P. v. Mordick
Filed 2/4/13 P. v. Mordick CA4/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM GREGORY MORDICK,
Defendant and Appellant.
G044742
(Super. Ct. No. 08NF0487)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, John Conley, Judge. Affirmed.
Richard de la Sota,
under appointment by the Court of Appeal; and Quin Denvir for Defendant
and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, A. Natasha Cortina and Christine
Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant William
Gregory Mordick appeals from the judgment entered in 2010 after a jury found
him guilty of first degree murder of
his wife, Katherine Mordick,
name="_ftnref1" title="">[1]
in 1983. We affirm. For the reasons we will explain, we hold
(1) the trial court did not err by denying defendant’s motion to dismiss
the case for precharging delay; (2) substantial evidence supported the
jury’s verdict; and (3) the trial court’s evidentiary rulings, challenged
by defendant, did not constitute an abuse of discretion.
SUMMARY OF TRIAL EVIDENCE
I.
The Mordicks’ Troubled Marriage
In 1977, defendant and
Katherine, who was often called “Kit†or “Kitty,†were married. Katherine and defendant had two
daughters: E. was born in 1978 and B.
was born in 1980.
Katherine and defendant
lived in a house located on South Ridgecrest Circle
in Anaheim Hills (the Ridgecrest
house). Katherine was a “food stylistâ€
who staged food for print advertisements and commercials. Defendant struggled to earn a living as a
photographer. Consequently, Katherine
worked and defendant was often home with their two young girls. Toward the end of the marriage, defendant
“was [not] working outside the house very much at all.â€
In August 1981,
Katherine began to have an affair with Henry Bjoin, a photographer with whom
she worked. At the end of 1981,
Katherine called off the affair and stopped all contact with Bjoin to work on
her marriage. During the summer of 1982,
Katherine began working with Bjoin again and resumed her romantic relationship with
him.
II.
Katherine’s Sister, Donna, Witnesses Two
Instances of Domestic Violence by Defendant Against Katherine Months Before
Katherine’s Murder; Defendant Moves Out of the
Ridgecrest House After First Instance.
In October 1982, Donna
and her husband, Doug Holbrook, were moving; Katherine, defendant, and their
daughters helped.
title="">[2] Donna and Holbrook were outside when E.,
screaming “mommy needs help,†ran to Donna.
Donna ran inside the condominium and saw defendant holding Katherine by
the shoulders and shaking her. After
this incident, defendant and Katherine were separated; defendant moved out of
the Ridgecrest house and never moved back in.
Defendant and Katherine
agreed that defendant would visit the girls every other weekend. When it was his turn to have the girls for
the weekend, defendant usually picked them up in the late afternoon or early
evening on Friday and returned them on Sunday around the same time. Donna was often present during those exchanges. Donna testified that Katherine would have the
girls ready to go on time so that there would be a quick exchange; defendant
did not normally enter the Ridgecrest house.
On a Sunday in December
1982, Donna and Katherine were alone in their parents’ house when defendant
returned the girls after a visit. Donna
heard screaming and found Katherine, in the corner of a room on the ground,
cowered in a ball covering her head.
Defendant was on top of Katherine and was “striking her, hitting her,
pounding her.†Katherine told Donna to
get the girls out of the room; Donna complied.
When Donna returned, she saw defendant getting off of Katherine. Katherine was “a messâ€; she was crying and
disheveled. Defendant never again
reentered Katherine and Donna’s parents’ house.
III.
Katherine Petitions for Marital Dissolution;
Katherine and Defendant Meet with Katherine’s Attorney; Defendant Is Served
with an Order to Show Cause Regarding Child and Spousal Support, Child Custody,
and Visitation Issues, Scheduled to Be Heard on January 28, 2003.
In late December 1982 or
early January 1983, Katherine met with family law Attorney Bernard Leckie,
seeking his assistance in divorcing defendant.
On January 4, 1983, Leckie filed a petition for dissolution of the
Mordick marriage, on behalf of Katherine.
On January 11, Leckie met with Katherine and defendant at Leckie’s
office. (The record does not reflect
that defendant ever sought any advice of counsel with regard to the marital
dissolution proceedings.) During the
meeting, Leckie served defendant with, inter alia, an order to show cause on
the issues of child custody, support, and visitation as well as spousal
support. The order stated that defendant
was to appear in court on January 28, 1983. Also during the meeting, Leckie proposed
terms pertaining to child support, custody, and visitation, which he thought
were reasonable, but also favorable to Katherine. Defendant “agreed to everything,†which,
Leckie testified, was “very uncommon†in marital dissolution actions. He stated defendant had a “very unusualâ€
reaction at the meeting and described defendant’s manner as quiet and “almost
sullen.†Leckie drafted a letter, dated
January 12, to defendant informing him that the proposed property
settlement agreement was enclosed with the letter and that he should sign and
return it if it was satisfactory.
IV.
Katherine
Is Murdered on Saturday, January 22, 1983.
On Sunday,
January 16, 1983, Donna was with Katherine at the Ridgecrest house when
defendant returned the girls after his weekend visit with them. Donna testified that defendant did not
“really come in the house†and that the girls ran inside. At the front door, Katherine and defendant
discussed plans for the following weekend, including whether defendant was going
to take the girls to a birthday party.
Katherine was planning to move out of the Ridgecrest house at the
beginning of February and move closer to Los Angeles or to the valley. She and defendant agreed to switch weekends
so that he would have the girls during the weekend of January 21 through
23. That way, defendant could take the
girls to the birthday party and Katherine would have them with her the weekend
they moved out of the Ridgecrest house.
Defendant was to pick up the girls on Friday, January 21.
On Friday,
January 21, Katherine and the girls went to Los Angeles to look for a
place to live. They went to Bjoin’s
studio and left Los Angeles at 2:00 p.m., because defendant was picking up
the girls that evening.
Katherine’s brother,
Joseph O’Connell, expected Katherine to arrive at his home on Saturday
afternoon, January 22. She did not
arrive as scheduled and had not made contact with O’Connell or his wife. Bjoin showed up at O’Connell’s house on
Sunday evening, looking for Katherine after he had been unable to reach her.
house to look for Katherine. They
arrived at the Ridgecrest house around 10:30 p.m. on Sunday,
January 23, and saw that no lights were on and that it looked like no one
was home. They knocked on the front door
and rang the doorbell, but there was no response. They decided to leave, assuming Katherine
might be on her way to O’Connell’s house.
