Metropolitan News-Enterprise


Tuesday, November 16, 2010


Page 3


State High Court Upholds Death Sentence in Killing of Riverside Deputies




The California Supreme Court yesterday unanimously affirmed the death sentence for a man convicted of killing two Riverside sheriff’s deputies in the Whitewater area near Cabazon in 1997.

Justice Carlos Moreno, writing for the court, rejected Timothy Russell’s claims of error, including a contention that the trial judge had misinterpreted the law and misinstructed the jury on lying in wait, as a theory of first degree murder.

Russell, who was 36 at the time, surrendered to sheriff’s deputies hours after deputies James Lehmann Jr., 40, and Michael P. Haugen, 33, were shot and killed with an M-1 rifle while investigating a domestic disturbance.

After waiving Miranda rights, Russell told investigators that he was drunk on the night of the shootings; that he had a fight with his wife and had left the house, then returned with an unloaded gun; that he had coerced his visiting sister-in-law into giving him ammunition the women had hidden; and that when he saw police arriving, he thought he was a “dead man” and left the house, hoping to elude them.

He fired toward the deputies, he said, in an effort to “scare ‘em off,” then ran into the desert. He fired from a crouch and did not sight through the rifle scope, he claimed, and did not know the officers were dead until he was told by the interrogating officer.

At trial, the defense suggested that the deputies may have been hit by ricocheting bullets, consistent with Russell’s claim he did not intend to hit them. The prosecution responded with expert testimony that the entrance trajectories of the deputies’ wounds were inconsistent with the defense theory.

Special Circumstances

At Russell’s first trial, jurors convicted him of first degree murder, and found as special circumstances that he intentionally murdered the officers while they were performing their duties, and that the killings were multiple murder. They deadlocked on the penalty, however, forcing a second trial, at which the jury delivered a death penalty verdict that was upheld by the trial judge.

On appeal, the defense argued that Riverside Superior Court Judge Patrick F. Magers’ instructions on lying in wait were defective because they would have allowed jurors to find the defendant guilty of first degree murder without finding that a substantial period of watching and waiting preceded the shooting.

The defense further argued that there was insufficient evidence that Russell waited a substantial period of time before shooting, so that first degree murder was not proven.

Moreno, however, said the jury was adequately instructed with CALJIC No. 8.25, which says in part that lying in wait is “a waiting and watching for an opportune time to act, together with a concealment by ambush or by some other secret design to take the other person by surprise” and that “[t]he lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.”

The justice went on to explain that the passage of even a few seconds between the decision to shoot and the actual shooting would be sufficient in a factual scenario like the one presented.

“Here, the jury may have concluded that defendant, in a rather short period of time, assessed his options and decided to shoot at the officers,” Moreno wrote. He cited the “ample time” Russell had to plan the crime, noting that he told his sister-in-law he would kill the police if they came to the house, that he had sufficient time to get his rifle and load it, that he fired several rounds outside the house before the police came, and that he fired on the deputies before they had a chance to draw their weapons.

No Error

Moreno also rejected the argument that Magers erred in allowing evidence of Russell’s domestic violence history to be admitted in the penalty phase without instructing jurors that they could only consider it if the uncharged crimes were proven beyond a reasonable doubt.

Proof beyond a reasonable doubt is only required, the justice explained, when the prior-bad-acts evidence is offered to establish an aggravating factor. Here, he noted, it was offered for a different purpose, to prove intent.

While all seven justices joined Moreno’s opinion, Justice Joyce L. Kennard wrote separately to distinguish her support for the lying-in-wait instruction given by the trial judge from the one she objected to in a concurring and dissenting opinion in People v. Stevens (2007) 41 Cal.4th 182.

Stevens, she explained, dealt with lying in wait as a special circumstance, not as a theory of first degree murder. While lying in wait as a special circumstance must be distinguished from premeditation because the latter is not a special circumstance, “there is not the same need to distinguish defendant’s crime from other premeditated and deliberate murders,” the justice wrote.

The case is People v. Russell, 10 S.O.S. 6383.


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