High Court Upholds Two More Death Penalties

The state Supreme Court upheld the death penalty Thursday for the convicted killers in two cross-country crime sprees that ended in Southern California robbery-murders.

In a 6-1 ruling, the court affirmed the death sentence of Charles Edward Moore Jr., 33, for the 1977 burglary, robbery and murders of a Long Beach couple who managed an apartment house where he once lived.

The justices rejected the contention that Moore had been unfairly sentenced to die where an equally guilty accomplice later received only life in prison without parole.

The court also denied Moore’s claim that he was improperly refused the right to represent himself by then-Los Angeles Superior Court Judge David N. Eagleson, now a member of the high court. As customary, neither Eagleson nor Justice John A. Arguelles, another former Superior Court judge who came on to preside at Moore’s trial, participated in the case.

Second Case

By another 6-1 vote, the high court upheld the death penalty for Kelvin Shelby Malone, 27, convicted of kidnaping, robbing and murdering a woman service station attendant in San Bernardino County in 1981.

The court now has upheld the death penalty in 43 of 58 capital cases it has decided since a conservative majority gained control after the defeat of Chief Justice Rose Elizabeth Bird and two others in the November, 1986, election.

Moore, along with two accomplices, had first robbed and murdered a store manager in Lawrence, Kan.--a crime for which he later was convicted--before heading for Long Beach and joining in the fatal stabbings of Robert L. Crumb and Hettie Marie Crumb.

One of the accomplices, a 17-year-old girl, was granted immunity and testified for the prosecution. The other, Lee Edward Harris, was tried before Moore, convicted and sentenced to death. But his conviction and sentence were overturned by the high court in 1984 on the grounds that the jury was chosen exclusively from voter registration lists and thus did not reflect a cross-section of the community.

Harris was retried, convicted and sentenced to life without parole but the verdicts were reversed again by a state Court of Appeal in 1987 because he was not permitted to testify in his own defense. Harris now is awaiting a third trial.

Sought Several Options

In pretrial proceedings in 1984, Moore alternatively sought to replace his court-appointed lawyer, obtain a second attorney or, finally, to represent himself--either as co-counsel or by himself.

Eagleson, sitting as a calendar judge who sets cases for trial, denied Moore’s motion for self-representation, noting that the trial was ready to begin, counsel was ready and that some witnesses had come from out of state. The case then was transferred to Arguelles for trial and Moore was convicted and sentenced to death.

In a subsequent appeal, Moore contended that he had been unfairly denied his right to represent himself, which the law permits when the defendant has made a knowing and voluntary waiver of his right to a lawyer.

However, the court, in a majority opinion by Chief Justice Malcolm M. Lucas, found that since the request had been made shortly before trial was to begin, Eagleson had properly held that self-representation and further delay “would interfere with the orderly administration of justice.”

The court also found that Moore’s sentence was not “disproportionate,” even though Harris, who also inflicted fatal wounds on the victims, later received life without parole. Moore admitted that he alone planned to rob the Crumbs and he also had been convicted of the previous murder in Kansas, the justices noted.

In dissent, Appellate Justice Clinton W. White of San Francisco, specially appointed for the case, said there was no indication that Moore was trying to improperly delay his trial and that he should have been allowed to represent himself.

State Deputy Atty. Gen. Ivy K. Kessel welcomed the ruling, expressing hope that it would discourage defendants from making motions for self-representation merely in a bid to win a reversal on appeal.

Moore’s lawyer on appeal, Keith C. Monroe of Santa Ana, said he believes the ruling on self-representation was incorrect and that it likely will be challenged on appeal in the federal courts.

Monroe expressed disappointment also with the court’s finding that Moore’s sentence was not unfair compared to the one received by Harris. “It’s very hard to come up with a good reason why one of these defendants should receive a lesser penalty and the other a greater penalty,” he said.

In the other case decided Thursday, Malone, an escapee from the Monterey County Jail, was convicted and sentenced to death in the murder of Myrtle D. Benham, a Baker service station attendant, whose partially nude body was found in the desert near Daggett.

According to authorities, the killing was one of four murders committed by Malone in 1981--two in Missouri and two in California. In one such case, Malone was tried and convicted in Riverside County in the death of Minnie Ola White, whose body was found near Vidal Junction in the trunk of her car a day after the Benham murder.

In dissent, Justice Allen E. Broussard said that while Malone’s conviction should be upheld, the court should have set aside the death sentence. The trial judge, in refusing to reduce the jury’s verdict to life in prison without parole, failed to independently consider such potential mitigating factors as the defendant’s troubled youth and mental condition, Broussard said.

But the court majority, in an opinion by Justice Edward A. Panelli, said the judge was aware of the “full scope” of the defense’s mitigating evidence. In view of Malone’s participation in four murders, any claimed error in the consideration of that evidence could not have affected the judge’s ruling, Panelli said.