As O’Connell and Bjoin
walked away from the front door, they noticed a door to the garage. One of them opened the door and they saw
Katherine’s car parked inside the garage.
O’Connell ran toward the front door and tried to get inside the house by
breaking through a window after taking off the front window screen; Bjoin ran
around to the back of the house.
O’Connell was still working on the front window screen when he heard
Bjoin scream. Bjoin opened the front
door for O’Connell and turned on the porch light. Bjoin was sobbing. O’Connell saw Katherine’s body lying on the
floor of the dining room; her throat was slit.
O’Connell, while making sure not to touch anything, sat Bjoin down at
the kitchen table and then called the police.
Officer Gerald Taylor of
the Anaheim Police Department received a call around 10:50 p.m. to go to
the Ridgecrest house. He arrived there within
10 minutes. He saw Katherine’s body
lying on the floor. The black skirt that
she was wearing had been pulled up above her waistline and she had no
undergarments on. Bjoin told Taylor that
he had last seen Katherine on Friday, January 21, at 2:00 p.m., at
which time Katherine told Bjoin she had to leave because she had to be home to
meet defendant at 6:00 p.m.
Anaheim Police Officer
Robert McKay, his partner, Officer Steve Whitson, and criminalist Jim White
investigated the scene of Katherine’s murder.
They found no sign of forced entry or ransacking, with the exception of
one plant that was upended and had spilled, a speaker wire that had been
roughly disconnected from a speaker, and a set of stereo speakers and a
television set which had appeared to have been recently moved to the door. Moving boxes did not appear to have been
opened. Katherine’s purse sat
undisturbed on the upstairs bathroom countertop. They did not find a murder weapon. Three bowls, one cup, two glasses, and a
cooking pot were in the kitchen sink; the cooking pot appeared to have residue
from a cream‑of‑wheat type of cereal.
Katherine’s genital area
did not show evidence of trauma; swabs taken from her genital area were
negative for semen indicators, and vaginal slides were negative for sperm. Blood was found on Katherine’s body, on the
carpet underneath the table and “along the chairs that are underneath the
tableâ€
in the dining room, on the wall by the front door, in the downstairs bathroom
sink, on the television set, on the drapery near the rear sliding door, and on
the rear sliding door itself. No blood
was found on the carpet to the right side of Katherine’s body. No blood was detected on the underpants or
tights found near Katherine’s body.
The forensic use of DNA
was not available in 1983. The blood
samples were tested for red blood cell antigens and human enzyme known as
phosphoglucomutase (PGM) to determine the combination of alleles present in
those samples. Defendant’s fingerprint
was lifted from the bottom of the television set.
Deputy Coroner Joseph
Luckey arrived at the Ridgecrest house at 2:55 a.m. on
January 24. He estimated that the
time of Katherine’s death was January 22 in the “p.m. hours.†At trial, Luckey testified that the time of
death could have been 10:00 a.m. on January 22.
On Monday,
January 24, 1983 about 10:00 a.m., Richard Fukumoto, M.D., performed
an autopsy on Katherine’s body. He
observed “two gaping cuts in the neck area, extending from the—below the left
jaw, angle of the jaw, towards the midline, in [a] somewhat downward
angle.†One cut was seven inches and the
other was three inches in length. There
were four “hesitation marks,†indicating the assailant had to stop because
Katherine moved or for some other reason.
Katherine’s neck was cut
“quite deepâ€; the cervical bone itself in the back of her neck was cut. The cuts, which severed Katherine’s carotid
artery and jugular vein, caused massive bleeding and Katherine died within
minutes. Fukumoto stated the blood that
“spurt[ed]†from the severed artery would have flowed to Katherine’s left and
potentially away from the assailant. He
also stated that depending on the length of the assailant’s knife, the extent
to which the assailant reached over Katherine, and whether he or she used the
tip of the blade, the assailant’s hand could have been “fairly far†from the
wound itself. Fukumoto testified that in
his opinion, the weapon was a smooth‑edged knife. He stated a kitchen knife could have been the
murder weapon.
Fukumoto also observed a
bruise on Katherine’s right temple, a bruise just above her right ear, and an
abrasion on the upper surface of the right side of her chin, all of which were
caused by blunt force using a round object such as a baseball bat or a fist. He stated that those injuries were
occurred before she died. He further
stated such injuries could have stunned Katherine and caused her to fall to the
ground. He found no signs of sexual
trauma. He found two defensive wounds on
Katherine’s left hand.
Fukumoto testified he
had opined that Katherine had died between 36 and 48 hours before he performed
the autopsy, but stated it was possible she had died around 10:00 a.m. on
Saturday, January 22. He further
testified that after the injuries had been inflicted, Katherine would not have
been able to “cry out for help.â€
James Edward Conley, a
forensic specialist, who conducts crime scene investigations, testified that
the crime scene in this case appeared to have been staged to suggest a sexual
assault and a burglary with the intent to steal had occurred. Conley explained that a person who would
stage a crime scene “could commonly be a person who felt that suspicion would naturally
fall upon them and they are trying to misdirect law enforcement away from
that.â€
Conley testified that
his opinion was based on the following factors:
(1) there was no sign of forced entry and little, if any,
ransacking; (2) Katherine’s purse containing cash was left undisturbed;
(3) the only things apparently stolen were Katherine’s keys and a sewing
machine which is not a normal target for a theft; (4) there was no
physical evidence of sexual touching; (5) it appeared Katherine’s tights
were removed after her throat was cut; (6) it is unusual for there to be a
combination of the appearance of both theft and sexual assault motives in the
same crime; (7) the crime scene was located in a relatively small part of
the Ridgecrest house; and (8) blood was found on the interior of the rear
sliding door but not on the exterior of the door. He further opined that Katherine’s assailant
could have had “very minimal†blood on his or her clothing, “if any.â€
V.
Defendant Is Interviewed by Police; Investigation of Katherine’s
Murder Ceases.
