Metropolitan News-Enterprise


Friday, June 27, 2008


Page 3


Court: Admission of Pornography in Capital Trial Not Prejudicial


By STEVEN M. ELLIS, Staff Writer


The California Supreme Court yesterday affirmed a San Bernardino County man’s death sentence for beating and sexually assaulting a six-year-old girl before strangling her and dumping her body in a mine pit.

Ruling that Terrance Charles Page could not show that he was prejudiced by the admission of certain magazines from his vast pornography collection or testimony by a local waitress as to why she referred to him as a “pervert” given the “overwhelming” amount of physical evidence linking him to Tahisha Clay’s 1993 death, the court unanimously concluded the admission of the evidence was harmless beyond a reasonable doubt and upheld Page’s conviction and sentence.

Clay was tossing a ball back and forth with her brother within the complex while their mother was inside their apartment when she chased the ball down a hill towards satellite dishes immediately outside of Page’s apartment and disappeared. Her body was discovered the next day in a mine pet seven miles away.

Evidence in the case established that Page was home at the time, and that he generally was aware of children who ventured into the area outside his apartment. Although Page, a former army mechanic, asserted he did not leave the complex on the evening of Clay’s disappearance, other evidence showed that he visited a restaurant in downtown Barstow that evening around 9:30 on the route he took to work as a firing range maintenance supervisor at Fort Irwin, which also led to the road where Clay’s body was found.

A swab taken from Clay’s body revealed saliva consistent with Page’s genetic profile, while blood discovered on one of Page’s shirts was consistent with Clay’s genetic profile, and a plastic star found embedded in Page’s carpet matched stick-on earrings Clay was wearing shortly before she disappeared. Soil on a pair of Page’s pants, on a pair of his boots, and on a mat from one of his vehicles was also consistent with the minerals in the mine where Clay’s body was dumped.

When police searching for Clay contacted Page, they became suspicious about discrepancies in his story. Two days later, Page attempted suicide after the discovery of Clay’s body by taking an overdose of pills, attributing the act to stress from work and from being a suspect in Clay’s murder.

A subsequent search of his apartment revealed 113 pornographic magazines—approximately half of which a police detective described as “hard-core” pornography—and some 550 pornographic movies, and Page was ultimately charged with first degree murder and commission of a lewd act upon a child under 14.

At trial, San Bernardino Superior Court Judge Rufus L. Yent allowed the prosecution to admit three of the magazines found in Page’s apartment. They depicted, respectively, nude women with shaved pubic hair, posing with props so that they appeared to be minors, or bound to objects by ropes and collars.

None of the magazines depicted strangulation, and all indicated that the women depicted were over 18 years of age.

Page introduced evidence that he had a somewhat diminished mental capacity, and the testimony of a number of character witnesses who said he was not capable of committing such a crime, but the jury convicted him on both counts, finding true a special circumstance allegation that he committed the murder while engaged in the commission of a lewd act, and Page was sentenced to death.

On appeal of his conviction, Page argued that the magazines were insufficiently relevant to the issue of his intent to commit a lewd act, and that whatever probative value they had was outweighed by their prejudicial effect.

But the court, in an opinion by Chief Justice Ronald C. George, who noted that the magazines had “less probative value” than images ruled admissible in prior cases, concluded that there was no reasonable probability that Page would have achieved a more favorable result had the magazines not been admitted.

“[T]he physical evidence overwhelmingly established that defendant committed the crimes; the defense evidence was of little weight compared to the prosecution’s evidence, and the evidence suggesting that some persons thought defendant was nice and would not commit such crimes failed to raise a reasonable doubt as to defendant’s guilt,” he wrote.

George similarly rejected Page’s contention that Yent had erred by allowing a waitress from the Barstow restaurant at which Page had stopped on the night of Clay’s disappearance to comment on previous off-color remarks by Page she said led her to refer to him as a “pervert,” writing that any errors “did not undermine the evidence establishing [Page’s] guilt.

He also rejected Page’s argument that Yent erred by not allowing him to introduce evidence of two other residents of the apartment complex, one of whom Page asserted had taken an unhealthy interest in local children, and another who was arrested two days after Clay’s disappearance for exposing himself and masturbating near the complex, opining that the possibility that police had chosen not to follow up more thoroughly on all leads did not impeach the evidence against Page.

George then rejected Page’s similar challenges to his sentence.

Noting that neither side had actually referred to the pornography during the penalty phase, the “chilling circumstances” of Clay’s disappearance, the way Clay’s body was “dumped like trash…after a brutal sexual assault,” and the impact of Clay’s mother’s testimony of the effect on Clay’s family, George wrote that there was “no reasonable possibility” a jury would have chosen to sentence Page to life imprisonment without the possibility of parole rather than death, but for the pornographic magazines and the waitress’ statement.

He also swept aside Page’s contentions of instructional error and his challenges to the state’s death penalty scheme, and wrote that the circulation by jurors in the jury room of a cartoon in which two individuals are depicted in a jail cell and one says to the other, “Hey, I got off easy—it was the jury who had to deliberate for 36 months,” which caused some jurors to laugh audibly, did not suggest the presence of misconduct.

The case is People v. Page, 08 S.O.S. 3709.


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