y found that it contained arsenic.
Ladue’s partner, R. S. Halper, was
held, then released on $5,000 bail.
Both men are insured for $2,500, nam-
ing the other as beneficiary, as a pro-
tection for their firm.
Stephen Mattosh rode a street-car to
Detroit. Michigan, Police Headquar-
ters and walked in. There he calmly
told incredulous officers that he had
killed his wife. Investigation revealed
that she indeed was dead.
In Blythe, California, E. H. Weimers,
a rancher, hired two workers, James
Williams and Robert Martin. Martin
was given full-time work, Williams
only part time. A short while later
the bodies of Weimers and Martin
were discovered. Williams was ap-
prehemnded fleeing in Weimers’ auto-
mobile.
In Los Angeles a Bank of America
messenger’s car was stolen. Acting on
a tip, Detective Lieutenants E. W. Hull
and W. A. Baker arrested Ormond
Schustricker. Schustricker admitted
that he had stolen the car, declared
he became panic-stricken .when he
found what he thought was $287,000
worth of securities in it. He led the
detectives to the top of Laurel Canyon
and showed them where he had
thrown $285,000 worth of bonds and
stocks, then to a vacant lot in Van
Nuys, where he had buried the re-
ining $2,000 in checks. What Schus-
tricker didn’t know was that the
checks all were cancelled, the bonds
registered, the stocks secured. He
couldn’t have made more than a few
dollars on the whole lot.
Responding to an alarm, Detectives
W. T. Swift and Frank Moore of San
| ‘spans as a “chronic complainer,”
oDp-—8
OFFICIAL
Latest Sensations in the Crime Whirl—
and What the Law Is Doing About Them
Antonio, Texas, found Mrs. Maria Mar-
tin shot to death. “I shot her,’ said
Alvis Martin, the husband. “I gave
her a chance to love me and she re-
fused.” Then, when the officers had
noted this statement, he made a break
for freedom, slashing Moore with a
knife. Detective Swift shot him
dead.
Twice married and twice divorced,
Mrs. Eileen Preston of Los Angeles
feared, as she said, that she had a
“weak heart.’’ She said she “often felt
that I might suddenly die and leave
my little daughter alone.” So she
swallowed a quantity of poison after
slashing the wrists of her daughter,
Mabel Ann, eleven. The girl died, the
mother has a good chance to recover.
St. Paul, Minnesota, authorities were
baffled by a series of petty burglaries.
. After arduous detective work one gang
of three, responsible for six of the
crimes, was rounded up. Leader of the
gang was an Indian girl ten years of
age. Her two accomplices were a boy,
nine, and his sister, seven.
When Mrs. Donald Preston died in
childbirth, her father, Marias Peter-
son of Salt Lake City, Utah, attempted
to gain custody of the baby. A district
court denied his claim. Peterson and
the father quarreled and Preston was
shot dead. According to police, wit-
nesses have reported that Peterson ac-
costed Preston and shouted: “If you
don’t let me see the baby I’ll kill you.”
A Chicago woman excitedly called
police and reported that her husband
had telephoned her and threatened to
visit her. The woman’s husband, Jack
Russell, supposedly was in the Okla-
homa State Penitentiary at McAlester,
and his wife had been instrumental in
placing him there. Investigation re-
vealed that Russell indeed had es-
caped; further, that he had been seen
near Ringwood, Illinois, where the
body of William Scott Hamilton of
Arkansas City, Kansas, was found;
that he also had been reported thumb-
ing rides near Pittsburg, Kansas,
where Hamilton was last seen by his
friends. Russell led officers an excit-
ing chase, finally was captured in a
tourist camp at Cass, Arkansas. He
was turned over to Federal authorities,
who announced that he has confessed
the hitch-hike kidnaping and killing
of Hamilton and several other kidnap-
ings and armed robberies.
Doctor George W. Gore of Benton,
Illinois, and his wife, Nancy, were
aroused from their sleep by the noise
of an intruder. Through the darkness
the intruder fired five shots into the
body of Mrs. Gore, killing her. Police
discovered animosity between _ the
stepmother and George W. Gore, Jun-
ior, the Doctor’s son by a previous
marriage. Gore, Junior, is reported by
police to have confessed the crime.
NE hundred dollars reward was
posted and detectives were assigned
to clear up the mystery of the fatal
stabbing of a dog in Brooklyn, New
York. The dog, known as Clown, was
the mascot of Fire Engine Company
No. 283 in the Brownsville section and
was a favorite pet of children.
The courage of two husky mail
clerks, Guy O’Hern and Earl C. Booth-
man, saved a $75,000 Army payroll
from a robber band in central Illinois.
The robbers, Jesse James style, board-
ed the train near Onarga, eighty miles
south of Chicago, worked their way
to the mail coach and slugged one of
the clerks, held guns on the others.
But the clerks responded by shooting.
One robber was wounded and cap-
tured, the other leaped from the train
and escaped in an accomplice’s car
that had been following the train on
a parallel highway.
DETECTIVE STORIES, October, 1939
Jesse James, 1939 style: A would-
be mail-train robber is carried
from the baggage car after he and
his companions were vanquished
George W. Gore, Junior: He re-
sented his father’s second mar-
riage to a much younger woman
Mrs. Nancy Gore: In the dark a
mysterious intruder could see well
enough to wound her five times
Jack Russell: His wife had good
reason to fear when he telephoned
that he planned to pay her a call
35
(California (Riverside County) on Feb, 16, 19:0.
aire dares gi mecatey ; terwew
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participating: “dn. the: program, .and
‘county:
gating, Savoia “3082 chil-
pales fom nod coutity. re-
} ports *34: schools and 322 children,
while Sy ert carb does Ret take
Los, Angeles Scounty~ taker the
fend, with. ich schools, and ‘39,626
AAD, *
ae Prancieca county ‘is ayer e
H eure ; "8. pace “Es wath 8 echoois and bp
Frien asopher. (23, Quartet, 6:30, Rutty, Chew piesies tak} irt
* Bata payee eis |. ps part.
pebe mele 30, KNX. sare “ey Ba . a)
Wilson, 8. RNewar t Btu ait Security. ore Thy
)uitaon, 7: en News, 7345.4 : KH ar wad
EON res ker, Upper, ¢ Sionriga, Hur ai aie {ress
‘ te pages Y
x FAC_-funrise rade Ae a 5
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Setgeistions-ri i
SO iar its ansae are now
Defendant Bound Over.
On Bad Checks Charge
‘ " Chester Wong Jung, Atresté
city police on a charge of pa
fictitious checks, admitted
dny> allegations “before ‘ Justid
the ‘Peace R: A. Moora yeste
1 aie eNO EER ES i RN Be ek SE
EXTRACTS FROM THE MIN
OF THE BOARD oF SUPERVI i
Tuesday, February 12, 194%.
REGULAR MEETING. OF t
BOARD. ALE, MEMBERS PRES
Minutes of ‘ast: regdlar ™*
read. and appreved.
presented ene
Equalization. aces ptea
Ke Applitations “ter. 2727)
granted
Purchasing Agent
Supt; -asuthork tw
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, bers of ‘the Rivers'de Library
| echogl class’ By. Miss: Elien Spafter,
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ined | ott aout! ‘ment: of Dawson's, biok shop in Los b.
Angeles, ° “Miss Shaffer delivered’
;|-the last ‘ot ‘tive dectures to the class
; this. morning a perare Books ant?
= : {| Book Sévers.? fee
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ye 2 ed--py'} trony: foo seseaee was sponorted. Sa ts nage eae ries keel \Woman Fined $2):
ces BES fa witgls i x and Tutere-"woric coutlings, Finan:
mn <7 : veri . Anant? twee: oy poient algahien. Althoye’p. eichick: tailed: lor: Drunkenness
2 ag Pewnpeetet oe cces ty mt that
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) atreet, arrested on Charge?
reese aed soa 28; panes San uentin or, County) ieee ees
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yesterday. morning. ' DI Bod Pe m Sn ant AROSE ~ Ta local plumber, «few. minutes before
M4 The machine was turning. the ‘corner "BAN iGouaertm ag. tb ineheisshe moon yesterday on Sighth street, break-
| at the right side of the street, when the | Words of the sons,’ (wSuat: Break <.the | ing ihe one Detwend the knee and. the
bahy; suddenly. ran out’ from‘ ‘the. eide- | News to, Mother,” on.bis lips, Ba wil-{hip.. «| Rohe
at walk directly. in front. Hays .wes cross-. Hams,’ nelf-confessed: slayer of Ines} The heavy: fwheel. ‘ala: not erush ‘the
ata ing thevstreet_ and) saw: ‘the child quick Brooks: and” Mrs. ‘Joby: Mulinge ‘et| bone and the leg’ wan set by Dr. D..H.
‘« {enough ‘to.:pick it’ up ‘and ‘remove. it | Mo 1. ctober,, walke Moulton 4,’ ‘few, minutes; later.» «<->:
4 trom: danger: The® auto’ came“within | gaHows in Sam: Quent i, prim mt “The lad war’ riding onthe | big- truck
two fost of the baby-beture.it was ree norning § sig ject’ for: hia’ creme”b dd ta ohaat eee ‘told: by: Driver J.
ty th ISS erent a * (phar ce Rare ban aS Taare a ‘Clark to sit: down if be wanted to ride.
atte chivsing thd little. tot. to ‘the < At: he march: fro Myientiy’ thé boy did not keep’ hia beat
sidewall, Hays, attempted. to’ find its death’ “call ter the gallows began.. wits janhd either “tried to jamp:from tie wag-
parents: and.finally. nucceeded in doing |iiams walked: between, two gurds and ‘an: between ‘the » ‘aide stakes; or ‘vas
}s0 in youtmey pire a helt ppog scaled,’ untaltertngty; ‘the ‘Bigh steps to playing), between phe. stakes and fell
bee esd the: scaffold. as ine ae #] off. The first: ‘that Clark knew of the ac-
He said nothing until ‘a prlest stig! cident was,-when' he ‘heard ‘the’ cries,
*. | ped to bis’side andradmilitetered a laat | ooked, back ‘and. ‘aw the boy in the
o>) blessing: Then: Willlamepumbied, ‘def roadway. “after “the wheel shed passed
' | & feeble roles, This is the dest. J ai} over Bim.3 es
worry.” ‘hn instant: aster’ the: trap waa} © Lorenzo. Barham, owner ee bi eal:
sprung: The® pripoti: “p physician " pre-. ou, was” present. when the bones ‘were
nounced: Williams: dead: at 10:50 o'clock | set and assisted Dr. Moulton. He says
‘and the body was taken down, placed in that the little boy> showed; unusual
@ prison: -cofttn: and ‘ald to ke sthe nerve, refusing to take an. anaesthetTe
prison cemetery... Ree, ee ee a@nd ‘standing: the pain’ with fortitude:
Until Wednesday, WWittisine baa hoes The injured: boy is now. at his home at
Camp No. 136, nog eee of the World, ed. tor. another | “Teprieve that would 907 Olive, street.” } a: ‘, Aue uns
; me Fels " Has ane ap Jae ae ‘adn prolong. his. life; but yesterday-he
realized
‘ophiesdeborktions pester of sprays atti oer ee aavrovulces FUNER, AL OF J v
of green: holly and red berriek: “The Sec-
“Fond Infantry band, played, for: sixteen asked Wardelt Hoyle.if he: could ‘have.
Autumn, leaves some muate: ‘and for three: hours. anomts. TODAY
Neha ae ances and two extras: . - ke 4
th charming - vy +
} aoantiiys Mey hx Neil: MeGuire, cliatimann be the'exec- S besa 01 teins ty ahh: bs nie gar re te brie sae Ante ae
e affair and. the. utive: ‘Committee, acted. gs floor” ‘man- | F instra + Played: in: front..0 ; Se CGE he et ae ee
‘the Indian, Halt-hroed sé celtic: 1 Sos
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lodge ‘degree, te wee pee pres the News\to:Mothey was ‘played ovar ichardson will de. held. at; 2 o'clock
this afternoon from: the tamily, rest-
and over ‘again til. ‘the: not rang. in
Su his tenne rye So? ‘arose preg daa dence at. 810: Third ‘street.. Rev. ‘Thos.
* apne began’ ‘immediately: ‘to hum the tune |: W. -Ringland) will “ofctate. ” Mrs, ;
Frank Eitiatt: will singe...
and: even.after h ascen to the scat-
5 ipod. The pall: bearers will be Henry Haile,
- fort the few. spectators’ who ‘were pres- .
$500 CASH BALL) ‘ent to witness the executton eonid. dis F. W. Miler, T.-H. Barnard, G, B. Vad-
eérn a. faint! movement’ of; the Indiana} "<Y: + 'Buirieyvand: C, “L. Stilson,
lips ‘a mute! evidence ¥ that he dled with | Burial wilh bein Chico cemetery. Bae
ee 2» b Wescutvuscnedt ‘Blur: youth’ the song on. his ipa. oe be oO. J.' Richardson, ‘a brother of the
been’ bound: over to. the, Su-|" : alas” BYES vt deceaued, arrived’ here | Wednesday
a herior * ‘Court ona, “charge of contribut~| 904 666 ne deg nnnneceneeeeooe | irom, Centerville, Iowa, on (receipt of
ing to the delinquency of a mfabr cnila; Ra ae theo ge Re oa RR the: pews ‘that, his brother was Stine
pwas: peceryd yesterday, ‘on! "depositing i cae esy pl
as loc ee peg ubeiep yn taco Ss ‘POULTRY CONTESTS
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FROM:. CHICO ENTERPRISE-RECORD.
Se 1g amento
ByS tanton
Bee Y staff Writer CA B eZee
Barring some last-minute court
order, this morning’s sunrise was
the last one for 48-year-old Keith
Daniel Williams.
Williams, who has been on San
Quentin’s death row since being
convicted in the 1978 triple slay-
ing of three Mexican nationals
near Merced, is scheduled to die
by lethal injection one minute af-
ter midnight tonight.
On Wednesday, a federal judge
told state corrections officials to
make more of the procedure visi-
ble to witnesses, including the me-
dia. The ruling stemmed from
complaints that the state’s only
previous lethal injection execution
on Feb. 23 was conducted under
tight secrecy. Witnesses and re-
porters were not permitted to see
the condemned inmate, William
George Bonin, walked into the
chamber or attached to the execu-
tion device.
Instead, all witnesses saw was
Bonin lying on a gurney with his
eyes closed. Other than slight
rises of his chest, he never moved.
Prison officials didn’t divulge un-
til after his death that they had
experienced difficulty in getting
an intravenous line into his arm.
U.S. District Judge Vaughn
Walker ruled that the tradition of
public attendance at executions
established a limited right under
the First Amendment to observe
the execution process.
The judge’s ruling could be criti-
cal because court documents show
that Williams was a drug abuser.
Heavy users of intravenous nar-
cotics often have damaged their
veins to the extent that prison of-
ficials experience difficulties in
administering lethal injections.
With his court appeals running
out and his plea for clemency re-
jected by Gov. Pete Wilson, Wil-
liams is expected to be walked in-
to San Quentin’s gas chamber
some time after 11 o’clock tonight,
strapped to a special gurney and
hooked up to intravenous needles
in both arms.
A minute after midnight, he is
scheduled to be killed with a se-
ries of drug injections that will
heavily sedate him, then shut
down his respiratory system and,
finally, stop his heart.
Unless some problem develops,
the entire injection process will
take less than two minutes and
will result in California’s second
lethal injection execution.
Death penalty supporters from
Wilson on down say the scheduled
execution is simply the meting out
of long-delayed justice in the case,
: which began in October 1978 with
the slayings of Miguel Vargas, 29,
Salvador Vargas, 43, and Lourdes
Meza, 25, near Merced.
“The time for excuses is over,”
Wilson said a week ago in denying
’ Williams clemency.
But with the state’s first lethal
injection execution of Bonin still
fresh in the minds of many Cali-
fornians, death penalty opponents
worry that a second use of capital
punishment in such a short time
span may signal a new era in Cali-
| fornia justice, one in which execu-
tions come much more frequently
| than in the past.
“There is a trend toward having
more executions,” said Lance
Lindsay, executive director of
Death Penalty Focus, a Bay Area
group opposed to capital punish-
ment. “There’s a very dynamic
conservative political culture
that’s afoot. It’s an election year
and being tough on crime seems to
be a ploy for some people to get
elected,”
Lindsiy added that in meetings
with similar groups in other
states — primarily Texas, where
executions have become routine —
concerns are expressed that Cali-
fornia is making executions more
frequent and therefore almost
commonplace in the minds of the
public.
“They feel that California is
having the same kind of progress
— geen =
in trying to make executions more
ordinary and palatable,” he said.
But state officials reject such
notions, pointing out that many
polls consistently show 80 percent
of those questioned support the
‘ death penalty. And they note that
the fact that the Bonin and Wil-
liams executions are scheduled so
close together is simply a coinci-
=
peals by both men’s lawyers.
~ dence resultirig from years of ap-
“It doesn’t look like we will have
any more executions for at least
six to eight months and perhaps
not until next year, so it’s not like
we've opened the floodgates at
this time,” said Steve Telliano, a
spokesman for Attorney General
Man Lungren.
<<
1 “tneey says anti-death penalty y
protesters will be present outside |
the gates of the prison today and’
through the night, a common oe:
curence during executions. ata!
And state officials from the gov:
ernor’s and attorney general’s ‘of:
fices, including Lungren himself;
will be present inside to stave off
any last-minute court appeals. | +;
ss
Vgt
nanan a —
J udg ¥¢ tells state to show more of execution
Execution: N
Continued from A-1
to stay Williams’ execution. Wil-
liams’ attorneys say they will ap-
peal.
Williams confessed to mur-
dering, execution style, Miguel
Vargas, 29, and his cousin, Sal-
vador Vargas, 40, on Oct. 8, 1979.
Williams then took Lourdes Meza
to a nearby field in Merced
County, and shot her four times.
Records show he later -bragged
about raping the woman as she
was dying.
Some death penalty experts are
calling Williams ‘the first of the
rest.”’ California’s pace of execu-
tions will likely never match that
of Texas, which has béen exec-
uting an average of two prisoners
a month and has done so to more
than 100 men since the U.S. Su-
preme Court removed its objection
to the death penalty in 1976, ex-
perts say. But the mechanism is in
place to rival it, which worries
death penalty opponents who say
executions, once rare, could be-
come as commonplace as a full
moon.
Lance Lindsey, executive di-
rector of Death Penalty Focus of
California, says the state is pro-
jected to execute more prisoners
than any other state in the next
few years. Each of the four execu-
tions since 1992 has prompted
new people to join Lindsey’s anti-
execution group. But he worries
about complacency and accep-
tance by the majority of the
public.
Other death penalty opponents
agree. .
“Unfortunately, we are faced
with a blood bath,” said Laura
Magnani, program director for the
American Friends Service Com-
mittee and member of the
Northern California Coalition. to
Abolish the Death Penalty. —
“There is less and less in-
terest,’’ she said. “People are
going to start to treat it as busi-
ew, rules limit
FROM STAFF REPORTS
SAN FRANCISCO — Wit-
nesses to the Friday’s sched-
uled execution of: triple
‘murderer Daniel Williams will
see the process from the mo-
ment an intravenous tube is in-
serted into his arm until he is
pronounced dead, a_ federal
judge ruled Wednesday.
U.S. District Judge Vaughn
Walker issued his order after a
one-hour hearing. But Walker
Said his ruling won’t take effect
until today to give government
attorneys a chance to file their
appeal.
