IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v.

MARTIN JAMES KIPP, Defendant and Appellant.

This appeal by defendant Martin James Kipp from a judgment of death comes to this court automatically.  (Pen. Code, § 1239, subd. (b); all further statutory references are to this code unless otherwise indicated.)  A jury convicted defendant of one count of first degree murder (§ 187) with the special circumstance that the murder was committed during an attempted rape (§ 190.2, subd. (a)(17)(iii)). 

The same jury also convicted defendant of one count of attempted rape by force (§§ 261, subd. (a)(2), 664), and it returned a penalty verdict of death for the first degree murder with a special circumstance.  The trial court denied the automatic motion to modify penalty (§ 190.4, subd. (e)), and it pronounced a sentence of death for the murder and a sentence of three years in state prison for the attempted rape.  We shall affirm the judgment.

I.  FACTS AND PROCEEDINGS

Antaya Howard, age 19, was found dead in her automobile.  She had been beaten and strangled and the condition of her corpse and her clothing suggested that this had occurred during an actual or attempted forcible rape.  When last seen alive, Howard had been with defendant, and his fingerprints were found inside her automobile.  The prosecution introduced evidence that defendant had raped and killed another young woman, Tiffany Frizzell, three months before Howard met her death.

A.  Prosecution’s Guilt Phase Case-in-Chief

In December 1983, Antaya Howard was living with her parents at their home in Huntington Beach.  She owned an orange Datsun automobile.  On the evening of December 29, after 10 p.m., she drove to a bar in Huntington Beach called the Bee Hive.

On the same day, December 29, 1983, defendant was staying temporarily at the Huntington Beach apartment of Kenton Wheeler, who had known defendant since childhood.  Defendant left Wheeler’s apartment around 10 p.m. wearing a sweater he had borrowed from Wheeler.  Defendant also went to the Bee Hive.  The bartender recognized Howard and defendant as previous customers, but she had not seen them together before.

In the Bee Hive, defendant sat at the bar next to Howard; they talked and drank beer.  Around 1:15 a.m., defendant and Howard left the Bee Hive together, returning around 1:45.  Both were showing the effects of alcohol or some other intoxicating substance, but neither appeared extremely high, and defendant seemed less impaired than Howard.  Defendant and Howard each wanted another beer, but the bartender refused to serve them because they had missed the last call for drinks before the 2 a.m. closing time.  Defendant and Howard departed again.

Defendant and Howard were next seen at Charlie’s Chili, an all-night restaurant in Newport Beach.  There, between 2 and 4 a.m., defendant and Howard drank a bottle of champagne in the company of a man with sandy hair.  Howard had locked her keys in her car, but she managed to open the car using a butter knife that she borrowed from a restaurant employee. 

The sandy-haired man left by himself in his own car.  One witness, a restaurant customer, testified that defendant and Howard left in Howard’s car, with defendant driving.  Another witness, a restaurant employee, testified that defendant and Howard walked toward the beach after leaving the restaurant.

Howard did not return home that night and was never seen alive again.  Defendant had not returned to Wheeler’s apartment at 6 a.m. on December 30 when Wheeler left for work.

Around 7 a.m. on December 30, a woman noticed a car parked in an alley behind her Huntington Beach house; this car eventually proved to be Howard’s.

When Wheeler returned to his apartment at 4:30 p.m. on December 30, he found defendant in the shower.  The sweater defendant had borrowed was soiled and stained on the front and arms, and the room in which defendant had slept held a very strong and sour body odor.  Defendant told Wheeler he did not know why the room smelled so bad.  Defendant immediately moved out and took a room in a hotel, where he stayed only one night.

On January 3, 1984, a parking control officer ticketed Howard’s car for illegal parking.  It was still parked in the same Huntington Beach alley where it had been observed on December 30.  The next day, the woman who had first noted the car’s presence observed that it was emitting a strong odor.  She notified the police, who found Howard’s body, covered by a blanket, on the floor behind the front seat. 

