Opinion
Page __
For Opinion on Rehearing, see 56 Cal.Rptr. 635, 423 P.2d 787.
[48 Cal.Rptr. 355] [ 409 P.2d 195] Alvin H. Goldstein, Jr., and Quentin L. Kopp, under appointment by the Supreme Court, and Gilbert Eisenberg, San Francisco, for defendant and appellant.
[48 Cal.Rptr. 356] [ 409 P.2d 196] Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Edsel W. Haws, Deputy Atty. Gen., for plaintiff and respondent.
BURKE, Justice.
Robert Henry Nicolaus was convicted by a jury of first degree murder on three counts after a trifurcated trial on the issues of guilt, sanity and penalty. He had ruthlessly killed his three children by shooting each several times in the head. The jury found defendant sane at the time of the offenses and imposed the death penalty. Motions for a new trial and to reduce the degree of the offenses were denied. His appeal before us is automatic under section 1239, subdivision (b), of the Penal Code.
Autopsies revealed the daughter Heidi had four gunshot wounds; Roberta and Donald each had three. Heidi was the daughter of defendant and his wife, Lisa; Roberta and Donald were children of his former common-law marriage to Jean Lara.
A nurse testified that on May 24, 1964, at approximately 8 a. m. defendant was brought to the emergency room of the Bart Memorial Hospital at Lake Tahoe for treatment. Defendant said to her, 'I have a confession to make. I killed my three children.' He said he had bought them toys to make them happy, taken them for a ride, had them climb into the trunk of the car to look for a key he told them he had lost, and shot them. The toys and other evidence were found the day of the homicides in a field in Rio Linda about 180 feet off the roadway. The statements to the nurse were made voluntarily, without any questioning by her; no police officers were present when the statements were made.
In September 1960, defendant's children, Roberta and Donald, were living with Jean Lara, their mother and defendant's former common-law wife. Defendant sought legal advice to secure their custody and his then counsel testified at the trial that defendant advised him he felt that Jean was immoral and that the children were being raised in an improper environment. Counsel informed him that he would have to improve his own life and establish a proper home into which the children could be received.
Lisa Nicolaus, defendant's wife, testified that she met defendant in 1961; they went together about six months during which they would pick up Roberta and Donald on weekends and take them someplace; defendant was very fond of and generous with his children; he was most concerned about them; he believed their mother Jean was subjecting them to psychological mistreatment and unfair punishment; he and Lisa decided upon a plan; they would get married, improve themselves, Lisa would finish high school, defendant would get a job, and save money; they would lead upright lives and someday obtain custody of Roberta and Donald; defendant and Lisa married September 7, 1961, and for about three years lived in accordance with their plan; they bore a child, Heidi; defendant had been drinking heavily before he got a steady job, but, thereafter he quit drinking; he did part-time work also, but lived penuriously with Lisa, spending nothing except for bare necessities; eventually they were out of debt and were able to save some money; however, she testified, she became dissatisfied with such a frugal existence and thought they should be able to spend some money on themselves; arguments occurred frequently over this issue and on May 22, 1964, the day before the homicides, she told defendant she was going to leave him. When defendant left for work she began to pack her personal effects, with the help of her mother, putting them in the mother's car; defendant came home about noon, again asked her not to leave, and expressed concern about her living with her mother whom he considered immoral and unfit to be closely in contact with their child, Heidi; there was conversation about defendant's gun; she had packed the gun with her belongings and placed it in her mother's car; defendant found the gun there and threw it in the truck of his own car; he followed her to her new apartment; [48 Cal.Rptr. 357] [ 409 P.2d 197] he told her he wanted to verify that she was not going to live with her mother; he returned later and took her and Heidi to a restaurant for dinner; he told her he had withdrawn his savings from the bank, was going to enroll at Sacramento State College and take a course in public speaking because he felt someday he would 'sway the crowds and the masses would be trembling at his feet'; the next morning he picked her and Heidi up and went to the home of Jean Lara and picked up Roberta and Donald. He said he wanted to have their pictures taken. He took them to a restaurant for breakfast, returned Lisa to her apartment, and then left with the children.
Other witnesses testified that at 2 p. m. defendant parked his car in an open field near some apartment houses and left it there.
Laurie Woodworth, Lisa's sister, testified: On the afternoon of May 23 defendant went to her apartment saying he was looking for Lisa; he and she drank beer and talked; defendant's demeanor was unusual, rambling and incoherent; he said he had always wanted to obtain custody of the children but now this could never be; she said, 'Well, * * * you may not ever get your two older children, but you have Lisa and Heidi'; defendant said, 'No, I don't have Heidi anymore.'
