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Judge Erred but Justices Rule Death Verdict Valid

May 12, 1989|PHILIP HAGER | Times Staff Writer

SAN FRANCISCO — The state Supreme Court on Thursday affirmed the death sentence of the killer of a Long Beach flight attendant, although the court found that the sentencing judge had erroneously cited a "long and distinguished" criminal record of the defendant, who never before had been convicted of a felony.

The court held 5 to 2 that despite the error there were other legally sufficient grounds for the judge, now deceased, to uphold the jury's verdict of death in the case of Watson Allison, 30, convicted in the murder of Leonard Wesley Polk, 23, in a November, 1982, robbery.

The majority in an opinion by Justice David N. Eagleson concluded that it was "self-evident" that Los Angeles Superior Court Judge Pat Mullendore had correctly approved the verdict based on the coldblooded nature of the crime.

"At least one of the shots (was) fired execution-style at point-blank range into the victim's head," Eagleson noted.

But the court's two dissenters--Justices Stanley Mosk and Allen E. Broussard--said the judge either was thinking of "another case" or was improperly referring to evidence against Allison that was not before the jury. While the conviction should be upheld, the death sentence should be set aside, the two justices said.

"The error was particularly egregious in this instance for the judge obviously did not recollect the facts," Mosk wrote. "Whether he merely failed to recall the evidence or actually had some other case in mind, we shall never know because of his death."

Broussard said that in further proceedings another judge might decide Allison should be sentenced only to life in prison without parole. "This was an ordinary felony-murder case; certainly a serious crime, but one which sadly is also relatively common," he said. "Nothing in the circumstances of the crime in any way sets it apart as particularly aggravated."

State Deputy Atty. Gen. Robert S. Henry said he is "pleased with the result" of the decision and that the justices had correctly concluded that the judge's remarks were insufficiently harmful to warrant a new penalty trial. Allison's attorney in the appeal was not available for comment.

Allison and a co-defendant, Samuel Quinton Bonner, were accused of tricking Polk to gain entrance to the victim's apartment to steal stereo components, a television set and other items. Polk, an employee of Pacific Southwest Airlines, was found in his blood-spattered living room, dead from a severe beating and two gunshot wounds to the head.

Allison admitted that the two had planned to "rip off" Polk but claimed Bonner had committed the murder. Bonner was tried separately, found guilty and sentenced to life in prison without parole.

In 1984 a Los Angeles Superior Court jury found Allison guilty, concluding he was the triggerman in the killing, and returned a verdict of death. Judge Mullendore, reviewing the verdict, said the death sentence was "proper."

"And further, as far as the long and distinguished record of the defendant in the criminal annals of the county, I think that the defendant has now earned the verdict the jury has given him," said the judge, who then formally sentenced Allison to the gas chamber.

In Thursday's ruling, the justices pointed out that no evidence of violent criminal conduct or any prior felony convictions had been offered to the jury. Thus, they said, the judge's reliance on such a "record" in approving the sentence was improper.

The justices said Mullendore also failed to state other specific reasons for upholding the verdict, as required by law.

Ordinarily, the court said, it would send the case back for resentencing. But because the judge has since died--in 1985 at age 67--and there is no other judge as familiar with the case, the justices were compelled to review the issue, they said.

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