Her blouse had been pulled back and was missing a button.  Her bra was still clasped but was twisted and above her breasts.  Her jeans and panties were around her ankles.  There was mud and dirt on the knees, the left side, and the back of the jeans, and also on the upper left part of Howard’s body.

Defendant’s fingerprints were found in Howard’s car on the left and right car door windows and on an empty beer can on the front passenger seat floorboard.

The autopsy surgeon testified that the cause of Howard’s death was asphyxiation due to strangulation, with blunt force injury to the head as a contributing factor.  He found abrasions “in the left forehead and also over the left eyebrow area, and also in the left thigh area,” and he noted bruises “over the left eyebrow, over the left eyelid, left cheek area, the left leg” and “in the back of the head and in the back of the body.”  Howard’s skull was not fractured, but she had suffered a subarachnoid hemorrhage that could have been fatal had she not died first of strangulation.  No semen or sperm was found on or in the body, but decomposition could have made semen and sperm undetectable.

On January 6, 1984, defendant surrendered to the Laguna Beach Police Department on traffic warrants.  On January 10, 1984, Huntington Beach police officers interviewed defendant about Howard.  Defendant claimed he did not know Howard; he was unable to explain the presence of his fingerprints in her car.

The prosecution introduced evidence that in September 1983, three months before Howard was killed, defendant had raped and killed a 19-year-old woman named Tiffany Frizzell.  Her body had been found on the bed in her Long Beach motel room on September 17, 1983. 

The belt used to strangle her was around her neck.  The only clothing on the body was a blouse pulled over Frizzell’s face.  The body was covered by a bedspread, but the bedding was otherwise undisturbed.  Defendant’s fingerprint was found on a telephone in the room.  Semen and sperm were found in Frizzell’s vagina and external genital area. 

On September 19, 1983, a canvas bag containing clothing and other personal property belonging to Frizzell was found in some bushes at a Long Beach residence.  A witness, Loveda N., testified that she had seen the same canvas bag, containing many of the same objects, in defendant’s van.  One of the objects found in the bag was a book in which Frizzell had written her name and which bore defendant’s fingerprints.  On October 13, 1983, defendant pawned a radio that had belonged to Frizzell.

B.  Defense Case at the Guilt Phase

The only defense witness was a toxicologist who testified to the presence of cocaine or a cocaine metabolite in blood taken from Howard’s body after her death.

C.  Penalty Phase

The prosecution introduced evidence that defendant had assaulted June M. and Loveda N.

June M. met defendant in a Long Beach bar around 11 p.m. on June 13, 1981, when she was 23 years old.  Defendant invited June to view his truck, which was parked nearby.  When she was seated in the front passenger seat, ostensibly to listen to the stereo, defendant started the truck and drove to a residential area.  June tried to open the passenger door but was unable to do so because the door and window handles were missing.  Defendant ignored her demands to be taken back to the bar.  Defendant pushed her into the back of the truck and ripped off her clothes.

June M. screamed, and defendant put his hand over her mouth.  When June bit defendant’s hand, he began to strangle her.  Defendant raped June.  Eventually her body went limp, and she thought she was going to die.  Defendant got up and demanded that June orally copulate him.  June said she could not breathe and needed air.  When defendant opened the passenger door, she managed to escape.  For this assault on June M., defendant had pleaded guilty to one count of forcible rape and had received a state prison sentence.

Loveda N. met defendant in a bar in August 1983.  They began living and traveling together in defendant’s van.  During this time, defendant physically abused Loveda, slapping or punching her in the face.  Around October 10, 1983, while they were staying at a motel in Coos Bay, Oregon, defendant insisted that Loveda have sex with him and began to remove her clothes. 

When Loveda resisted, defendant hit her and choked her with his hands.  Feeling she was about to pass out, Loveda told defendant she would have sex with him if he allowed her to use the bathroom first.  Once inside the bathroom, she locked the door, jumped out the window, and ran to the office of the motel manager, who eventually summoned the police.  Because defendant threatened to harm Loveda’s three-year-old son, she declined to press charges.

