Metropolitan News-Enterprise
Friday, April27, 2012
Page 1
S.C. Upholds Death Sentence in Compton Murder
Unanimous Court Says Admission of Videotaped Witness StatementWas Harmless Error
By KENNETH OFGANG,Staff Writer
The CaliforniaSupreme Court yesterday unanimously affirmed the death sentence for a Comptongang member convicted of killing two security guards at the New Wilmington Armsapartment complex in 1999.
Justice MingChin wrote that the single error identified by the court, the erroneousadmission of a videotaped statement by a witness who died before trial, washarmless beyond a reasonable doubt because the tape was a minor piece ofevidence that had no apparent effect on the jury.
David JamesLivingston was convicted of the murders of Remigio Malinao, 49, and RodericoPaz, 62, and of three counts of attempted murder and one count of possession ofa firearm by a felon. Two of the attempted murder counts involved othersecurity guards wounded in the January 1999 assault and one stemmed from aseparate incident the prior year, in which a rival gang member was shot.
Specialcirc*mstances of multiple murder and lying in wait were found true.
Witnessestestified that the guards were in a shack at the 600-resident complex whenLivingston opened fire about 5 a.m. Prosecutors argued that Livingston, a whitemember of the Parks Village Crips gang, attacked the guards for one or more ofseveral reasons—as an assertion of the gang’s control of the complex, toenhance the gang’s reputation, or to retaliate because another guard hadidentified his car to police investigating the 1998 gang-related drive-byshooting that resulted in the other attempted murder charge.
Court-appointeddefense attorney Robert Wayne Gehring of Beaverton, Ore. argued that there wasinsufficient evidence of lying in wait to support the special-circ*mstancefinding, but Chin disagreed.
“Defendantconcealed his purpose and, during the time just before the actual shooting, hisphysical presence until he suddenly appeared at the door of the guard shack andbegan shooting at his victims,” Chin wrote. “The evidence also showedsubstantial waiting and watching for an opportune time to act.”
Livingstontestified, saying he was a gang member but was not involved in either of theshootings. He acknowledged owning the Cadillac that the shooter had beenidentified as driving, but said he was elsewhere on both occasions.
Chinacknowledged that it was error, based on subsequent U.S. Supreme Court rulings,for Los Angeles Superior Court Judge Jack W. Morgan, since retired, to allowthe jury to view a videotape of an interview of Markius Walker, who said he sawthe Cadillac, then heard seven shots coming from it, and identified a photographof the defendant as being that of the driver. The interview was clearly part ofa criminal investigation focusing on Livingston, and was thus “testimonial”hearsay whose admission violated the Confrontation Clause.
But there wasplenty of other evidence that Livingston was the shooter, and the fact thatjurors did not ask to take a second look at the videotape after the case wassubmitted indicated that they did not view the tape as a particularlysignificant piece of evidence, the justice said.
Deputy AttorneyGeneral Daniel Chang argued for the prosecution.
The high courtyesterday also affirmed, on a 7-0 vote, the death sentences imposed on JohnMyles by San Bernardino Superior Court Judge Michael A. Smith for the murdersof Ricky Byrd and Fred Malouf. Byrd was killed in a drive-by shooting in SanBernardino on April 11, 1996, and Malouf, a retired Colton police captain,during the robbery of a Colton restaurant nine days later.
Smith bifurcatedthe trial, so that the Malouf murder was tried to verdict first, followed bythe trial for the Byrd murder, and then the penalty phase, all before the samejury.
Among thearguments raised by the defense was that jurors may have been affected byemotional reactions, and head-nodding during testimony, by Malouf’s widow, whowas present when he was shot and who was herself assaulted, and who was allowedto remain in the courtroom after she testified.
Chief JusticeTani Cantil-Sakauye, writing for the court, cited the trial judge’s statementson the record that he had observed Donna Malouf as she sat in the courtroom’sand that while she was upset, her reactions were not unusual, she did not causea disturbance, and that there was nothing to indicate the jury was influenced.
“Having observedthe courtroom proceedings firsthand, the trial judge was in the best positionto evaluate the impact of Donna’s conduct in front of the jury,” the chiefjustice wrote.
The cases are Peoplev. Livingston, 12 S.O.S. 1909, and People v. Myles, 12 S.O.S.1922.
Copyright2012, Metropolitan News Company