Anaheim Police Detective
John Cross called defendant at 3:14 a.m. on Monday, January 24, 1983,
and informed him of Katherine’s murder.
Defendant told Cross that he had been at the Ridgecrest house at 10:00 a.m.
on Saturday and volunteered that that weekend’s visitation arrangement had been
different because he usually picked up the girls on Friday. Defendant also told Cross that he went inside
the Ridgecrest house because Katherine wanted to talk to him about her move the
following weekend and because he had to wrap or pick up some gifts that the
girls were going to take to a birthday party.
Later that same day,
around 1:00 p.m., Cross and another detective drove to defendant’s
parents’ house in Poway to meet with defendant in person. When asked whether there had been any
violence in the relationship, defendant stated that during one argument, he
might have shaken Katherine. Defendant
told the officers that when he went inside the Ridgecrest house on
January 22, the television and the stereo speakers were in their normal
positions. He told them he had opened a
closet door to check on a silkscreen that he had left there and then closed the
door. Defendant said he drove the girls
to a birthday party in Huntington Beach, hosted by his friend, Jana Johnson,
and then drove to his parents’ house in Poway.
party at 11:00 a.m. or earlier.
(Johnson told the police that defendant had arrived at the party around
11:30 or 11:45 a.m. on Saturday, January 22.) When asked about the kitchen knives at the
Ridgecrest house, defendant told the officers where the knife set was kept (in
a cabinet); the officers later found the knife set and saw that one knife
appeared to be missing from its slot.
On February 1,
1983, Cross interviewed defendant at the Anaheim Police Department. Cross mentioned that defendant had told him
that the knives were kept near the stove up above in a cupboard; defendant said
he did not know if they were all there “because last time [he] talked to Kitty
she apologized for losing one of those knives.â€
Cross employed a ruse of telling defendant that a witness had seen him
reenter the Ridgecrest house after he placed the girls inside the car on
January 22, 1983. (Cross had not
found anyone who saw defendant at the Ridgecrest house that morning.) Defendant stated he saw “[t]hat gentleman was
there†but denied entering the Ridgecrest house after putting the girls in the
car. He had stated to Cross that he
“[w]ent back and closed the gate, got in the car and left.†He said he and Katherine had “a policy of not
going back.†He volunteered to Cross
that after he came back to the car, E. said, “what took you so long Daddy,†and
defendant told her he had “to close the gate.â€
Defendant told Cross that E. asked whether he had “a fight with Mommyâ€
and defendant said, “no we don’t do that anymore.â€
During another interview
with Cross on April 28, 1983, defendant referred to Bjoin as a “nice
guy.†Defendant told Cross he was
looking for the sewing machine that was missing from the Ridgecrest house. Defendant offered his journal to Cross and
also gave Cross letters he had written to Katherine. Cross did not remember reading the
journal.
In the spring or summer
of 1983, the investigation of Katherine’s murder lost steam and it became a
cold case.
VI.
The
Investigation into Katherine’s Murder Reopens in 1999.
In 1999, the
investigation of Katherine’s murder was reopened and evidence that had been
collected in 1983 was reviewed.
A.
DNA
Analysis on Blood Samples
Elizabeth Thompson of
the Orange County Sheriff’s crime laboratory was assigned to analyze evidence
that had been collected in the case of Katherine’s murder. The blood found on the wall near the front
door matched Katherine’s DNA profile.
Blood detected on a plastic bag found in a closet had a major male
contributor that was consistent with defendant’s DNA profile (one in 485 people
shared the same profile). Blood found on
a right‑side closet door was also consistent with defendant’s DNA
profile.
Blood found on the rear
sliding door and in the bathroom sink came from a major contributor and a minor
contributor. At each location, the major
contributor appeared to be Katherine and the minor contributor was consistent
with defendant’s DNA profile (one in 84 males shared the same profile as the
minor contributor at those locations).
Blood found in other parts of the Ridgecrest house was either not
collected or not tested, or the results from testing were inconclusive. Testing of blood found on the drapery near
the rear sliding door showed the major contributor was Katherine and the minor
contributor had a DNA profile that was consistent with defendant’s profile.
spilled on the envelope containing the blood sample collected from the
drapery.
B.
Summary
of Excerpts from Defendant’s Journals
In January 2001,
investigator Boyd Underwood along with investigator Paul Gallagher, traveled to
Spokane, Washington, where defendant then lived. There, they found defendant’s six
journals. The following constitutes a
summary of the excerpts from defendant’s journals that were admitted into
evidence during the prosecution’s case‑in‑chief.
August 31, 1981: Defendant
was surprised when Katherine told him a few days earlier that she was having an
affair with Bjoin with whom she had been working for the last six months.
September 27, 1981:
Defendant had been fired from his job because he did not get along with
his boss. Defendant wrote: “This situation with Kit and Henry is wearing
me down. He just refuses to accept the
fact that Kit does not want to leave me for him. He is constantly laying the guilt trip on her
and playing her emotions against her.
She has told Henry it is over, that she wants to devote all of her
energies to the family, but Henry is a little dense. [¶] He keeps hanging in there hoping I will
throw in the towel and walk away. No
way! [¶] I love what I have with Kit and
I am not about to give her up, and especially not my girls.â€
May 25, 1982: “Kit and
I are trying to be courteous to one another, not much else going on with
us. In a way, it is hard to believe we
have had this problem for a year now. No
wonder I feel worn out. I have been
fighting for us all by myself and getting slapped in the face for it. I am now starting to feel anger at Kit for
her feelings toward me. [¶] Kit has made
it sound like it is terrible living with me. . . . [¶] I do not
fulfill any of her dreams, her dream man, me, has feet of clay and failings and
that bothers her. She has had to work
and resents that and resents my lack of work.â€
He added: “I do know one thing, I
am not taking any more of her lip and I will speak up. Our emotional and sexual selves are already
down to zero, my self esteem is not going to be brought down also.â€
June 11, 1982: “Kit
just refuses to give constructive thought to our problem. She does not want this so‑called magic
with Henry to end. . . . She is playing a game with me and
herself. The end result might not be as
attractive as she thinks. [¶] If Kit
does not get this job with Jack‑in‑the‑Box we are in
trouble. We are going down for the third
count. We are running out of money,
fast. Next week I look for any kind of
job. Anything to bring in money. We are in bad shape!!â€
June 15, 1982: “Henry
is back. He called yesterday and
indicated he wants to break the ice between himself and Kit. Kit is eager to accommodate this. I have severe reservations, but as I have
found in the past, I have no real say in what Kit decides to do. She has indicated lately a desire to see
Henry, all I can do is take my uneasy feelings and sit in a corner.