His wife testified that later in the afternoon he found her at her apartment; told her he had left the children with his mother who was happy to see them and to babysit for him while he took Lisa and her mother to Stateline; they went to Stateline and during the ride defendant was friendly with Lisa's mother, whereas he had always been hostile toward her previously; he said he wanted them all to 'work together to save the children'; he cried and asked unusual questions; he said he felt he was going to die, and asked about heaven; he asked Lisa and her mother to sing hymns; he occasionally appeared to become paralyzed; arriving at Stateline they changed clothes and went out; defendant said he felt sick; they returned to the motel where he went to bed and lay in a 'half sleep' for the rest of the night; the following morning, May 24, defendant felt weak and could not move; Lisa called an ambulance and defendant was taken to a hospital where he made the confession to the registered nurse before related.
The gravamen of the trial on the guilt phase was the issue of premeditation and deliberation. Accordingly, first the defendant, as a matter of defense, and then the prosecution, in rebuttal, introduced testimony of psychiatrists with respect to defendant's capacity to reflect and deliberate. Each of the psychiatrists who testified at the trial had examined defendant and stated that he was cooperative and fully communicative. Their testimony included a case history which they elicited from defendant and in composite indicated:
Defendant had a strict religious upbringing. When young he did not smoke, drink or go out with girls. He joined the air force after finishing one year of junior college. At this time his attitudes changed; he embraced atheism and Marxism and began to drink and chase women. Getting out of the air force he returned to college, became interested in Nazism, admired Hitler, considered himself like him, and collected books and speeches about him. He graduated from Sacramento State College in 1958, receiving a degree in psychology and social sciences. He entered into a common-law relationship with Jean Lara, bearing Roberta and Donald. The relationship terminated and the mother kept the children. Defendant was concerned about this because he considered the mother unfit to raise them.
When Lisa decided to leave him defendant felt his plan for securing his children had failed; he thought he would never be able to save his children from their environments which he considered intolerable; all his earlier efforts were wasted. He began drinking this was on May 22 and drank so much that he became ill he was still ill the morning of the homicides. He decided he would bring the children to a [48 Cal.Rptr. 358] [ 409 P.2d 198] state of extreme happiness and kill them. He had hallucinations and heard voices telling him what to do. He drove into the country with his children and asked them to climb into the trunk and find a key that he told them he had lost there. He decided he wanted to kill them in the order in which they were born, so he had them climb into the trunk according to their ages, and he shot them, emptying the gun a second time to make sure. He drove home. He parked the car in an open field because he noticed blood dripping from the trunk. He noticed blood on his clothes and changed them.
In summary, the respective psychiatrists expressed conflicting opinions on the issue of defendant's capacity to premeditate the killing of his children:
Dr. George O'Brien, a psychiatrist called by the defense, testified that in his opinion defendant was suffering from a schizophrenic reaction of the paranoic type which prevented him from premeditating when he killed the children; he felt defendant's love for the first two children and the personal sacrifices he made to obtain their custody were extraordinary; he explained this conclusion by stating that he understood these children were not fathered by defendant; he felt defendant's abnormal feelings of grandiosity were related to his interest in Hitler; that in his opinion anyone who followed Hitler was psychotic; that anyone who intentionally shoots his children in the head without provocation is legally insane and necessarily unable to premeditate and deliberate; that the defendant's 'affect' was inappropriate he was happy and cheerful and denied having done anything wrong.
Dr. Elmer F. Galioni, the second defense psychiatrist, testified that in his opinion, although defendant was not able to assess the impact of the killing of the children upon their respective mothers, or on himself, he was able to premeditate, 'to plan his actions in terms of the objectives which he wanted to reach, in terms of planning a series of actions that would lead to a conclusion.'
Dr. John A. Mitchell, the third defense psychiatrist, testified that in his opinion defendant's thinking and judgment were impaired by his depression and intoxication when he killed the children but that he was not legally insane.
Dr. Walter Raraport, called by the prosecution in rebuttal, testified that in his opinion defendant had the capacity to premeditate when he killed the children. He was conscious and aware of what he was doing. He was emotionally unstable but not mentally ill. His wife's leaving him and his feeling that his life plan had failed were the cause of his decision to kill the children, but they did not impair his ability to make that decision rationally and after deliberation to carry it out.