Walker was ruling on a law-
suit brought by the American
ness as usual.”’
.In the past two weeks, new
rules about death penalty cases
have been adopted. They are al-
ready being challenged by several
California attorneys.
Before President Clinton put
the law into effect with his signa-
ture, convicted murderers facing
the death penalty could appeal an
unlimited number of times on dif-
ferent grounds.
But now there are limits to how
many “‘bites of the apple” a con-
demned prisoner gets and how
long a federal judge can take to
make a ruling.
A death row inmate now has a
year to begin filing appeals. Be-
- fore, there were no time limits.
Under the new rules, prisoners
can make one :appeal to a state
court. If they lose, they get just
one appeal to a federal court. The
changes mean there will no longer
be situations like Robert Alton
Harris, whose execution was
stayed four times before the U.S..
Supreme Court ordered a halt to
dae lifte = ; :
Judge lifts execution curtain
eee —
- S-2-%
Civil Liberties Union of
Northern California, which said
witnesses to the Feb. 23 execu-
tion of William Bonin by lethal
injection were blocked from
seeing most of the process.
Witnesses complained that
state.executioners drew a cur-
tain around Bonin so they could
not see the needle inserted. In-
stead, all they could see was
Bonin’s lifeless body, strapped
to a gurney with intravenous
tubes already inserted into his
arm
Walker ruled that practice
violated the public’s right to
know and ordered the curtain
open during the execution.
appeals.
State authorities say each of the
state’s death row inmates will be
affected by the new rules. About a
third of the 430 death row inmates
are already in the federal appeals
process,
“We are not going to see any
more of those situations where a
case can sit on a judge’s desk for
three or four years without ac-
tion,” said Steve Telliano, a
spokesman for state Attorney Gen-
eral Dan Lungren. “We'll no
longer see inmates dragging out
the filing process. This will accele-
rate the timetable.”
But death penalty opponents
say the rules will lead to more
cases like that of Williams, whose
execution is scheduled amid ques-
tions about whether he should
have been sentenced to die.
Just 16 days before his sched-
uled execution, 595 pages of med-
ical records were released by the
state. They detail a lifelong mental
illness that jurors who sentenced
him to death never heard about.
—_ =
prisoners’ appeals
It took 12 years for his attor-
neys to get the records. Their first
request was answered with 25
pages. When they made another
request, they received nothing.
It was these records that
launched a furious last round of
appeals to federal judges, who
have so far failed to Stay the exe-
cution.
The records show Williams was
on, at different times, 11 medica-
tions to control bi-polar mania and
depression. In prison, he was
taking the psychotropic drug di-
lantin and lithium carbonate.
When he committed himself to
Clairemont Community Hospital in
San Diego in 1976, he was diag-
nosed with ‘temporal lobe ep-
ilepsy.”’
There are also indications Wil-
liams suffers from fetal alcohol
syndrome, brought about by an al-
coholic mother who continued to
drink during her pregnancy. Wil-
_ liams was born three months pre-
mature. He was _ prescribed
phenobarbital when only a few
days old.
The jury also never heard about
his record during his many years
of incarceration on various crimes
Starting when he was 14 years old.
’ He has shown, according to the
records, an ability to adjust and
behave once behind bars. He was
even once elected prisoner of the
month. That, his attorneys argue,
is one of the key elements a jury
can take into account when de-
ciding between the death penalty
or life in prison without parole.
It would have made a differ-
ence, according to Phillip Za-
magne, a juror in Williams’ 1979
trial.
He wrote in a court declaration
that “if we had seen medical re-
cords or doctors’ testimony about
a brain disorder, we would have
been much more likely to consider
the possibility that he was in-
sane.”
SAN FRANCISCO EXAMINER
A-18 Friday, May 3, 1996 *
Curtains open to death on stage
After battling to
view execution,
media call it surreal
By Larry D. Hatfield
and George Raine
OF THE EXAMINER STAFF
SAN QUENTIN — Prison offi-
cials lost an 11th-hour appeal to
veil some of Friday morning’s exe-
cution of Keith Daniel Williams,
but it was arguable whether seeing
more made any difference for wit-
nesses.
“It was surreal,” Nancy Os-
borne, a reporter for KFSN-TV in
Fresno and one of 16 media wit-
nesses, said of watching Williams
die. “It didn’t seem at all as if we
were watching an execution. It
wasn’t clear when it really began or
. when it was really over.”
Media groups had protested af-
ter the Feb. 23 execution of “Free-
way Killer” William Bonin, the
first person in California to be put
to death by lethal injection, be-
cause witnesses were allowed to see
him only after he was lying motion-
less, strapped to a gurney, with
intravenous lines already attached
to his body.
Prison officials said they want-
ed to protect the privacy of staff,
but media spokesmen argued they,
as the public’s representatives, had
a right to view the entire process.
San Quentin officials lost the
legal skirmish Thursday night
when the U.S. Supreme Court re-
fused to overturn a lower court
judge’s order barring officials from
drawing a curtain while the fatal
injections were given.
As a result, this time the media
witnesses, and 34 others, got to see
the whole process, from the inser-
tion of needles to the pronounce-
ment of death.
But reporters who briefed col-
leagues after witnessing Williams’
death were ambivalent about
whether what they saw seemed all
that real.
“It was like an Andrew Lloyd
Webber production,” said Harvey
Levin of KCBS-TV in Los Ange-
les. “There was this eerie green
light. The curtain opens and the
players are on stage.
“It was striking, almost like
morbid theater where we got inside
the viewing area and a curtain was
already drawn and they opened the
curtain almost like it was a show
and we looked at the stage. The
action began and we watched it.”
Osborne, Levin and other re-
porters detailed every little move-
ment Williams made — he lifted
-his head as if looking for someone,
his throat, face and chest made a
single heaving motion, he made a
tapping motion with his right |
hand, needles were inserted in his
right hand and left arm.
Surreal, theatrical and stagelike, |
perhaps, but in the end, quite sud-
denly, and finally, real.
“It was strangely interesting,”
said KGO radio’s Greg Edmonds,
“but you know this is real death.
This guy didn’t get up again.”
THE WASHINGTON Post
A22 Sunpay, Marcu 31, 1996
: Russia Accused of Violating Pledge to End Executions
By David Hoffman ®
Washington Post Foreign Service
MOSCOW—Russia has accelerat-
ed the use of the death penalty by fir-
ing squad despite a commitment to
the Council of Europe that it would
put a moratorium on the practice, ac-
cording to a member of President Bo-
ris Yeltsin's commission on pardons.
Lev Razgon, a writer once impris-
oned by Soviet dictator Joseph Sta-
lin, said in an interview that Russian
authorities are “executing as many
people as possible” and have not put
' a moratorium into effect as called for
by the council when Russia joined it
earlier this year. The Council of Eu-
rope focuses on issues of human
rights, democracy and rule of law.
Razgon said Yeltsin, who permit-
ted executions in few cases between
1991 and 1994, began last year to”
ignore the recommendations from
the commission on pardons that
death sentences be commuted. Yelt-
sin is now sending convicted mur-
derers to face firing squads in great-
er numbers than at any time since
the collapse of the Soviet Union in
: 1991, he said, in an attempt to look
tough on crime and boost his cam-
ready’, to abandon capital punish-
ment, Russia’s chief prosecutor, Yu-
. Ti Skuratov, told reporters that “if:
there were a referendum on the is- '
sue, most people would oppose aboli- |
tion of the death penalty.” But the ‘
pardons commission, angry that exe- |
pain for reelection.
Yeltsin has said Russia is “not
cutions are continuing, recently
stopped considering death penalty
cases altogether, Razgon said.
Russia, which first sought admis-
sion to the Council of Europe in
1992, was accepted as the 39th
member state two months ago in a
vote by the organization’s parlia- ;
' mentary assembly. Nations must
pledge to honor the council’s 1950
European Convention on Human
i Rights, and appeals to the European '
' Court of Human Rights are binding
on meéimber states.
Osi admission, Russia was asked to
to human rights standards, in-
cluding eliminating the death penalty
from its legal code in three years, and
to, impose an immediate moratorium
) on éxeécutions. But it is not clear
what,’'if any, sanctions would result
| for failing to follow through, other
—_
than pressure from the council. A
: spokesman said Russia eventually
; could be expelled, but the council has
' never taken this step.
‘The Council of Europe's decision to
‘ admit Russia, which became the 15th
. former Communist country to be ac-
' cépted since 1990, was viewed here
as a symbolic triumph. Yeltsin hailed
the vote, saying, “Russia cannot be
isolated from Europe.”
: The council had postponed Russia’s |
admission for seven months last year
. b@cause of outrage over Moscow’s
' deployment of troops to the break-
away region of Chechnya. But advo- "
cates of Russia’s membership claimed °
it, was better to embrace the young
Russian democracy than to slam the
door on it. The official report calling
for Russia’s admission said that while
- cil’s standards, “integration is better
than isolation; cooperation is better
than confrontation.”
But the death penalty moratorium
Suggests how difficult it is to bring
about change in Russia from the out-
side. Two weeks ago, Yeltsin de- :
clared the moratorium would not be
implemented “in the near future.”
» At a time of seemingly endless
crime, and numerous murders of
ptominent bankers, businessmen and
journalists, capital punishment is ex- ,
existed throughout the history of the
Soviet Union and is now imposed, af-
ter appeals are exhausted, on those
convicted of premeditated murder,
banditry and rape in aggravated cir-
cumstances.
In March 1991, Yeltsin convened
the pardons commission, composed of
volunteers, to make recommenda-
tions to him on cases of capital pun-
ishment, Razgon said. The panel
‘could recommend that a death sen-
tence bé commuted to life imprison-
ment or less. ’
Razgon, who describes himself as
an opponent of the death penalty, was
appointed with 12 others, including a
priest, writers, a lawyer, a and a
legislator. The ‘effect of the panel's
recommendations was to sharply cur-
tail use of the death penalty. In 1991,
tremely popular among Russians. It | a
+
he said, there were 12 executions and
37 cases commuted; in 1992, five ex-
ecutions and 55 cases commuted; in
1993, four executions and 147 cases
commuted; and in 1994, four execu-
tions and 124 commuted.
But last year, according to Razgon,
the number of executions began to in-
crease sharply—86 people were
killed by firing squad, he said. The
Justice Ministry gave slightly differ-
ent statistics for last year, saying
there were 59 executions, most of
them in the latter half. Only six sen-
tences were commuted last year, the
ministry said.
Razgon said his statistics for this
year are not complete because the
commission has stopped considering
appeals, but he said that 30 people
were executed last month alone.
al
“What is the reason Yeltsin
changed?” Razgon asked. “For three
years, he was quite humane. But now
there is the pressure of the law en-
forcement agencies who say the
crime rate must be brought down.
And the public thinks people must be
shot on the spot. Yeltsin changed at
the end of last year when the question
of crime became all-important.”
Viktor Kogan-Isany, head of the
Right to Life and Human Dignity So-
ciety, an activist group opposed to the
death penalty, said Yeltsin is trying to
make political gains by ignoring the
Council of Europe, sending a message
that “we are not going to have the
West dictate to us the rules,”
“Satisfying this mentality,” he said,
“will bring good points in the election
campaign.”
DAILY OPINION SERVICE
California Supreme Court 2003
there was no error in admitting the evidence of the camper robbery.
The corpus delicti was established independently of Karen’s testi-
mony regarding defendant’s extrajudicial admission. Tyson
described in detail the events at the John Street Park. Although he
was an accomplice, no further corroboration of his testimony was
required since the camper robbery was not a charged offense. (Peo-
ple v. Belton, supra, 23 Cal.3d 516, 523.) The order of proof of the
corpus delicti of an offense is within the discretion of the trial judge.
(§§ 1093, 1094; Evid. Code, § 320; People v. Amaya (1952) 40
Cal.2d 70, 76; People v. Mehaffey (1948) 32 Cal.2d 535, 547-548.)
Although the court here may not have exercised that discretion;
defendant does not suggest, and we do not perceive, a basis on
which to conclude that the admission of Karen’s testimony prior
to that of Tyson was prejudicial. The court’s possible failure to
admit the evidence under this: rationale is irrelevant. When evi-
dence is properly received the basis for the court’s ruling is not
material. (People v. Schader, supra, 71 Cal.2d 761, EE Wilcox v.
Berry (1948) 32 Cal.2d 189, 192:)
Inasmuch as there was no error in admitting evidence of the
camper robbery, defendant’s claim that the evidence should have
been excluded on grounds other than those put forward by counsel
in his objection may be considered only in the context of his claim
that counsel’s failure to object on other grounds demonstrates inef-
fective representation.
Whether counsel afforded constitutionally adequate assistance is
a topic to be discussed separately below. In this context, however,
we find no indicia of incompetence in the failure to object because
the evidence was relevant to motive, and thus to both intent and
identity. The check which appellant used purportedly to pay for the
car purchased from Miguel was one of those stolen in the camper
robbery. One acknowledged purpose for the trip to Miguel’s home
in Merced was to retrieve the check. The logical conclusion is that
defendant feared that he would be identified: as the perpetrator of
the camper robbery if the check were to be negotiated. That the
check was missing when Miguel’s body was discovered is circum-
stantial evidence that appellant was the killer, and that he had the
intent to rob and to kill when he took the check.
The record on appeal does not reveal counsel’s reason for object-
ing only on corpus delicti grounds. However, only if a meritorious
basis for an objection exists does failure to make the objection sug-
gest possible incompetence, and only if admission of the objection-
able evidence is prejudicial does that incompetence warrant
reversal. Manifestly, the failure to make a meritles objection to the
admission of evidence neither affects the outcome of the case nor
demonstrates performance that falls below accepted standards of
professional competence.
The admission of evidence regarding the camper robbery does
not afford a basis for relief under either theory put forward by
defendant. While evidence of the arson is not as probative as that
regarding the robbery and theft, it too was relevant to defendant’s
identity as the killer and motive for killing, since it also demon-
strated defendant’s effort to destroy evidence linking him to the
robbery. We find neither error in the admission of that evidence
nor a basis for holding that counsel failed to afford constitutionally
adequate assistance in failing to object to its admission on the
ground now suggested by defendant.
C. Prior-crimes Evidence
Defendant acknowledges that evidence of his criminal history
was introduced by his own testimony, elicited during direct exami-
nation by his own counsel. It is axiomatic that a party who himself
offers inadmissible evidence is estopped to assert error in regard
thereto. (People v. Moran (1970) 1 Cal.3d 755, 762.) He argues,
however, that counsel presented this evidence only after the trial
court had ruled that the prosecutor would be permitted to offer evi-
dence of prior convictions to rebut the diminished capacity defense
that was to be presented. We infer from his argument that defen-
dant’s basis for urging error in the admission of his own testimony
is that an erroneous preliminary ruling on the admissibility of evi-
dence to be offered by the prosecution compelled him, for tactical
reasons, to present the evidence he now claims was inadmissible.
We need not decide here whether in such circumstances the
requirement that there be a timely and specific objection to the
introduction of evidence to preserve the question of admissibility
for appeal applies (see Evid. Code, § 353, subd. (a); People v.
Green, supra, 27 Cal.3d 1, 21-22), because the pretrial in limine
ruling on admissibility is not binding at trial. (See People v..Campa
(1984) 36 Cal.3d 870, 885-886; People v. Superior Court (Zolnay)
(1975) 15 Cal.3d 729, 735; Saidi-Tabatabai v. Superior Court
(1967) 253 Cal.App.2d 257, 266; People v. Beasley (1967) 250
Cal.App.2d 71, 76-77.) Just as a trial court, ruling on use of priors
to impeach, “ is in no position to make an informed determination
prior to hearing the People’s evidence” (People v. Delgado (1973)
32 Cal.App.3d 242, 252), here, where the People indicated an
intent to offer evidence of prior criminal conduct to rebut appel-
lant’s diminished capacity defense by demonstrating his mental
capacity during prior crimes, the trial court could not make an
informed decision at a time when it had heard none of the evi-
dence.
Contrary to appellant’s claim that the court had ruled this evi;
dence was admissible, the court in fact properly declined to rule.®
Neither the record on appeal, nor the habeas corpus record sup-
ports a conclusion that defendant’s counsel introduced the evi-
dence of prior criminal conduct only because he believed that this
was tactically preferable to having it come in on rebuttal or through
cross-examination of defendant. The record on appeal is suscepti-
ble of a conclusion that the evidence was offered as part of the
diminished capacity defense to show that the charged offenses like
those in the past were the product of brain damage, and that coun-
sel made a tactical decision not to oppose introduction by the Peo-
ple of evidence regarding his past criminal conduct. That inference
is confirmed by counsel’s declaration, submitted as evidence in the
habeas corpus proceeding that he introduced evidence of defen-
dant’s past criminal conduct because he believed the evidence was
relevant to the diminished capacity defense he intended to offer.
Since there was no trial court ruling on admissibility of the priors
and the record refutes the claim that defendant offered the evidence
of his criminal history only out of necessity after doing all he could
to prevent the error he now claims was anticipated, he is estopped
to urge such error. (Cf. Warner Constr. Corp. v. City of Los Angeles
(1970) 2 Cal.3d 285, 299-300, fn. 17 [no waiver or estoppel if objec-
tion overruled and party introduced evidence to’ overcome: case
made by opponent].)
Defendant’s further argument that the court erroneously admit-
ted evidence of an uncharged offense, i.e., his escape from custody
in a halfway house, is also answered shortly. He failed to object
when the prosecutor elicited this evidence during
cross-examination of defendant. Although counsel states in his dec-
laration that he has no recall of this evidence, this failure to object,
too, is consistent with counsel’s apparent tactical decision to bring
or let in evidence of this type. The admission of the evidence was
not, in any event, prejudicial.
D. Lay-opinion Testimony
Defendant also urges error in the admission, over his objection
that the witnesses had not been qualified as experts, of testimony
8The question arose after the prosecutor had presented the People’s
case-in-chief, during defendant’s opening statement, when defense counsel indi-
cated that he would present evidence of diminished capacity, and stated that
defendant’s mother would describe his childhood illnesses. Out of the presence
of the jury the prosecutor objected that such evidence would not be relevant at
the guilt phase. Defendant’s counsel explained that his evidence would show that
defendant had suffered two serious head injuries; had a “diagnosed condition of
epilepsy”; had a history of extensive use of alcohol and drugs; and had been hospi-
talized in a mental institution. He explained that the childhood diseases may have
caused a present mental defect.
The prosecutor, in response, stated that if evidence of accidents at age 16 were
relevant, “I suppose [it] would be relevant for us to bring in the fact that defendant
was charged with and convicted [of] about six crimes after that and was in and
out of the federal prison system as well as the California Youth Authority and
never found to be epileptic nor was he ever found to have been mentally insane
or treated for insanity.” In this context, which did not involve a present ruling
on the admissibility of such evidence, the court stated only: “Unfortunately that
may be relevant if the evidence comes in originally . . . .” (Emphasis added.) At
the conclusion of the discussion in chambers, after overruling the People’s objec-
tion to the nature of the argument, the judge expressed his intent to consider
objections to specific items of evidence when offered: “. . . We'll do the best we
can do and we’ll rule as we need to with regard to the specific evidence.”
