A Divided High Court OKs Death Sentence

Despite protests by dissenters that the evidence was too weak, a sharply divided state Supreme Court upheld the death penalty Thursday for a parolee convicted in a 1979 rape and murder in San Francisco.

The court, in a 5-2 decision, rejected an appeal from Russell Coleman, 36, found guilty in the slaying of Shirley Hill, 28, in a deserted high school classroom.

The majority, in an opinion by Chief Justice Malcolm M. Lucas, concluded that the case against Coleman was “quite substantial,” and that the erroneous admission of some of the evidence could not have affected the outcome.

But Justice Stanley Mosk, while voting to uphold Coleman’s conviction, said in dissent that the evidence was “frail” and “demonstrably thin”--and that “in good conscience” he could not support the death sentence.

‘One of the Weakest Cases’

And in another dissent, Justice Allen E. Broussard said that both the conviction and the sentence should be overturned. “This has to be one of the weakest cases to identify (the) defendant as the perpetrator of the crime that I have seen,” he said.

The ruling marked the 38th time the court has affirmed a death sentence in 51 capital cases decided since the defeat of Chief Justice Rose Elizabeth Bird and two other justices in the fall, 1986, election.

Coleman’s attorney, Alvin J. Knudson of Napa, expressed dismay with the ruling, saying that when the appeal process began six years ago he had been confident of winning a reversal from the more liberal court under Bird.

“I don’t mean to be critical of this court, but I think Mr. Coleman’s problems were political as well as legal,” Knudson said. An appeal of the decision will be made to the U.S. Supreme Court, he said.

State Deputy Atty. Gen. Mary A. Roth called the ruling “fair” and disputed the dissenters’ contention that the evidence against Coleman was lacking. “This was a good, solid circumstantial case,” she said. “Mr. Coleman’s alibi evidence was very, very weak.”

Hill was found strangled in a temporary classroom bungalow near the Mission High School football field.

Police Match Prints

Four months later, after Coleman had been jailed on separate sexual assault charges, police matched his thumbprint and palm print with those found earlier in the bungalow.

When questioned, Coleman, a parolee then attending City College of San Francisco, claimed that he did not know the victim and had never been in the bungalow.

At his trial, after being charged with murder, rape and sodomy, Coleman admitted that he had been in the room the day before the killing--but only to smoke marijuana after completing a run on the football field. On the day of the murder, he said, he had attended class and, accompanied by a friend, had then gone home and spent the night with his wife and children.

Coleman’s wife supported his story at his trial, saying that she had not come forward earlier because she did not think it was her place to “volunteer” information. Coleman’s friend also recalled accompanying the defendant home but said he could not be certain of the date.

The prosecution offered college records indicating that Coleman had been absent from class the day of the murder. It also presented scientific tests placing Coleman within 8% of the population that could have committed the rape--and demonstrated that the particular location of his palm print and prints of the victim supported the charges of sexual assault.

Prosecutors also presented evidence from a test indicating the presence of blood on the thumbprint left by Coleman; however, the test did not show a blood type or whether the blood was human.

Coleman’s previous convictions for false imprisonment of a female college student, rape of a 13-year-old girl and lewd conduct with an 11-year-old girl were offered as evidence of past violent behavior.

The justices found that the evidence of blood on the thumbprint should not have been admitted because the prosecution failed to show that the test was reliable and generally accepted in the scientific community. But the error was harmless because it did not necessarily point to Coleman as the killer, nor was it the most incriminating evidence in the case, Lucas said.

The presence of Coleman’s prints in the bungalow, his initial denial of his presence, the tests placing him in a limited group that could have committed the rape and the weakness in his alibi defense all amounted to evidence that was “quite substantial,” Lucas wrote.

In his dissent, Broussard faulted the court majority for failing to mention that another, unidentified print also had been found in the bungalow and for placing too much weight on the presence of Coleman’s prints there. Without the discredited blood evidence, he said, “the print evidence does not suggest that there is any greater likelihood that defendant was the killer than the donor of the unidentified print.”