Dr. John B. Peschau, also called by the People, testified that in his opinion defendant had the capacity to premeditate and did premeditate when he killed the children. In fact, he deliberated excessively; he considered what the best thing for the children was, and what he believed, as a parent, he had a right to do.
The prosecution relied upon the evidence produced on the issue of guilt in the sanity and penalty phases, moving in each instance that such evidence be admitted on the latter two phases. The motions were unopposed and granted.
Doctors Peschau and Mitchell, psychiatrists called by the People, testified that defendant was aware of the nature and quality of his acts and knew the difference between right and wrong when he killed the children.
Three lay witnesses called by the defense testified that in their opinion defendant was insane. They based their conclusions on his behavior which they considered irrational. He frequently made irrational statements; he would say he was like God; that he could perform miracles and control the world; he believed devoutly in Nazism as a way of life; sometimes he reacted abnormally and violently to commonplace [48 Cal.Rptr. 359] [ 409 P.2d 199] occurrences; he believed everyone was against him; he felt his mother-in-law was trying to break up his marriage and made violent threats to her. On May 22 and 23 he was unusually calm and remote; he talked about conquering the world; he was lavish with his money. On the trip to Stateline he cried, begged forgiveness, asked his wife and mother-in-law to sing religious hymns. He could not eat; he was clammy, cold and perspiring.
At the penalty trial the prosecution produced no additional evidence. Defense witnesses, testifying in mitigation, stated that defendant was never cross to his children nor did he punish them. Some witnesses knew defendant as a child, knew him to be a fine young man, healthy, happy and intelligent. Coworkers testified that his reputation for honesty and integrity was good and that he got along with his fellow workers.
Defendant's contentions before the court are:
1. The evidence is insufficient to sustain a verdict of murder in the first degree, as a matter of law.
2. It was prejudicial error to allow the prosecution to produce its evidence on premeditation and deliberation by way of rebuttal and not during its case in chief.
3. The court committed prejudicial error in its instructions on first degree murder, and in its instructions based upon the M'Naughton rule.
4. The foundation for the prosecution's expert psychiatric evidence was inadequate and its admission was prejudicial error.
5. The testimony of Dr. Rapaport was barred by the Dorado rule (People v. Dorado, 42 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361) and should have been excluded, sua sponte, by the court.
6. The prejudicial effect of photographs of the murdered children outweighed their probative value and their reception into evidence was error.
7. The prosecutor prejudicially referred to such protographs in his argument at the penalty trial although they were not a part of the record in the penalty trial.
8. The prosecutor committed prejudicial error in expressing personal opinions during his argument.
9. It was prejudicial error for the prosecutor to cross-examine defendant's psychiatric expert on the witness' belief in God and to comment thereon improperly during argument.
10. It was prejudicial error to bar cross-examination of Dr. Rapaport on the issue of sanity.
11. The voir dire examination of prospective jurors deprived defendant of a fair and impartial trial, because the jurors were 'death-qualified.'
12. The court having expressed a 'doubt,' the issue of defendant's present sanity should have been tried pursuant to Penal Code section 1368.
13. The court committed error when it gave, sua sponte, the Morse (People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33) instruction during the penalty trial.
14. Defendant was denied the effective aid of counsel.
A review of the entire record discloses that defendant was accorded a fair and impartial trial on all three issues of guilt, sanity and penalty and that the verdicts and judgment should be affirmed.
1. With respect to defendant's first contention, that the evidence is insufficient to sustain a verdict of murder in the first degree, we find substantial evidence to establish a wilful, deliberate and premeditated killing independent of the testimony of the psychiatrists on the issue of premeditation. The necessary elements of deliberation and premeditation may be inferred from all the facts and circumstances and where such evidence is not in law insufficient the matter is exclusively a question for the trier of fact to determine. (People v. Hillery, 62 Cal.2d 692, 703, 44 Cal.Rptr. 30, 401 P.2d 382; People v. Robillard, 55 Cal.2d 88, 95, 10 Cal.Rptr. [48 Cal.Rptr. 360] [ 409 P.2d 200] 167, 358 P.2d 167, 83 A.L.R.2d 1086; People v. Rittger, 54 Cal.2d 720, 730, 7 Cal.Rptr. 901, 355 P.2d 645; People v. Cartier, 54 Cal.2d 300, 5 Cal.Rptr. 573, 353 P.2d 53; People v. Cole, 47 Cal.2d 99, 106, 301 P.2d 854, 56 A.L.R.2d 1435.) Proof of the circumstances at the time of the killing as well as those before and after the killing are competent to show deliberation and premeditation. (People v. Brubaker, 53 Cal.2d 37, 40, 346 P.2d 8; People v. Caritativo, 46 Cal.2d 68, 72, 282 P.2d 513; People v. Byrd, 42 Cal.2d 200, 213, 266 P.2d 505; People v. Eggers, 30 Cal.2d 676, 185 P.2d 1.) The manner and means employed to accomplish the killing are also important considerations in determining the degree of the murder. (People v. Lawrance, 41 Cal.2d 291, 259 P.2d 439; People v. Guldbrandsen, 35 Cal.2d 514, 218 P.2d 977; People v. Steward, 156 Cal.App.2d 177, 318 P.2d 806.)