2002 California Supreme Court
ae
#
CALIFORNIA
Under the People’s theory the Judd thefts marked the beginning
~of a crime spree that included the camper robbery and culminated
in the murders. They suggest that evidence of defendant’s need for.
money and the series of acts designed to obtain money, including
the Judd:theft and the camper robbery, demonstrated that the
defendant’s drug and alcohol intoxication did not affect his ability
to engage in purposeful conduct—that is, if he was mad there was
method to his madness. Alternatively they suggest that the evi-
dence was admissible to show a common scheme or plan, arguing
that as evidence of a larger plan of which these offenses were part
it was unnecessary to show that the offenses were similar.
Without question defendant’s mental state was in issue during
this trial. He was charged with murder in which malice is an ele-
ment. (§§ 187, 188.) The information alleged that the murder was
of the first degree in that it was willful, deliberate, premeditated,
and that it was committed with express malice, i.e., that an express
intent to kill was present. (§ 188.) Each of these specific mental
states is an element of the offense on which the People bear the bur-
den of proof beyond a reasonable doubt. (§ 1096; Mullaney v. Wil-
bur (1975) 421 U.S. 684; In re Winship (1970) 397 U.S. 358; People
v. Montalvo, supra, 4 Cal.3d 328, 333.) In addition it was alleged
that the murders had been committed during the commission of
a robbery, and that the Meza murder had also been committed dur-
ing a rape and kidnapping. The elements of robbery include a spe-
cific mental state—the intent to deprive another of his property
(People v. Green, supra, 27 Cal.3d 1, 54; People v. Butler (1967)
65 Cal.2d 569, 572-573)—while any of these special circumstances
could be satisfied by evidence that the murders were intentional
and occurred during an attempt to commit those offenses. The spe-
cific intent to commit the target offense is an element of an attempt.
(People v. Martinez (1980) 105 Cal.App.3d 938, 942.) To meet
their burden of proof it was necessary that the People introduce evi-
dence of all of these specific mental elements of the charged
offenses and special circumstances.:Not only were these elements
in issue by virtue of the charges, but it was clear that the People
knew that defendant contemplated a diminished capacity defense
based on mental defect or deficiency, and drug and alcohol intoxi-
cation, any of which could negate the specific mental elements of
the charged offenses and special circumstances.
’ However, no evidence was offered to suggest that defendant had
ingested drugs and/or alcohol at the time of the Judd thefts, or that
if he had used such substances at those times, the amount was simi-
lar to the amount ingested in the hours prior to the charged
offenses. Thus, if the proposed basis for admissibility was to dem-
onstrate that defendant’s tolerance to drugs was so high that his
capacity to achieve the specific mental states that were elements of
the charged offenses would not have been affected by his ingestion
of large quantities of alcohol and drugs at the time they were com-.
mitted, the argument fails. There was simply no evidence that
defendant’s mental state was the same at the time he committed
the theft as it was at the time the murders were committed, or that
if it was the same, it was so notwithstanding the ingestion of similar
quantities of drugs and alcohol at both times. The probative value
of the evidence was minimal and was clearly outweighed by its
potential prejudicial effect.
The conclusion does not differ if a common scheme or plan 1s
offered as the basis for admission of the Judd thefts. It is not enough
to identify an admissible purpose such as common plan or scheme
as the People now do. They must also show that such a plan actually
of the offense and avoid a directed verdict. (See § 1118.1.) The defendant may
not, of course, be required to alert either the court or the prosecutor to the
defenses he intends to raise or any issue that may be in doubt. (See People v. Col-
lie, supra, 30 Cal.3d 43; People v. Belton (1979) 23 Cal.3d 516.) In order to meet
their burden of proof the People must be permitted, when necessary, to introduce
otherwise admissible evidence of uncharged crimes. (People v. Alcala (1984) 36
Cal.3d 604, 631; People v. Montalvo (1971) 4 Cal.3d 328, 331-332.) In this case,
for example, had there been no other evidence of the identity of the perpetrator
of the murders, and had the stolen Beretta been shown to be the murder weapon,
evidence of the theft might have been sufficiently relevant on the issue of identity
since the theft by defendant permitted an inference that he was still in possession
of the gun on the date of the murders only a week later. (See People v. Thompson,
supra, 27 Cal.3d 303, 318; People v. Schader, supra, 71 Cal.2d 761, 774-775.)
existed, that the uncharged offense was a part thereof (People v.
Tassell, supra, 36 Cal.3d 77, 84), that the evidence of the uncharged
offense is not cumulative, and that the evidence is sufficiently pro-
bative to outweigh its prejudicial effect. (People v. Alcala, supra,
36 Cal.3d 604, 631-632; People v. Thompson, supra, 27 Cal.3d
303, 318; People v. Guerrero (1976) 16 Cal.3d 719, 724; People v.
Schader, supra, 71 Cal.2d 761, 774-775.)
The evidence does not support a conclusion that defendant was
engaged in a series of offenses that were part and parcel of “a single
conception or plot,” or “grand design.” (People v. Tassell, supra,
36 Cal.3d at p. 84.) It establishes nothing more than a series of ran-
dom crimes directed against targets of opportunity and committed
whenever financial necessity dictated. Furthermore, even were the
Judd theft part of a larger planned course of criminal conduct, this
common scheme evidence is not shown to have been relevant to
an issue in the case. The ability to “engage in purposeful conduct,”
the issue to which the People srgue the evidence was relevant, was
not an issue in the People’s case-in-chief. Such an ability could not
establish any of the mental elements of the crimes and/or special
circumstances charged in the information. The ability to engage in
“purposeful conduct” would be relevant only to rebut a defense of
drug- or alcohol-induced unconsciousness. (See People v. Conley
(1966) 64 Cal.2d 310, 323-324.) The People may not in their
case-in-chief anticipate fanciful defenses in order to create.an issue
as a basis for introduction of highly prejudicial evidence of
uncharged offenses. (People v. Schader, supra, 71 Cal.2d 761,
775-776, fn. 13.)
Because we shall conclude that the evidence of the camper rob-
bery and arson was admissible, however, and because the other evi-
dence of guilt was overwhelming, we are satisfied that the erroneous
admission of evidence regarding the Judd theft was not prejudicial.
B. The Camper Robbery/Arson
Although appellant now argues that evidence of the camper rob-
bery was not relevant to any issue in the case, he did not object to
admission on this ground. The People introduced the evidence
through the testimony of Karen Tyson to whom appellant had
described the incident in explaining to her how he and Robert
Tyson had obtained the camper which they brought to her home.
The only defense objection to admission of evidence regarding
the theft of the camper was to the testimony by Karen Tyson that
defendant had admitted his participation to her. The objection was
based on the absence of evidence other than defendant’s
out-of-court statement to establish the corpus delicti of that
offense. The evidence was offered by the People to show defen-
dant’s state of mind, intent, and motive when the homicides were
committed, or alternatively to prove identity of the killer by show-
ing a common scheme or plan.
The trial court overruled the objection before the witness was
permitted to answer but gave cautionary instructions. These
instructions advised the jury that although the evidence to be
received might show that defendant had committed a crime other
than that for which he was on trial, it must not be used to prove
he had a bad character or disposition to commit crimes. The court
also explained the limited purpose of showing the identity of the
person who committed the charged crimes, the intent which was
an element of those crimes, and a characteristic method, plan, or
scheme in committing the charged offenses. —
The People’s theories of admissibility of evidence of the Judd
and camper offenses were, first, that they, and the homicides were
all committed during a crime “spree” with the intent to steal and
had a common motive to obtain money because defendant and
Tyson were unemployed, had no source of income and were with-
out funds, and, second, that the evidence was relevant to defen-
dant’s intent in killing Salvador, Miguel and Lourdes. The evidence
would show both an intent to commit robbery and that notwith-
standing the anticipated defense of drug and alcohol intoxication
defendant was capable of having the intent to steal and/or to kill,
as well as harboring malice, and could premeditate and deliberate.
The People now concede that the corpus delicti rule is applicable
to evidence of uncharged crimes introduced to prove the commis-
sion of those crimes. (People v. Robertson (1982) 33 Cal.3d 21, 41.)
We agree, however, that the corpus delicti rule was satisfied and
saab
te
Porn|
2004
California Supreme Court
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CALIFORNIA
by Ron Hauser, a detective, who returned defendant to Merced
from Arizona in 1978, and Charles Visher, a correctional officer,
who was then the manager of the Merced County jail, that in their
opinion defendant was not “strung out” when they observed him.?
Although lay opinion with regard to alcohol-induced intoxica-
tion and sobriety has been held to be admissible if “rationally based
on the perception of the witness” (Evid. Code, § 800, subd. (a); Peo-
ple v. Garcia (1972) 27 Cal.App.3d 639, 643; In re Joseph G. (1970)
7 Cal.App.3d 695, 703), the admissibility of opinion as to
drug-induced intoxication appears never to have beer considered
by this court. Defendant offers no basis upon which to distinguish
evidence of drug-induced intoxication, however, and the Court of
Appeal has held that if sufficient foundation is laid, lay opinion tes-
timony that a person is under the influence of narcotics is admissi-
ble. (People v. Moore (1945) 70 Cal.App.2d 158, 165; see also
People v. Newberry (1962) 204 Cal.App.2d 4, 9 [point waived by
failure to object, but “[i]t is doubtful whether testimony that a per-
son is under the influence of a narcotic requires expert qualifica-
tions on the part of the witness”].)
People v. Nunn (1956) 46 Cal.2d 460, 466-467, on which defen-
‘ dant relies is not contrary. In that case we held that the court prop-
erly admitted opinion testimony of a police officer experienced in
interviewing addicts on whether more addiction resulted from use
ofpain medication or from criminal association. We noted that the
officer had qualified as an expert since he had knowledge of the
causes of addiction not possessed by the average man. No issue was
before the court with respect to lay opinion regarding drug intoxica-
tion or withdrawal, subjects with which the average man has some
knowledge particularly as to the outward manifestations. of these
conditions. People v. Cruz (1968) 260 Cal.App.2d 55, 59, on which
defendant also relies, involved identification of narcotic sub-
stances, a very different subject.
Lay opinion testimony is admissible where no particular scien-
tific knowledge is required, or as “a matter of practical necessity
when the matters . . . observed are too complex or too subtle to
‘enable [the witness] accurately to convey them to court or jury in
any other manner.” (Manney v. Housing Authority (1947) 79
Cal.App.2d 453, 459; see also People v. Ravey (1954) 122
Cal.App.2d 699, 703; Eger v. May Department Stores (1953) 120
Cal.App.2d 554, 558.) The manifestation of drug intoxication and
withdrawal are no less subtle than those of alcohol intoxication,
and, unfortunately may be sufficiently common today that lay per-
sons are capable of recognizing them. The courts of several states
have so concluded. (See collected cases in Annot. (1983) 21
A.L.R.4th 905.) Reasoning that a layman who had himself ingested
LSD in the company of defendant and had observed its effects had
special knowledge, the Wisconsin Supreme Court held that he
could offer his opinion that tablets consumed by defendant were
LSD. The witness’s lack of scientific training went only to the
weight of the evidence, not admissibility. (State v. Johnson (1972)
54 Wis.2d 561 [196 N.W.2d 717].) Relying on Johnson, the Appel-
late Court of Illinois, in People v. Davis (1972) 6 Ill. App.3d 622
[286 N.E.2d 8], held that with proper foundation the opinion testi-
mony of a lay witness that defendant was under the influence of
drugs would be admissible.
Here, however, no “opinion” was offered by the witnesses. The
objection was to Detective Hauser’s “lack of qualification as an
expert” and to the imprecision of the term “strung out.” This objec-
tion was made after a foundation had been laid by ascertaining that
in his work he had encountered persons who were “strung out.”
Although the court overruled the objection and the court acknowl-
edged that, “I don’t know if we know what anybody knows by the
term,” the subsequent questions were directed to, and the testi-
mony was about Detective Hauser’s specific observations. He testi-
fied that he did not see defendant sick, nauseated, shaking or
trembling or sweating excessively, and that defendant did not com-
plain of pain or discomfort.
Strung out” is defined variously as: “1: physically debilitated (as from long
term drug addiction) 2: addicted to a drug 3: intoxicated or stupefied from drug
use.” (Webster's Ninth New Collegiate Dict. (1984) p. 1170.) This source notes
the first known use of the term as circa 1959.
Charles Visher, the jail manager, testified that he, too, was famil-
iar with the condition of inmates who were “strung out,” and that
he had not noticed anything that indicated to him that defendant
was “strung out.” In response to defendant’s objection and motion
to strike on grounds of lack of qualification and foundation the
court ruled that the witness should define the term as he understood
it. Visher explained that the reference was to an inmate who
reflected “lack of sleep, nervousness, generally not in control. of
himself” which he attributed to drug usage. This witness also testi-
fied that defendant had not complained to him of nausea, vomiting,
pain or discomfort, and did not appear to be perspiring or sweating
excessively.
Defendant acknowledges that these witnesses testified regarding
their observations, but argues that admitting the testimony allowed
the prosecutor to give his own definition to the term “strung out”
using symptomatology of heroin withdrawal that lacked validity.
Any misconception in this regard could and should have been
brought out on cross-examination. It must be recalled, also, that
the evidence of drug usage offered by defendant was not limited to
heroin, but included a wide spectrum of drugs, many of which are
considered addictive.!° Defendant’s own medical expert had testi-
fied about an interview with defendant in which, after defendant
described the drugs he had been using, defendant implied that at
the time the offenses were committed he was “strung out” on drugs.
Inasmuch as this witness used that term twice during his testimony,
and the rebuttal testimony to which defendant objected was by the
next two witnesses, any issue with regard to the imprecision of the
term, or prejudice from lack of definition appears to have been
waived. :
2. Adequacy of Counsel
Defendant next pursues the claim that he did not receive consti-
tutionally adequate representation by counsel at the guilt phase of
the trial. In further support of this claim he asserts that counsel
failed to investigate the facts underlying defendant’s diminished
capacity defense by obtaining relevant records, and did not by
means of a motion pursuant to section 987.9 seek public funds with
which to retain an investigator, a psychiatrist, or a
psychopharmacologist.!? He claims also that counsel failed to seek
suppression of his confession on grounds that it was obtained in
violation of Miranda v. Arizona (1966) 384 U.S. 436; did not
attempt to exclude the testimony of Tyson and Karen on grounds
that they had been discovered through illegal police procedures,
and as noted earlier did not object to admission of evidence of
defendant’s criminal record.
The omissions identified by defendant do not singly or together
establish a basis for relief on the appellate record.'* Therefore, this
claim will be addressed in the context of defendant’s identical
claim in his habeas corpus application.
A. Failure to Investigate
Defendant claims that although counsel had outlined a dimin-
ished capacity defense to be supported by evidence of head injuries
suffered during two accidents, hospitalization in a mental institu-
tion, drug abuse, and diagnosis as an epileptic, he did not investi-
gate the “factual underpinnings” of this defense. He asserts that
defendant was examined only by the two physicians appointed to
render opinions regarding defendant’s competence to stand trial,
sanity, and diminished capacity; that during pretrial motions coun-
sel stated that there were medical records in addition to those
10: testified that after returning to Corning in September 1978 he “started”
using “speed and heroin and some barbituates, valium and,. .. weed.” He was
also drinking, and used liquid morphine.
11 section 987.9 permits the trial court to grant funds to counsel for an indigent
capital defendant for payment of the expense of necessary ancillary services. (See
Keenan v. Superior Court (1982) 31 Cal.3d 424.) The record confirms that defen-
dant’s appointed counsel was under contract as a public defender, and, inferen-
tially, that defendant was indigent and qualified for such services.
12The scope of an appeal is, of course, limited to the record of the proceedings
below. (§§ 1246, 1259; People v. Szeto (1981) 29 Cal.3d 20, 35.) An appellant who
claims to have been denied constitutionally adequate assistance of counsel and
relies on evidence outside the record may seek relief on this basis through a collat-
eral attack on the judgment by petition for writ of habeas corpus. (See People v.
Pope, supra, 23 Cal.3d 412, 426.)
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DAILY OPINION SERVICE
“filed” by those experts that counsel wanted to obtain, and that
none of these records was obtained.
The record on appeal does not establish, however, that defendant
was not examined by any other expert, or that counsel failed to
obtain relevant records, or that had either of these steps been taken
evidence favorable to the defense would, or even might, have been
made available. This claim must be considered only as one properly
raised in the habeas corpus proceeding.
B. Failure to Suppress Confession
Defendant was arrested in Arizona in the early morning hours
of November 24, 1978, on teletyped all points bulletins regarding
the warrants for his arrest sent by Merced officials. Arizona officers
immediately notified the Merced County Sheriff's office and Dep-
uty John Harris went to Kingman, Arizona, the same day, arriving
between 10 p.m. and midnight. Harris interviewed defendant and
taped his 20- to 25-minute statement describing the offenses.
Before doing so he advised defendant of his rights pursuant to
Miranda v. Arizona, supra, 384 U.S. 436. Defendant acknowledged
his understanding of those rights and agreed to talk to Deputy Har-
ris. Also present were Detective Hauser and two Mojave County
officers. Harris had been told by one of those officers, Sergeant Burt,
that prior to Harris’s arrival “they” had taped an earlier conversa-
tion.
Defendant’s trial counsel objected to admission of evidence of
the taped statement made to Harris without proper foundation and
evidence of voluntariness of the Miranda waiver, i.e., evidence that
defendant was not suffering from lack of sleep, drug withdrawal or
influence, and on grounds that the edited version (to which the
court had listened) was not sufficiently clear. —
After hearing the tape counsel withdrew the Miranda waiver
objection. Defendant now claims that counsel’s failure to seek sup-
pression of the confession on grounds that it was the product of an
earlier interrogation conducted by Arizona officers without
Miranda advice and waivers reflects incompetence. Again, the
record on appeal does not support the predicate assumption. The
testimony of Deputy Harris that an Arizona officer told Harris that
an earlier conversation had been taped does not support defen-
dant’s theory that the interview with Harris was part of a
“continuous interrogation process,” that defendant was interro-
gated by the Arizona officers, or that if such interrogation took
place there had been no Miranda advice and waivers. Westover v.
United States (1966) 384 U.S. 436, in which a confession followed
lengthy interrogations by officers of different jurisdictions is, con-
trary to defendant’s claim, distinguishable in this regard.
Inasmuch as the record confirms that counsel was aware of the
possible Miranda-based objection and interposed one such objec-
tion, there is no room for an inference that counsel was not aware
of the applicable law.?%
C. The Testimony of Tyson and Karen
Defendant next argues that ineffective assistance is demon-
strated by counsel’s failure to seek suppression of the testimony of
Tyson and Karen on grounds that it was the product of an unlawful
search of the Tyson home conducted pursuant to Karen’s coerced
consent. Again, the record on appeal does not support the sugges-
tion that a search occurred. Equally important, however, is the rule
that when a witness voluntarily appears in court his testimony is
not subject to suppression on that basis. The appearance of a wit-
ness or the testimony of that witness must be the product or “fruit”
of a Fourth Amendment violation before suppression is even argu-
ably required. (See United States v. Crews (1980) 445 US. 463;
People v. Teresinski (1982) 30 Cal.3d 822.)* Neither the identity
13Counsel did seek to exclude the confession as the product of an unlawful
arrest. His pretrial motion pursuant to section 1538.5 was based on the arrest
without an Arizona warrant. Denial of that motion is not urged on appeal as error.