The defense case at the penalty phase was presented primarily through the testimony of Daniel Foster, a clinical psychologist.  Foster interviewed defendant twice and administered psychological tests, including the Minnesota Multiphase Personality Inventory.  In addition, Foster reviewed many depositions and reports, and he interviewed defendant’s family and childhood friends in Browning, Montana.

According to Foster, defendant’s mother was a Native American woman named Little Sister Still Smoking.  The birth certificate listed defendant’s father as “unknown.”  Defendant was “a small baby, six pounds.”  For the first 20 months of his life, defendant lived with his mother and maternal grandmother, who were both alcoholics. 

They lived in an area of the Blackfoot Reservation known as “little Chicago” because it was inhabited by Native Americans who had returned to the reservation after unsuccessful attempts to settle in urban areas.  It was the poorest area of the reservation, and alcoholism was endemic. 

Defendant’s mother had several children, probably each by a different man because “for a quart of whiskey she would sleep with anybody.”  Defendant and his sisters were taken from his mother when social workers found them under a pile of rags in an abandoned shack during very cold weather.  The children were undernourished and suffered from impetigo, skin lice, and mites.

Defendant was placed in the home of John and Mildred Kipp, who eventually adopted defendant when he was 12 years old.  John Kipp was a very strong man with high standards.  He did not physically abuse defendant, but he was harsh and “extremely demanding.”  He owned a ranch on which defendant worked.

Defendant earned his father’s approval by boxing, and for several years was undefeated in boxing matches.  When defendant was 15 years old, John Kipp started drinking heavily, as much as 3 quarts of whiskey in a day.  He displayed a terrible temper when intoxicated.  John Kipp once struck defendant in public, a major humiliation in Blackfoot culture, but defendant bore it stoically. 

Around this time, John and Mildred Kipp separated.  Also at this time, defendant was a passenger in a pickup truck that rolled over, killing defendant’s 11-year-old cousin.  Defendant began to lose boxing matches and eventually abandoned the sport, turning instead to alcohol and sex.  John Kipp kept defendant supplied with money.

John Kipp died when defendant was 19 years old, leaving defendant a half-interest in the ranch, which was then heavily mortgaged.  Defendant joined the Marine Corps.  He advanced quickly to the rank of lance corporal, then appeared to succumb to boredom and disillusionment after being stationed in Okinawa and assigned clerical duties.  Defendant turned to drugs, sex, and petty crime. 

Eventually he was discharged from the service and imprisoned for the rape of June M.  In prison, defendant learned to play bass guitar and became involved in heavy metal music.  After release from prison, defendant attempted to live out his fantasy of being a heavy metal rock star, supporting himself with money he received from his half-interest in his father John Kipp’s ranch.

According to Dr. Foster, defendant displayed several characteristics common to adult children of alcoholic parents:  He was isolated, he had no grasp of what normal behavior was, he had difficulty following a project from beginning to end, he often lied when it would have been just as easy to tell the truth, he was highly self-critical, he had difficulty maintaining an intimate relationship, and he was extremely impulsive.

The defense also presented the testimony of Scott Whiting and Ken Wheeler.  Whiting knew defendant for approximately two months immediately before his arrest on the charges in this case.  He testified that defendant had a high tolerance for cocaine.  Ken Wheeler testified that he and defendant grew up together, living on adjoining farms and attending the same schools. 

Wheeler regarded defendant as his best friend; he testified that defendant had been a “good kid” and “well disciplined.”  Defendant had also been “an inspiration athletically” and “just had a glow about him.”  Defendant had joined the Marines because he wanted to be like his father, John Kipp, who had been a “war hero.”  Drug use in the Marines was heavy at that time, and defendant seemed changed after his discharge from the Marines.

 

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