In People v. Sears, 62 Cal.2d 737, 743, 44 Cal.Rptr. 330, 334, 401 P.2d 938, 942, the court stated: 'Premeditation and deliberation may be shown by circumstantial evidence. (People v. Robillard (1960) 55 Cal.2d 88, 95, 10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086; People v. Werner (1952) 111 Cal.App.2d 264, 271, 244 P.2d 476.) Defendant's admission that he went into the kitchen, removed a knife from the drawer, returned to the living room and used the knife to stab the little girl affords circumstantial evidence that he deliberately and premeditatedly inflicted the fatal wounds.' Applying such a rule, the facts in the present case show deliberation and premeditation. Significant facts are that after purchasing toys for the children defendant drove them to an isolated spot; the children were enticed into the trunk of the car by trickery; he killed them chronologically in the order of their births; to be sure they were dead he reloaded the gun and proceeded to shoot each child again; he locked the trunk and abandoned the vehicle in an isolated area with high weeds that would conceal the blood dripping from the trunk. The conflicts in the testimony of the psychiatrists on the issue of capacity to deliberate and premeditate, and to form an intent, created an issue of fact determinable only by the jury. In People v. Rittger, 54 Cal.2d 720, 730, 7 Cal.Rptr. 901, 907, 355 P.2d 645, 651, the court stated: 'The case of People v. Gorshen (1959), 51 Cal.2d 716, 735, 336 P.2d 492, illustrates the correctness of the view that, where there is nonexpert testimony which will support a finding of the specific intent necessary to constitute an offense, even if all the expert testimony is that such intent was lacking, there is no requirement of law that the expert testimony should raise a reasonable doubt in the mind of the trier of fact.' (People v. Wolff, 61 Cal.2d 795, 802, 804, 40 Cal.Rptr. 271, 394 P.2d 959.)
2. It was not prejudicial error for the prosecution to produce evidence of premeditation and deliberation at the rebuttal stage of the trial. Penal Code section 1093, subdivision 4, provides that after presentation of the case in chief and the defendant's cae, 'The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case.' (Emphasis is that urged by defendant.) Defendant submits that the prosecution deliberately withheld 'crucial' evidence the testimony of Dr. Rapaport regarding deliberation and premeditation from the case in chief to create a dramatic effect such as that condemned in People v. Castro (1960) 182 Cal.App.2d 255, 5 Cal.Rptr. 906. The timing in this case cannot be so construed. Defendant's defense was that of diminished responsibility in that mental impairment prevented him from acting with deliberation and premeditation. Defendant produced expert and nonexpert testimony on this issue. On rebuttal the prosecution properly produced testimony of two psychiatrists that defendant was able to and did deliberate and premeditate[48 Cal.Rptr. 361] [ 409 P.2d 201] about killing the children. The claim of diminished responsibility is defensive matter and must be raised by the defendant. On this issue the court stated in People v. Henderson, 60 Cal.2d 482, at pages 490-491, 35 Cal.Rptr. 77, at page 82, 386 P.2d 677, at page 682:
See People v. Anderson, 63 A.C. 369, 383, 46 Cal.Rptr. 763, 406 P.2d 43, for more accurate designation as 'diminished capacity.'