. . . I don’t have it in me to go through more rejection, turned off
feelings, and lost love. My cup can only
hold so much. So tonight I resigned
myself to be prepared. I love my 2 girls
too much to divorce Kit, I think we would move to separate rooms if things
started with those 2 again. When the
girls got a little older I think I would separate.â€
July 16, 1982: “In some
respects Kit and I are no closer than a year ago. Her sexual feelings for me are farther away
now. My lack of work is making her go
farther away also. I just wish I had the
money to get my own studio going.â€
July 27, 1982: “My lack
of work is not helping either. I’m
trying real hard but I am not making any headway. That is really frustrating. So it causes Kit to re‑evaluate me as a
provider and husband. Even though she
sees me as a good father to the kids, I believe she has a real hard time
relating to me as the provider she would like to have. I’m having a real hard time relating to
myself right now. It is painful.â€
August 12, 1982: “Kit
read my diary last night. She decided
she wanted to know what was going on. She read the list of girls I had been to bed
with, and the ones I fooled around with and the ones I was tempted with. I probably should have been honest with her
before. But what can I do now, the
damage is done. Her trust has been
shattered, she will be open only to what she wants to. In a sense I am relieved, it has been a heavy
burden on my heart, knowing I had done a few things that I was not honest
about. I wonder if it will make Kit want
to see Henry. I don’t blame her if she
does. She feels betrayed by me and
rightly so. I can in no way justify what
I have done nor can I explain why I have behaved so.â€
September 8, 1982: “A
little flash back: Aug. 22,
1 a.m.—Kit and I had one of our usual arguments and I left for
Kansas. I wanted to see my grandparents,
they are old now and not well. . . . Then I came home, but should
have stayed away longer. Kit and I are
no better off. Her distance to me is
farther. I don’t blame her. All of my deceptions have come to light. No service in Vietnam, did not graduate from
college, and a few more to cover an escape route from this relationship.
. . . If Kit keeps running from me my hurt will be multiplied to a
level I might not be able to handle. [¶]
I started sleeping in the other room. I
will remain there until Kit forms good feelings for me or we separate.†He also wrote: “I wish I could find an answer to this
suffocating weight I feel. My defenses
down, scared of what is to come and how to hold onto what I want. I so desperately want Kit to be in love with
me again, especially in a fun way. There
has been so much sadness and sorrow, where will we find relief and rest.â€
September 13, 1982:
“Kit and I had one of our fights over the weekend. I’m so sorry these things happen but they
do. I am so frustrated I get upset and
say things I really don’t mean. I don’t
want to separate or divorce but Kit does.â€
He wrote that Katherine’s feelings were “still going away from [him],â€
which caused him to “hurt so much.†He
stated, “[t]he thought of not making things work and me separated from my
little ones just drives me crazy. I want
and need them every day, not just once in a while, not just for a couple of
hours.â€
September 18, 1982:
“Kit and I took a step farther apart.
She asked that I stop all touch.â€
He also wrote: “So much beauty
down the toilet—for what—me covering my insecurities and her not being able to
talk when she had to. . . . â€
September 20, 1982: “Oh
God I hurt. I broke down and came apart
last night. Kit is giving no ground on
this separation issue and I am the one who has to leave. Me—why not Kit. Why doesn’t she go off by herself for a while
and see what it’s like. Why do I have to
be separated from my little ones? . . . Why has so much love and
happiness turned to so much hate, anger, and despair? . . . Does
Kitty see me as a threat to the kids and she wants to make sure they don’t hang
around sick dad too much?â€
September 24, 1982:
“The hardest part is saying goodby[e] to my girls, not tucking them in.
. . . [F]or once my tangled web will cause me pain that I don’t know
if I can bear. . . . This will be devastating, this is almost
incapacitating.â€
September 28, 1982:
Defendant stated that he gave his wedding band to Katherine and told her
that he planned to leave as “soon as [he] can psychologically handle it.†He wrote:
“I am alone. Alone—with
memories—I must go.â€
October 4, 1982:
Defendant stated that Katherine told him she did not trust him around
the girls alone, which “just about cut [his] heart out.â€
October 11, 1982:
Defendant wrote that the Mordicks’ wedding anniversary on October 8
was “a bustâ€; Katherine refused “to do something†with him. “My heart hit a new low. We got into a big argument and I got hot and
pulled Kitty’s wedding ring off her hand.
I put that there in love and respect.
I violated that love Friday, on our holy day.â€
October 20, 1982:
“Kitty and I are finally separated.
I moved all my things out. It is
really hard to take. It is very
inconvenient living here with my parents [in Poway]. I am too far from my little ones. I am too far from Kitty, whom I love very
much.â€
October 27, 1982:
“Somehow I must adjust to being a weekend daddy and go on. I know Kitty will limit that contact down the
line. She is just taking one step at a
time and slowly asserting what she wants. . . . [¶] The cruelest
thing Kitty has done is separate me from those beautiful girls. They have been my life. My reason for tomorrow.â€
November 3, 1982:
“Sometimes I wish I was strong enough to go away and find a new life for
myself. The real me wants my kids and
wife around forever. The real me wants
the kids around forever so I can watch them grow and develop. I don’t want to be deprived of the future
laughs, cries, triumphs, failures, quiet moments, and arguments.â€
November 4, 1982: “Why
do I always have to come out on the short end of the stick? Why do I give and give and get nothing in
return? I miss those beautiful kids
so. They are my tomorrows and dreams,
why do I have to be separated from them?â€
November 22, 1982: “I
wonder what is going on with Kitty. We
have been separated one month now and she has made no attempt to contact me.