141 Crews it had been argued that the victim’s testimony identifying the defen-
dant had been procured through the exploitation of an unlawful arrest of defen-
dant as a result of which his photograph was taken and subsequently identified
by the witness. The court found the identification testimony too attenuated to be
within the “fruit of the poisonous tree” doctrine. (Wong Sun v. United States
(1963) 371 U.S. 471.) The court noted that the victim’s identity was already
known to police and her presence in court was not the product of police miscon-
California Supreme Court 2005
of Tyson as a perpetrator of the offenses, nor that of his wife Karen
as a possible witness was ascertained as the result of any police
misconduct.!®
Karen telephoned a Stockton police officer from a telephone
booth on Thursday, October 12, told the officer that she was with
Tyson, and had talked him into surrendering on Friday. The affida-
vit in support of the complaint recites that Officers Harris and
Hauser met with Karen at the Tyson home where she said she
wanted to tell them everything. There is no support in this docu-
ment or in Karen’s testimony for defendant’s claim that the offi-
cers’ entry was nonconsensual, that a search of the home was
conducted at this time, or that if such search was undertaken it was
without Karen’s consent.
Tyson testified that when he met secretly with Karen prior to sur-
rendering she told him that police officers had searched the house
and had said that she could be arrested and prosecuted for aiding,
abetting, being an accessory after the fact and for receiving stolen
property. She told him that these officers, Harris and Hauser, had
promised protection for her and her children if he surrendered.
Again, nothing in this testimony supports the assertion that a
search was conducted without a warrant or consent, that Karen was
threatened, or that either her cooperation or her testimony was
involuntary. She testified that she had lied to the officers initially
and that they told her that property in the home was stolen, but
her statement that she was “scared” at this time is an insufficient
basis upon which to conclude that the police conduct was
improper?® or that her cooperation was coerced.’? Under the cir-
cumstances she had good reason to be “scared” apart from any con-
duct on the part of the police officers: she knew her husband had
committed three murders and she had assisted him in escaping.
The use of that term implies neither that police misconduct engen-
dered the fear, nor that her cooperation was coerced.
Defendant’s argument, based on this testimony, that an arguably
meritorious basis existed for an attempt by counsel to exclude the
testimony of Tyson and Karen is simply not supported by the
record on appeal.
Petitioner offered no additional evidence to support this claim
in the habeas corpus proceeding. Respondent, however, supplied
documentary evidence to refute speculative allegations. A declara-
tion by the deputy district attorney who prosecuted petitioner
states that his notes reflect careful advice to petitioner regarding
his Miranda rights from the time of his first arrest, and that peti-
tioner never indicated any hesitancy about discussing what he had
done with Arizona authorities, Merced authorities, Tyson and
duct: her identification testimony was based on independent recollection; and the
defendant was present in court to be identified. Thus none of these elements was
a product of the unlawful arrest (445 U.S. at p. 471), and the ability to give accu-
rate testimony was not affected by the arrest. (/d., at p. 472.)
Here even assuming there had been an unlawful search of the Tyson home
which prompted Tyson’s voluntary surrender and led to official knowledge that
Karen was a witness, the reasoning of Crews precludes a conclusion that the vol-
untary appearance and testimony of either is evidence that came about by an
exploitation of the primary illegality.
We found no basis for rejecting the Crews reasoning in interpreting article I,
section 13 of the California Constitution in People v. Teresinski, supra, 30 Cal.3d
822, 835-836, while noting that the deterrent purpose of the exclusionary rule
might require a different result on other facts. We acknowledged that this
approach had been used in this state several years earlier in Lockridge v. Superior
Court (1970) 3 Cal.3d 166.
15The record confirms, in fact, that Tyson had been identified as a suspect as
early as October 9 or 10, 1978, when he was named as such in the investigating
officers’ crime report, and that a warrant for his arrest had been issued on October
11. The record also confirms that Leo Macias, the uncle of Miguel and Salvador
Vargas, who was one of the persons visiting the victims on October 8, had given
officers a description and license number of the automobile purchased from
Miguel by defendant, and that Nadine Padilla who also had been there had identi-
fied photos of defendant and Tyson as the persons who had been present on Octo-
ber 8 discussing the purchase. :
16Defendant does not argue that the statement Tyson and Karen attribute to
the investigating officers was untrue, or that there was no probable cause to arrest
Karen.
17Defendant escalates an “implied” threat to take Karen’s children from her,
a threat nowhere mentioned in the record, into an actual threat, and on that basis
argues that her cooperation was involuntary.
When it was over, Vargas and
Groves made eye contact, the re-
porter said. “He nodded and point-
ed at Williams as if to say, ‘It’s
over.’”
Kathleen Kelly, one of Williams’
appeals lawyers, also wept during
the execution, witnesses said.
Wilson hails execution
After Williams was pronounced
dead, Gov. Wilson issued a state-
ment that said, “After 17 years of
appeals and delays, Williams has
faced the consequences of his ac-
tions and justice has finally been
served. (Williams) acted deliber-
ately and with premeditation to
rob, sexually assault and murder
three individuals, and his actions
deprived four young children of
their mother and left a wake of
destroyed lives from his crimes.
“Neither I nor the people of this
state will tolerate or accept excuses
for such crimes. For certain crimes,
justice demands the ultimate pun-
ishment. Williams’ coldly calculat-
ed, heartless and senseless murders
are such crimes.”
The governor earlier had denied
clemency, saying, “Within the
body of Keith Daniel Williams
dwells a malignant heart.”
At Williams’ clemency hearing,
the Vargas children said he should
die. “I can’t have my father back,
so my only wish is that justice will
prevail,” Miguel Vargas Jr. said.
Defense attorneys presented
statements from relatives of Salva-
dor Vargas asking that Williams be
spared.
‘Murdered over bad check
Prosecutors said Williams, a
small-time criminal and drug user
from Lodi, had killed the Vargas
cousins in a farmhouse near Mer-
ced while stealing a $1,500 bad
check he had given to Miguel Var-
gas for a car.
He shot Meza to death, alleged--
ly while raping her near Sonora.
Merced Sheriff Tom Sawyer, who
was one of the witnesses to the
execution, said Williams had told
his accomplice, Robert Tyson, that
he “shot her four times in the head
con
ae
Fra CS SCO
so he could feel her death quivers
as he had sex with her.”
Williams, known as Danny to
fellow inmates and those who said
he was a changed man in prison,
also told Tyson, “I love to kill,”
Sawyer said.
Friday’s execution came after
the U.S. Supreme Court rejected a
claim by Williams’ lawyers that he
should be spared because he was
mentally ill.
The 9th U.S. Circuit Court of
Appeals in San Francisco already
had refused to stop the execution.
His lawyers said they had only re-
cently obtained 595 pages of medi-
cal records that federal prison offi-
cials had withheld since 1984. They
showed Williams suffered epileptic
seizures and manic-depressive
symptoms — all stemming from an
abusive childhood — and could not
control his homicidal rages, the
lawyers said.
The appeals court said his law-
yers hadn’t justified their failure to
obtain the records earlier and
hadn’t proved that they would
have swayed the jury.
_ Last hours with minister
Williams spent his last hours
with a Marin County minister de-
scribed as his spiritual advisor. The
California Supreme Court, in an
unusual move, ordered San Quen-
tin officials to allow her to stay
with him until just before he was
moved from a holding cell into the
death chamber, which formerly
was the gas chamber.
Officials tried unsuccessfully to
uphold their rule that only prison
personnel could be with the con-
demned man after 6 p.m.
Williams was Roman Catholic;
the minister is ordained by the
United Church of Christ.
Williams requested a last meal
of fried pork chops, baked potato,
asparagus, French bread “with real
butter,” salad with blue cheese
dressing, apple pie, vanilla ice
cream and a large glass of cold
milk, prison Lt. Joy Macfarlane
said.
She said he had no statement
for the media, adding, “He seems
- 76
very comfortable. He’s in good
spirits. He seems relaxed and is not
at all anxious. We just talked. He
was polite.”
No Williams family members
were at the prison. Macfarlane said
Williams had said his goodbyes to
family members a week ago and
had had no contact since.
Outside the prison, actor Mike
Farrell, president of the anti-capi-
tal punishment group Death Pen-
alty Focus of California, said,
“Danny Williams committed a
horrible crime (and) he deserves to
be separated from society.”
But he didn’t deserve to be exe-
cuted, Farrell said, pointing to his
years as a model prisoner and not-
ing that medication during his
years on death row had curbed his
violent tendencies.
One of the most dramatic
speeches was from Derrel Myers,
whose 23-year-old son, Joshua “Jo-
Jo” White, was shot to death in
San Francisco on Jan. 19.
Praising the victims’ family
members who asked that Williams
be spared, Myers said, “I’m very
proud of those of you who have
spoken out against vengeance. If
the man who murdered my son was
on death row tonight, I would be
here and I would speak in favor of
his life.”
His son’s killer is still at large.
Williams’ execution was delayed
for nearly 17 years, first by an ex-
tended political debate over wheth-
er California would reinstate capi-
tal punishment, then by his ap-
peals in state and federal courts.
According to trial testimony, |
Williams bought a car from Miguel
Vargas, using a stolen check. Two
days later, he and Tyson went to
the Vargas house to demand the
check back. Williams shot both
Vargas men at their house.
The men took Meza to a remote
location where Williams took her
out of the car and shot her four
times as he raped her, according to
Tyson’s testimony.
Examiner correspondent Don-
na Horowitz contributed to this
report,
ek ANiNeRr
|
Nun pleads clemency for inmate
‘Dead Man
Walking’ heroine
writes state board
ASSOCIATED PRESS
FRESNO — The nun whose
book inspired the movie “Dead
Man Walking” has joined family
members and others seeking to
block next week’s scheduled execu-
tion of Keith Daniel Williams.
“I know that the political pres-
sure on you is great,” Sister Helen
Prejean — a New Orleans nun who
has counseled death-row inmates
— wrote in a letter to the state
Board of Prison Terms. “But the
truth is that you and only you have
the whole story on Danny Wil-
liams.
“The jury saw Danny and saw
only a monster: They did not know
the mitigating evidence of his life.”
Williams, 48, is scheduled to be
executed by lethal injection May 3
at San Quentin for the 1978 mur-
ders of brothers Miguel and Salva-
dore Vargas and the brothers’
friend, Lourdes Meza.
Of the 13 speakers at a clemency
hearing, only the sheriff of Merced
County, where Williams commit-
ted his crimes, and a director of a
victims group urged the state to go
SA A FRANCISCO
par
ahead with Williams’ execution,
In an appeal filed Monday in
U.S. District Court here, Williams’
lawyers said nearly 600 pages of
records contain evidence that
probably would have persuaded j ju-
rors to convict Williams of lesser
charges. The appeal claims those
records were withheld by federal
prison officials and were obtained
by the defense just last Friday.
The records include medical re-
cords that prove his claims of men-
tal illness at the time of the crimes,
the defense lawyers contend. The
records were filed when Williams
was an inmate in federal prison
from 1977 until May 1978, five
months 7 the killings.
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678 86 PACIFIC REPORTER. (Cal.
you ever heard discussed the fact as to what |
business he carried on? A. No, sir. Q. Ilave
you ever been told that his license to carry
on business has been revoked? A. I am not
awire of the fact.’ And then followed this
language: “Q. Have you ever been told that
he had a lengthy examinatign before the
board of police commissioners and that his
license was revoked?” To this objection was
made and sustained. It is, of course, legit-
imate cross-examination of a character wit-
ness to ask whether he has ever heard of
the person whose reputation is under investi-
gation having been accused of Committing
acts inconsistent with the character which he
has attributed to him. People v. Gordon, 103
Cal. 568, 87 Pac. 534; People v. Moran, 144
Cal. 48, 77 Pac. 777. In this case the witness
had been asked and had answered that he had
not beard that Carr’s license to carry on
business in San Francisco had been revoked.
It is nowhere contended by astute counsel
for the appellant, either in the record, which
is full upon the question, nor in their briefs,
that the first answer was evasive, and that
therefore they had the right to pursue the
inquiry further. It is not to be believed that if
counsel had considered the answer evasive
or had considered it other than as a direct
answer they would not have insisted upon
their right to ask the second question upon
this ground. They did not do so in the trial
court, they did not do so in this court, and
the only fair inference to be derived from
this state of the record and of the briefs is
that this answer was accepted as positive
and direct both by court and by counsel. So
accepting it, the ruling of the court upon tbe
subsequent question was perfectly proper,
and the remarks of the court in pronouncing
its rulings were equally unobjectionable. It
‘s apparent that the succeeding question
would have elicited another negative answer,
and that the purport of the question was not
to obtain the witness’ answer, but to get the
substance of the inquiry before the jury as
an evidentiary fact, to the detriment of the
witness Carr. This obvious purport of the
question justified the ecourt’s ruling in ex-
cluding it. The court’s ruling excluding the
subsequent question of the witness was
likewise proper. That question was: “Tf
any of those matters had been brought to
your mind would it change your opinion?”
the question itself was hypothetical and
speculative, and, moreover, was but another
yeiled attempt to present to the jury the ex-
eluded matter.
Iloward Carr, an expert in small arms, had
been permitted to testify that the bullet taken
from the body of Mary Weber (Iaxhibit G),
and the bullet taken from the body of Bertha
Weber (Exhibit H) had both been fired from
the Iver-Johnson pistol (Hxhibit Q). Upon
the next day, in doubt of the soundness of
its ruling, in view of testimony subsequently
given by Carr that his opinion was that the
bullets had been fired from that pistol be-
cause he had compared the markings on the
bullets taken from the bodies with the mark-
ings on the bullets which he had fired from
the pistol, the. court concluded to strike out
the testimony in these words: “Tn other
words, I hold that the comparison of the
two bullets on the one hand with the two
bullets on the other is not a matter of ex-,
pert testimony, but one witbin the ordinary
‘apacities of the average juror or citizen.
Now this being so, I wish to strike out the
statement of the expert, that in his opinion
the two bullets taken from the bodies were
fired from this pistol, leaving that as a
question for the jury to determine by an in-
spection of the bullets themselves. Accord-
ingly, Mr. Reporter, near the top of page
529 note this question: ‘Just’ holding this
bullet, plaintiff's Exhibit G, I now ask you
if you are able to say whether or not that
bullet was fired from the pistol, plaintiff's
Exhibit Q., which you now hold in your
hand, the answer being: <A. I should say it
was. Q. You are so able to state? <A. Yes,
sir. Q. Was it fired from that pistol that
you hold? <A. I say, yes, it was fired from
this pistol. Those questions and answers
are stricken out, or rather the answers are
stricken out.’ The record discloses that de-
fendant made no specifie motion based upon
this ruling of the court to strike out also
the testimony as to Exhibit H, nor did he
eall the ecourt’s attention to the omission to
strike it out, but throughout all subsequent
proceedings the matter was treated as though
the testimony to both Exhibits G and H had
in fact been stricken out. The court had by
its rulings stricken out all of this evidence.
When it undertook to designate specifically
the evidence, by oversight. it failed to note
the evidence touching Exhibit H. The origi-
nal ruling, however, covered the matter:
the evidence was subsequently treated as
eliminated from the ease, and no injury could
have resulted to defendant.
It is insisted that it was error to admit in
evidence two bullets which the expert testi-
fied he had fired from the Iver-Jolnson pistol,
upon the ground that they were not fired “un-
der the same conditions as those existing at
the time of the homicide.” The objection
is untenable. Tt was shown that the pistol
was in the same condition, except as ‘to ex-
terior blood marks upon the surface when
Carr fired the bullets from it, as it was
when found in the Weber barn, and it is
yery apparent that, as tending to fix the
identity of the weapon from which the
fatal shots were fired, the similarity or
dissimilarity of the bullets which Carr fired
to those which were found in the body was
pertinent and important evidence.
We have thus considered the alleged errors
of the rulings of the court in the trial of
the cause. Those which have not been specif:
ically noted have not been overlooked. ‘hey
Cal.)
which he took in leaving his father’s house
and going into town. ‘This course carried
him directly across Brewery Lune, and
by a roundabout and circuitous way, to a
point on College Lane where three routes
were open to him to go to Cohn’s store. In
both of these statements he declared that he
did not know, could not recall what route
-he had taken from College Lane to Cohn’s
store. This circuitous route, if actually
taken by the defendant, would have con-
sumed some 15 to 20 minutes of time, and
would have rendered it improbable that he
could have been at his home at the time the
murders were committed. Another route was
open to him, much shorter and more direct,
from his house to Cohn’s store. This was
down Brewery Lane. This latter route
would have carried him past the American
Hotel, where it was in evidence that he was
seen washing his hands, and hurriedly de-
parting, past Crosby’s Livery Stable, which
he was seen passing, coming from the direc-
tion of the American Hotel, and so to Cohn’s
store. Ifrom College Lane, no one of the
three routes, readily accessible to defendant,
would have carried him past these places
where the witnesses saw him. Upon the trial
he heard the testimony of these witnesses,
and ‘when, in turn, he took the stand, he de-
scribed with minute circumstance, the route
which he had taken from College Lane. That
route involved a divergence from’ the direct
course to Cohn’s store, and the witness testi-
fied that he did diverge in his course and
walk down Sacramento street, upon which
was the American IIotel and Crosby’s stable,
that he passed these places upon the opposite
side of the street, crossed over and came
vack to Cohn’s store, passing in front of the
American Hotel, though not stopping there.
Upon cross-examination the witness was ask-
ed if he had not fixed his route for the sole
and single purpose of meeting the testimony
of those who had seen him at the American
Hotel and Crosby’s stable. This question
was, in the condition of the case as shown,
within the limits of legitimate cross-examina-
tion, since it was at least within the scope of
fair argument before the jury to urge that
the defendant’s recollection as to his route
had been stimulated by the necessities of his
case. ,
In the course of his argument to the jury
the Attorney General said: “We_ believe,
gentlemen, and I say so not without a feeling
of pity, not without a feeling of sadness, not
without a feeling of pathos, but with a feel-
ing that the evidence in this case as it stands
to-night recorded in the notes of this trial,
points unerringly, points accurately, beyond
the possibility of mistake, to this defend-
ant as the murderer of Mary Weber.” Objec-
tion was made to this language. It was
urged upon the trial court that it was im-
proper for a prosecuting officer to express
his belief in the matter of the guilt or in-
PEOPLE v. WEBER. OTT
nocence of an accused, and: that he could
with propriety argue only upon the facts in
evidence. To this objection the court ruled
in the following language: ‘The court does
not feel it incumbent upon itself to determine
the sufficiency of the point as a legal proposi-
tion, because the observation of the Attorney
General was that he believes that the evi-
dence points to that conclusion, The objec-
tion is overruled.” It is, of course, im-
proper for a prosecuting officer to assert his
personal belief or personal conviction as to
the guilt of an accused, if that belief or
conviction is predicated upon anything other
than the evidence in the case. But, upon the
other hand, such prosecuting officer has the
indisputable right to urge that the evidence
convinces his mind of the accused’s guilt.
Indeed, it would be mere stultification if. it
were contended that the prosecuting attorney
could argue to the jury that the evidence
should convince their minds, although it did
not convince his. A prosecuting officer, there-
fore, has the right to state his views, his be-
liefs, his conviction as to, what the evidence
establishes. People v. Romero, 143 Cal. 460,
77 Pac. 168. Nor can we perceive the slight-
est impropriety, nor just cause of exception
in the remarks which the court made in
ruling upon this matter,
The bullets taken from the body of Mary
Weber and of Bertha Weber, as to which
evidence has been introduced that they had
been fired from the Iyer-Johnson pistol also
in evidence, were with certain other bullets
fired from the same pistol, some by ‘the
prosecution and some by the defense, all
arranged by the Attorney General in a cer-
tain order and so exhibited to the jury, the
bullets themselves, of course, having been
duly admitted in evidence. Objection was
made to the exhibition of the bullets to the
jury as arranged. It is said that this should
not have been permitted; that the jurors
could take the bullets and examine them as
they chose, not having one bullet placed in
juxtaposition with other bullets. The objec-
tion was overruled. It cannot be perceived
wherein lay the error in permitting the At-
torney General to place these exhibits in any
order or in any sequence, to point out sim-
ilarities or dissimilarities, or for any other
legitimate purpose connected with his argu-
ment. Such, in effect, was the ruling of the
trial court. To that ruling it was added that
the jury might and doubtless would at their
convenience rearrange them in any other
order which they saw fit.
