NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Plaintiff and Respondent,
MICHAEL FRANK GOODWIN,
Defendant and Appellant.
(Los Angeles County
Super. Ct. No. GA052683)
APPEAL from a judgment of the Superior Court for the County of Los Angeles. Teri Schwartz, Judge. Affirmed.
Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Louis W. Karlin, Deputy Attorneys General, for Plaintiff and Respondent.
In the early morning of March 16, 1988, Mickey and Trudy Thompson were shot and killed in the driveway of their Bradbury Estates home, as they were leaving for work, by two gunmen who left the scene on bicycles and were never apprehended. More than 13 years later, defendant Michael Frank Goodwin was arrested in Orange County for the murders. After the Orange County prosecution was dismissed for improper venue, defendant was prosecuted in Los Angeles County, and in January 2007, a jury convicted him of the first degree murder of both victims, and found true special allegations of multiple murders and that the murders were committed by means of lying in wait.
The prosecution adduced evidence of bitter lawsuits between defendant and Mr. Thompson over business matters in the three years preceding the murders, lawsuits that ended badly for defendant. Many witnesses testified to defendant’s expressed hatred of Mr. Thompson and defendant’s numerous threats, repeated to many witnesses over a lengthy period of time, that he intended to kill Mr. Thompson and hurt his family. There was eyewitness testimony placing defendant, with binoculars, in a car (with another unidentified man) parked in the Thompson neighborhood a few days before the murders. And there was evidence defendant and his wife liquidated assets and left the country on a newly purchased yacht five months after the murders.
The defense case challenged the eyewitness identification of the man in the parked car and tried to prove the murders were the result of a robbery gone wrong rather than a contract “hit,” and that investigators made numerous errors and improperly focused their efforts on defendant rather than undertaking an unbiased search for the truth.
Defendant challenges his convictions on many grounds. He contends the case should have been dismissed, or the Los Angeles District Attorney’s office should have been recused, or the two prosecutors should have been removed, because of the seizure, retention and review of attorney-client privileged documents.
He contends the evidence was insufficient for conviction, claiming the eyewitness identification of defendant as the man in the parked car was not credible evidence of a connection between defendant and the killers or of any agreement to murder the Thompsons.
He contends the long delay in prosecuting him was unjustified and prejudicial, violating his state and federal constitutional rights to due process of law.
He asserts a possible Pitchess1violation.
He asserts error in the admission of expert testimony on financial transactions that occurred after Mickey Thompson won a large judgment against defendant.
He asserts the trial court improperly admitted evidence that Mr. Thompson expressed fear of defendant, evidence of defendant’s bad character, and evidence of Mr. Thompson’s good character.
He contends the trial court erred in excluding evidence, including evidence of potential third party culpability; evidence that Mickey Thompson had purchased a large quantity of gold just before the murders; and evidence that another individual had failed three polygraph examinations but nevertheless investigators failed to pursue him as a suspect.
He asserts error in giving a conspiracy instruction; error in instructing the jury it could consider a witness’s level of certainty when evaluating eyewitness identification; and error in instructing the jury it could consider defendant’s departure from the country on a yacht five months after the murders as evidence of flight and consciousness of guilt. He asserts multiple forms of prosecutorial misconduct.
He contends dismissal is required because of outrageous government conduct “from the beginning of the investigation to verdict,” claiming among other things that Mickey Thompson’s sister, Collene Campbell, improperly influenced the investigation through her personal connections with the Orange County District Attorney.
And he asserts reversal is required based on the cumulative effect of multiple errors in the case.
Our review of the record discloses no prejudicial error, and we affirm the judgment.
Mickey Thompson was a well-known race car driver who set a land speed record in his youth. By the 1980’s, Mr. Thompson was running a successful sports promotion company that sponsored indoor stadium races, principally with off-road, four-wheeled vehicles. Defendant ran a similar business, Stadium Motor Sports Corporation, promoting stadium motorcycle racing. In 1984, the two men entered into a business venture together to promote stadium motor sports events. The deal involved a stock transfer agreement with the parties combining their businesses and sharing profits and losses, 70 percent to defendant and 30 percent to Mr. Thompson.
