Metropolitan News-Enterprise


Friday, April 10, 2009


Page 3


S.C.: Pattern of Conduct Admissible in Felony Murder Based on Rape


By STEVEN M. ELLIS, Staff Writer


A defendant on trial for first degree felony murder based on rape was charged with a “sexual offense” allowing admission of evidence of a similar pattern of conduct, the California Supreme Court unanimously ruled yesterday.

Reversing the Sixth District Court of Appeal’s ruling that a trial court prejudicially erred in Gary Dean Story’s 2005 murder trial for the rape and strangulation of Betty Yvonne Vickers in 1976, the justices further concluded that “ample evidence” supported Story’s conviction.

Vickers was found strangled to death in her Mountain View apartment, and Story was arrested one month after the crime after witnesses reported seeing him follow Vickers home from a nightclub that evening. They also indicated Story had propositioned both Vickers and another woman earlier in the evening.

Despite a semen stain on a bed sheet at the crime scene, detectives could not link Story to the crime and he was released.

However, in 2001 cold case investigators contacted Story’s ex-wives to ask about him after learning the bed sheet had been lost, and discovered a pattern of at least four other rapes, some involving strangulation or use of a gun, both before and after Vickers’ death.

Story was charged with first degree felony murder and a jury found him guilty after Santa Clara Superior Court Judge Linda R. Condron denied his motions to exclude evidence of the other conduct and to dismiss the charges due to precharging delay.

The Court of Appeal—in an opinion by Justice Franklin Elia, who was joined by Presiding Justice Conrad Rushing and Justice Eugene Premo—reversed, reasoning that Story was not accused of a sexual offense within the meaning of Evidence Code Sec. 1108.

The section permits admission of evidence of other sexual offenses where a defendant has been charged with certain violations of the penal code, but does not list the charge of murder.

The Court of Appeal also concluded other circumstantial evidence linking Story to the murder did not support the verdict because there was insufficient evidence that he entered the apartment with the intent to rape Vickers, or killed her in the course of a rape or an attempt.

But Justice Ming W. Chin wrote on appeal that a first degree felony murder based on rape was a sexual offense because Sec. 1108 specifically enumerated rape, and because a felony murder based on a rape or an attempt necessarily involved the same underlying conduct.

Presuming that the Court of Appeal intended to limit any retrial of Story to second degree murder, Chin also said the appellate panel erred by ignoring his pattern of conduct, rather than considering all evidence before the trial court, regardless of admissibility.

Noting that the conduct provided “ample evidence” for a jury to find that Story intended to rape Vickers when he killed her, the justice wrote that “[a] reasonable jury was not required to find that the one time [Story] actually killed his victim was the one time he had no intent to rape.”

Chin also wrote that other evidence supported the conviction even absent the pattern of sexual offenses, pointing out that circumstantial evidence, including that found at the crime scene, indicated a lack of consent.

He further rejected the Court of Appeal’s conclusion that changes in the law on rape since 1976 with respect to resistance supported a reversal of Story’s conviction, writing that “even the law in effect in 1976 did not force a person to resist a demand for sex at the risk of death or serious injury.”

However, Chin concluded that the Court of Appeal had not addressed Story’s contention that the almost-30-year delay in bringing charges violated his right to due process and a fair trial, and remanded the issue.

Chief Justice Ronald M. George and Justices Marvin R. Baxter, Joyce L. Kennard, Kathryn Mickle Werdegar, Carlos R. Moreno and Carol A. Corrigan joined Chin in his opinion.

The case is People v. Story, 09 S.O.S. 2024.


Copyright 2009, Metropolitan News Company