Metropolitan News-Enterprise


Friday, April 27, 2012


Page 1


S.C. Upholds Death Sentence in Compton Murder

Unanimous Court Says Admission of Videotaped Witness Statement Was Harmless Error




The California Supreme Court yesterday unanimously affirmed the death sentence for a Compton gang member convicted of killing two security guards at the New Wilmington Arms apartment complex in 1999.

Justice Ming Chin wrote that the single error identified by the court, the erroneous admission of a videotaped statement by a witness who died before trial, was harmless beyond a reasonable doubt because the tape was a minor piece of evidence that had no apparent effect on the jury.

David James Livingston was convicted of the murders of Remigio Malinao, 49, and Roderico Paz, 62, and of three counts of attempted murder and one count of possession of a firearm by a felon. Two of the attempted murder counts involved other security guards wounded in the January 1999 assault and one stemmed from a separate incident the prior year, in which a rival gang member was shot.

Special circumstances of multiple murder and lying in wait were found true.

Witnesses testified that the guards were in a shack at the 600-resident complex when Livingston opened fire about 5 a.m. Prosecutors argued that Livingston, a white member of the Parks Village Crips gang, attacked the guards for one or more of several reasons—as an assertion of the gang’s control of the complex, to enhance the gang’s reputation, or to retaliate because another guard had identified his car to police investigating the 1998 gang-related drive-by shooting that resulted in the other attempted murder charge.  

Court-appointed defense attorney Robert Wayne Gehring of Beaverton, Ore. argued that there was insufficient evidence of lying in wait to support the special-circumstance finding, but Chin disagreed.

“Defendant concealed his purpose and, during the time just before the actual shooting, his physical presence until he suddenly appeared at the door of the guard shack and began shooting at his victims,” Chin wrote. “The evidence also showed substantial waiting and watching for an opportune time to act.”

Livingston testified, saying he was a gang member but was not involved in either of the shootings. He acknowledged owning the Cadillac that the shooter had been identified as driving, but said he was elsewhere on both occasions.

Chin acknowledged that it was error, based on subsequent U.S. Supreme Court rulings, for Los Angeles Superior Court Judge Jack W. Morgan, since retired, to allow the jury to view a videotape of an interview of Markius Walker, who said he saw the Cadillac, then heard seven shots coming from it, and identified a photograph of the defendant as being that of the driver. The interview was clearly part of a criminal investigation focusing on Livingston, and was thus “testimonial” hearsay whose admission violated the Confrontation Clause.

But there was plenty of other evidence that Livingston was the shooter, and the fact that jurors did not ask to take a second look at the videotape after the case was submitted indicated that they did not view the tape as a particularly significant piece of evidence, the justice said.

Deputy Attorney General Daniel Chang argued for the prosecution.

The high court yesterday also affirmed, on a 7-0 vote, the death sentences imposed on John Myles by San Bernardino Superior Court Judge Michael A. Smith for the murders of Ricky Byrd and Fred Malouf. Byrd was killed in a drive-by shooting in San Bernardino on April 11, 1996, and Malouf, a retired Colton police captain, during the robbery of a Colton restaurant nine days later.

Smith bifurcated the trial, so that the Malouf murder was tried to verdict first, followed by the trial for the Byrd murder, and then the penalty phase, all before the same jury.

Among the arguments raised by the defense was that jurors may have been affected by emotional reactions, and head-nodding during testimony, by Malouf’s widow, who was present when he was shot and who was herself assaulted, and who was allowed to remain in the courtroom after she testified.

Chief Justice Tani Cantil-Sakauye, writing for the court, cited the trial judge’s statements on the record that he had observed Donna Malouf as she sat in the courtroom’s and that while she was upset, her reactions were not unusual, she did not cause a disturbance, and that there was nothing to indicate the jury was influenced.

“Having observed the courtroom proceedings firsthand, the trial judge was in the best position to evaluate the impact of Donna’s conduct in front of the jury,” the chief justice wrote.

The cases are People v. Livingston, 12 S.O.S. 1909, and People v. Myles, 12 S.O.S. 1922.


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