Opinion
Rehearing Denied Aug. 12, 1968.
For Opinion on Hearing, see 75 Cal.Rptr. 188, 450 P.2d 580. Sheela, O'Laughlin, Hughes & Castro, and Peter J. Hughes, San Diego, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen. and Thomas Kallay, Deputy Atty. Gen., for plaintiff and respondent.
OPINION
COUGHLIN, Associate Justice.
Defendant shot and killed his wife; was charged with murder; claimed he did not have the mental capacity to commit murder at the time of the killing because of intoxication induced by the use of alcohol and drugs; was found guilty of murder in the second degree; and appeals.
Contentions on appeal are the trial court erred: (1) In admitting rebuttal testimony relating a statement made by the deceased on the day of the killing; (2) in its instructions on second degree murder and its refusal to give an alleged clarifying instruction requested by defendant; (3) in admitting testimony relating statement by defendant after he had requested counsel; (4) in admitting testimony defendant, after being advised of his rights, requested an attorney; (5) in refusing voir dire examination by defense counsel, outside the presence of the jury, of an expert witness called by the prosecution; and (6) in admitting rebuttal testimony not directed to the case presented by the defendant.
The evidence leaves no doubt defendant shot and killed his wife, firing two bullets into her head and chest, respectively, at close range. He testified to a lack of memory both before and after the killing and that he did not remember the killing; getting the gun used; or statements made to him by the officers at the time of his arrest. The shooting occurred in the presence of his six year old daughter whose statement relates the only known details of the killing. While defendant, his wife and his daughter were viewing a television program he left the room; went to his bedroom where he got a .38 caliber gun; placed the gun in his pocket; and returned. Shortly thereafter he asked his wife to accompany him outdoors so they could talk. When she refused, he pulled her from the couch on which she was lying, causing her to fall upon the floor. For some time defendant and his wife had been having marital troubles. The details of the incident as related by the daughter, and those remembered by the husband, do not indicate the wife had said or done anything immediately preceding the shooting which would support a contention the shooting occurred as the result of a sudden quarrel or heat of passion. However, defendant testified to incidents during the quarrelsome periods of their married life when his wife reacted violently to statements made by him. In rebuttal, over defendant's objection, the court admitted testimony relating a telephone conversation by the wife on the morning of the day the killing occurred in which she said, referring to defendant, "I know he's going to kill me. I wish he would hurry up and get it over with. He'll never let me leave." Defendant contends the foregoing testimony was inadmissible under the rule stated and applied in People v. Hamilton, 55 Cal.2d 881, 893, 897, 13 Cal.Rptr. 649, 362 P.2d 473, foreclosing the use of allegedly hearsay statements under similar circumstances. The statement in question did not relate any past conduct on the part of defendant; reflects what was in the deceased's mind at the time; showed she was in fear of defendant; was not hearsay; was offered to prove the wife, because of her fear of defendant, did not do anything to provoke him; and was relevant to the issue of provocation raised by defendant's testimony relating his wife's previous violent conduct. (Evid.Code, § 1250; People v. Hamilton, supra, 55 Cal.2d 881, 893, 13 Cal.Rptr. 649, 362 P.2d 473.) The testimony relating the contents of the telephone conversation was admissible to prove what was said rather than the truth of what was said and for this reason was not within the hearsay rule. (Smith v. Whittier, 95 Cal. 279, 293, 30 P. 529; People v. Contreras, 201 Cal.App.2d 854, 857, 20 Cal.Rptr. 551; Johnson v. Nicholson, 159 Cal.App.2d 395, 411-412, 324 P.2d 307.) Insofar as the conversation related the wife's belief her husband was going to kill her, it referred to a future event rather than a past event; was confined to her state of mind; and did not purport to state a fact. The interrogation eliciting the statement to which defendant objected is within the permissible scope defined by the court in People v. Hamilton, 60 Cal.2d 105, 118, fn. 3, 32 Cal.Rptr. 4, 383 P.2d 412.