. . [.] If Kitty gives up, I’ll go crazy for a while. I love her so, I just can’t let go. I refuse to believe this relationship can
come to an end. We are so good
together. Work prospects are getting
slim, exasperating, and taxing on my soul. . . . I’m not making any
headway as a photographer.â€
November 29, 1982:
“Kitty gave me a great Thanksgiving gift. She told me to let go, she is no longer going
to work on her feelings for me. She
wants us to end our relationship. Finished
. . . I guess we are at opposite ends of the spectrum. I want us to work, she wants us to go our
separate ways.†He also wrote, “I wish I
could get custody, but the courts seem to favor mothers, fathers lose all
around for some reason. The love I have
from my girls should carry me through life.
I just pray Kitty does not move too far away. That would really break my heart.â€
December 1, 1982: “Now
I am separated and even feel more desperate, so lonely, so left alone.â€
December 12, 1982:
“Goodbye Kitty. Kitty and I had a
fight this evening, she struck me, I lost my temper and struck back. The girls were watching. Oh the hurt, to have such tender eyes see the
anger in their parents. To see the anger
in Kitty for me, growing even as we are apart.
Time has not healed anything for her, only festered bad feelings for
me. [¶] I hurt for the girls, no permanent
home, run around here and there. . . . I agreed to let the girls stay
with Kitty during our separation, because I thought we would get back
together. Now we are not. Now what do I do? They need a stable place to call home.†He wrote:
“Today I told Kitty I would let go of my feelings. She was free to pursue her feelings for
Henry, that’s what she has wanted for a long time. Now she can have him, but I will not
let Henry have my girls. They can start
their own family.â€
December 19, 1982: Defendant
wrote that he returned the girls home 25 minutes late; Katherine “raised hell,â€
said, “she was being too generous†and that defendant “was seeing them too
much.†Katherine told him, “[t]hat after
the first of the year, she will no longer be so generous and some real changes
were going to be made.†Defendant
stated: “I’m afraid she will start using
the kids to strike back at me. They are
going to be greatly hurt by her anger and dislike for me. . . [.]
Sometimes I think I should just go away, that would be the easy solution. I would greatly like custody of E[.] and
B[.], but the courts don’t smile on daddies too often, even good daddies but
not so good husbands.â€
December 20, 1982:
“What am I going to do. Kitty is
getting more and more upset with me.
More anger is being directed at me and the kids are becoming pawns of
her anger. They are too precious to be
used in that way. Their beautiful hearts
could be wounded for ever. What do I
do.â€
January 2, 1983 (three weeks before Katherine’s murder): “Kit still will not let me in the house. She says it is all over and it is her house
now.†He also wrote, “[t]oday Kitty told
me she finally got a lawyer and was going to call it quits. She is filing for divorce. Ending our 5 years of beauty and turmoil.
. . . â€
January 12, 1983 (the day after defendant met with Katherine
and her attorney): “I need a lot of
money to pay for Kit’s and my separation.
I have another 16 years of paying child support. A lot of money starting at $650 dollars a
month, $7800 a year or $124,800 over 16 years, barring any raises in
payments. Keep the nose to the
grindstone.â€
January 18, 1983 (within a week of Katherine’s murder): “It is such a letdown after the girls are
gone. The sunshine and laughter is gone. An empty hurt in my stomach replaces the
smiles and feeling ultimate joy. Such
peaks and valleys. I pray my heart will
remain strong. At times, I get so weak
and just want to go away somewhere, to relieve confusion for the girls. I know I will always have their love, I have
given it to them so freely. Then I won’t
hear B[.] say how hard it is having 2 different parents. I know I could ease their pain by going away. I know Kitty would not mind.â€
C.
DNA Testing Is Conducted, and Defendant Is Interviewed and Arrested.
A grand jury convened in
2003, regarding Katherine’s murder.
Aside from references to certain witnesses’ testimony before the grand
jury, our record does not describe the grand jury proceeding or its outcome.
In 2008, further DNA
testing was done, using a different kit.
Thompson testified that based on the results of her testing, the blood
that was collected in the bathroom sink had a major contributor and a minor
contributor and probably constituted a mixture of blood of each contributor or
a mixture of blood from one contributor and saliva from the other and not
“touch DNA†which is left through sweat and/or skin which has sloughed
off. As to the blood found in the
bathroom sink, Thompson testified that a “good cleaning†of the sink basin
would wipe away DNA.
On February 6,
2008, defendant was interviewed by detective Robert Blazek and prosecution
investigator Larry Montgomery. Defendant
discussed how Katherine was not a very good housekeeper and that he was the
housekeeper at the Ridgecrest house.
During the interview, the following colloquy occurred:
“[Blazek]: I know give us something here let us, give us
an opportunity to help figure this out.
What really happened that day?
What happened when you went back in that second time? Why did you go back in?
“[Defendant]: I told everybody, uh, I’d forgotten the
birthday card and the present we were going to take to Jan and Phil’s.
“[Blazek]: Okay.
“[Defendant]: I took the kids out to the car and forgot the
birthday present.
“[Montgomery]: And what happened, what happened when you got
back in the house?
“[Defendant]: I’m sorry?
“[Montgomery]: What happened when you got back in the
house? Because that’s, that’s where the
crux of this whole thing . . . .
“[Defendant]: Nothing, I picked up the present and
left.â€
PROCEDURAL BACKGROUND
In February 2008, the
prosecution filed a felony complaint charging defendant with Katherine’s
murder. In September 2008, defendant was
charged in an information with one count of first degree murder in violation of
Penal Code section 187, subdivision (a). The information alleged defendant
intentionally murdered Katherine for financial gain within the meaning of Penal
Code section 190.2, subdivision (a)(1). At the first trial, the court declared a
mistrial after the jury was unable to reach a verdict, having been equally
divided as to defendant’s guilt.
The trial court
scheduled a retrial for September 2010.
Defendant filed a motion to dismiss the case due to prefiling
delay. The court denied defendant’s
motion to dismiss.
title="">[7]
The jury found defendant
guilty of first degree murder as
charged in the information. The jury,
however, found it not to be true that defendant committed first degree murder
for financial gain, within the meaning of Penal Code section 190.2,
subdivision (a)(1).
The trial court
sentenced defendant to state prison for a term of 25 years to life. Defendant appealed.
DISCUSSION
I.
The Trial Court Did Not Err by Denying
Defendant’s Motion to Dismiss the Case Based on the Prosecution’s Delay in
Bringing Charges Against Him.