The reputation of Henry Carr, the pawn-
broker who testified that he had sold the pistol
to the defendant, having been attacked by the
defense, affirmative evidence to meet it was
offered by the prosecution in rebuttal. The
witness Abrahams, having testified that
Carr’s reputation was good, upon cross-exam-
ination, without objection, was asked and
answered the following questions: “Q. Have
Peers
Cal.) PEOPLE
have been omitted only because they belong
to one or another of the classes and kinds
of questions of which particular discussion
has been had, and a more detailed analysis
of them, therefore, becomes unnecessary,
In the rulings of the court upon the in-
structions, some 28 errors are asserted. It
would extend this consideration without
profit to set forth all of these instructions at
even this modification. No single individual
instance of this would warrant the reversal
of a cause otherwise fairly tried. Only by
taking the instructions as a whole would a
court be enabled to say whether or not the
defendant had received fair treatment in
this regard, and so reading the instructions
in this case the conclusion is irresistible that
the jury was fairly and impartially charged.
The court had instructed the jury that if
they should, from a consideration of all the
evidence in the case, be satisfied of the
defendant’s guilt beyond a reasonable doubt,
it would be their duty to find him guilty.
It also instructed the jury that the evi-
dence of defendant’s guilt was circumstan-
tial, and that each material circumstance
must be proven to their satisfaction, beyond
i reasonable doubt, or they should acquit.
It is urged that these instructions are in con-
flict, the one nullifying the other. But this
conflict and nullification we are unable to
perceive.
The court instructed the jury: “The de-
fendant’s plea on this trial is ‘not guilty.’
Upon that plea a presumption of his in-
nocence arises. That presumption accom-
panies him throughout the trial. It goes
with you in your retirement to consider your
. WEBER, 679
it by striking out an accompanying statement
to the effect that unless upon their examina-
tion they found the evidence sutficiently
strong to overcome the presumption of in-
nocence, and to satisfy the jury of defend-
ant’s guilt beyond all reasonable doubt, he
was entitled to an acquittal at their hands.
The portion stricken out was unobjectionable,
and might well have been given, but the
length. It must suttice in most instances to | substance had been given so frequently in
3 state the result of the examination which has | other instructions that it was no abuse of
) been made of them. the discretion of the court to refuse to give
“: lirst, as to reasonable doubt. Upon this | it upon the ground that it was mere repeti-
#3 question the court instructed with elaborate | tion. In this regard it is to be noted that
fullness and care, avoiding any novel lan- | the court had already specifically charged
guage of its own, and abiding by the defini- | the jury that unless they “are satisfied from
tions well tested and long approved by this | all of the evidence in the case, beyond a
¥ court. Certain proposed instructions upon | reasonable doubt, that the presumption of
3 reasonable doubt, as well as upon other sub- | innocence of the defendant which the law
i af jects, the court refused to give, as having | gives him is overthrown, it is their duty to
4) elsewhere been embodied in its charge. Com- | render a verdict of not guilty.”
2 plaint is made of this in many instances, but The court’s modification of instruction No.
> hu the complaint is not well founded. Complaint | 7 was not objectionable. It would have been
‘ is also made of the court’s action in certain | justified in refusing to give the instruction
ri instances in striking out the concluding | aS a whole. Instead of so doing, it eliminated
f language of defendant’s proposed instruction, | certain portions of the instruction as being
i that if the jury shall find so and so, they | argumentative, and other portions as having
i “should find the defendant not guilty,” or | already been covered by the charge, and gave
iy te “should acquit him.” It is true that the court | the remainder.
did this in certain instances, but in many It was not error to refuse to give an in-
others it presented the instructions without | struction to the effect that the evidence of
certain named witnesses had been stricken
out, and, therefore, must not be considered.
The court had given an instruction covering
this matter as to the testimony of all wit-
nesses which had been stricken out. The
naming of these particular witnesses could
but have served to confuse the jury, since
from the list were omitted the names of other
Witnesses whose testimony was likewise
stricken out.
The court refused to give an instruction
as follows: “TI instruct you that the mere
possession of any article, whether it can or
cannot be used in the perpetration of crime,
is not of itself sufficient to convict the de-
fendant, but is merely a circumstance, which
may or may not tend to prove the charge
against the defendant.” We cannot per-
ceive wherein the refusal to give this in-
struction was error at all much less prej-
udicial error, for as was said in People vy.
Buckley, 148 Cal. 875, 890, 77 Pac. 169, under
like circumstances: “It may be that as mere
abstract propositions of law they are cor-
rect, but as mere abstract propositions of
law they apparently bear no direct relation
to the particular charge contained in the in-
formation.” The defendant, it was shown,
possessed numerous articles. Some of these,
; verdict. It will avail to acquit the defend- | like the clothing. which he wore, were not
| : ant, unless it be overcome by sufficient proof | used in the perpetration of any crime. The
of ghilt. You must examine the evidence by | common knowledge of the jurors would tell
the light of that presumption.” This instruc- | them that as to any article the mere posses-
tion was proposed by the defendant and | sion is insufficient to convict. If the defendant
was given by the court. The complaint is | had a desire to have specific instruction to
made that the court in giving it, modified |! the effect that mere proof of ownership of
ae
. i
ee oe oe 46 }
asians ms og : oe ; fi ae : ee y ni bs tha r : ee /
680
the pistol, even if it were shown that the
fatal shots were fired from the pistol, was
not in and of itself alone sufficient evi-
dence to warrant a conviction, he should
have requested such an instruction. But
the instruction as proposed, going to the
possession of “any article, whether it can
or cannot be used in the perpetration of a
crime” was of academic significance merely.
Defendant asked that the jury be told
that he was entitled to the independent judg-
ment of every juryman. The court gave the
instruction, modifying it so as to read that
“each side is entitled to the independent
judgment,” ete. This assuredly was not
error,
The court, at the request of the prosecu-
tion, instructed the jury that “an alibi sim-
ply means that the accused was at another
place at the time of the commission of the
crime, and, therefore, could not have com-
mitted it.’ It is not contended that this
instruction is erroneous in point of law, but
it is urged that the court should have in-
structed the jury more fully upon the sub-
ject. But had the counsel for the defendant
so desired, it was their duty to have re-
quested such instruction. People v. McNutt,
93 Cal. 658, 29 Pac. 243; People v. Oliveria,
427 Cal. 381, 59 Pac. 772; People v. Balk-
well, 143 Cal. 264, 76 Pac. 1017.
Upon his motion for a new trial defendant
urged two propositions: Virst, that at the
preliminary examination the prosecuting at-
torney advanced the theory that Mary Weber
and Bertha Weber were shot, then burned,
and their bodies then dragged into the front
room, where they were found; that nothing
occurred upon the trial of the cause, nor in
the opening argument of the prosecution be-
fore the jury, to lead defendant to believe
that this theory had in any wise been
changed or abandoned; that only upon the
final argument of the Attorney General was:
it disclosed that the people were contending
that Mary Weber and Bertha Weber were
~ shot in the room where the bodies were
found, and their clothes were there saturated
with some inflammable oil and ignited. The
contention of appellant is that this conduct
upon the part of the prosecution was unfair,
and, moreover, that the theory advanced by
the Attorney General came at so late a time
as to preclude the defense from offering evi-
dence to countervail against it. But to this
it must be answered that no deception was
practiced by the prosecution; that it was
not incumbent upon the prosecution to offer
any particular theory as to the manner in
which the erime was committed, and that,
upon the other hand, it was perfectly proper
to argue that the crime was committed in
any manner which the evidence showed
reasonably possible. T'urthermore, as to the
nature of the circumstantial evidence the
defendant was advised. It is not made
to appear by the affidayit that upon a new
86 PACIFIC REPORTER.
(Cal.
trial any new evidence would have success-
fully controverted the Attorney General’s
theory.
But the point upon which principal stress
is laid is that a new trial should have been
granted because of newly discovered evi-
dence impeaching the testimony of the wit-
ness Henry Carr. Carr, it will be remem-
bered, had testified that he had sold this par-
ticular revolver, Iver-Johnson old style No.
19,554. Upon cross-examination he testified
that he remembered it and identified it be-
cause it was a peculiar make, and that it
was the only one of that make that he had
ever owned since he had been in business.
J. G. Applegate makes affidavit, giving his
place of residence and occupation; that he
was in the company of Edward Harrington
on the 29th of July, 1904 (which is the
month Carr fixes as the month of the pur-
chase of the pistol by defendant); that they
visited Hlenry Carr’s place of business, and
Harrington there bought with a lot of cart-
ridges, an Iver-Johnson pistol, old style, and
that he believes Harrington has the pistol
still in his possession. Edward Ilarrington
makes atndavit, giving his address and oc-
cupation, that he dia on the 29th of July buy
from Henry Carr, at his pawnbroker shop in
San Francisco, an old style Iver-Johnson
pistol. Accepting these affidavits as being
absolutely true, they serve to contradict the
witness, not upon the principal fact of his
testimony, but merely as to one of the reasons
which be gave for his identification of the
weapon. To that extent, and no more, they
serve to discredit the witness. But it can-
not be said that the trial court abused its
diseretion in refusing to reopen the case be-
cause of this impeaching testimony.
But of more consequence, however, is the
affidavit of one Nathan C. Beard. Beard’s
affidavit is that he purchased a pistol on a
railroad train from a man who was not
known to him other than by the name of
“the Sailor.? That upon the 4th of July,
1904, wishing to celebrate, he took the pistol
out of his valise, and with several com-
panions took it to the beach, and fired it
several times. Being surprised at the way
it shot, he examined it carefully to see what
make it was, and found it to be an Iver-
Johnson, old model, 32-caliber short, No.
19.554. “We spoke then of the number and
wondered if that many pistols of that make
had been made. When the testimony of
Henry Carr was published in the newspaper
I saw that he swore he had sold this pistol
to Adolph Weber. After I heard of this I
wrote to Weber’s attorneys and told them
what I knew of this pistol. I kept this
pistol in my possession until the 30th day
of September, 1904, when I sold it to a anan
who was employed in a repair shop in Oak-
land, Cal. for a dollar and a half. On the
24th day of March, 1905, at the request of
the attorneys for Weber, I came to Auburn
Bs
Siidbeta
—
& 2,
Sid
WELLS, Alfred, wh, Bassed CASP (San Bernardino) Dec. 4. 1942
posit
| _WEIRD TRIPLE-KILLER gg (ee)
stantly
vicious fi
his te
CRIME C
by FERGUS MACGILL
HER LETTER LED 10
ANOTHER’S DEATH...
Under threat of death, Jean
Wells, left, was forced to write
her husband: “‘Al is holding the
baby and me... Do what he says
and go with him.’”’ Then her mad
captor shot her and used her note
to lure her husband to death.
EOPLE who saw Alfred Wells and Beryl Taylor
together on the streets of San Bernardino were re-
minded immediately of the monstrous “Hunchback of
Notre Dame,” Quasimodo, and his adored gypsy beauty,
Esmeralda. Seventeen-year-old Beryl was a tall, lithe,
sun-tanned girl of breathtaking loveliness. Her large,
serious, intense hazel eyes and classic features were
framed by a golden halo of honey-blonde hair. There
was an angelic air about her.
Thirty-one-year-old Alfred Wells was the direct op-
posite of beauty and spirituality. By contrast with Beryl,
whom he followed around like a dog, he was hideous.
Of course, Wells wasn’t responsible for the crooked
back, dwarfed stature and twisted leg with which Nature
had blighted him, but he chose to let these physical
deformities warp his mind and soul until bitterness and
impotent rage against Fate were his ruling passions.
Vindictive, explosive hatred of all mankind smoldered
in his sullen, black-browed eyes and rasped in his surly
voice.
Beryl, incredibly enough, was Alfred’s half-sister.
But his attachment to her was far from brotherly, and
in scornful defiance of convention he had thrust him-
self into the role of aggressive lover. Al worshiped
Beryl with a fierce possessiveness, the nearest thing to
love of which he was capable. Beryl’s feeling for Al,
at first, was one of pity rather than love. Later, fear
predominated. But the bond between them, though it
was grotesque and hard to understand for outsiders,
was a powerful one.
At WELLS had been in trouble most of his life. Many
other handicapped children have been able to rise
above the occasionally cruel taunts of their schoolmates
and develop into normal and even outstanding per-
sonalities. But Al, ridiculed as an ugly monstrosity,
determined to make himself just that. Even as a small
boy back in Pennsylvania, he learned to retaliate in
ways that were shocking in their calculated sadism.
Twice, he nearly killed his hapless playmates, once with
a knife and another time by strangling, with his abnor-
mally strong fingers. Once he tortured a little girl and
abused her.
Al’s parents couldn’t handle him, and he was con-
stantly in trouble with the juvenile authorities for his
vicious fights, thefts and runaway escapades. Then, in
his teens, he learned to use a gun and an automobile.
He was a lone-wolf operator. He was arrested on a
variety of charges, and first made the “big time” in
1927, when at seventeen he was adjudged incorrigible
and sentenced to a term of eighteen months to three
years in prison for a Pittsburgh robbery.
After his release, the family moved out to Southern
California, where relatives had preceded them, and
where they thought young Al might be able to get a
fresh start in life. But the youth with the warped mind
and body lost no time in tangling with the law again.
He was jailed for vagrancy, drunkenness, resorting and
assorted misdemeanors under several aliases in Cali-
fornia and Colorado. There were further arrests on
suspicion of felonies. Finally, in September, 1934, "
| THAT CRIME ON MY MIND!”
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CHAPTERS FOR ALL AGES”
ington, hundreds of miles from the
desert country. How the hunch-
back, with his description known
all over the West, had managed to
flee that far, was a mystery.
The slayer gave himself away
when he braggingly displayed his
gun to some other men in a hobo
jungle on the outskirts of Spokane.
One of them tipped off the police
that a gun-toter was on the loose,
and Sergeant John Domit drove
out to the jungle camp and took
the unkempt, sullen hunchback in-
to custody.
He first gave his name as Alfred
Blake, and said he was a Montana
sheepherder. He was jailed on a
charge of carrying & concealed
weapon.
But his fingerprints gave him
away almost at once, Identifica-
tion Officer William Phelps, making
a routine comparison, spotted the
prints as those of the hunted triple’
killer, in the bulletins with which
California authorities had flooded
the West.
Sullenly, Wells admitted his iden-
tity but denied the murders.
“Sure, I knew the cops were
looking for me in San Bernar-
dino,” he said, “but I thought it
was for violating my parole. I
thought my brother had tipped
them off that I’d been drinking.
So I got out of town, and rode
the rails up this way. I got a job
near here with a railroad section
crew. I carried the gun for protec-
tion, that’s all.”
But after a lengthy session with
Captain of Detectives Angus Mc-
Donell, the hunchback broke down
and admitted that he “might have”
shot his brother. He had been
drinking, he said, and had “shot
at Ray” after a quarrel: in the
desert, and then fled. He still main-
tained he had not shot the women.
Down in. Hanford,. California,
where she had gone secretly to .
stay with other relatives, Violet
Wells- Davis expressed profound
gratification at news of the cap-
ture. | ,
“Now I can live again!” she said.
Sheriff Shay and District At-
torney Jerome B. Kavanaugh sped
north to bring the prisoner back,
Just before they arrived, he at-
tempted to hang himself by weav-
ing a rope out of the blanket in
his cell. After that, he was mana-
cled and a constant guard was
placed over him. :
Back in San Bernardino, con-
fronted with Rose. Destree’s dying
statement and all the other evi-
dence, he finally capitulated,
On July 19, after many days of
questioning, he made a full con-
fession to Sheriff Shay and Dep-
uty District Attorney John P.
Knauf. ;
“Sure I killed them—all three,”
he said. “They double-crossed me.
They took Violet away from me.”
His confession confirmed in de-
tail Rose Destree’s story and the
reconstruction of the crime by the
sheriff’s men.
“I want the gas chamber. I want
to get it over with,” he told the
Dfficers when they warned him he
could expect no leniency for con-
fessing.
Alfred went to trial in San Ber-
nardino in October. After both
sides had presented their cases in
one of the most sensational court-
room dramas of the decade a su-
perior court jury deliberated only
fifteen minutes—returned a verdict
of guilty.
Thus ended one of ‘the most
bizarre cases in all Western history.
Again it had been proven that you
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with it. . a
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Wholesale novelty price list sent
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“| TRIMMED THE SUCKERS FOR SEX
(Continued from page 8) +
and an affectionate sweetheart, “Come on, baby,” he snarled at
worthwhile and generous, write me. |me. “You're going to find out a
All letters answered and held jjot of things in the next few
Salesmen and Agents) F
ted Comic Booklets, and other nov | You Want Romance ing about,” I said weakly.
ame and address, confidential. hours.”
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with this rat-faced killer and he
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Twelfth Street wasn’t so terrify-
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my gun-toting escort. This’ man—
called the Boss, greeted me affably
ence I was soon to go through. “*
cursed eleven dollars still made’
fool’ out of me’ and I wanted”
want to go home. #-sF/*#sa2%
’-He was smiling ‘something’ lik
down at me. “Plenty of spunk,
places if you use your head. ‘Mone
will be yours if you play ball -wi'
young enough, and foolish enough, |
and certainly there was-nothing the, jack--plenty of ‘it, and he'll
in his manner to indicate the hor~*. spend’‘it to show you a real time,
ror and the nerve-racking experi
He asked me if I felt better and.
if I still wanted to go home. That‘
act’ sophisticated ‘In front :of ‘this’. le w
strange man and I told him I'didn’t”, he gets drunk,” he continued, *but;
uate “T’m: ‘giving you’ something to takews
a snake might smile as he looked
he said. “That spunk will take you
and comfort and-security—all that
I didn’t know what he was talk-
ing about. He added: “Now, I got
a nice job for you tonight. I got
a friend coming to K.C. and he
wants a nice girl to entertain him.
No rough stuff. Just go to swell -
night clubs with him and be a —
companion.”
There was enough about this that -
sounded phoney to put me on my_
guard, and it was slowly penetra-. -
ting that dumb little brain of mine=;
that if that gun-toting killer could”.
come to my room in the hotel, he’. ”
* would be pretty close wherever Ties
would be and there was no escape. ”
The Boss sat down. “Now listen,
\ paby,” his voice was soft and per~
‘* suasive.‘“This friend ‘of mine has
-He’s no“ crook and: no~ common’
m: ;
* gentleman.” ae
“The' Boss ‘hesita momen'
picked up’a pencil and toyed:-wi
it.:“He may ‘get a little drunk and
ou may have a little trouble when
“of ‘that.’ Something’ you car
I ‘his liquor that will kno
And if you entertain h
ou'll get'“a hundred’ dollar
m the night’s over."
y ‘brain was trying to do son
‘thinking, I'couldn’t get. what
Z Y nis —b it I:
asher.'He’s class—real and |
there was some
dollars was a f:
if all I had to
this man, it w
“All you have
him,” the Bos
have to go whe:
you'll have th
4 and that will p
ey, a silly little fo
to go to a hot
room already
will happen if
I got plenty
and I got a hin
that I was exp:
3 with this—or e
4 ning came, I !