Defendant also contends the court, on its own motion, should have instructed the jury the statement in question could be considered only in determining the wife's state of mind. Even assuming such an instruction was in order, the failure to give it was not prejudicial in light of the fact the statement was limited to the wife's belief. Assuming her belief might be the basis for an inference defendant then intended to kill her, the jury did not draw this inference because by its verdict of murder in the second degree, rather than murder in the first degree, it impliedly found no premeditation. Assuming, further, the wife's belief might support an inference identifying defendant as the person who committed the homicide, its effect in this regard is wholly inconsequential because there is no contention he is not that person.
The court gave detailed instructions defining the offense of murder in the first and second degree and of manslaughter. Defendant contends these instructions were 'confusing, misleading and inappropriate', citing in support of his position the decision in People v. Hudgins, 252 A.C.A. 188, 195, 60 Cal.Rptr. 176. However, the situations in the case at bench and the cited case are not comparable.
Specifically, defendant asserts a lack of clarity in the instructions setting forth the felony-second degree murder People v. Phillips,
People v. Washington, People v. Conley,The defendant also contends the instruction on the felony-second degree murder rule created confusion in the instructions on voluntary manslaughter. To clarify this alleged confusion defendant requested, but the court refused, an instruction that a defendant, provoked by heat of passion or sudden quarrel 'who commits an assault with a deadly weapon which results in death is guilty of no more than manslaughter--the same as if he intended to kill rather than injure * * *.' The instructions given made it clear that a killing upon a sudden quarrel or heat of passion removes the element of malice aforethought essential to the offense of murder; did not bear the interpretation a provoked killing is manslaughter when the shooting is with intent to kill but is not manslaughter when the shooting is only with intent to injure; defined manslaughter as an unlawful killing without malice; and distinctly directed when provocation is shown the law presumes a defendant who acts in the heat of passion or on sudden quarrel acts without malice. Defendant's contention to the contrary is without merit. There was no need for the requested clarifying instruction. Furthermore, we reiterate, the evidence would not support a finding defendant shot his wife with intent to injure and not to kill.
Where a homicide results from an assault upon the victim with a deadly weapon, as in the case at bench, reliance upon the felony-second degree murder rule in proof of malice aforethought is unnecessary. (People v. Washington, 62 Cal.2d 777, 782, 44 Cal.Rptr. 442, 402 P.2d 130; see also People v. Conley, supra, 64 Cal.2d 310, 324, fn 4, 49 Cal.Rptr. 815, 411 P.2d 911.) The instructions giving this rule were superfluous, but did not create any confusion.
The decision in People v. Hudgins, supra, 252 A.C.A. 188, 196-197, 60 Cal.Rptr. 176, criticizes an instruction custom arily When defendant was taken into custody the arresting officer advised him of his constitutional rights to an attorney and to remain silent; was asked if he had anything to say; and replied, "Call my parents for my attorney." He was not questioned further until he was booked. At this time the booking officer again advised him of his constitutional rights in the manner prescribed by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. He then was asked routine booking questions which were not made in the process of an interrogation seeking to elicit incriminating statements and did not elicit any such statements. There is no merit to defendant's contention this interrogation violated the rules prescribed by the decision in Miranda (see also People v. Fioritto, 68 A.C. 753, 68 Cal.Rptr. 817, 441 P.2d 625), because the questioning followed his previous request that his parents be advised to call his attorney.
Later, on the same night, defendant engaged in a conversation with an officer named Cartwight. The contents of this conversation were admitted in evidence over his objection that his previous request for an attorney foreclosed any further police interrogation. (Gen. see People v. Fioritto, supra, 68 A.C. 753, 757, 68 Cal.Rptr. 817, 441 P.2d 625.)
We will assume defendant, by his request to the officer to call his parents for his attorney, invoked the privilege to remain silent. However, although a defendant's assertion of his right to remain silent forecloses use of incriminating statements made by him during subsequent police-initiated interrogation, it does not foreclose use of incriminating statements made during a subsequent interrogation which he initiated. (People v. Fioritto, supra, 68 A.C. 753, 757-758, 68 Cal.Rptr. 817, 441 P.2d 625; People v. Jacobson, 63 Cal.2d 319, 328, 46 Cal.Rptr. 515, 405 P.2d 555; People v. Tomita, 260 A.C.A. 88, 92, 66 Cal.Rptr. 739.) Where the interrogation is initiated by the defendant, the fact that during the course thereof the officer asks questions which produce incriminating statements does not foreclose their use. (People v. Treloar, 64 Cal.2d 141, 147, 49 Cal.Rptr. 100, 410 P.2d 620; People v. Tomita, supra, 260 A.C.A. 88, 92, 66 Cal.Rptr. 739.) On the other hand, where the officer's participation in the interrogation reflects an intention to assert the compulsive influences against which the Miranda rule is a guard, incriminating statements thereby elicited may not be used. (People v. Jacobson, supra, 63 Cal.2d 319, 328-329, 46 Cal.Rptr. 515, 405 P.2d 555; see also People v. Fioritto, supra, 68 A.C. 753, 757, 68 Cal.Rptr. 817, 441, P.2d 625.)
