Metropolitan News-Enterprise


Tuesday, May 18, 2004


Page 1


Death Sentence Upheld in Killing of Elderly Couple


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday unanimously upheld the death sentence for a Bay Area man convicted of murdering an elderly couple in what prosecutors said was a robbery for money to buy drugs.

Rejecting defense claims of evidentiary and instructional error, Justice Joyce L. Kennard said attorneys for Milton Ray Pollock failed to demonstrate grounds for reversal of his sentence for the stabbing deaths of Earl and Doris Garcia.

Testimony established that Pollock knew the Garcias because he had done some work for David Souza, who put in their sprinkler system.

On the night they were stabbed to death, in September 1989, according to witnesses, Pollock had someone drive him to their home, where he approached Souza to ask for an advance against future earnings. Souza replied that he didn’t have the money, and that Pollock’s occasional employment “didn’t work out,” apparently because Pollock would leave work in the middle of the day.

  After Souza left, according to the testimony, Pollock went into the house. Witnesses said they heard screaming, and the friend who drove Pollock to the house said that the defendant returned to the vehicle with cuts on his hands and would not explain what had happened other than to say “All I know is I’m going to state prison.”

  The driver testified that Pollock rejected his suggestion that he seek medical treatment for his hands. There was also testimony that Pollock threw a butcher knife out the car window; police later retrieved such a knife at the spot indicated to them by Pollock’s brother, who was a passenger in the vehicle, and matched it to an empty slot in a butcher-block holder at the Garcia home.

Police found blood in the house and on the knife that could have been the defendant’s; they also found blood on Doris Garcia’s purse that could have been hers. Hair that might have come from her and appeared to have been pulled out by force was in the hallway and in the car in which Pollock was riding that night.

The defense case in the guilt phase was limited to expert testimony about the effects of crack cocaine addiction. The doctor, who interviewed the defendant four years after the murders, said that at the time of the killings, Pollock was going through a phase called “tweaking” and would have done anything to get more of the drug.

Jurors found Pollock guilty of first degree murder, with special circumstances of multiple murder and killing in the commission of a robbery and a burglary.

In the penalty phase, the prosecution presented evidence that while in jail awaiting trial, Pollock possessed razor blades in his cell—a violation of state law—on four occasions. The blades had been detached from jail-issue disposable razors, a tactic often used by inmates seeking to use the blades as weapons, a witness testified.

They also presented victim impact testimony from several witnesses, including friends who testified that Doris Garcia was a popular Bible study teacher whose violent death caused them grief.

In mitigation, the defense presented evidence that Pollock, who was 32 years old at the time of the murders, had a difficult time in his early life because of learning disabilities and, along with his brother, became involved with drugs in his early teens.

Jurors opted for the death penalty, which was imposed by Alameda Superior Court Judge Stanley P. Golde after he denied the automatic motion to modify.

Kennard, writing for the high court, rejected the contention that Golde should have kept out the testimony by two witnesses about Doris Garcia’s role as a Bible study teacher. The trial judge ruled that such testimony could not be excluded altogether, but would be permitted only to the extent it was helpful in explaining the effect her death had upon the witnesses.

That ruling was correct, the justice said.

“Neither witness testified about Doris’s specific religious beliefs, nor did either suggest that religious doctrines should guide or affect the penalty determination process,” Kennard wrote. “The evidence was properly admitted to show the direct effect of the victim’s death.”

The trial judge did commit error, Kennard acknowledge, when he instructed jurors that possession of razor blades in jail was a violation of Penal Code Sec. 4502 and a crime of violence that could be considered as an aggravating factor.

The instruction was technically incorrect, the justice pointed out, since that section only applied to state prisoners at the time. But the error was harmless, she explained, because another code section prohibited possession of razor blades by county jail inmates.

The defense further argued that it was error to treat possession of razor blades as an aggravating factor without asking jurors to determine for themselves whether the defendant actually used or intended to use the blades as weapons. But if this was error, it was harmless, Kennard reasoned, because no reasonable juror would have concluded that Pollock’s possession of the blades was benign and yet factored it into the decision to impose the death penalty.

The case is People v. Pollock, 04 S.O.S. 2475.


Copyright 2004, Metropolitan News Company