- power of this ¢
if I made a fi
might pick uy
side of a coun
And that ex
to be standing
that hotel room
man. staggerin
man that cam
was the rat-fa: |
ed my room at |
who never left
srt ES Se
< during the day
while I was en
Who was th
a cop, as you
cause Louie, t
who was my bk
a “Bull.” A “1
and in the sto
i Kansas City i
. different.
a. He is a cattl
to Kansas City
thousand doll:
and who hasn
over a year—t}
meant a good
to him.
Weekly kunc
men come to K
steérs, and si
a good time.
Eg off the rang«
* companions fo
wy coyotes and cc
} ty thousand
i of a man. whc
i an for a yea
- finest-and the
- er that the w
SN EES Ss
sory
“ His comp:
Ee Steve Ricke
sands of acre:
ado and had
acres. under: !
ernment. .
- He was tall
leathery: face
He was a goc
a little excite
he went back
his’ range.
‘He was also
ugh and ha:
didn’ts ge
hat happen
car that. was
ind® that»: hc
police caught him in the act of holding up a service
station at Fullerton, California, and he drew five years
to life in San Quentin for armed robbery. At that time,
he threatened to kill one of his uncles for not helping
him out.
Even though he had forfeited all claim to their con-
sideration, Al’s large family was a close-knit one, and
his kinsfolk didn’t abandon him. Every month some
of them made the long drive north to San Quentin to
bring him little comforts and try to cheer him up.
HE habitually sullen convict’s eyes brightened one
day in 1939 when his mother brought young Beryl
to visit him for the first time. Before be’d gone to prison,
Al had been away from home for a long time. He
remembered his half-sister only as a skinny little girl
with scraggly hair and big eyes, who had always seemed
afraid of him, and to whom he had paid very little
attention. But now Beryl Taylor, just turned sixteen,
had blossomed into a shapely, self-possessed young
blonde of startling beauty.
And what struck straight to some long-buried spring
of emotion deep in the murky soul of Alfred Wells
was the fact that Beryl looked at him not with the
revulsion which he had learned to detect and strike
back at, but with pure, unselfish pity and—and yes,
love!
They hardly took their eyes off each other, all dur-
ing the brief session in the prison visiting room. When
the visitors left, Beryl was silent for a long time, look-
ing as though she were in a trance.
“Did you see the way Al looked at me?” she finally
asked her mother. “Why, he isn’t tough or hardened
at all. He likes me, I can tell. When they let him out,
I’m going to help him to go straight!”
Beryl was a serious, religious and idealistic young
girl, sensitive and sincere. Once she had set her mind
on an inspirational project, she dedicated herself to it
with her whole soul. Now her aim in life became the
regeneration of her fallen half-brother, whom she hard-
ly knew.
She wrote to him, and he replied immediately. Soon
they were exchanging letters every day. To their mother,
it was just a case of sister helping brother. But even
the inexperienced Beryl, who was just finishing junior
high school, sensed it was more than that. She detected
the overtones in Al’s soul-baring letters. She didn’t
care, She loved Al and she was determined to save him,
to make him a better man. He said she was the one
woman who could inspire him to live down the past.
And after all, it wasn’t as though they were really full
brother and sister. . .
22
Crazed by passion for his teen:
age girl captive, who obeyed
him but could not love him, he
took out his frustration by
killing two other women and
his own brother. He was happy
when given a death sentence.
B the time Al Wells was released on parole in
November, 1939, Beryl had persuaded their mother
that it would be best for Al to live apart from the rest
of the family. She’d take care of him, keep house for
him, watch over him, and get him started on the good
life. It was high time, anyway, that she herself should
leavé home and strike out for herself. Her mother
consented with misgivings, because she knew her boy
Al, but she also knew that Beryl, born to another
father fourteen years later and as different from Al as
night from day. was a young woman who knew her
own mind. Sometimes Beryl seemed like a stranger to
the whole family, she moved on such a different plane.
When Al finally came back from the Big House,
Beryl had a neat little home waiting for him, a modest
cottage on Arrowhead Avenue in San Bernardino, at
the foot of the mountains east of Los Angeles. She
had rented the place with the money she had saved
from baby sitting. Another half-brother, twenty-four-
year-old Raymond Wells lived not far away and worked
in the big Santa Fe yards, where he had secured a
laboring job for Al.
Al moved in with his beautiful half-sister as his
housekeeper, though to the curious neighbors the oddly-
paired couple seemed more like honeymooners. For a
time, everything went well. Al acted chastened and
subdued after his five years behind bars. He vowed to
CRIME DETECTIVE
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CRIME DETE
LA Times
WEDNESDAY, MAY 1,
1996 A3
California and the West
~ Associated Press
Keith Daniel Williams
Williams Set to Die on Friday
w Execution: Triple killer
would be second in state to
receive lethal injection. His
attorneys ask for a delay.
By RICHARD C. PADDOCK
TIMES STAFF WRITER
SAN FRANCISCO—For 17 years,
Keith Daniel Williams has waited at San
Quentin for his turn to die. Now, at the
age of 48, the remorseful triple mur-
derer is. about to become the fourth
person to be executed in California since
the death penalty was reinstated in
1978... | :
Williams was 31 when he shot and
killed two Merced men execution-style
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bad check he had written. While he was
at it, he kidnapped Lourdes Meza, a
25-year-old mother of four, and took
her to a secluded hill, where he shot her
in the back of the head as he raped her.
With his execution by lethal injection
scheduled to begin one minute after
midnight on Friday, defense attorneys
are working to win a last-minute stay
on the grounds that William’s lifelong
mental disabilities should preclude him
from being put to death. A request for a
stay is pending before the U.S. 9th
Circuit Court of Appeals.
His attorneys also contend that the
prosecutor at his. original trial and
federal prison officials withheld crucial
information about his mental condition
that would have persuaded his jury to
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sentence him to life in prison instead of
death.
Prosecutors and law enforcement of-
ficials, however, argue that Williams
has had more than enough time to make
his legal case and should be executed ‘on
schedule to avenge his three victims.> ”
“This is a man who murdered young
people for fun and then celebrated his
act,” said Merced County Sheriff Tom
Sawyer. “Keith Daniel Williams should
have died for his crimes long ago, and if
we are to have any conscience and soul
as a government, we must satisfy the
law by executing him on May 3rd.” »
If the execution goes forward: .as
scheduled, Williams would be the sec-
ond inmate put to death by lethal
injection in California. So-called “Free-
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Released six months before the
triple murders from a federal
prison where he was serving time
for auto theft, Williams met Mi-
chael Vargas in the fall of 1978 at a
yard sale, where he arranged to
buy Vargas’ used Plymouth for
$1,500. ;
Williams paid for the car with a
stolen check, then decided later to
retrieve the check before Vargas
could deposit it.
When Williams and his partner
in crime, Robert Tyson, arrived at
Vargas’ house, Williams demanded
the check and the pink slip to the
car. Then he killed Vargas, 29, and
his cousin, Salvador Vargas, 40,
execution-style with two shots
each to the back of their heads.
Leaving the house, Williams and
Tyson kidnapped Lourdes Meza,
Miguel Vargas’ 24-year-old girl-
friend, and drove to a secluded
hillside where Williams repeatedly
shot the pregnant mother of four in
the head while he raped her.
Tyson, who later testified for the
prosecution and is serving three
concurrent terms of 25 years to life,
said Williams bragged about the
gruesome killing, saying he wanted
to experience Meza’s “dying
twitches.”
After his arrest, Williams con-
fessed to the murders. Since then,
he has repeatedly expressed re-
morse, his lawyers say.
“He always was sorry for the
trouble he got into, and he couldn’t
understand the trouble he got
into,” Kroll said. “It is a reflection
of [his] mental illness not to under-
stand what is going on.”
Williams was sentenced to die
for the three murders and arrived
on San Quentin’s death row in
April 1979. He has been awaiting»
execution longer than all but five
other California inmates.
Williams’ attorneys have argued
that he deserved mercy because of
his history of mental problems,
which they say could have been
treated had he received proper
care outside of prison.
Williams was born prematurely
in Pittsburg, Calif., in 1947 to an
alcoholic mother. Sickly and slow
to develop, he showed all the signs.
of fetal alcohol syndrome.
He was abused and beaten by his
stepfather and suffered head inju-
ries in three accidents before he
reached adulthood, according to his
attorneys. Williams was subjected
to further abuse at the California
Youth Authority, where he''was
sent for offenses as a juvenile, they
Say. ay
As an adult, he suffered -from
blackouts, epilepsy and bipolar
mood disorder—commonly known
as manic depression— which
caused him to act out in aggressive,
anti-social ways, his attorneys
Said. His condition was worsened
by his abuse of drugs and alcohol.
Convicted of nonviolent: Giries
such as auto theft, he spent midst-of
his 20s in prison, where hé"was
treated with drugs that improved
his behavior so much he. was
considered a model prisoner, his
lawyers added. Unfortunately for
Williams and his vietims, they say,
his treatments ended when he was
released from prison.
“When he’s medicated, there’s
no evidence of the illness,” Kroll
said. “He comports himself very
well. He’s very well liked by: the
staff and other inmates.”
Williams’ appellate attorneys
agree that the three murders were
horrible and that Williams belongs
in prison.
But they say his trial attorney
was incompetent because he did
not present the jury with. ‘any
mitigating factors during the pen-
alty phase of the proceedings. If
the jury had been presented’ with
evidence of Williams’ mental dis-
abilities, they argue, it might have
sentenced him to life in prison
instead of death. heel
Two weeks ago, defense attor-
neys received nearly 600 pages of
long-sought documents from. the
U.S. Bureau of Prisons that ‘they
contend provide compelling ..evi-
dence of Williams’. mental illness
before the murders. se
Based on the new documenta-
tion, they appealed to state and
federal courts to order a new jury
impaneled to hold a penalty hear-
ing and resentence Williams. ”'
“Phis case has called out for a
new penalty phase from the begin-
ning,” Thomson said. “This man
never had a penalty phase—not
one witness, when there are so
many that could have been Called.”
%
.
WEDNESDAY, MAY 1, 1996
LA Times
SERGEY,
OR
"Murderer Set to Receive Lethal Injection
his treatment ended, and his mental
condition quickly deteriorated.
In October 1978, six months after
he got out of prison, Williams and a
friend, Robert Tyson, went on a
crime rampage in the San Joaquin
Valley, stealing a gun, a car anda
checkbook, among other items.
fe the little town of Galt, Williams
met Miguel Vargas and Lourdes
Meza at a yard sale, where he
arranged to-buy their car for $1,500.
The next day, he paid for the car
with a check from the stolen check-
book. .
But Vargas said he would keep
the pink slip for the car until the
check cleared. That night, before
Vargas had a chance to deposit the
check, Williams decided to visit him
at his Merced home and retrieve it.
Williams prepared for the outing by
cleaning the stolen .22-caliber pis-
tol.
Williams and Tyson went to-
gether to the house where Vargas
was staying with his brother Sal-
vador and Meza. Williams threat-
ened to kill the brothers if they did
not turn over the check and the
pink slip. Then he orderéd them to
kneel and shot both of them twice
in the back of the head.
Léaving the house, Williams and —
Tyson forced Meza into their car.
Tyson drove while Williams raped
her in the back seat.
They stopped along the road and
Williams took Meza up a grassy
hillside. Holding his gun, he raped
_ her again and in the middle of the
act shot her several times in the
back of the head and neck.
According to Tyson, who later
testified against Williams, the killer
said he had wanted to experience
her “dying twitches.”
A few days after the bodies of the
Vargas brothers were found, Tyson
turned himself in and led author-
ities to Meza’s body. Williams was
arrested during a routine traffic
stop six weeks later.
Williams confessed to the crime
and was sentenced to death in 1979.
Tyson received three concurrent
sentences of a years to life in
prison.
For the past 17 years, Williams’
case has worked its way through
the appellate system, where his
attempts to overturn his sentence,
win clemency or receive a stay of
execution have all been rejected.
The latest flurry of appeals cen-
ters on 595 pages of documents
released by the federal Bureau of
Prisons less than two weeks ago—
12 years after they were first
requested by appellate defense at-
torney Richard Mazer.
_In the past, prison officials had
said the documents sought by the
defense—which date from Wil-
liams’ imprisonment during the
1970s—did not exist.
Mazer contends the newly dis-
covered records support the de-
fense contention that well before
the murders, Williams suffered
from a variety of mental problems,
including bipolar mood disorder,
more commonly known as manic
depression.
hat information should have
been presented to the jury that
sentenced him to death, Mazer
argues, and might have resulted in
a lesser sentence.
One of the documents in the
newly released batch of papers
indicates that the original prosecu-
tion team received documents from
’ the Bureau of Prisons that were not
made available to the defense.
The appellate defense team also —
faults Williams’ original court-ap-
pointed defense lawyer for failing to
put on any kind of case during
sentencing that might have swayed
the jury. not to vote for capital '
‘punishment.
“These new records are stunning
in that they give substantial weight
to Mr. Williams’ claims concerning
his mental and psychiatric prob-
lems,” Williams’ attorneys wrote in -
a brief submitted to the U.S. 9th
Circuit Court of Appeals on Mon-
day. “The new documents show the
Court the true scope of trial coun-
sel’s ineffectiveness.”
The arguments raised in Wil-
liams’ case about childhood abuse
and his mental disabilities are simi-
lar to those raised in the last-
minute attempt to save convicted
murderer Robert Alton Harris from
execution in 1992. The court, how-
ever, rejected the argument, and
Harris became the first prisoner put
to death in California since 1967.
Despite the newly released docu-
ments, the California Supreme
Court on Friday rejected the de-
fense request for a stay. Similarly,
U.S. District Judge Robert E. Coyle »
refused Monday to grant a stay.
The issue is now pending before
the 9th Circuit Court of Appeals,
which attempted to halt Harris’
execution at the last minute but was
overruled by the U.S. Supreme
Court. Since then, the court’s rules
have been changed, making it
harder for appellate judges to stay
an execution.
A three-judge panel of the 9th
Circuit heard arguments Tuesday
afternoon on a request from Wil-
liams’ attorney that they overrule
Coyle and grant a stay. The defense
argued that ‘the case should be sent
to a new jury to rehear the question
of what Williams’s sentence should
be.
“No one should be executed
without a jury hearing why the
person should live,” said James S.
Thomson, an attorney for Williams.
VS ponte ot Peace
urvivors of a particularly brutal massacre in
Rwanda have memorialized their tragedy in an eerie
shrine, marked by piles of bones and skulls, says Neil
J. Kritz, senior scholar on the rule of law at the U.S.
Institute of Peace. The site in Ntarama—like many
other such sites—was once a church where thou-
sands of Tutsis had sought refuge from marauding
Hutu militias. “The preservation and acknowlege-
ment of this history is necessary for the achievement
of long-term reconciliation in Rwanda,” Kritz said.
“Nearly two years after the horrific genocide, Rwan-
dan society is struggling to find the most effective
ways to deal with a past that continues to divide it.”
Kritz visited the church as part of his trip to
_ Rwanda to attend the “International Conference on
"Genocide, Impunity, and Accountability,” organized
by the Rwandan government, November 1-5. Other
conference participants included experts from 16
. countries and numerous Rwandan government offi-
; cials and civilians. When the meeting ended, Presi-
dent Pasteur Bizimungu asked Kritz to remain for
several days of meetings with government officials to
further develop proposals he and others had made to
address the problem of accountability for the mas-
sacres that swept the country in 1994.
Kritz is the editor of Transitional Justice: How
Emerging Democracies Reckon with Former Regimes, a
three-volume compendium that examines how new
democracies have coped with the legacy of an ousted
repressive regime. The study—published recently by
the U.S. Institute of Peace Press—draws on the
experiences of 35 countries over the last 50 years in
publicatto n
dealing with issues related to transitional justice. Above: Rwandan
Kritz is scheduled to visit Bosnia in March to exam-
ine possible approaches to the handling of this issue gling with the
in the context of the Dayton accords. ' aftermath of
In Rwanda, where 500,000 to one million Pepe genocide.
were slaughtered, Kritz and his colleagues develbped :
proposals that take account of three fundamental
facts: at least 100,000 potential defendants, an over-
whelming number of victims, and no remaining legal
youth are strug-
infrastructure or personnel to process these caseg.
Even if a special genocide court—now under consid-
eration—is established, it couldn’t possibly handle
this many cases in a manner that would satisfy inter-
national standards of justice. Consequently, drawing
in part on the experience of other countries that have
experienced mass atrocities and in part on Rwandan
law and history, the proposals included various inno-
vative mechanisms and procedures to complement
the traditional criminal justice system. They -:
would enable victims to play an important role ih thé
justice process. The proposals are currently under
review by the Rwandan government. i
Kritz noted that until an acceptable program;
is put in place to deal with accountability for the
genocide, the problem of facilitating the return fo
Rwanda of nearly two million refugees will remdin.
“They've been told by the former leadership that if -
they return home, they'll be killed for their role j in
the genocide. They need to know the justice system
will treat them fairly.” Kritz plans to return to Rwan-
da in Februaryfor further consultations with govern-
ment officials.
pews leHep
Califormia Executes Inmate
AP 3-Maly-1996 5:39 EDT REF5327
Copyright 1996. The Associated Press. All Rights Reserved.
The infprmation contained in the AP news report may not be published,
broadcast, rewritten or otherwise distributed without the prior written
authority of The Associated Press.
SAN PUENTIN, Calif. (AP) -~ A man who once said "I love to kill" was
execute by injection early Friday for shooting three people to death
in 1978} over a stolen $1,500 check.
Keith Daniel Williams, 48, was put to death at San Quentin Prison
for the} murders of Lourdes Meza and Miguel and Salvador Vargas, who
were cobisins. . :
Willfams used a stolen check to buy a $1,500 car from Miguel Vargas,
court records showed. Two days later, Williams and another man, Robert
Leslie fyson, went to the Vargas house to get the check back.
Willfams later confessed to police that he shot the men at the
house. Then, along with Tyson, he said he drove Meza -- a 24-year-old
mother of four and girlfriend of one of the cousins: -- to a remote
location where he took her out of the car and shot her.
Willlams returned to the car after shooting Meza and told Tyson, "I
love to|kill," prosecutors said.
Willlams also had bragged to Tyson that he was having sex with Meza
when he|shot her, prosecutors said. Her body was too decomposed to
yield evidence, and he was acquitted of rape. |
Tysoh is serving a life prison term.
Republican Gov. Pete Wilson rejected Williams’ clemency request,
saying:|"Within the body of Keith Daniel Williams dwells a malignant
heart."
Willjams’ lawyers had appealed unsuccessfully to the U.S. Supreme
Court after the 9th U.S. Circuit Court on Wednesday rejected their
arguments that Williams suffered from epilepsy and manic depression.
A fi¥st appeal, rejected by state and federal courts, claimed
Williams’ lawyer was incompetent for failing to obtain his medical
records,
Williams was just the fourth person executed in California since
capital |punishment was reinstated in the state in 1978.
Cr
J fy) / / rama CK Cw
WILLIAMS v. VASQUEZ 1443
Cite as 817 F.Supp. 1443 (E.D.Cal. 1993)
The court therefore concludes that the
strikers were reprimanded in violation of the
LMRDA. Plaintiffs’ motion for summary
judgment will be granted as to this claim,
and defendants will be instructed to retract
the reprimands.