Defendant contends the
trial court erred by denying his motion to dismiss the case brought on the
ground “he was prejudiced by the unjustified delay in bringing charges against
him.†(Capitalization and boldface
omitted.) “We review for abuse of
discretion a trial court’s ruling on a motion to dismiss for prejudicial
prearrest delay [citation], and defer to any underlying factual findings if
substantial evidence supports them [citation].â€
(People v. Cowan (2010) 50
Cal.4th 401, 431.) For the reasons we
explain, the trial court did not abuse its discretion by denying defendant’s
motion to dismiss the action.
In People v. Abel (2012) 53 Cal.4th 891, 908, the California Supreme
Court recently summarized the applicable legal principles to motions to dismiss
based on precharge or prearrest delay, stating:
“A defendant’s state and federal constitutional speedy trial rights
[citations] do not attach before the defendant is arrested or a charging
document has been filed.
[Citation.] Nonetheless, a
defendant is not without recourse if a delay in filing charges is prejudicial
and unjustified. The statute of
limitations is usually considered the primary guarantee against overly stale
criminal charges [citation], but the right of due process provides additional
protection, safeguarding a criminal defendant’s interest in fair adjudication
by preventing unjustified delays that weaken the defense through the dimming of
memories, the death or disappearance of witnesses, and the loss or destruction
of material physical evidence [citation].â€
The Supreme Court
further stated: “A defendant seeking
relief for undue delay in filing charges must first demonstrate resulting
prejudice, such as by showing the loss of a material witness or other missing
evidence, or fading memory caused by the lapse of time. [Citation.]
Prejudice to a defendant from precharging delay is not presumed. [Citations.]
In addition, although ‘under California law, negligent, as well as
purposeful, delay in bringing charges may, when accompanied by a showing of
prejudice, violate due process. . . . If the delay was merely
negligent, a greater showing of prejudice would be required to establish a due
process violation.’ [Citation.] If the defendant establishes prejudice, the
prosecution may offer justification for the delay; the court considering a
motion to dismiss then balances the harm to the defendant against the
justification for the delay.
[Citation.] But if the defendant
fails to meet his or her burden of showing prejudice, there is no need to
determine whether the delay was justified.
[Citations.].†(
In People v. Nelson (2008) 43 Cal.4th 1242, 1249‑1250, the
Supreme Court rejected the argument that when the delay is as long as it was in
that case (the charge was in 2002 for a 1976 murder), prejudice should simply
be presumed, with no need to show specific prejudice. The Supreme Court explained: “That has never been the law, and we decline
to adopt such a rule here. As we have
explained, ‘[t]he statute of limitations is usually considered the primary
guarantee against bringing overly stale criminal charges,’ and there ‘is no
statute of limitations on murder.’
[Citation.] Presuming prejudice
would be inconsistent with the Legislature’s declining to impose a statute of
limitations for murder, among the most serious of crimes. To avoid murder charges due to delay, the
defendant must affirmatively show prejudice.â€
(Id. at p. 1250.) The court concluded, “the justification for
the delay in charging defendant with this 1976 crime—he was not charged until
further investigation, specifically the DNA testing in 2002, provided strong
new evidence of his guilt—outweighed the prejudice defendant suffered from the
delay. Accordingly, the delay did not
violate defendant’s constitutional rights to a fair trial and due process.†(Id.
at p. 1247.)
Here, in denying
defendant’s motion to dismiss the case,
the trial court explained its ruling as follows: “Obviously 25 plus years is a long time. Though the [People v. ]Nelson[,
26. There is some prejudice here. You can just read the materials I was given
from Mrs. Pioch as to what day was it that she last saw the victim? Or was it even that weekend? To see that there’s some problems caused by
the delay. But the court doesn’t find
any purposeful or deliberate or reckless delay.
It’s just delay. [¶] Is it
negligent delay? Should there have been
earlier D.N.A. tests and so on? Well, a
lot of us remember when D.N.A. started, . . . it was extremely
expensive and extremely time consuming. And old cases were placed on the back burner,
there’s no question about that. Just
like in the [People v. ]
long time. [¶] As the case law points
out, of course delay weakened the government’s case, too. That’s Nelson
at page 1251. And the district
attorney is under no obligation to file before concluding an
investigation. And the court talks about
Monday morning quarterbacking.†(Italics
added.)
The trial court
continued, “[s]o, is there some prejudice?
Yes. [¶] In terms of balancing,
is it deliberate delay? No. [¶] Is it reckless delay? No.
[¶] Is it simply investigative delay?
That’s the way the court would term it.
[¶] Cowan I felt was important
because you could, the Supreme Court could have looked at that as negligence,
that Mr. Roper completely missed it, I guess that the defendant’s prints
matched. And no one bothered to second
guess it for years. But the court felt
that that was simply human error. And I
think anything in our case is investigative delay or looked at at its worst, is
mere human error. [¶] So, the motion to
dismiss is denied. I think as I
mentioned I have to review it again, if there is a conviction after that time
to see, well, okay, that’s the way it looked at the beginning, but how did it
all pan out. [¶] So, the motion is
denied without prejudice.†(Italics
added.)
Although defendant
points out that one of the forensic scientists testified she had performed DNA
analysis as early as 1993, the record does not show the prosecution wrongfully
delayed the commencement of the DNA testing of the crime scene blood samples in
1999 and 2000.
title="">[8] Defendant contends he suffered prejudicial,
unjustified precharging delay during the 2000 to 2008 time period, in light of
his argument in his supplemental opening brief that “the crime was solved, if
at all, by 2000 when the DNA testing was completed, yet [defendant] was not
charged for an additional eight years, on February 6, 2008.â€
Defendant argues his
defense was greatly prejudiced by the prosecution’s delay in charging him
because (1) his father died in 2002, and thus was unable to testify that
when defendant returned home from the birthday party, defendant was wearing the
same clothes he had been wearing before he left to pick up the girls;
(2) his brother died in 2001, and, due to his father’s and brother’s
deaths, neither was able to testify that they discussed the proposed settlement
terms of defendant and Katherine’s divorce and why defendant was not overly
concerned about those terms; (3) “the DNA evidence in the case had
deteriorated and weakened, resulting in partial . . . and
inconclusive resultsâ€; and (4) “the passage of time had eroded the memory
of virtually every witness and potential witness,†and, specifically, the
memories of the Mordicks’ neighbor, Bonnie Pioch (hereafter, Pioch), her son
(then four‑year‑old J.), then four‑year‑old E., and
defendant himself.