Within months, the business relationship deteriorated. Defendant refused to advance monies for an event according to the 70/30 formula, and then claimed Mr. Thompson had defaulted, entitling him (defendant) to take over Mr. Thompson’s company.2 Mr. Thompson sued defendant and his company in October 1984. In February 1986, the trial court entered judgment for Mr. Thompson totaling over $790,000 in damages, prejudgment interest and attorney fees.
In the years after the litigation began, Mr. Thompson continued to successfully promote motor sports events in various arenas, while defendant’s business suffered. Defendant had originated the idea of staging motorcycle events at the stadium in Anaheim, and had done so successfully for years. But after 1987, Gregory Smith, the Anaheim Stadium executive director, stopped doing business with defendant and hired Mr. Thompson and another company to produce all of Anaheim’s motor sports events, including the event defendant previously produced. (One of several reasons for the change was that defendant’s company was in bankruptcy.) Defendant was very upset when he received the news that his proposal for those events had been rejected in favor of Mr. Thompson. Anaheim Stadium executives announced the change at a press conference in August 1987, and the events held in January 1988 were very successful.
Defendant had held an exclusive contract for motor sports events at the Rose Bowl in 1985 and 1986, but the Pasadena City Council selected Mr. Thompson’s company to hold an event in May 1987, which also made defendant very angry. Mr. Thompson was also selected to run an event in the summer of 1988, but the murders prevented that.
Meanwhile, Mr. Thompson’s vigorous attempts to collect on his judgment against defendant were largely unsuccessful. Mr. Thompson’s lawyers prevented defendant from using private sureties to satisfy the appellate bond requirement, but were not able to find any assets, which appeared to have been transferred. In September 1986, defendant changed the name of his company and filed for bankruptcy protection. In November 1986, defendant filed for personal bankruptcy.
Mr. Thompson’s lawyer, Philip Bartinetti, described the litigation as one of “the most vigorously contested I’ve ever been involved in.” Another of Mr. Thompson’s lawyers, who was responsible for attempting to collect the judgment, described the litigation as “absolutely beyond a doubt the most bitter and contentiously fought lawsuit I’ve ever been involved in.”
The judgment for Mr. Thompson was affirmed on appeal and the Supreme Court denied review on January 29, 1988, a few months before the murders. In another lawsuit defendant filed in Orange County against Mr. Thompson and his company, the court ordered summary judgment in favor Mr. Thompson on March 2, 1988, about two weeks before the murders.
After the bankruptcy filings in September and November 1986, Mr. Thompson had wanted to settle the matter, and there were extensive settlement negotiations. Apparent deals were reached a dozen times, but then defendant “would change something at the last minute and it would fall apart.” Mr. Thompson’s lawyer concluded defendant was not negotiating in good faith.
After the bankruptcy filing of defendant’s company, now named Entertainment Specialties, Inc. (ESI), the bankruptcy examiner recommended appointment of a trustee for ESI. Jeffrey Coyne was appointed trustee in late June 1987. He discovered “there was no operating company to run,” as “the operating part of the company had been sold by E.S.I.” to a company named Supercross, Inc. (SXI), a company owned and operated by defendant’s wife and a man named Charles Clayton. When he examined the books and the transfer to SXI, Mr. Coyne found “lots of gaping holes” and determined that much of what he saw in ESI and the transfer to SXI “was all done for the purpose of moving the business without paying the creditors,” the most vocal and the most interested of whom was Mr. Thompson. Mr. Coyne discovered that SXI was in default on payments to ESI for assets transferred to SXI, and believed the activity of defendant, his wife, ESI and SXI to be fraud affecting Mr. Thompson’s rights as a creditor, as ESI’s primary assets had been shifted away.