The evidence supports a finding implied in the order overruling defendant's objection that he initiated the conversation 'He [defendant] said he wanted to talk to someone, and asked me if I was willing to listen, and I said yes.'
There was other testimony indicating Cartwright had been selected by a superior officer to interview defendant; the time or place of such an interview had not been arranged; and Cartwright's contact with defendant on the occasion in question was in response to advices from a fellow officer that defendant wanted to talk to someone about the case.
The ensuing conversation was in two parts. The first part took place in an interviewing room not equipped with a tape recorder; was not recorded; and was terminated by defendant's granted request for permission to telephone his parents. The second part took place in the office of the Chief of Police; was tape-recorded; and concluded shortly after defendant's parents came to see him.
The testmony respecting the conversation in the interviewing room was very limited and general in nature; described a part of it as 'talking in generalities about his home, his family, his interests, his occupation, and things of this type'; related that, in response to specific questions by the officer, defendant admitted he had shot his wife with a .38 caliber gun which he placed in a dresser drawer in the bedroom after the shooting; also related that when asked why he shot his wife defendant did not reply but instead pointed to a paper sack which contained appointment cards for a marriage counseling session, and that when asked whether his wife had been seeing another man, defendant nodded, but refused to identify him; and concluded with defendant's request to call his parents.
Thereupon Cartwright and defendant went into the Chief's office where a telephone was available. The officer placed the call and defendant talked with his father; told the latter he had killed his wife; began sobbing; and was unable to continue the conversation. Cartwright took the phone; told the father his son needed him; and asked him to come to the police station as soon as possible.
The conversation between Cartwright and defendant was resumed; was recorded; and lasted until defendant's parents arrived. A transcript of this recording was placed on another tape, because of 'audibility problems', and the latter recording was played before the jury. In this manner the conversation in the Chief's office was presented to the jury in haec verba. The greater part of this conversation was consumed by defendant in eulogizing himself and relating trivia respecting the purchase of homes and other domestic incidents. He was in complete command of the interview; frustrated every attempt by the officer to obtain any statement from him concerning the killing; fended inquiries seeking a reason for killing his wife with innocuous replies and lengthy, detailed narrations of shopping experiences or similar immaterial incidents. After his parents arrived the officer endeavored to get defendant to tell them what happened at the time of the killing and his answer was:
'I wish I could tell you, mom--I have been talking to Mr. Cartwright before you got here. He wants to know, too. I wish I could tell you. I don't----.'
Upon suggestion from someone in the group that defendant should have a lawyer, the interview with the officer terminated.