The appellate record
supports the trial court’s finding that defendant only suffered “some
prejudice.†As to his father’s death and
unavailability as a witness, defendant did not produce any evidence showing his
father had seen defendant before he left to pick up the girls at the Ridgecrest
house on January 22, 1983.
Furthermore, defendant testified that his parents were not home when he
and the girls arrived there after attending the birthday party. Defendant’s father and brother would not have
been able to testify regarding defendant’s statements he was not concerned
about the proposed divorce settlement terms, because any such statements would
have constituted inadmissible hearsay.
There is no evidence the
DNA collected at the crime scene weakened or deteriorated between 2000 and
2008. It is also speculation that E.’s,
J.’s, and Pioch’s memories surrounding Katherine’s murder materially
deteriorated during that time period. E.
and J. were both four years old on January 22, 1983, and would likely have
very limited memories of that time in their lives after even a short period of
time had passed. Since January 1983 (as
discussed post), Pioch offered
multiple conflicting accounts of when she last had spoken with Katherine and
the surrounding circumstances of that conversation. There is no evidence Pioch’s questionable
memory was affected by the eight‑year time period following the
completion of most of the DNA analyses in 2000.
Pioch testified that her memory had always been that she last saw
Katherine on Friday, January 21, after work. (Pioch also, and rather inconsistently, told
the grand jury she thought her memory was “sketchy.â€) Defendant asserts that on cross‑examination,
the prosecution made him look bad because he could not remember writing certain
journal passages.
We therefore examine
whether the trial court abused its discretion in balancing the amount of
prejudice defendant suffered due to the precharging delay against the
justification for the delay. Defendant
contends the prosecution offered no real justification for the delay in
charging him with murder, particularly after the DNA testing was completed by
2000.
The record shows,
however, that the investigation of Katherine’s murder had not concluded at the
time the initial DNA and PGM analyses were conducted. Although those analyses yielded results supportive
of the conclusion defendant was Katherine’s murderer, in light of defendant’s
prior residence at the Ridgecrest house and the absence of his DNA on
Katherine’s body and clothing, those results alone were not dispositive. Further DNA analyses were conducted on
evidence in 2004 and 2007, and again in 2008, using a different kit for
analysis. In addition, defendant’s
journals were retrieved and reviewed, and defendant was interviewed again in
2008.
Substantial evidence
shows the precharging delay here was investigative delay. As stated in People v. Nelson, supra,
43 Cal.4th at page 1256: “A court
should not second-guess the prosecution’s decision regarding whether sufficient
evidence exists to warrant bringing charges.
‘The due process clause does not permit courts to abort criminal
prosecutions simply because they disagree with a prosecutor’s judgment as to
when to seek an indictment. . . . Prosecutors are under no duty to
file charges as soon as probable cause exists but before they are satisfied
they will be able to establish the suspect’s guilt beyond a reasonable doubt.
. . . Investigative delay is fundamentally unlike delay undertaken by
the government solely to gain tactical advantage over an accused because
investigative delay is not so one‑sided.
A prosecutor abides by elementary standards of fair play and decency by
refusing to seek indictments until he or she is completely satisfied the
defendant should be prosecuted and the office of the prosecutor will be able to
promptly establish guilt beyond a reasonable doubt.’â€
Here, we, “[l]ike the
trial court, . . . find no evidence that law enforcement or the
prosecution deliberately delayed the investigation in order to gain a tactical
advantage over defendant. Nor do we find
evidence of negligence.†(
“[B]alancing defendant’s weak showing of prejudice against the strong
justification for the delay [citation], we find no due process violation. Accordingly, the trial court did not abuse
its discretion†when it denied defendant’s motion to dismiss due to prearrest
delay. (Ibid.)
II.
Substantial Evidence Supported the Jury’s Verdict.
“When considering a
challenge to the sufficiency of the evidence
to support a conviction, we review the entire record in the light most
favorable to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of solid
value—from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.]
. . . We presume in support of the judgment the existence of every
fact the trier of fact reasonably could infer from the evidence. [Citation.]
If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding. [Citation.]
A reviewing court neither reweighs evidence nor reevaluates a witness’s
credibility. [Citation.]†(People v. Lindberg (2008) 45 Cal.4th
1, 27.) The testimony of a single
witness, unless physically impossible or inherently improbable, is sufficient
to support a conviction. (Evid. Code,
§ 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)
Defendant contends
insufficient evidence shows he murdered Katherine, arguing: “In sum, the prosecution’s theory was that at
10:00 a.m. on a Saturday morning in a closely populated subdivision
[defendant] placed his daughters in his car, went back in the house, inflicted
the horrific wounds the victim suffered, then went back out and took his
children to a birthday party as if nothing had happened, all either without
getting a drop of blood on him or getting blood only on his hands (the
disposition of which is unknown) but not on his clothing. On top of that, he was able to deposit his
own blood in various locations about the crime scene without suffering any
apparent wound himself.â€
We conclude substantial
evidence supported the jury’s verdict.
Defendant’s anger at Katherine and ability to cause her physical harm
was established by evidence of instances of domestic violence that increased in
seriousness the month before her murder.
Katherine minimized her contact with defendant. He was generally not permitted in the
Ridgecrest house or at Katherine’s parents’ house.
Defendant’s journal
entries revealed his increasing despondency and desperation as his marriage
fell apart in the months leading up to the murder. He was upset that Bjoin appeared to be taking
his place with Katherine and, potentially, with his daughters. He was upset that Katherine had discovered
his deceptions about serving in Vietnam and graduating from college, and also
his infidelity; he felt she was using those discoveries to escape from the
marriage. He did not think it was fair
he had to move out of the Ridgecrest house when they separated. He described the pain he felt at seeing the
girls less often and the fear he felt that Katherine would increase
restrictions on his access to them. He
stated he feared Katherine moving very far away with the girls. (Katherine planned on moving to the Los
Angeles area the weekend after the murder and was in the process of
packing.) Defendant’s behavior at
Katherine’s attorney’s office was oddly calm and almost sullen, and he agreed
to her initial demands for support and custody even though he was struggling to
earn an income. Defendant was scheduled
to appear in court on the order to show cause regarding support and custody
issues a few days after Katherine was murdered.
