Death Penalty Upheld for Killer of Woman, 78

The state Supreme Court affirmed the death penalty Thursday for the killer of a 78-year-old woman who died of a heart attack during a break-in and brutal assault in a Sacramento senior citizens apartment complex.

The justices, relying on a ruling they made last fall, said there was no need to find the assailant intended to kill his frail, emphysema-ridden victim. The fact that the assault caused a fatal heart attack justified a death sentence, they said.

The court last October overturned a controversial 1983 ruling and held that the death penalty is permissible without the finding of intent for an “actual killer” who takes a life during commission of a felony.

Unanimous in Rejection

In Thursday’s ruling, the court, in an opinion by Justice Edward A. Panelli, unanimously rejected an appeal by Manuel Pina Babbitt, 39, who was found guilty and sentenced to death for the murder, robbery and attempted rape of Leah Schendel in December, 1980.

A pathologist’s report said Schendel died from a heart attack brought on by a severe beating. Had she not suffered from coronary disease and not experienced stress from “fright, struggle and pain from her wounds,” the blows she received in themselves would not have proved fatal, the report said.

Babbitt, 39, a decorated Vietnam War veteran, did not deny the killing, or the robbery and attempted rape of another woman the next day, but claimed that he should not be held criminally responsible because or insanity or diminished mental capacity.

The defense presented testimony from a clinical psychologist and other witnesses that Babbitt suffered from childhood brain damage; a form of epilepsy that rendered him “unconscious” of his actions during a seizure, and “post-traumatic stress disorder” following combat as a Marine in Vietnam.

Claims Rejected

The court rejected Babbitt’s claims that the trial judge unfairly barred important evidence of Babbitt’s diminished mental state at the time of the crimes.

His lawyer had sought to show that television movies depicting gunfire and Asians might have drawn Babbitt to Schendel’s apartment and triggered his violent attack as they brought back memories of Vietnam. The victim’s TV set was on when the body was found, and the defense tried unsuccessfully to introduce evidence that movies with gunfire and scenes of Japan were playing on the channel to which the set was tuned.

The justices noted, however, that there was no evidence Schendel’s TV set was on before the attack or that Babbitt had seen or heard the movies before he cut through a screen door to enter and ransack her apartment late at night.

The court pointed out that in any event, the jury had heard from defense witnesses who said Babbitt refused to listen to music that reminded him of Vietnam, became upset at the sight of green trash bags resembling “body bags” and had become “more violent” after serving two tours of duty in Vietnam starting at age 17.

Overall, the court found that the defense had adequate opportunity to present evidence of Babbit’s mental condition and that the jury had reason to reject it.

‘Approached Misconduct’

Turning to other issues in the case, the court found that Sacramento Deputy Dist. Atty. Christopher (Kit) Cleland had “approached misconduct” by telling jurors “we have a social cancer in our community” when psychiatrists are allowed to try to get defendants “off the hook” because of an allegedly diminished mental capacity.

Panelli said the courtroom was not the proper place for a “harangue” against the long-standing practice of allowing psychiatric testimony in behalf of criminal defendants. But the remarks had clearly not been significant enough to harm the defendant, he said.

The court added, however, that there was nothing improper about Cleland’s informing jurors that defense psychiatrists had received nearly $25,000 in fees in the case.

“Mr. Babbitt beat up an old lady in a rape, and she died of a heart attack,” McMurray said. “The jury found he should not be allowed to see the light of day again, and we agree.”

Appeal Likely

Babbitt’s attorney was not available for comment, but an appeal to the U.S. Supreme Court is virtually assured.

The state court has upheld the death penalty in 22 of the 30 capital cases it has decided since the defeat of Chief Justice Rose Elizabeth Bird and two other court members in the November, 1986, election.