Mr. Coyne took steps to recover the assets, and SXI eventually paid $385,000 of the outstanding $500,000 owed. Mr. Coyne pursued recovery of the remaining amount and refused to acquiesce in defendant’s efforts to have various bankruptcy estate assets paid to his wife and parents. At a meeting a few weeks before the murders, defendant, trembling and in a “black rage,” approached within inches of Mr. Coyne’s face and said, “You better lighten up or things will get bad,” and “If you fuck up my life, I’ll fuck up yours.” Describing his experience with the ESI bankruptcy, Mr. Coyne said it was “the highest level I had ever seen of acrimony, anger, intensity, resentment and rage.”
2. Defendant’s Threats Against Mr. Thompson
We summarize now the evidence of the multiple occasions on which defendant expressed his hatred of Mr. Thompson and his intent to kill him during the years preceding the murders.
William and Nina Wilson
In January or February 1988, William and Nina Wilson hosted dinner at their home for defendant and his wife. (Mr. Wilson was general manager of Jack Murphy Stadium in San Diego, and had also managed the Rose Bowl; he had worked with both Mr. Thompson and defendant on various motor sports promotions.) When Mr. Wilson asked defendant how he was doing, defendant replied, “Terrible.” Defendant was angry and said: “Fucking Thompson is killing me. He’s taking everything I’ve got. He’s destroying me. I’m going to take him out.” When Mr. Wilson responded, “Nobody wins that one. Mickey’s dead and you’re in prison,” defendant replied, “Oh, no,” and “I’m too smart for that. They’ll never catch me.” Nina Wilson heard the conversation and corroborated her husband’s account, saying that defendant said, “I just hate him,” and repeated, “I’m going to take him out.” Both the Wilsons believed defendant was serious. Mr. Wilson was “very upset” and Ms. Wilson was “shock[ed].” When he saw how shocked the Wilsons were, defendant said, “Well, you know I’m just kidding. I could never do anything like that.”
Mr. Smith, the Anaheim Stadium executive, was subpoenaed to testify at a bankruptcy court hearing in 1987. This was at a time when decisions were being made or had recently been made about the award of the Anaheim motorcycle event to Mr. Thompson. Mr. Smith was sitting at the back of the courtroom before the hearing when defendant sat down behind him and said, “You don’t know what you’re doing to me. You’ll be sorry for this. I’ll be back.” Mr. Smith considered defendant’s statement threatening. He had had several conversations with defendant before, and in every one, defendant was “unhappy” and “mad that we would consider not having him come back and put on the supercross event.” Defendant was “confrontational and very, very upset,” but the courtroom conversation “was the first where I considered it threatening when I was being told that I would regret this decision.”
Scott Hernandez worked for defendant’s company from the spring of 1985 to late 1987, when defendant closed the office. The office walls were thin, and the offices of defendant and Mr. Hernandez shared a wall, so Mr. Hernandez could overhear discussions in defendant’s adjoining office. In late 1987, Mickey Thompson’s name came up frequently and was a source of tension in the office. “When Mickey Thompson was brought up by [defendant], it was usually in a rageful manner. Not geared towards the office personnel, but him expressing his anger and frustration . . . .”
On one occasion, Mr. Hernandez heard defendant on the telephone with his attorneys in the Thompson case, and then heard a ruckus that “sounded like books flying, hitting the wall, and [defendant] going into a rage.” Mr. Hernandez heard defendant say, “I’ll kill that mother fucker. I’ll kill that mother fucker.” Mr. Hernandez described defendant’s voice level as “in anger, just livid anger.” (In 2002, Mr. Hernandez told a detective that this incident occurred in February or March 1987, rather than late 1987.)
