Opinion
F041564.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. KEITH BRYAN SHELL, Defendant and Appellant.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Jeffrey D. Firestone and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
A jury found appellant Keith Bryan Shell guilty of murder (Pen. Code, § 187, subd. (a); count 1), kidnapping for ransom (Pen. Code, § 209, subd. (a); count 2), conspiracy (Pen. Code, § 182, subd. (a)(1); count 3), and second degree burglary (Pen. Code, § 460, subd. (b); count 4). The victim, Bradley St. Clair, worked for a family business which employed appellants girlfriend as a receptionist. Bradley St. Clair was bound with duct tape and strangled with his own necktie at his office at the end of a business day. Appellants fingerprint was on the duct tape that was wrapped around the victims head, and appellants left palm print was on the duct tape that was wrapped around the victims ankles. The jury also made special findings that the murder was committed in the commission or attempted commission of a kidnapping, a robbery and a burglary (§ 190.2, subds. (a)(17)(b), (a)(17)(a), and (a)(17)(g)), that the kidnapping for ransom resulted in death (§ 209, subd. (a)), and that appellant performed two overt acts in furtherance of the conspiracy. The two overt acts were (1) appellant entered the St. Clair office building, and (2) appellant bound and gagged the victim. In a separate penalty phase of appellants trial, the jury spared appellants life and determined that his penalty would be life in prison without the possibility of parole.
Appellant contends that the trial court erred in instructing the jury with CALJIC No. 4.51. This is an instruction which allows a jury to find a co-conspirator or an aider and abettor guilty of a crime even if he or she is not present at the commission of the crime. As we shall explain, the alleged error, if any, in the giving of this instruction was harmless because the jury expressly found that appellant was present at the scene (i.e., that he entered the office and that he bound and gagged the victim). Thus there is no possibility that the jury believed appellants alibi defense but found him guilty anyway by applying the CALJIC No. 4.51 instruction. We will affirm the judgment.
FACTS
Appellant was the boyfriend of Susan Clevenger. In 1999 Susan Clevenger was hired as a secretary by St. Clair Investments, a real estate, property management and home building firm. St. Clair Investments was a family business operated by Frank St. Clair, Sr., his wife Arlana, and their sons Frank, Jr. and Bradley (the murder victim). Susan Clevengers younger brother was Robert Clevenger. In June of 2000 Robert Clevenger lived with his mother and father. Robert testified that one evening in June of 2000 his sister Susan came into his room and said she wanted to talk to him. The two of them went outside the house and were standing on a sidewalk. Susan asked Robert if Robert would like to participate in a kidnapping. Susan said she wanted to kidnap someone she worked with, a member of the St. Clair family. She talked about using a stun gun for the kidnapping. Robert believed that the St. Clair family was wealthy, and he understood that the purpose of the kidnapping was to hold one of the St. Clairs for ransom. Robert said no to his sisters offer to participate in the kidnapping. Shortly after Bradley St. Clair was murdered on August 7, 2000, Robert told officers from the Bakersfield Police Department about this conversation.
Susan and Robert Clevengers younger sister Marlana also lived in the family home in the summer of 2000. Marlanas friend Sandra Halphin, who had graduated from high school with Marlana in 1999, also lived there. Halphin testified that in late July of 2000, Marlana Clevenger asked Halphin if Halphin thought her (Halphins) boyfriend, Arnold Walton, would like to participate in a plan to kidnap Susan Clevengers boss and hold him for a $1 million ransom. Halphin further testified that Marlana Clevenger told her Susan Clevenger had asked Marlana if Marlana knew anybody that would help in the kidnapping. Halphin heard about Bradley St. Clairs murder shortly after it happened. She moved out of the Clevenger home in early August of 2000 and moved back in with her own parents. Halphin told her mother about the conversation with Marlana. Halphins mother advised her to tell the police. Halphin hesitated to do so because "I didnt want anybody to come after me," but ultimately she did contact the police.
On August 7, 2000, Arlana St. Clair worked in the St. Clair Investments office until 4:30 p.m. When she left that day, Brad, Clevenger, and Linda Hanawalt were present in the office. Hanawalt was a bookkeeper and property manager. Her office was next to Brads office. Hanawalt left the St. Clair office building at about 4:30 p.m., leaving Brad and Clevenger alone in the office.
At about 4:50 p.m., June "Christine" Kearney, a friend of the St. Clair family, arrived at the office building to talk to Amanda Fox-Fredline, a part-time employee. As Kearney arrived at the office, she saw Susan Clevenger walk up to the building from Wible Street. Clevenger entered the building and sat down in the receptionists chair. Clevenger informed Kearney that Fox-Fredline was not working in the office that day. Kearney saw Brad sitting in his chair in his office and she greeted him. Kearney obtained Fox-Fredlines telephone number and called her from Clevengers phone at about 4:55 p.m. Clevenger began hitting buttons on the phone, interrupting Kearneys phone conversation with Fox-Fredline. Kearney thought Clevenger was being rude. Kearney ended the 20-minute conversation with Fox-Fredline at about 5:15 p.m. and immediately left the building.
