Metropolitan News-Enterprise


Friday, August 27, 2004


Page 3


S.C. Overturns Death Sentence for Lack of Intent-to-Kill Instruction


By a MetNews Staff Writer


The death sentence imposed on a Los Angeles man whom police once described as  a “one-man crime wave” was thrown out yesterday by a unanimous California Supreme Court.

The murder for which Kevin Bernard Haley was convicted occurred during the window period between Carlos v. Superior Court (1983) 35 Cal.3d 131 and People v. Anderson (1987) 43 Cal.3d 1104, Justice Carlos Moreno noted.

Carlos held that intent to kill is an element of the felony-murder special circumstance, even when the defendant is the actual killer. Anderson overruled that holding, but People v. Wharton (1991) 53 Cal.3d 522 mandates that the Carlos instruction be given in cases where the alleged crimes occurred after Carlos but before Anderson.

Failure to give that instruction, where required, is constitutional error requiring reversal of the death sentence unless harmless beyond a reasonable doubt, Moreno explained.

Haley, a one-time dog groomer, was sentenced in 1988 by Los Angeles Superior Court Judge Judith Chirlin for strangling a 55-year-old woman in her Wilshire District home during the course of a $15 robbery in 1984. Jurors found Haley guilty of first degree murder with special circumstances of rape, robbery, sodomy, and burglary.

In instructing the jurors on the felony-murder special circumstance, Chirlin said she believed Anderson was retroactive but noted that in other capital cases, prosecutors had agreed to Carlos instructions rather than risk reversal in the event the high court later held otherwise.

Deputy District Attorney Steven Barshop decided to take his chances, however, noting that only the special circumstances finding and not the conviction would be placed in jeopardy.

Haley, 24 at the time of his conviction, was suspected of killing as many as 13 women, many of them elderly, including one who was 90 and another who was 88.

But the same jury that condemned him to death for the murder of Delores Clement deadlocked on whether he had murdered Laverne Stolzy, 56, in 1984 in her Wilshire District home and on attempted rape and oral copulation charges involving a third victim, whose preliminary hearing testimony was admitted because she was unable to testify because of health problems. Mistrials were declared on those charges.

After Haley’s arrest, police said he admitted having committed six rapes and 53 burglaries.

Haley’s older brother, Reginald Haley, was previously convicted of a string of rapes, kidnappings, burglaries and robberies—many also involving older women—and was sentenced to 60 years in state prison, plus a life term.

During the penalty phase of Kevin Haley’s trial, prosecutors presented evidence of four uncharged crimes—a late night sexual assault and robbery by the brothers at Dockweiler Beach in El Segundo, the sexual assault and murder of an elderly woman by both Haleys in her home, the early morning shooting of a jogger in Los Angeles, and the robbery-murder of a teenaged girl.

Haley’s lawyers, Seymour Applebaum and John R. Johnson, chose not to present mitigating evidence. Prosecutors said that if they had, they would have presented rebuttal evidence of the uncharged burglaries to which he admitted.

Moreno, writing yesterday for the high court, said that the lack of a Carlos instruction was prejudicial because the evidence of intent to kill “was not overwhelming.” Haley told police that he strangled Clement only to prevent her from screaming after she discovered him burglarizing her house, a claim consistent with the autopsy report, the justice noted.

The high court did, however, uphold the defendant’s convictions of first degree murder and the underlying felonies of rape, robbery, burglary and sodomy. In doing so, it rejected his contention that statements he gave to the police right after his arrest were involuntary or obtained in violation of his Miranda rights.

There was no evidence, Moreno said, to corroborate Haley’s claim that the arresting detective threatened to kill him on the way to the police station. Nor, the justice said, did Haley prove that he was under the influence of cocaine when he made the statements.

The claim of a death threat, Moreno said, was not credible because the defendant was cooperative in the portion of the tape-recorded interview in which the Clement murder was discussed.

As for Haley’s claim that he was under the influence at the time, the justice wrote:

“Despite defendant’s claim that he smoked cocaine shortly before his arrest, no cocaine paraphernalia was found in his room.  In addition, the tape recording reveals that defendant was responsive to the officer’s questioning, recalled the incident in great detail, and never mentioned during the interview that he was under the influence or otherwise mentally impaired.”

The appeal was argued by court-appointed attorney Amitai Schwartz of Berkeley for the defendant and Deputy Attorney General Sharlene A. Honnaka for the attorney general.

The case is People v. Haley, 04 S.O.S. 4708.


Copyright 2004, Metropolitan News Company