Cheryl Sarantis was an employee of defendant’s company in 1986 and 1987, until the office closed, working on advertising and marketing. She heard defendant “ranting and raving” about Mr. Thompson on a regular basis, every day that defendant was in the office. On one occasion, she heard lamps crashing against the wall of the conference room, followed by defendant’s ranting and raving about Mr. Thompson. She also recalled defendant saying that he “was going to destroy Mickey Thompson.” (When police interviewed Ms. Sarantis, she said the word “destroy” was her characterization of what defendant said, and not a direct quote from defendant.)
Kathy Weese, who was then known as Kathy Johnson, worked for defendant for six to eight months as a secretary in 1986. She often answered the telephone when Mickey Thompson called. Defendant and Mr. Thompson “were always talking about the money situation.” On one occasion, Mr. Thompson phoned defendant, and Ms. Weese overheard defendant say, twice, “I’m going to take you out.” The two continued to argue, and Ms. Weese heard defendant say, “It would cost me $500 and a motor vehicle to have you taken out and I will take you out.” (Ms. Weese did not tell police about that statement when she was interviewed in 1997, but the detective who interviewed her heard Ms. Weese testify to the same effect at a preliminary hearing in Orange County in 2002.)3
Barron Wehinger, 16 years old in the fall of 1984, lived with his stepfather, Tom Villelli, in Durango, Colorado. Defendant visited the Durango residence, and discussed with Mr. Villelli his “court battle” with Mr. Thompson. Mr. Wehinger heard defendant tell his stepfather, “I’ll kill him.” According to Mr. Wehinger, defendant said he was going to kill Mr. Thompson “[i]f he [defendant] lost his power to run the superbowl of motorcross, his million-dollar-a-year income.” Mr. Wehinger heard defendant say, “I can get it done for 50 grand.” Mr. Villelli replied, “I could get it done for 20 grand,” and defendant said, “I don’t want to get you involved, Tom.” Mr. Wehinger explained all this was vivid in his memory because, around the same time, defendant had visited and offered to help Mr. Wehinger and his brother with their motocross careers, and “[w]hen somebody offers you a chance to ride superbowl of motorcross, you listen to every word they say, and when I heard that, I’ll never forget it.”
Mr. Wehinger did not mention anything about the $50,000 when he testified at the preliminary hearing in this case, and he never mentioned anything about a hit man to the police or to the prosecutor. In his previous testimony, Mr. Wehinger said that the only thing he heard defendant say was “he [(defendant)] would have him [(Mr. Thompson)] taken care of if he lost.” In 2003, Mr. Wehinger told police he heard defendant talking in late 1987, or perhaps 60 or 90 days before the murders, rather than in 1984.
In November or December 1987, Penn Weldon, a private investigator, met defendant to discuss possible investigative work for defendant. Defendant was “very upset and angry” during the hour-long meeting, and said he had been “fucked royally” by Mickey Thompson; that he was so angry he had recently thrown a chair through the window of his house; and “that Mickey had ruined his life and he wanted to get even with him.” Defendant wanted Mr. Weldon to investigate Mr. Thompson’s attorney, Philip Bartinetti, and place listening devices in Mr. Bartinetti’s home and cars. Mr. Weldon refused to do that, but agreed to and did perform other investigative actions relating to Mr. Bartinetti.
In the months preceding the murders, Karen Dragutin was at a Laguna Beach restaurant with a man who knew defendant very well, and they were joined by defendant and his wife. Defendant’s jovial attitude changed when the conversation turned to lawyers and lawsuits and Mickey Thompson. Defendant became angry, said he “was getting screwed by the lawyers”; “[t]he only way to get out of the mess was to take care of Mickey Thompson”; and “the only way he was going to get out of it is if Mickey Thompson died.” Ms. Dragutin also testified defendant “was talking about a boat and going to Bermuda. And it was still in the context of that conversation. So my conclusion was he was going away.” Defendant’s statement about the boat and going to Bermuda “was in the same part of the conversation as the taking care of this mess and Mickey had to die . . . .”