IT IS THEREFORE ORDERED that
plaintiffs’ March 20, 1992 motion for partial
summary judgment is GRANTED with re-
spect to their claim under the disciplinary
provisions of the LMRDA, and DENIED in
all other respects.
IT IS FURTHER ORDERED that the
Council shall retract any reprimands that
were issued without prior hearing on or
about August 8, 1990, to Local 1056 members
for their participation in strike activity.
IT IS FURTHER ORDERED that defen-
dants’ March 4, 1992 motion for summary
judgment is DENIED with respect to plain-
tiffs’ claim under the disciplinary provisions
of the LMRDA and GRANTED in all other
respects.
IT IS FURTHER ORDERED that this
action is DISMISSED.
O & KEY NUMBER SYSTEM
4nms
Keith Daniel WILLIAMS, Petitioner,
—_
Vv.
Daniel VASQUEZ, Warden; and the
Attorney General for the State
of California, Respondents.
No. CV-F-89-160-REC-P.
United States District Court,
E.D. California.
Feb. 9, 1993.
As Amended April 1, 1993.
Petitioner was convicted in the Califor-
nia Superior Court, Merced County, Donald
L. Fretz, J., of three counts of first-degree
murder with special circumstances and use of
a firearm, and sentenced to death. On auto-
matic death penalty review, and consider-
ation of petition for writ of habeas corpus
filed in conjunction with appeal, the Supreme
Court, 44 Cal.3d 883, 245 Cal.Rptr. 336, 751
P.2d 395, affirmed... Petitioner then sought
federal habeas corpus relief. The District
Court, Coyle, Chief Judge, held that: (1)
defense counsel’s alleged failure to investi-
gate diminished capacity defense did not
deny petitioner effective assistance of coun-
sel; (2) petitioner’s right to assistance of
psychiatric experts was not violated; (8) trial
court did not err in denying petitioner’s mo-
tion for change of venue; and (4) jury’s
penalty phase consideration of six multiple
murder special circumstances did not violate
petitioner’s rights to due process and reliable
death penalty determination.
Writ denied.
1. Habeas Corpus 720
Claim of prosecutorial misconduct must
be demonstrated by preponderance of evi-
dence.
2. Habeas Corpus <720
In considering claim of prosecutorial
misconduct, question is not whether legally
admitted evidence was sufficient to support
verdicts, but rather whether state had
proved beyond reasonable doubt that error
complained of did not contribute to verdict
obtained.
3. Criminal Law ©706(2)
Accomplice’s testimony that district at-
torney had made no promises to accomplice
in exchange for accomplice’s testimony was
not perjurious, and thus did not constitute
prosecutorial misconduct, where evidence
conflicted as to whether accomplice believed
prosecutor would intervene on accomplice’s
behalf at parole hearing, prosecutor denied
making any such arrangement, and prosecu-
tor’s failure to seek death penalty with re-
spect to accomplice was due to fact that
accomplice’s version of facts surrounding
crimes charged would not support imposition
of death penalty.
d S-3-96 CA
—A22
TUESDAY, APRIL 23, 1996
LOS ANGELES TIMES
Lawyers Seek Clemency for Murderer
Crime: Attorneys for »
Keith Williams cite
documents showing that
he-suffers from severe
mental illness.
By. DAN MORAIN
TIMES STAFF WRITER
““SACRAMENTO—Attorneys for
triplé murderer Keith Daniel Wil-
liams, who faces execution by le-
thal _injection next week, asked
Gov. Pete Wilson on Monday to
grant ‘him clemency, citing 600
pages of newly released documents
showing. that Williams suffered
severe mental illness.
~ Wilson’ s Board-of Prison Terms
heard. froma series of people
Monday. who urged the board to
recommend that the governor
commute Williams’ death. séen-
tence,, which is scheduled to be
carried. out. at a minute past mid- -
night May 3 at San Quentin prison.
‘But Merced County Sheriff Tom
Sawyer, who testified at the board
hearing, called the murders com-
mitted by Williams especially bru-
tal and said, “It’s clear to me the
sentence needs to be carried out.”
“-The Board of Prison Terms is
expected to give Wilson its recom-
mendation by Wednesday. The
governor could make his decision
as early as Friday.
“Based on our review to date, we
find the evidence to be very com-—
pelling to allow the execution to
proceed,” said Wilson’s press sec-
retary, Sean Walsh, although
Walsh added that the governor has
yet to read the 600 pages.
Williams’ execution would be the
second in California this year, and
the fourth since Robert Alton Har-
ris was put to death in 1992, ending
a 25-year moratorium on execu-
tions in this state. Williams, from
the small Tehama County town of »
Corning, would be the second to die
by lethal injection at San Quentin.
William Bonin, the so-called
“Freeway Killer,” was executed by
injection in February.
Williams, 48, spent much of his
juvenile and adult life in prison, but
was released from federal prison’ a
few months before he went on a
crime rampage in the Central Val-
ley in fall 1978.
He shot and killed farm workers
Miguel Vargas and Salvador Meza
at their home in Merced on Oct. 8,
1978, because he wanted their car.-
Williams also kidnapped Lourdes
Meza (no relation to Salvador Me-
za) and raped and killed her in
Tuolumne County. She was a
mother of four, said Deputy Atty.
Gen. Robert Jipson.
Williams was arrested the next
month and confessed to the crimes.
He was convicted of murder and
sentenced to death in April 1979.
Five other condemned inmates
have been on San Quentin’ s-death
row longer.
“This guy planned these mur-
ders for the purpose of robbery,”
Jipson said. “He wanted their car
and figured out a scheme to get it.
He went down there and he ex-
ecuted these people.” ;
In their plea for clemency, Wil-
liams’ lawyers, Richard Mazer and
Kathleen Kelly of San Francisco,
said Williams is “profoundly re-
morseful,” and suffers from “seri-
ous mental illness.” :
While Williams’ mental illness
has been cited in court documents
in the past, Kelly and Mazur ob-
tained 638 pages of records from
the Federal Bureau of Prisons on
Friday. Those pages further docu-
- ment Williams’ problems, includ-
‘ing epilepsy, brain damage and
drug abuse.
Kelly said the federal govern- .
ment denied having the records in
(1984 and again as recently as
February. But she said the release
of the records could help with new
appeals to be. filed in state and
federal courts this week.
California:
TRIPLE KILLER EXECUTED IN CALIFORNIA
SAN QUENTIN, 5/3/96 (AP) -- A man who shot 3 people to death over a
$1,500 check and then bragged to an accomplice "I love to kill" was
executed by injection early today.
Keith Daniel Williams, 48, was put to death at San Quentin State
Prison just after midnight for the 1978 murders of Lourdes Meza, and
Miguel and Salvador Vargas, who were cousins. Williams' final appeal
was denied by the U.S. Supreme Court about two hours before the
execution.
He used a stolen check to buy a $1,500 car from Miguel Vargas, court
records showed. Two days later, Williams and another man, Robert
Leslie Tyson, went to the Vargas house to get the check back.
Williams later confessed to police that he shot the men at the house.
Then, along with Tyson, he said he drove Meza -- a 24-year-old mother
of four and girlfriend of one of the cousins -- to a remote location
where he took her out of the car and shot her.
Williams returned to the car after shooting Meza and told Tyson, "I
love to kill," prosecutors said. Tyson is serving a life sentence.
Williams' lawyers had appealed unsuccessfully to the 9th Circuit
court on Wednesday, saying he suffered from epilepsy and manic
depression.
A first appeal, rejected by state and federal courts, claimed
Williams' lawyer was incompetent for failing to obtain his medical
records. Williams was just the 4th person executed in Calif. since
Capital punishment was reinstated in the state in 1978.
Copyright AP, May 3, 1996
Execution statement by Governor Pete Wilson:
"A few minutes ago at 12:08 a.m., Keith Daniel Williams was put to
death by lethal injection at San Quentin Prison. After 17 years of
appeals and delays, Williams has faced the consequences of his actions
and justice has finally been served.
"Keith Daniel Williams acted deliberately and with premeditation to
rob, sexually assault and murder three individuals and his actions
deprived four young children of their mother and left a wake of
destroyed lives from his crimes. Neither I nor the people of this
state will tolerate or accept excuses for such crimes.
"For certain crimes, justice demands the ultimate punishment.
Williams' coldly calculated, heartless and senseless murders are
such crimes.
"Today, we have put an end to this sad and regrettable chapter in
California history."
2018 = California Supreme Court
$e
S
x
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CALIFORNIA
proved beyond a reasonable doubt,” and that the court must so
instruct sua sponte. The evidence of other crimes in Robertson and -
Stanworth was introduced by the prosecution as an aggravating fac-
tor. Justice Broussard, concurring, concluded that on the facts of
Robertson the instruction should have been given. He noted, how-
ever, that other-crimes evidence was often admissible for other pur-
poses at a penalty trial, among which was to show that the
defendant’s mental faculties were impaired, a mitigating factor.
When offered for this purpose, Justice Broussard suggested, “there
is no reasonable doubt standard to be met before the jury can con-
sider that evidence.” (33 Cal.3d at p. 61.)
The exception anticipated by Justice Broussard in Robertson is
present here. The evidence of uncharged crimes was introduced by
and relied on by defendant at all three phases of the trial—guilt,
sanity, and penalty. He admitted commission of these crimes in his
testimony at the guilt phase and in his statements to the psychia-
trists which he read into the record during the sanity phase.*? In
these circumstances it cannot reasonably be said that the prosecu-
tion must prove their commission. Defendant has no burden under
the reasonable-doubt standard. Although the jury might have con-
sidered the evidence of other crimes for a purpose other than miti-
gation the court had no obligation to instruct the Jury here that this
evidence, introduced by defendant, could not be considered an
aggravating factor unless proved beyond a reasonable doubt, but
could be considered in mitigation under a lesser standard. Neither
our Constitution, nor the statutory and judicially pronounced rules
governing the trial of criminal proceedings requires that such meta-
physical distinctions be made by a jury. (C.f. People v. Aranda
(1965) 63 Cal.2d 518, 525 (“The rule calls upon the jury to perform
‘a mental gymnastic which is beyond not only their powers, but
anybody’s else’ ”].) Defendant asked the jury to believe that he had
committed the prior offenses. He may not now be heard to com-
plain that they did.
E. Reference to Irrelevant Statutory Factors
Defendant next argues that the court erred in failing to delete ref-
erence to irrelevant mitigating factors from the instruction on
aggravating and mitigating circumstances. He cites in particular
factors (d) and (e), whether the victim was a participant in or con-
sented to the homicidal conduct, and whether the circumstances
were such that the defendant believed his conduct to be morally
justified or extenuated.
We do not agree with the assumption implicit in defendant’s
argument that the instruction, given pursuant to statute, included
irrelevant factors. While not all of the factors were applicable to
the circumstances of defendant’s crimes, they were relevant in the
determination by the jury of the appropriate penalty. Their rele-
vance lies in the fact that the Legislature has identified each of them
as a proper consideration in the selection of an appropriate penalty.
The instruction calls the attention of the Jury to the range of factors
considered in all capital sentencing and thereby assists the jury in
weighing the relative culpability of the defendant and heinousness
of his or her offense.
~
42D efendant disputes the conclusion that he admitted the commission of the
robbery in the John Street Park in Modesto, or that he used force directed at the
victims. He claims that his testimony was only that Tyson initiated the robbery,
and after it had been completed he told the victims to run and fired in the air
“for that purpose.” This characterization of his testimony is inaccurate. In fact,
he testified that Tyson said he would “get us a ride.” The defendant then told
Tyson, “Well, head on,” and followed him. Tyson then “threw [sic - drew] down”
on the victims but was so drunk that he fell and hit his head on the bumper of
the car. “But he like already threw down on them. And I told them to tell them,
you know, try to tell them to come out and hit the ground. . . . And Tyson got
into the back of the camper . . . looking for some keys. And he threw the keys
at me, but he threw them over my head. And I told him to get the keys. And he
got the keys. And I just turned around and told the people to run. And they jump
and they broke. And I popped, I don’t know, two or three caps over their heads.”
On cross-examination petitioner testified that he and Tyson both had guns in
their hands when they approached the camper, and both of them “did the
talking.” Defendant testified that he took a wallet from the male victim’s back
pocket. The dispute was as to whether petitioner shot at the fleeing couple or in
the air. There is no dispute as to defendant being an active participant in the rob-
bery or as to whether he admitted that it was a crime in which threatened force
was involved.
An instruction which directs the jury’s attention to the factors
that the state considers particularly relevant assists the jury in
selecting the appropriate penalty by narrowing or channeling the
focus of the jury’s discretion. The instruction helps the jury to
determine the appropriate penalty in light of all the factors which
the state considers relevant. The instruction thereby lessens the
possibility that the penalty of death may be imposed arbitrarily or
capriciously. (Accord People v. Miranda (1987) 44 Cal.3d 57;
104-105; People v. Ghent (1987) 43 Cal.3d 239, 776-777.)
We agree with defendant that the absence of any of the statutory
mitigating factors should not be considered aggravating (People v.
Davenport (1985) 41 Cal.3d 247, 289), but no instruction was
given here that might suggest to the jury that it should look at the
absence of mitigating factors from that perspective. Although the
prosecutor referred to those factors that were not applicable here,
recalling for the jury evidence that would disprove their presence,
he did not go beyond that approach to argue that their absence was
an aggravating factor which militated in favor of the death penalty.
Rather he properly asked the jury rhetorically, “do you find any-
thing that mitigates for the defendant?” and exhorted the jury
“weigh the aggravating and you weigh the mitigating.”43
F. Application of Reasonable Doubt Standard to Penalty Selec-
tion
Defendant next contends that the judgment must be reversed
because the jury was not instructed that it must find beyond a rea-
sonable doubt that death was the appropriate penalty.. We reject
that claim. The trial court properly instructed the jury that the Peo-
ple had “no burden of proof.” We are satisfied that the instructions
now given to the jury regarding its obligation to consider any miti-
gating evidence proferred by a capital defendant are adequate to
impress the jurors with the high degree of certainty a juror should
have before voting to impose the death penalty. Since the dec.sion
is a normative judgment reflecting the juror’s individual moral
assessment of the defendant’s culpability (see People v. Allen,
supra, 42 Cal.3d 1222, 1287), application of a reasonable-doubt
standard is neither appropriate nor constitutionally compelled.
(See also, People v. Miranda, supra, 44 Cal.3d 57, 107; People v.
Rodriguez, supra, 42 Cal.3d 730, 777-779.)
G. Other Claims
Defendant repeats his earlier claims of error with regard to the
capacity in which Doctors Brannan and Lloyd were appointed. and
to the admission in evidence at the guilt and sanity trials of the
incriminating statements he made to the psychiatrists, urging these
Same errors as penalty phase error because the jury was instructed
to consider all of the evidence presented during those phases in
determining the penalty. He also argues that the statements were
obtained in violation of his Fifth Amendment privilege against
self-incrimination, and again asserts error in the court’s failure to
instruct the jury that the statements could not be considered for the
truth of the facts contained therein.
Only the self-incrimination claim differs from those considered
and rejected above. Defendant made no objection to consideration
of the evidence on this or any other ground and is therefore pre-
cluded from urging its admission as error on appeal. As discussed
above this omission appears to have been a deliberate tactical
choice by counsel who intended to and did rely on defendant’s
background as support for his argument that defendant’s culpabil-
ity was affected by intoxication and/or mental defect.44 An objec-
43atone point in his opening penalty-phase argument the prosecutor did make
one reference to an inapplicable factor that might have suggested to the jury that
its absence should be weighed as an aggravating factor. He stated: “Now another
consideration that you must make in connection with this offense is, did the vic-
tims participate or consent to this homicidal act? I don’t mean to insult your intel-
ligence, but it’s a factor; it’s either an aggravating or it’s a mitigating factor.” He
went on, however, to suggest as an example of mitigation, the Participation of a
coperpetrator who was shot by the victim of a robbery. He did not return to the
“aggravating factor” concept and defendant did not object to the argument. We
do not deem the argument to have been either misconduct or prejudicial.
44For similar reasons, the court had no duty to instruct the jury that the corpus
delicti of the other crimes had to be proven independently and that his admissions
should be viewed with caution. We note that many of the other crimes had been
established independently of his out-of-court statements. He had testified regard-
ing them.
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DAILY OPINION SERVICE
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tion would have been meritless in any event. The appointment of
a psychiatrist pursuant to sections 1026 and 1027 is made only in
response to the defendant’s entry of a plea of not guilty by reason
of insanity. The examination, initiated at the behest of the defen-
dant, is not “compelled” and Miranda*® warnings are not required.
Statements made to the examining psychiatrist are admissible at
the guilt and sanity phases of the trial if the defendant puts his men-
tal state in issue. (People v. Arcega, supra, 32 Cal.3d 504, 521.) At
the penalty phase defendant again placed his mental state in issue,
inviting the jury to reject death as the appropriate penalty in light
of his history of mental illness or diminished capacity. Although
the question of admissibility at the penalty phase of psychiatric evi-.
dence obtained in a sanity examination was not resolved in Arcega
or Estelle v. Smith (1981) 451 U.S. 451, the Supreme Court has
recently confirmed that when a defendant initiates a psychiatric
examination by court-appointed experts, admission of the defen-
dant’s statements in a subsequent proceeding in which he has
placed his mental state in issue violates neither his Fifth Amend-
ment right against self-incrimination nor his Sixth Amendment
right to counsel. Even if the defendant or his counsel is not aware
at the time of the examination of all of the possible uses to which
his statements might be put, he is on notice that they are admissible
in rebuttal in such proceedings. (Buchanan v. Kentucky (1987) —
U.S. —, —[U.S. Law Week 5026, 5031-5032].) .
Defendant next contends that the prosecutor engaged in miscon-
duct during his opening and closing penalty-phase arguments by
making inflammatory statements based on facts not in evidence,
misstating the law, and making reference to irrelevant factors, and
thereby “corrupted the entire penalty phase of the trial.” Not only
do we disagree with the assertion that specific portions of the argu-
ment which defendant cites as misconduct were improper, but we
note that defendant failed to object to any aspect of the argument.
(People v. Haskett ( 1982) 30 Cal.3d 841, 863; People v. Green,
supra, 27 Cal.3d'1, 27.)*® The trial court promptly and properly
corrected the erroneous statement of the prosecutor regarding the
jury’s obligation in weighing aggravating and mitigating circum-
stances. To the extent that any other part of the argument might
have been misleading or improper, it could have been clarified or
cured by a prompt admonition had there been a timely objection.
(People v. Murtishaw (1981) 29 Cal.3d 733, 757-758.)
Defendant first cites the prosecutor’s reference to “irrelevant”
aggravating and mitigating factors. In his opening argument the
prosecutor listed in abbreviated form, the 10 statutory factors to
be considered by the jury in selecting the appropriate penalty, and
then examined their relevance by pointing to the presence or
absence of evidence to establish the existence of such factors. As
to each he assumed, and by implication invited the jury. to accept
his assumption, that the factor was aggravating or mitigating. The
argument did not suggest that the absence of a mitigating factor or
factors was itself aggravating.
With regard to the circumstances of the offense the prosecutor
asked the jurors to recall that three persons had been murdered,
and the jury had found the killings to be willful, deliberate, and pre-
meditated, and that two had occurred in the commission of rob-
bery.
45Miranda v. Arizona, supra, 384 U.S. 436.