At about 4:51 p.m., Brad called his wife Elisia and discussed a dinner engagement for that evening. Brad planned to be home by 5:30 p.m. At about 5:11 p.m., Brad called William Sanders, a maintenance worker for St. Clair Property Management on Sanders cell phone. Brad asked Sanders to immediately fix an overflowing swimming pool at one of the apartment complexes.
Brad did not come home at 5:30 p.m. and Elisia called him on his cell phone at about 5:35 or 5:36 p.m. He did not answer. She called his work number several times, and eventually left a message on the answering machine at 6:00 p.m. At about 6:00 p.m., the alarm company called Arlana and reported that the security alarm had gone off at the building. Arlana decided to check on the office building herself because she felt this might be a false alarm. She told the alarm company not to send the police, but the alarm company had already notified police.
At about 6:04 p.m., Bakersfield Police Officer Antecito Damo arrived at the office building in his patrol car. He had been notified by the alarm company that the building alarm had been tripped. When he arrived, the alarm system was ringing. He noticed a small, white Nissan (the victims car) parked in the parking lot. He did not see anyone outside of the building. He checked the doors and found them locked. He noticed the window blinds next to the northwest door were bent and damaged. He looked inside the building, but could not see anything because it was dark inside. During his brief inspection, he was advised by his dispatcher that the alarm company had cancelled the alarm call. He left the office building at about 6:08 p.m.
Arlana arrived at the office building at about 6:20 p.m. She saw Brads white Nissan car parked in the parking lot. She immediately noticed the office window blinds had been bent. The blinds were not bent when she left the office at 4:30 p.m. The office doors were locked. The doors had to be locked with the key. She unlocked the door, walked into the office, and unsuccessfully attempted to disarm the alarm. One of the alarm keypads had been ripped off of the wall. She yelled for Brad and became nervous and "apprehensive" when he did not respond. She propped open the door, walked out of the building into the parking lot, and called 9-1-1. Officer Damo and Officer Wesson responded to the call at 6:29 p.m. They contacted Arlana outside the building. Officer Damo noticed Brads car parked in the same place. Arlana remained outside while the officers entered the building.
The officers found Brads body inside the bookkeepers office in a northwest corner of the building. He was lying face down on the floor. His legs and wrists were bound with duct tape. His eyes and mouth were wrapped in duct tape. The duct tape covering his eyes had been wrapped around his head several times. No one else was inside of the building.
Criminalists later tested the duct tape removed from Brads body for latent fingerprints. They lifted appellants left middle fingerprint from duct tape that was wrapped around Brads head. They also lifted his left palm print on the top layer of the duct tape that was wrapped around Brads ankles. The parties stipulated hair pulled from the duct tape matched Clevengers DNA.
Detectives found Brads broken cell phone in pieces under his body, inside the bookkeepers office. Brads pants pockets were pulled out and his wallet, wedding ring, and watch were missing. These items were not recovered. Detectives located a desktop calendar in a wastebasket next to a desk in the secretarys office. Appellants left palm print was matched to a partial palm print on the top page of the calendar. Criminalists also matched his right thumbprint from a doorframe between the bookkeepers and secretarys office.
Detectives found smeared blood on the inside of the northeast door of the building. However, a DNA test excluded appellant, Clevenger, and Brad as possible donors of the blood smear. Criminalists could not match the blood smear to another suspect at the time of trial. Criminalists determined the blood smear came from a male donor. The DNA profile from the bloodstain was submitted to the Department of Justice for comparison in the convicted offender DNA system. However, at the time of trial, the DNA did not match any individuals in the system.
Dr. Donna Brown, M.D., the Kern County forensic pathologist, performed an autopsy on Brad on August 8, 2000. Dr. Brown removed the duct tape from Brads eyes, mouth and ankles. Criminalists had previously removed the duct tape around Brads wrists. Dr. Brown found petechiae in Brads eyes and bleeding underneath his eyes surface. Petechiae are small blood blisters that are formed when a person is strangled. She found petechiae around Brads eyes and mouth. She also found a puncture wound to his right neck area that penetrated into his head approximately one inch. The wound went into his brain, causing leakage of fluid from the cranial cavity. She opined the wound came from a sharp object like a box cutter or box opener. The puncture also penetrated duct tape that was wrapped around Brads head. He had a fractured larynx and soft tissue bruising along the left side of his neck. Dr. Brown opined Brad died of ligature strangulation. His necktie had been used as the ligature.
Detectives arrested appellant and Clevenger on April 12, 2000. Detectives served a search warrant at their residence on Real Road in Bakersfield. Newspaper articles reporting Brads murder were found in a closet there. Detectives noted that appellant lived about 2.1 miles from the St. Clair office building.