Gregory Keay was defendant’s cousin. At a family gathering two or three months before the murders, defendant said that “Mickey was out to get all of his money and before that would happen, he would have him wasted.” (When police interviewed Mr. Keay in 1997, Mr. Keay did not use the term “wasted”; he told the detective that defendant said, “That partner of mine is rubbing me the wrong way, he won’t be rubbing me much longer.”)
In the fall of 1987, Dale Newman and a friend flew to Mexico to go diving, and met defendant, who sent a 60-foot boat to the beach to pick them up. That evening, they were on the bridge deck with defendant and his wife. Mr. Newman overheard defendant and his wife commiserating over a legal matter. Mr. Newman did not recall his exact words, but defendant told his wife, in a threatening tone, in effect “that nothing bad was going to happen because he was going to take care of the party involved.”
John Williams was a deputy marshal in Orange County from 1986 through 1988. He was assigned to levy on defendant’s Mercedes automobile in connection with litigation involving Mickey Thompson. He went to defendant’s residence and, in the course of the removal of the Mercedes, defendant said, “Mickey Thompson is fucking dead. He doesn’t know who he’s fucking with.” Both defendant and his wife used an extraordinary amount of “vicious language” about Mr. Thompson, and both repeated that Mr. Thompson “was going to have something happen to him.” Mr. Williams reported the incident to his supervisor, and telephoned Mr. Thompson’s attorney to report the successful levy and the threatening comments.
Mr. Williams testified that the incident occurred about three months before the Thompson murders, but documentation showed a writ to levy was issued on June 4, 1986; a levy worksheet was dated June 11, 1986; and a receipt for the towing service used for the defendant’s car was dated August 14, 1986. Mr. Williams, when shown these documents, continued to insist the incident did not occur in August 1986. (After the bankruptcies were filed in September and November 1986, Mr. Thompson would have been unable to levy on the Mercedes, and in January 1988, defendant surrendered his Mercedes to a representative of the bankruptcy trustee without incident.)
l. Nancy Lucia
Nancy Lucia (formerly Wilkinson) worked for the Thompsons on weekends for several years and was a personal friend of Trudy Thompson’s. Ms. Lucia came to the Thompsons’ home in the fall of 1987 to show Trudy Thompson her wedding photographs. While they were in an upstairs room looking at the photographs, Mickey Thompson came upstairs, out of breath and frantic. He was “almost kind of yelling, saying ‘[c]lose the window. Close the drapes. [Defendant] could have a sniper out there right now.” The drapes were open at the time.
Joel Weissler was the Thompsons’ nephew. He met defendant in 1984 or 1985, at a race promoted by his uncle, where the Thompsons introduced defendant as their “new partner.” Mr. Weissler talked with defendant for about five minutes, and remained in his company for the four-hour racing event. Mr. Weissler also spoke briefly to defendant at a later event.
In late 1987 or early 1988, Mr. Weissler overheard defendant on the telephone. Mr. Weissler was talking on the telephone with Trudy Thompson, and could hear Mickey Thompson in the background, speaking with defendant on another phone line. Mr. Weissler heard defendant say, in a loud, threatening tone, “You will never see a cent of it. I’m going to hurt you and your family.” Mr. Thompson responded, “Leave my family out of it.”
About a month later, Mr. Weissler was visiting the Thompsons’ home. He saw Mickey Thompson and heard defendant’s voice on the speakerphone, saying: “You and your family won’t see a penny of this. I’ll get you. I’m going to hurt you,” and “I’m going to hurt your family.” Mr. Thompson was very agitated and repeatedly said, “You stay away from me. You stay away from my family.”
At the time of the Thompsons’ funeral, Mr. Weissler told a detective he had heard defendant make threats, but he was not asked for any details about the threats. In August 1991, he and an uncle went to a police station in Los Angeles and met with the police to find out what was going on with the investigation, as they were “impatient for something to happen.” When Mr. Weissler was asked whether he mentioned the phone conversations he had heard to the police at the August 1991 meeting, he said he did not recall and he thought what he had to say was very redundant.