46D efendant notes that an unreported conference was held at the bench at the
close of the prosecutor’s opening penalty-phase argument and deduces that
defense counsel made an objection at that time. He mischaracterizes the record
in asserting that the judge interrupted the prosecutor. The record clearly estab-
lishes that the prosecutor had concluded. He asked the jury to consider his com-
ments while defendant’s counsel spoke to them, and told them that he would
speak to them again. Because defense counsel opened his argument with advice
to ignore what had been said about “something being mandatory” if the instruc-
tions were otherwise, defendant now asserts that counsel must have objected to
all of the “misconduct” he now identifies, or alternatively was incompetent. It is
equally if not more probable, since the judge initiated the conference that the
judge himself sought to correct a misstatement as to the “mandatory” nature of
the 1977 law, an issue to be addressed infra.
Defendant’s assertion that he has made “several strenuous attempts” to ascer-
tain what occurred at “several’ crucial unreported bench conferences” and that
such attempts were “futile” appears disingenuous at best. A settled statement of
unreported.conferences is part of the record. The transcript of proceedings reflects
no attempt to obtain settlement of the record as to this conference.
The prosecutor then briefly summarized the evidence of prior
violent criminal conduct, including that which defendant had
described in his interviews with the examining psychiatrists.
Referring to the third factor, acting under extreme mental or
emotional disturbance, the prosecutor asked the jurors to recall
their deliberations during.the guilt phase as to impaired capacity,
consider the evidence related to the manner and circumstances in
which the killings were committed, and petitioner’s statement to
the officers who transported him from Arizona.
With respect to remorse, the prosecutor emphasized evidence
regarding defendant’s actions after the murder of Miguel and Sal-
vador Vargas as demonstrating a lack of remorse. As to whether
defendant acted under the domination of Tyson, the prosecutor
- recalled the evidence that defendant planned and took the lead in
committing the crimes, and had described Tyson as “sniveling.”
The final factor, whether the victims participated in or consented
to the homicidal acts, was dismissed with this comment: “I don’t
mean to insult your intelligence, but it’s a factor, it’s either an
aggravating or it’s a mitigating factor.” The prosecutor then sug-
gested a robbery scenario, in which the victim of a murder was one
of the robbers shot by the resisting robbery victim, as an example
of “consent” by consenting to the felony, concluding that “in this
particular case, it would seem to insult, seriously insult the mind
of any reasonable juror to say that the victims in this case partici-
pated in any of the acts that resulted in the deaths of Miguel and
Salvador.”
After a brief discussion of the evidence and similar reference to
Lourdes Meza’s lack of consent or participation, the prosecutor
then referred to the absence of any basis for concluding that defen-
dant believed his acts were morally justified, again suggesting cir-
cumstances in which that factor might be present. He then summed
up by briefly mentioning and dismissing the other factors that, if
present, might be considered mitigating—whether defendant was
a “mere accomplice,” was under the “substantial domination of
Tyson, lacked capacity to appreciate the criminality of his conduct
or his mental capacity was substantially impaired,” and whether
any other relevant factor was mitigating. In relation to that possi-
bility, the prosecutor suggested that defendant’s age, 37 years, was
not mitigating. He was not a youngster, but was of an age in which
responsibility should be assessed.
The prosecutor closed this argument by asserting that defendant
apparently had an intent to kill and recalling evidence that when
asked by an officer which person came to the door of the victim’s
home, defendant replied. “He’s just a Mexican.”
The prosecutor’s closing argument was a somewhat confusing
melange of ideas, emphasizing the apparent lack of remorse
reflected in defendant’s statement to Dr. Brannan that if released
in 20 years he would do it again,*” and the evidence that had been
_ Offered to rebut the defense of diminished capacity.
Defendant first asserts as misconduct the reference to all 10 of
the statutory factors enumerated in section 190.3 of the 1977 death
penalty law, and the argument based thereon. We disagree. As we
have pointed out earlier, instructions are properly given on all of
the statutory factors that the Legislature has, identified as consider-
ations which the state believes are particularly relevant to selection
of the appropriate penalty. It follows that it is proper for counsel
in argument to assist the jury in determining the relevance of those
factors, or lack thereof, in the case before it. A capital jury, lacking
the overview of cases in which the death penalty has been imposed
that a judge might have, is not familiar with the range of factors
by which culpability is appropriately assessed in such cases. When
counsel do this by summarizing or marshalling the evidence and
arguing its relation to those factors in light of the full range of fac-
tors identified by the state as particularly relevant, a capital jury
is better able to place the particular defendant’s conduct in perspec-
tive. If all jurors are made aware of these factors, their exercise of
discretion is further channeled and directed, and the possibility of
47befendant claims that the prosecutor’s argument that defendant lacked
remorse was misconduct because there was no evidence to support that conclu-
sion. Circumstantial evidence had been introduced which arguably did support
that argument among which was his statement to the police officer that one victim
was “just a Mexican,” and the evidence of defendant’s conduct after the killings.
2020 California Supreme Court
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CALIFORNIA
arbitrary or capricious imposition of the death penalty is lessened.
Indeed, giving the jury this type of guidance was encouraged by the
United States Supreme Court in Gregg v. Georgia, supra, 428 U.S.
153, 192, where the court recognized that jury inexperience in sen-
tencing might make it difficult for jurors to recognize and properly
use information relevant to the sentence choice. The court said
there: “[T]he problem will be alleviated if the jury is given guidance
regarding the factors about the crime and the defendant that the
State, representing organized society, deems particularly relevant
to the sentencing decision.”
The single statement by the prosecutor here that the Pparticipa-
tion or consent to the homicidal-act factor had to be either aggra-
vating or mitigating cannot fairly be characterized as defendant
does—as misconduct applicable to every factor. The related argu-
ment emphasized circumstances of the crime and the lack of any
prior relationship or involvement of the victims with defendant
and Tyson, a proper subject for argument. Similarly, the argument
about age, explained to the jury the situation in which age might
be mitigating, but did not suggest that defendant’s age was an aggra-
vating factor. The argument itself left that factor in a neutral pos-
ture.
__ After his examination of the 10 Statutory factors the prosecutor
asked rhetorically: “So as you consider these, how do you add these
up?” Sometime later in his peroration he asked: “Do you find any-
thing there that mitigates for the defendant? Weigh the aggravating
and you weigh the mitigating.
“Now can you conscientiously. . . go through this list of circum-
stances to consider and tell us that you find that the mitigating cir-
cumstances outweigh the aggravating.”
Defendant also assigns this argument as misconduct, reading
into it a suggestion that the jury should weigh the aggravating and
mitigating factors in numerical terms and make the penalty selec-
tion a quantitative determination. Again, we disagree. Unlike the
instruction that necessitated reversal in People v. Brown, supra, 40
Cal.3d 512, a case tried under the 1978 law, the jury here was not
instructed in mandatory terms that it must impose the death pen-
alty if it found the aggravating circumstances outweighed the miti-
gating.
Although at the outset of his argument the prosecutor had told
the jury this was the law, defense counsel had warned the jury that
“if something comes out that indicates to you it’s mandatory, you
don’t hear that in the instructions, your obligation would be to dis-
regard whatever counsel may have said about something being
mandatory and ‘use your judgment and discretion.” Then, after the
closing argument, the court corrected any misunderstanding the
jury might have had in that regard, telling the jury “that is not the
law that applies to this case” and expressly told the jury that while
it might use the factors, “the way you go about it is up to you. And
the law does not Say you shall do one or the other.” (Cf. People v.
Easley, supra, 34 Cal.3d 858, 881-884.) We do not agree with defen-
dant that the prosecutor’s exhortation to weigh the aggravating and
weigh the mitigating factors implied a mechanical or numerical
comparison, and if this impression were left we have no doubt that
it was adequately dissipated by the court’s instructions.
We reject defendant’s claim that the prosecutor’s comment on
lack of remorse violated his Fifth Amendment privilege against
self-incrimination, and constituted misconduct because that con-
sideration is not a statutory aggravating factor. Prosecutorial com-
ment on a defendant’s silence may in some instances violate the
privilege against self-incrimination. (Griffin v. California (1965)
380 U.S. 609.) The argument here did not, however, either directly
or indirectly, call to the attention of the jury defendant’s failure to
testify (cf. People v. Vargas (1973) 9 Cal.3d 470), nor was it
directed to prearrest silence in circumstances in which that silence
might reflect an exercise of that privilege. This is not a case in which
the defendant asserted the privilege. He confessed to the police. He
described the crimes to the psychiatrists, and in his testimony at
trial, but in none of his statements about the crimes did he express
sorrow. Comment regarding this omission invaded no constitu-
tional right or privilege.‘
The presence or absence of remorse was recognized as a factor
relevant to the penalty decision under the prior law (People v. Cole-
man (1969) 71 Cal.2d 1159, 1168), although it is not among the
Statutorily enumerated aggravating factors in the 1978 law. The
court held in People v. Boyd (1985) 38 Cal.3d 762, 772-773, that
under the 1978 law the Prosecutor may not introduce evidence that
is irrelevant to the statutory aggravating factors. Because remorse
is universally accepted as a Possibly mitigating factor, however, the
prosecutor may call to the attention of the jury an apparent absence
of remorse in a defendant who has admitted. that he has killed
another human being. (People v. Ghent, supra, 43 Cal.3d 739, 771.)
The prosecutor’s argument here went no further than that. It was
in accord with the prior law and the 1977 statute has not been con-
strued to prohibit reference to a consideration any juror, without
the necessity for instruction or argument, would have in mind. The
Prosecutor’s references to defendant’s apparent lack of remorse
could hardly have done more than call the jury’s attention to that
which was apparent from the evidence.
Even were the 1977 law construed to prohibit reference to non-
Statutory aggravating factors at the penalty phase, or argument that
lack of remorse should be considered aggravating in selecting the
penalty, the rule could not prevent a capital juror from bringing to
bear on his decision knowledge gained from his life experience. The
United States Supreme Court has indicated that to do so would be
constitutionally impermissible.
“Any sentencing decision calls for the exercise of judgment. It
is neither possible nor desirable for a person to whom the state
entrusts an important judgment to decide in a vacuum, as if he had
no experiences. . . . [1] We have never suggested that the. United
States Constitution requires that the sentencing process should be
transformed into a rigid and mechanical parsing of statutory aggra-
vating factors. But to attempt to separate the sentencer’s decision
from his experiences would inevitably do precisely that. It is
entirely fitting for the moral, factual, and legal Judgment of judges
and jurors to play a meaningful role in sentencing.” (Barclay v.
Florida (1983) 463 U.S. 939, 950.)
The prosecutor’s reference to defendant’s apparent lack of
remorse was not misconduct.
Defendant next assigns as misconduct, the Prosecutor’s com-
ments to the jury about the victims, asserting that this portion of
the argument was an appeal to passion and prejudice. Again, we
note there was no objection on this ground, but such objection
would not have been meritorious. In fact, the argument appeared
to be no more than low key rhetoric. The idea of retribution was
not put forth. (Cf. People v. Floyd (1970) 1 Cal.3d 694, 7217 72),)
Nor did the prosecutor appeal to racial prejudice or otherwise
engage in conduct which seriously threatened juror objectivity. (Cf.
People v. Bain (1971) 5 Cal.3d 839, 848-849.) He simply asked that
the jury not forget the victims and that the jurors consider the lives
they might have had. This argument is permissible at the penalty
phase. (People v. Haskett, supra, 30 Cal.3d 841, 864.)
Defendant also urges that there was misconduct in the prosecu-
tor’s asking the jurors to recall their “promise” on voir dire, that
if sworn as jurors they would consider imposition of the death pen-
alty if it was appropriate. We find no error in reminding the jurors
of their obligation at the penalty phase to consider the death pen-
alty. This argument did not improperly convey to the Jury the pros-
ecutor’s personal view or belief that the case was an appropriate
one. The use of the word “promise” was an accurate description
of the obligation assumed by the jurors’ oaths and was consistent
DAILY OPINION SERVICE
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California Supreme Court 2021
with the subsequent instruction by the court that it was now the
“duty” of the jury to select which of the two possible penalties
should be imposed.
Defendant also argues that the prosecutor’s reference to the
alleged “rape” of Lourdes Meza was improper in light of the prior
finding that her murder was not committed during the perpetration
or attempted perpetration of Tape. The actual statement during
argument was to “intercourse,” not rape. This reference was not,
however, like that condemned by this court in Haskett, supra, 30
Cal.3d 841. It did not suggest that the jury verdict rejecting that
charge had been erroneous, or impliedly criticize the jury. Since
defendant admitted, during his trial testimony, the act of inter-
course to which the prosecutor referred, the statement was sup-
ported by the evidence and was proper. (See People v. Love (1961)
56 Cal.2d 720, 730.) The reference to defendant’s admission that
he had intercourse with Lourdes Meza during the trip to Sonora
was offered as illustrative of defendant’s lack of remorse for the
murders of Miguel and Salvador. We cannot say it was not relevant
to his state of mind while transporting his third victim to the loca-
tion at which she was to be killed.
Defendant next argues that it was error to permit the jury to con-
sider the evidence contained in the psychiatrists’ reports at the pen-
alty phase. This evidence, he contends, without citation of
authority other than section 1026, subdivision (a), which does not
so provide, was admitted for the limited purpose of determining
defendant’s sanity at the time of the offense. Not only is this claim
unsupported by authority, but there was no objection to jury con-
_ sideration of the evidence, and defendant relied on the evidence.*?
The evidence was relevant to the statutory factor “[w]hether or not
at the time of the offense the capacity of the defendant to appreciate
the criminality of his conduct or to conform his conduct to the
requirements of law was impaired as a result of mental disease or
the affects of intoxication.” (Former § 190.3, subd. (g).)
Because we conclude that there was no prosecutorial misconduct
during the penalty-phase argument, we need not consider defen-
dant’s further claims that no objection is necessary to preserve for
review on appeal such misconduct when it occurs during the pen-
alty phase of a capital case; that the trial court denied defendant
a fair trial by failing to intervene to curb the asserted misconduct;
or that defense counsel’s failure to object establishes constitution-
ally ineffective representation.
MOTION FOR MODIFICATION
Former section 190.4, subdivision (e) provided: “In every case
in which the trier of fact has returned a verdict or finding imposing
the death penalty, the defendant shall be deemed to have made an
application for modification of such verdict or finding pursuant to
subdivision (7) of Section 1181. In ruling on the application the
judge shall review the evidence, consider, take into account, and
be guided by the aggravating and mitigating circumstances referred
to in Section 190.3, and shall make an independent determination
as to whether the weight of the evidence supports the jury’s findings
and verdicts. He shall state on the record the reason for his find-
ings. [1] The judge shall set forth the reasons for his ruling on the
application and direct that they be entered on the Clerk’s minutes.
[1] The denial of the modification of a death penalty verdict pursu-
ant to subdivision (7) of Section 1181 shall be reviewed on the
defendant’s automatic appeal pursuant to subdivision (b) of Sec-
tion 1239. The granting of the application shall be reviewed on the
people’s appeal pursuant to paragraph (6) of subdivision (a) of Sec-
tion 1238.”
The trial court denied defendant’s application for modification
ina four-page ruling, after orally stating the reasons for denial from
the bench.®
491 his opening penalty-phase argument counsel asked the jury to consider
the defendant’s state of mind, his “capacity,” and whether it was affected by intox-
ication, and referred to the report of Dr. Brannan which, he said, had concluded
that “drugs were an important factor.”
504 fter stating the procedural background, the ruling recited: “In considering
the application, the Court has reviewed the evidence, considered and taken into
account the evidence upon each offense, and each special circumstance found by
the jury to be true, and the aggravating and mitigating circumstances referred to
in Penal Code section 190.3.
Defendant now contends that in denying the motion the judge
considered factors contrary to the evidence and irrelevant to the
penalty determination. In support of this claim defendant first
argues that the court’s statement that “Defendant Williams and his
co-defendant, Tyson, traveled from Galt to Merced, more than 75
miles, for the stated purpose of robbing and killing the three dece-
dents. The home of the decedents was not easily found. Williams
and Tyson made appropriate inquiries, found the place and visited
with the three decedents and their three guests. After the guests
departed, Williams and Tyson left but returned in a few minutes
to accomplish their intended purpose. Lourdes Meza “was required
to submit to acts of sexual intercourse while traveling to the place
at which she was killed” was contrary to the evidence because he
was acquitted of the special circumstance of having committed that
murder during the commission or attempted commission of rape.
_ Defendant admitted during his testimony that he and Tyson kid-
naped Lourdes Meza, that when she attempted to get out of the car
he slapped her and Tyson knocked her into the backseat, and that
he had sexual intercourse with her thereafter. The jury was
instructed that to find the special circumstance of murder in the
commission of rape true it had to find that: “One, that the murder
was willful, deliberate and premeditated, two, that the defendant
was personally present during the commission of the act or acts
causing death, and, three, that defendant, with intent to cause
death, and, four, that the murder was committed during the com-
mission or attempted conmission of a rape.”
_ In argument the prosecutor explained to the jury that if the rape
took place only in the car the killing nevertheless took place during
the commission of rape if defendant had not yet reached a safe
haven because the victim was still present. During jury delibera-
tions the jury, through the foreman, inquired as to the relevant time
period, stating: “We’re not certain in our minds as to what period
of time we must consider as to the occurrence of the rape, whether
it must be actually done at the time of the crime when she was mur-
dered or from the period of time when they left Merced to the point
of the occurrence.”
The court then reread to the jury the instructions on felony mur-
der in the conmission of rape (CALJIC No. 8.21) and the special
circumstance instruction (CALJIC No. 884.3), the latter of which
is quoted above and includes the requirement that “the murder was
committed during the commission or attempted commission of a
rape.” The foreman asked for a copy of the felony-murder instruc-
tion and the court again read CALJIC No. 8.21. The jury then
returned verdicts finding that the murder did not occur during or
“The three deaths in this case occurred as the result of multiple gunshot wounds
on each decedent, all inflicted by the Defendant.
“There was no quarrel, no heat of passion, certainly none aroused by the con-
duct or words of the victims. Blows were apparently struck on at least one of the
decedents by either Williams or Tyson before Miguel and Salvador were killed.
“Thereafter Lourdes Meza was kidnapped.-Her purse was taken by Williams.
She was required to submit to acts of sexual intercourse while traveling to the
place at which she was killed. She was taken into a field. Unclothed, she was
placed on her hands and knees. She was shot four times. Her body was left in the
field. The body was discovered five days later.
“The defendant has previously been committed to the CYA and prison.
“In stealing a camper in Modesto he fired shots, though presumably not at peo-
ple.
“The Defendant was not mentally or emotionally disturbed at the time of com-
mission of these offenses. (He said he was unhappy with Tyson for failing to take
a weapon from Miguel.)
“The victims did not consent and were not participants in the homicidal con-
duct.
“No circumstance could have reasonably caused the Defendant to have
believed he was morally justified in killing any of the victims.
“The Defendant was the leader, not a follower of Mr. Tyson.
“The Defendant is old enough to know about, young enough to appreciate life.
“The only explanation given by the Defendant was his ‘intense dislike of Mexi-
cans.’ The acts were cruel and calculated.
“The Defendant was emotionally calm during the entire trial.
“Having considered all of the foregoing and all other evidence received during
the trial, the Court finds there is ample evidence to support and no reason to mod-
ify any of the several verdicts rendered by the jury. Particularly, in view of the
intentional killing of three people and the statement by the Defendant that he
might do it again, the Court finds no reason to modify the verdict and finding
of the jury that the penalty for each offense should be death.”