Appellant testified in his own defense. He said that he arrived at St. Clair Investments between 4:45 and 4:50 p.m. on the day of the murder. Christine Kearney was on the phone when he went inside the building. Susan Clevenger was at her desk. Appellant said that after two or three minutes, he went outside and waited in the car for Susan Clevenger, and then left with Clevenger at about 5:15 p.m. He denied that he was in any way associated with Brad St. Clairs death and denied that he had planned to kidnap Brad St. Clair.
ANY ERROR IN INSTRUCTING THE JURY
WITH CALJIC NO. 4.51 WAS HARMLESS
The court conducted a conference with the attorneys concerning which jury instructions should be given. At one point in the conference the following colloquy occurred:
"THE COURT: à Then we have some instructions that Mr. Dellostritto asked for, 4.50 and 4.51.
"MR. DELLOSTRITTO: Right. Im not asking for 4.51. I was only asking for 4.50.
"THE COURT: Youre asking for 4.50?
"MR. DELLOSTRITTO: Right.
"MR. SOMERS: I think 4.50 is appropriately given, Your Honor. I have no objection. But as Counsel correctly anticipated in pulling it, 4.50 is given. I will ask for 4.51.
"THE COURT: Any objection, Mr. Dellostritto, to that request?
"MR. DELLOSTRITTO: No. I think its a correct statement of the law as I look at it.
"THE COURT: All right. Both will be given. 4.51 over the, I guess — well, it will be given.
"I dont know if you are objecting or not, Mr. Dellostritto, but it will be given.
"MR. DELLOSTRITTO: Okay. You can put me down for an objection."
When the court later instructed the jury, the instructions included CALJIC Nos. 4.50 and 4.51, which the court gave as follows:
"[THE COURT]: Now, the Defendant in this case has introduced evidence for the purpose of showing that he was not present at the time and the place of the commission of the alleged crimes for which he is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the Defendant was present at the time the crimes were committed, you must find him not guilty.
"However, if the evidence establishes beyond a reasonable doubt that the Defendant aided and abetted the commission of or was a co-conspirator in the commission of the crimes charged in this case, the fact, if it is a fact, that he was not present at the time and place of the commission of the alleged crimes for which he is being tried does not matter and does not, in and of itself, entitle the Defendant to an acquittal."
Appellant does not quarrel with the legal accuracy of the CALJIC No. 4.51 instruction (the second paragraph quoted above). He simply contends that the instruction should not have been given because the prosecutions theory of the case, on all of the charged crimes, was that appellant was present at the St. Clair Investments office at the time the crimes were committed. Appellant relies on the theory that "[i]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Even if we assume that the giving of the CALJIC No. 4.51 instruction was error, the giving of an instruction which has no application to the facts of the case is an "error ... of state law subject to the traditional Watson test (People v. Watson (1956) 46 Cal.2d 818, 836 ...." (People v. Guiton, supra, 4 Cal.4th at p. 1130.) "Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred." (Ibid .) "In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict." (Ibid .)
In this case it is apparent that any error was harmless because there is no possibility whatsoever that the jury relied on CALJIC No. 4.51. This is because the jury made the express finding that "KEITH BRYAN SHELL bound and gagged Bradley St. Clair, as alleged in the third count of the Information." There was no dispute that the binding and gagging of the victim took place at the St. Clair Investments office where the burglary, kidnapping and murder were committed. The jury thus in essence found that appellant was there at the scene of the crimes. Appellants unsuccessful defense was that he picked up Susan Clevenger and left the office before the crimes were committed by others. This defense was rejected by the jury. Furthermore, the prosecution never relied on CALJIC No. 4.51 in argument to the jury. The prosecutions theory was that appellant either personally killed the victim, or was simply present while one of the other perpetrators killed the victim after appellant had bound and gagged the victim. Appellants trial counsel emphasized in argument that the prosecution was not relying on CALJIC No. 4.51. Referring to CALJIC Nos. 4.50 and 4.51, appellants defense counsel told the jury:
"[DEFENSE COUNSEL]: Now — but quite honestly, in this case, as far as I understand Mr. Somers argument to this point in time, he is saying that Mr. Shell is there. He is not saying that Mr. Shell was part of the conspiracy and that he was not present at the time of Bradley St. Clairs death. So I dont know that that second instruction really is going to be of particular significance in this case."
To the extent appellant suggests on appeal that the giving of CALJIC No. 4.51 was prejudicial on the murder count because the jury may have concluded that appellant bound and gagged the victim and then (in the words of appellants brief) "left before the murder," there is no reasonable probability that the jury utilized CALJIC No. 4.51 in this manner because neither side contended at trial that appellant simply left the scene after the binding and gagging but before the murder. The prosecutions theory was that appellant, Clevenger, and an unidentified third person committed the crimes. The defense argument was that appellant and Clevenger left the office at 5:15 p.m. and that someone else then committed the crimes after appellant and Clevenger left. Nor was this a close case. The guilt phase of the trial lasted 18 days, and the jury reached its verdict after less than five hours of deliberations.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, J., Cornell, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise stated.