Tuesday, November 24, 2009
C.A.: Officer’s Death Foreseeable in Murder-for-Hire Plot
By SHERRI M. OKAMOTO, Staff Writer
A man who hired a methamphetamine-using parolee to kill his wife’s lover was criminally responsible for the death of a California Highway Patrol officer killed while conducting a traffic stop of the would-be assassin, the Third District Court of Appeal ruled yesterday.
The three judge panel upheld Gregory Zielesch’s conviction for the 2005 slaying of Officer Andrew Stevens, concluding that the officer’s death was a natural and probable consequence of the murder-for-hire plot.
On a November afternoon almost exactly four years ago, Stevens detained a car driven by Brendt Volarvich for a traffic violation on a road outside of Woodland, Calif. Stevens lowered his head toward the river’s side window, greeted Volarvich, and was shot in the face with a Taurus .357 magnum revolver. Death was instantaneous.
Three days prior, Volarvich had been arrested after police who came to evict him from a motel room found brass knuckles and methamphetamine on his person. Zielesch arranged for Volarvich’s bail and allegedly asked Volarvich to “take care of” his wife’s lover as payment.
Volarvich testified that Zielesch had given him the revolver he used to kill Stevens and $400 to buy methamphetamine.
Zielesch was convicted of the first degree murder of Stevens and conspiracy to commit murder. He was sentenced to two consecutive terms of 25 years to life, plus a consecutive determinate term of seven years.
Volarvich was convicted of first degree murder with special circumstances and sentenced to death.
On appeal, Zielesch contended that the shooting of Stevens “was both unforeseen and unforeseeable” and not in furtherance of the conspiracy to kill his wife’s lover.
Writing for the appellate court, Presiding Justice Arthur G. Scotland explained that the question of question whether an unplanned crime is a natural and probable consequence of a conspiracy to commit a different crime is not whether the aider and abettor actually foresaw the unplanned crime, but whether the unplanned crime was objectively reasonable foreseeable.
In light of the evidence that Zielesch and Volarvich had entered into a conspiracy to kill Zielesch’s romantic rival with the .357 magnum revolver supplied by Zielesch for that purpose, that Zielesch knew of Volarvich’s methamphetamine use and unstable personality, and that Zielesch was aware Volarvich was on searchable probation and would be taken into custody if a law enforcement officer detained him and found the gun, Scotland concluded that the jury could reasonably conclude the “cold-blooded murder” of Stevens was a natural and probable consequence of the criminal conspiracy.
Although the jurist posited “it may be possible to imagine scenarios in which the conduct of an assassin is so outrageous and unpredictable that it falls outside the scope of a conspiracy to commit murder,” Scotland opined that “one who bargains for an assassin’s services, and then arms the assassin with a gun, takes the assassin as he finds him.”
Scotland surmised “[i]t would be a rare case indeed where a murder is an unforeseeable result of a conspiracy to commit murder.”
The jurist also rejected Zielesch’s claim that Yolo Superior Court Judge Stephen L. Mock had denied him his right to a fair trial by allowing courtroom spectators to wear buttons displaying a color photograph of Stevens for six days at the start of the eight-week trial.
“[I]t is an insult to the intelligence and integrity of jurors to suggest that, despite the judge’s admonition not to be influenced by buttons worn by some of the courtroom spectators, the jurors would have been so influenced by the buttons that they would be unable to base their verdict solely on evidence presented at trial,” Scotland said.
The buttons, which measured about two to two-and-a-quarter inches in diameter, showed an image of Stevens from the chest-level up, with the American flag in the background. Mock found they served as “a memorial or an expression of sympathy” for Stevens and his family and were “not in any sense coercive or intimidating.”
Scotland agreed, reasoning that the wearing of commemorative buttons depicting the likeness of a fallen officer was “not unduly suggestive of guilt,” and that Zielesch’s claim to the contrary was “an insult to the intelligence, integrity, and resolve of jurors.”
In an unpublished portion of the opinion, Scotland rejected Zielesch’s challenge to the trial court’s admission of Volarvich’s out-of-court statement that Zielesch gave him a gun to kill Zielesch’s wife’s lover. Scotland agreed with the trial judge that this was a declaration against Volarvich’s penal interest and that there was sufficient evidence supporting Zielesch’s conspiracy conviction.
The jurist also declined to take issue with the trial court’s lack of a sua sponte instruction based on CALCRIM No. 334 or the denial of immunity to the alleged target of the murder-for-hire conspiracy after he asserted his Fifth Amendment privilege against self-incrimination.
Additionally, Scotland, joined by Justices George Nicholson and Ronald B. Robie, concluded that the trial judge did not abuse his discretion in denying Zielesch’s motion for a new trial based on the proffered newly-discovered evidence impeaching the credibility of Volarvich’s girlfriend as duplicative of evidence introduced at trial.
The case is People v. Zielesch, 09 S.O.S. 6692.
Copyright 2009, Metropolitan News Company