The incriminating statements made by defendant in his conversation with Cartwright were limited to an admission of the uncontroverted fact he had killed his wife with a .38 caliber gun which he thereafter placed in a dresser drawer. Even assuming a part of Cartwright's interrogation was subject to defendant's invoked constitutional privilege and the protective rules of Miranda, any error in the admission of incriminating statements produced by such interrogation was not prejudicial. After a review of the entire record, including the evidence, we are convinced and expressly declare our belief Chapman v. State of California,
People v. Jacobson,Over objection the court admitted the testimony of the officer who informed defendant of his right to counsel at the time of his arrest when he responded, "Call my parents for my attorney." Defendant contends this testimony was inadmissible because it exploits his exercise of a constitutional right 'to his disadvantage by conversion into an inference of guilty consciousness,' relying upon the decision in People v. Stewart, 236 Cal.App.2d 27, 31, 45 Cal.Rptr. 712, 715, in support of this position. (See also People v. Hansard, 245 Cal.App.2d 691, 698, 53 Cal.Rptr. 918.) However, under the circumstances in the case at bench the testimony was admissible for a relevant purpose other than to supply an inference of consciousness of guilt; was pertinent on the issue whether defendant at the time of his arrest had the mental capacity to understand what he was told; and, also in this regard, showed the reason the officer did not interrogate him respecting the killing was not because defendant was unable to relate what had occurred, but was in recognition of his constitutional rights in the premises. Where testimony relating a request for an attorney in the exercise of a constitutional right is relevant proof of material facts in issue, the trial court, in the exercise of its judicial discretion, must determine whether its probative value is outweighed by possible prejudicial effect as an implied admission of guilt. (Cf. Evid.Code, § 352; People v. McCaughan, 49 Cal.2d 409, 421-422, 317 P.2d 974.) Admission of the testimony in the case at bench was not an abuse of discretion. Furthermore, even assuming error, no prejudice occurred. At most, defendant's request for an attorney supported a consciousness of the fact he had killed his wife which was established by the evidence beyond all doubt. Applying the rule in People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243, admission of the testimony in question did not constitute a miscarriage of justice and does not authorize a reversal. (People v. Hansard, supra, 245 Cal.App.2d 691, 698-699, 53 Cal.Rptr. 918.)
In rebuttal, the prosecution called an expert witness to give his opinion respecting the mental capacity of defendant to entertain the mental state of malice aforethought at the time of the shooting. Preliminarily defendant moved he be permitted to examine the expert 'outside of the presence of the Jury to determine whether or not he has the qualifications to testify on this.' The court ruled evidence respecting the expert's qualifications should be presented in the presence of the jury, and denied the motion. It appears, as contended on appeal, although ineptly presented to the trial court, defendant's request was for a voir dire examination outside the presence of the jury respecting the content of the matter upon which the expert based his opinion, being the matter referred to in Evidence Code, Section 801, subd. (b). The court made it clear the expert should not relate any hearsay material upon which he based his opinion. The prosecution adhered to this restriction and made its presentation accordingly. The expert testified he had made a psychiatric evaluation of the defendant, giving the source of the matter upon which he based this evaluation. This testimony was admitted without objection. Thereupon, in response to a lengthy hypothetical question, the expert testified, in substance, defendant at the time of the shooting, 'was very capable of forming intent and plan to kill his wife,' and could premeditate and deliberate to his fullest extent. Defendant did not advise the trial court, nor has he advised this court, what his inquiry outside the presence of the jury might have developed respecting any matter The prosecution also called a second expert. Defendant contends the testimony of both experts exceeded the scope of rebuttal in that their opinions included 'diminished capacity due to mental disease or defect when, in truth and fact, the defense was predicated on intoxication.' The alleged intoxication was caused by the use of drugs and alcohol on the day in question. Defendant does not support his position by transcript reference (See People v. Mike, 163 Cal.App.2d 466, 468, 329 P.2d 519--re effect of such failure), however, our review of the record dictates the conclusion the contention is without merit; the opinions of the expert were specifically directed to the intoxication induced mental incapacity issue; and any reference to other causes was incidental. On the other hand, in rebuttal of the apparent claim defendant's mental incapacity was evidenced by his failure to remember, to which he testified, the second expert described causes for such memory failure that were not associated with intoxication. Nevertheless, the opinion elicited was directed to a circumstance developed by defendant's testimony. No error occurred.
The primary factual issue developed by the evidence was whether defendant at the time of the shooting had the mental capacity to entertain the mental state of malice aforethought. In large measure defendant's contention he lacked the required mental capacity was premised upon his alleged intoxication, its probable effect upon him and his claimed lack of memory. However, it is noteworthy that he remembered in detail the kinds of several different drugs he had used on the day of the killing; the times and occasions when he used them; the kind and amount of liquor consumed; and the occasion and time of each such incident. Although his use of drugs started early in the day and his use of alcohol commenced after he came home following work, he engaged in activities demonstrating normal mental capacity. The jury justifiably rejected his defense. He had a fair trial. No reason exists for a reversal.
The judgment is affirmed.
GERALD BROWN, P. J., and WHELAN, J., concur.