People v. Duncan5/23/1991
SUPREME COURT OF CALIFORNIA
No. S004710, Crim. No. 25416
1991.CA.40804 ; 53 Cal. 3d 955; 810 P.2d 131; 281 Cal. Rptr. 273
May 23, 1991
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HENRY EARL DUNCAN, DEFENDANT AND APPELLANT
Superior Court of Los Angeles County, No. A910836, Hiroshi Fujisaki, Judge.
Mitchell Zimmerman, under appointment by the Supreme Court, Sally M. Abel, Wayne D. Skigen, Stacie L. Solari, Fenwick & West, and Fenwick, Davis & West for Defendant and Appellant.
John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Raymond L. Brosterhous III, Ward A. Campbell and Lisbeth Bellet, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Panelli, J., with Lucas, C. J., Kennard, Arabian and Baxter, JJ., concurring. Broussard, J., concurred in the judgment. Separate concurring opinion by Mosk, J.
Panelli
Defendant Henry Earl Duncan was convicted of the first degree murder of Josephine Eileen DeBaun (Pen. Code, § 187), robbery (§ 211), and grand theft (§ 487). The jury found true a special circumstance allegation that the murder was committed in the course of a robbery (§ 190.2, subd. (a)(17)(i)) and that defendant "intended to and did kill" the victim. The jury also found that defendant personally used a knife in the commission of the murder and robbery (§ 12022, subd. (b)). The jury fixed the penalty at death; this appeal is automatic. (Cal. Const., art VI, § 11; § 1239, subd. (b).)
Guilt Phase Facts
Prosecution Case
The victim, Josephine Eileen DeBaun, was the night supervisor at the International Host Restaurant in the Pan Am Terminal at Los Angeles International Airport. As the night supervisor, Mrs. DeBaun collected, counted, and deposited the money from the cash registers into a Brink's safe located in a small caged area within the office, known as the money room.
Defendant worked as a night cashier at the restaurant and was on duty on November 13, 1984, the night DeBaun was killed. The time clock records show that defendant punched out that night sometime between 11:01 and 11:06. The other remaining employees, Rafael Felix, Francisco Castro and Daryl Jackson, punched out between 11:30 and 11:42 p.m.
Defendant was seen by custodian Bernice McCarty lingering on the mezzanine level at 11:30 p.m. McCarty had never before seen defendant hang around after hours. Defendant told her he was waiting for someone.
DeBaun was last seen alive by Harvey Morgan of Ace Pest Control, who had arrived at 10:50 that night, after closing, to spray. DeBaun remained there alone after Morgan left about 11:50 p.m. DeBaun telephonically recorded some sales figures about midnight.
DeBaun's body was found early the next morning by the morning shift restaurant supervisor. The body was lying in a pool of blood in the money room. The grate was down on the public door, and the office door was locked. The cage door to the money room was partially open. The supervisor's "floating fund bank" was open, with the "boss key ring" dangling
from the lock. About $2,100 was missing from the bank. The money room also held the Brink's bank in which the proceeds of each shift were deposited and the "nest banks" for
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