Defendant told Cross
that he was present at the Ridgecrest house at 10:00 a.m. on
January 22, 1983; substantial evidence shows he was the last person known
to have seen Katherine alive. Johnson
stated defendant did not arrive at the birthday party (located about 25 minutes
from the Ridgecrest house) until 11:30 or 11:45 a.m. He admitted he went inside the Ridgecrest
house because the girls, he claimed, were late in being ready to be picked up
that morning. Although he adamantly and
repeatedly denied going back into the Ridgecrest house after he had put the
girls in the car (he stated he had already loaded their clothing and the
presents for the birthday party), during the interview in 2008, defendant
admitted going back into the Ridgecrest house after the girls got in the car,
because he forgot the birthday present.
He thus had the opportunity to quickly strike Katherine on the head to
stun her and then slit her throat.
Fukumoto testified that once Katherine’s neck had been cut, she would
not have been able to scream or yell.
Ample evidence showed how the assailant of such an attack could get
little or none of the victim’s blood on him or her.
No murder weapon was
found. Fukumoto testified that the
murder weapon could have been a kitchen knife.
Defendant told the police officers where the set of kitchen knives was
kept (inside a cabinet). The police
discovered one knife missing from that set.
Defendant testified at trial that he “grew up with hunting and fishingâ€
and was familiar with how to use a hunting knife. He stated he used a hunting knife to clean
quail.
Evidence was also
presented that the downstairs area appeared to have been staged to look like
the murder was connected to a sexual assault and a burglary with the intent to
steal. There was no evidence of any
sexual trauma, sperm, or semen on Katherine’s body, notwithstanding the
evidence that her skirt had been raised and her undergarments were
removed. In addition, the positions of
the television and the two speakers were not consistent with a burglary with
the intent to steal. Nothing was taken
from the Ridgecrest house (except for Katherine’s keys and a sewing machine
that defendant claimed was missing); Katherine’s purse sat undisturbed on a
countertop. Conley testified that staged
crime scenes are often created by perpetrators who would be suspected of a
crime and wish to mislead investigators.
Although the results of
testing the blood evidence collected at the crime scene were not conclusive in
establishing defendant’s guilt, they supported the jury’s verdict. True, defendant lived in the Ridgecrest house
until October 1982; he was present in the Ridgecrest house in the morning of
January 22, 1983; and his DNA could thus be found in many places in the
Ridgecrest house. The jury could
reasonably accept Hong’s testimony that the most reasonable interpretation of
the results of testing a sample taken from the blood smear on the rear sliding
door was that it contained Katherine’s blood and defendant’s blood. (Test results showed the rear sliding door
had Katherine’s blood and a male minor contributor with a DNA profile
consistent with defendant’s profile—a profile which defendant shares with one
in 84 males.) The jury could similarly
reasonably conclude the bathroom sink contained defendant’s blood in light of
the test results showing that sample contained Katherine’s DNA and DNA
consistent with defendant’s profile. The
jury would have been reasonable in questioning the coincidence that defendant had
gone into a closet to check on a silkscreen the morning of January 22,
1983 (as he told the police), and the appearance of his blood on the door of
the closet and on a plastic bag inside the closet.
Defendant argues it is
implausible that he deposited his own blood in the Ridgecrest house in the
morning of January 22, 1983, because no cuts were found on him. But there is no evidence he was examined for
cuts that day. He did not meet in person
with the police officers until over 48 hours after the murder, and, thus, any
cut he might have suffered during the morning of the murder might not have been
obvious.
More than substantial
evidence, therefore, supported the jury’s finding defendant murdered
Katherine. We acknowledge that defendant
has cited, in his appellate briefs and at oral argument, trial evidence that
might support an inference that he did not murder Katherine. We emphasize that reversal is unwarranted
simply because evidence also supports a contrary finding from the jury verdict. As a reviewing court, we do not reweigh the
credibility of witnesses. It is the
jury, not the appellate court, that must be convinced of guilt beyond a
reasonable doubt. (People v. Mincey (1992) 2 Cal.4th 408, 432.) Our task is to determine whether substantial
evidence supports the judgment. It does.
III.
Evidentiary Rulings
Defendant challenges
several evidentiary rulings of the trial court.
He contends the trial court erroneously (1) limited the trial
testimony of Pioch, (2) admitted E.’s statements to defendant, and (3) admitted
excerpts of defendant’s journal entries.
Defendant further contends the trial court erroneously excluded the
journal entry he wrote on January 24, 1983, after Cross informed him of
Katherine’s murder. “We review a trial
court’s rulings on the admission and exclusion of evidence under the abuse of
discretion standard.†(
128.)
A.
Limitation
of Pioch’s Testimony
Defendant argues the
trial court erred by improperly limiting Pioch’s trial testimony.
At trial, Pioch
testified that in 1983, J., her then four‑year‑old son, played with
E. Pioch testified that on Sunday,
January 23, J. went to the Ridgecrest house twice. Pioch testified that “sometime that weekend,â€
she and J. went to the Ridgecrest house; Pioch did not see the girls, which was
unusual, because whenever she would ring the doorbell, they would typically
“come running.†Pioch saw packing boxes
in the Ridgecrest house. Katherine told
Pioch she was using that weekend to pack and to possibly go on a retreat. Pioch further testified that the conversation
took place on Friday, January 21.
Pioch later testified that the conversation occurred w
| Description | Defendant William Gregory Mordick appeals from the judgment entered in 2010 after a jury found him guilty of first degree murder of his wife, Katherine Mordick,[1] in 1983. We affirm. For the reasons we will explain, we hold (1) the trial court did not err by denying defendant’s motion to dismiss the case for precharging delay; (2) substantial evidence supported the jury’s verdict; and (3) the trial court’s evidentiary rulings, challenged by defendant, did not constitute an abuse of discretion. |
| Rating |
