Tuesday, August 17, 2004
Page 1
S.C. Upholds Death Sentence for Man Who Burned Girlfriend
By KENNETH OFGANG, Staff Writer/Appellate Courts
The California Supreme Court yesterday unanimously upheld the death sentence imposed on a North Hollywood man who admitted dousing his girlfriend with gasoline and setting her on fire after she said she was leaving him.
The sentence imposed on Stephen Cole by Los Angeles Superior Court Judge Howard J. Schwab in 1992 was not excessive under the facts of the crime, Justice Kathryn M. Werdegar wrote for the court.
“Defendant deliberately poured a flammable liquid on Mary Ann [Mahoney], his unsuspecting companion, and set fire to her and the house she was in,” Werdegar explained. “He frankly told several people thereafter that he intended to kill her and described how he had set her on fire. Although defendant argued at trial that he did not possess the requisite intent to torture or to kill because of his intoxication, the evidence belied the contention. Moreover, defendant was not an immature child at the time of the offense; rather, he was a 37-year-old man who had some college education and had been steadily employed in the past. The punishment imposed cannot be deemed grossly disproportionate in light of these circumstances.”
Torture Special Circumstance
A San Fernando jury convicted Cole of the Aug. 14, 1988 murder of Mahoney, 42. Jurors also convicted him of arson and found true a torture special circumstance.
During the trial, he admitted pouring half a gallon of gasoline on Mahoney and setting her on fire with a cigarette lighter. Cole testified that he told Mahoney: “I hope you burn in hell.”
His court-appointed attorney, Marvin L. Part of Encino, argued that Cole did not premeditate the killing and did intend to cause Mahoney extreme pain. Tests showed that his blood alcohol level was in excess of 0.25 percent following his arrest.
But Deputy District Attorney Ken Loveman presented witnesses who said he appeared sober and coherent when he spoke to them and described how he had set the fire. And the prosecutor compared Mahoney’s suffering to that inflicted on the victims of the Spanish Inquisition:
“The night before, after months, sometimes years, one of these acts of faith when somebody was going to be executed, they would give them the opportunity one last time, although it wasn’t really a last time, to confess and turn over their friends. This might be after six months of unbelievable torture. They knew they were going to die.
“If they confessed at this point in time and turn[ed] people over, a mercy was done them. They were allowed to be garroted right then and there, strangled so that only their dead body would be burned at the stake the next day, and they wouldn’t have to face the flames and the pain of burning. They could be dead first. This is after months of torture of not confessing....
“There was nothing—there is nothing you can plan, there is nothing in the human psyche that is as terrifying as dying by burning, and these are people who were going to die while tied up to the stake, and the whole thing is going to take ten minutes.
“Doesn’t compare to what Mary Ann Mahoney went through. Doesn’t even come close. They were allowed to be strangled first.”
Jurors agreed with the prosecutor, and Werdegar said there was sufficient evidence for the intent requisite to a finding of torture to be inferred.
Cole, she noted, poured flammable liquid on the victim, and on the floor, then deliberately set the fire. Mahoney, the justice noted, suffered for seven days before she lapsed into a coma three days before her death.
The justice also rejected the contention that Schwab abused his discretion by appointing Part as defense counsel 38 days before trial and rejecting the defendant’s request that Wayne Brandow be appointed instead.
Multiple Defense Attorneys
Brandow, then with the Alternate Defense Counsel—which handled felony cases when the Public Defender’s Office had a conflict—represented Cole from the early stages of the case until 1990, when he left the ADC. Cole requested that Brandow be substituted for the ADC, but Schwab declined, and several ADC attorneys had responsibility for the case afterwards.
The ADC received several continuances in 1991, but was told in December of that year that the trial would begin “in earnest” on Feb. 13, 1992. When Cole’s ADC lawyer told Schwab in January 1992 that he could not be ready before April because there were potential witnesses on the East Coast who needed to be interviewed, Schwab set the trial over for March 2 with the proviso that Part would replace the ADC if it were not ready that day.
When the ADC reported in February that it would need an additional two weeks past the March 2 date, Schwab relieved the ADC and appointed Part, rejecting the defendant’s renewed request to appoint Brandow.
Werdegar said it was not unreasonable to appoint Part so close to trial; she said he was prepared for trial and never said he needed more time. She also noted that Part had tried murder cases successfully before the appointment, that Brandow was not familiar with the defense investigation subsequent to his leaving the ADC, and that Brandow had another case awaiting trial and was under a court order not to accept any engagement that might conflict with that one.
Also rejected was the contention that Loveman’s references to the Inquisition, as well as a comment about the persecution of the early Christians, constituted impermissible argument.
“With those examples, the prosecutor made the point that fire has historically been used as an instrument of torture and is generally known to cause extreme pain,” the jurist wrote. “The point was appropriate in the context of the argument that defendant must have known that using fire to kill Mary Ann was calculated to cause her extreme pain. While the historical events the prosecutor mentioned had religious significance, the prosecutor made no improper appeal to religious authority.”
The case was argued before the Supreme Court by Richard P. Siref of San Diego for the defendant and Deputy Attorney General Victoria B. Wilson for the prosecution.
The case is People v. Cole, 04 S.O.S. 4426.
Copyright 2004, Metropolitan News Company