Delay in Seeking Extradition No Speedy Trial Violation

Friday, December 17, 2004

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Delay in Seeking Extradition No Speedy Trial Violation—S.C.

Justices Unanimously Affirm Murder Conviction of Man Who Escaped From Custody in Arizona

By KENNETH OFGANG, Staff Writer/Appellate Courts

A delay of more than two years in seeking extradition of a murder suspect who was incarcerated in another state on other charges did not violate the man’s right to a speedy trial, the California Supreme Court ruled yesterday.

The justices unanimously affirmed the conviction of Danny Ray Horning and the death sentence imposed by a San Joaquin Superior Court judge for the murder of Sammy McCullough, a marijuana dealer and fish farmer who lived in a geodesic dome house in a rural area of Stockton.

The court yesterday was also unanimous in affirming the death sentence imposed by a San Bernardino Superior Court judge on Michael Stephen Combs, a Barstow karate instructor, for the 1990 murder of a woman whose body was found in a remote canyon near Calico Ghost Town.

Those rulings followed Monday’s affirmance of another death sentence, that imposed on Christian Monterroso by an Orange Superior Court judge for a pair of killings during convenience store robberies in 1991.

In the San Joaquin case, Judge William R. Giffen sentenced Horning to die after the defendant waived jury trial in the penalty phase.

Police, called after a fisherman reported finding a bag containing a human leg in the San Joaquin River Delta on Sept. 20,1999, found McCullough’s torso and other body parts. He had been shot in the head at close range.

Police found McCullough’s Jeep in Stockton a day later. Fingerprints on a document in the vehicle were determined to belong to Horning; a search of Horning’s home revealed human blood in the bathroom and a piece of human tissue on the bathroom mirror, along with other physical evidence linking him to the murder.

Friends told police that several items were missing from McCullough’s residence, including his handgun and a planter and a coffee can in which he kept a large amount of change. Horning’s parole officer tried to locate him, could not, and listed him as having “absconded supervision.”

Prosecutors filed a complaint charging Horning with murder in December 1990, three months after he disappeared. In March 1991, he was arrested in Winslow, Ariz. attempting to flee with $25,000 and a hostage after a bank robbery. He was carrying McCullough’s gun.

Horning told police he did not kill McCullough. He said he bought the gun at a McDonald’s in Utah, and that he left California because he was afraid of going back to prison for parole violation as a result of his not having a job.

He was prosecuted in Arizona for the bank robbery and sentenced to life imprisonment. San Joaquin authorities, told that Horning would have to serve 100 years in prison before being eligible for parole, said they would not likely seek extradition unless the sentence was reduced.

While in custody in Arizona, Horning escaped. He was subsequently accused of several crimes committed after the escape, including two incidents of kidnapping involving four victims, and shooting at police while being pursued at high rates of speed in two separate incidents.

When he was eventually captured, the district attorney in San Joaquin County, who had amended the complaint to add burglary and robbery special circumstances, obtained extradition.

At trial, Horning’s attorneys contended that McCullough’s death was related to his drug dealing. Horning denied that he had killed McCullough, or had ever met him.

In the penalty phase, prosecutors presented evidence of numerous crimes the defendant had committed before and after the McCullough killing, including the Arizona offenses.

On appeal, the defense contended that the long passage of time between the filing of the complaint and arraignment required dismissal on constitutional speedy trial grounds.

Chin disagreed, noting that most cases in which constitutional speedy trial violations have been found involve much longer delays, and that Horning’s escape was responsible for a portion of the delay.

The justice added that the decision not to seek extradition of a defendant serving a life sentence in another state was “at least understandable, even if...not fully justified under [U.S.] high court precedent.” The change in the district attorney’s position was also logical, Chin said, after the defendant committed additional crimes that “both showed that he remained a danger to society and made this a much stronger capital case.”

Under the Supreme Court precedent, Chin elaborated, the defense must show that the portion of the delay not attributable to the defendant was at least one year, a requirement not met in this case. Even if the requirement had been met, he added, there would be no right to relief because the case law imposes a balancing test, and several factors, notably the lack of prejudice, weigh against dismissal.

Chin also wrote the opinion in the San Bernardino case, finding no basis to reverse Combs’ sentence for the strangulation death of Janine Lee. Prosecutors said Combs tricked Lee into driving him and his co-defendant, Cynthia Purcell—who was tried separately—to Calico Ghost Town.

A week after the killing, Combs and Purcell were arrested in Arizona after they had an accident while driving Lee’s car. Combs confessed, saying he strangled Lee from the back seat and stole her car, as he had planned to do all along.

Combs was eventually convicted of first degree murder with special circumstances of robbery and lying in wait.

Chin rejected the defense contention that the lying in wait special circumstance is unconstitutional.

“The lying-in-wait special circumstance adequately distinguishes between first degree murders that are death eligible and those that are not,” Chin wrote.

That opinion was joined by all of Chin’s colleagues except Justice Joyce L. Kennard, who wrote separately, as she has in the past, to express concerns about the constitutionality of the lying-in-wait circumstance under the Eighth Amendment.

She argued:

“I first expressed my concerns about the lying-in-wait special circumstance 11 years ago....In over 150 death penalty cases decided by this court since then, we have seen none in which lying in wait was the only special circumstance found true by the jury. This may well reflect a view that lying in wait should not be the sole basis for imposing the death penalty.”

Her vote to uphold the death sentence in Combs’ case, she explained, was based on her being persuaded beyond a reasonable doubt that it would have been imposed even if robbery were the only special circumstance.

The cases are People v. Horning, 04 S.O.S. 6537, and People v. Combs; 04 S.O.S. 6551.