'It can no longer be doubted that the defense of mental illness not amounting to legal insanity is a 'significant issue' in any case in which it is raised by substantial evidence. Its purpose and effect are to ameliorate the law governing criminal responsibility prescribed by the M'Naughton rule. (See Lindman & McIntyre, The Mentally Disabled and the Law (1961) 355-356). Under that rule a defendant is not insane in the eyes of the law if at the time of the crime he knew what he was doing and that it was wrong. Under the Wells-Gorshen rule of diminished responsibility even though a defendant be legally sane according to the M'Naughton test, if he was suffering from a mental illness that prevented his acting with malics aforethought or with premeditation and deliberation, he cannot be convicted of murder of the first degree. This policy is now firmly established in the law of California (People v. Gorshen ( 51 Cal.2d 716, 336 P.2d 492); People v. Baker, 42 Cal.2d 550, 569-571, 268 P.2d 705; People v. Sanchez, 35 Cal.2d 522, 526-529, 219 P.2d 9; People v. Wells ( 33 Cal.2d 330, 202 P.2d 53); People v. Harris, 29 Cal. 678, 683-684) and where, as here, substantial evidence sufficient to inform the court that defendant is relying upon the defense of diminished responsibility is received, it must on its own motion instruct the jury as to the legal significance of such evidence, for such an instruction is 'necessary for the jury to be fully and fairly charged upon the relevant law.' (People v. Jackson, 59 Cal.2d 375, 380, 29 Cal.Rptr. 505, 508, 379 P.2d 937, 940)'
3. Regarding purported error in instructions defendant refers to People v. Wolff, supra (1964) 61 Cal.2d 795 at page 822, 40 Cal.Rptr. 271, at page 288, 394 P.2d 959, at page 976, in which the court, among other things, stated: 'Certainly in the case now at bench the defendant had ample time for any normal person to maturely and appreciatively reflect upon his contemplated act and to arrive at a cold, deliberated and premeditated conclusion. He did this in a sense and apparently to the full extent of which he was capable. But, indisputably on the record, this defendant was not and is not a fully normal or mature, mentally well person. He knew the difference between right and wrong; he knew that the intended act was wrong and nevertheless carried it out. But the extent of his understanding, reflection upon it and its consequences, with realization of the enormity of the evil, appears to have been materially as relevant to appraising the quantum of his moral turpitude and depravity vague and detached. We think that our analysis in Holt (People v. Holt, 25 Cal.2d 59, 153 P.2d 21) of the minimum essential elements of first degree murder, especially in respect to the quantum of reflection, comprehension, and turpitude of the offender, fits precisely this case: that the use by the Legislature of 'wilful, deliberate, and premeditated' in conjunction indicates its intent to require as an essential element of first degree murder (of that category) substantially more reflection; i. e., more understanding and comprehension of the character of the act than the mere amount of thought necessary to form the intention to kill.'
Defendant requested an instruction which embodied a portion of the foregoing quotation, reading in part as follows: 'The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. The true test is not the duration of time, but rather the 'extent' of the reflection, and must include a consideration of any limitation upon the extent to which the slayer could maturely and meaningfully reflect upon the gravity of his contemplated act and its consequences[48 Cal.Rptr. 362] [ 409 P.2d 202] and to realize the enormity of the evil of his act. The controlling issue as to degree depends not alone on the character of the killing but also on the quantum of personal turpitude of the slayer.' The italicized portion was stricken by the court and the remainder of the instruction was given. Defendant contends such deletion was error. We disagree. The essence of the statement is expressed in the words, 'The true test is not the duration of time, but rather the 'extent' of the reflection,' and must include a consideration of the somewhat limited extent to which this defendant could maturely and meaningfully reflect upon the gravity of his contemplated act. Wolff (People v. Wolff, supra, 61 Cal.2d 795, 40 Cal.Rptr. 271, 394 P.2d 959) does not hold, and there is nothing in the opinion to suggest, that the deleted language should be a part of instruction on deliberation and premeditation. The subjective, personal turpitude of the slayer is not the determinative element in a finding of deliberation or premeditation.
Error in the instruction is also claimed because the disjunctive form is used in the first sentence of the instruction 'All murder which is perpetrated by any kind of wilful, deliberate or premeditated killing is murder of the first degree.' (Italics added.) In all other instances, and there are several, the conjunctive form of 'deliberation and premeditation' was used by the court in its instructions. Although the use of the disjunctive 'or' was error, in view of the other instructions on the subject we conclude the jury could not have been misled.
The court also instructed the jury as part of further instructions that 'It is necessary only that the act of killing be preceded by and be the result of a concurrence of will, deliberation and premeditation on the part of the slayer to constitute murder in the first degree * * *'; that 'The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated'; that 'A cold calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rach impulse, even though it include the intent to kill, is not such deliberation and premeditation as will fix an unlawful killing at murder of the first degree'; that 'If the unlawful killing of a human being is done with malice aforethought, but without deliberation and premeditation, that is, without the willful, deliberate and premeditated intent to take life which is an essential element of first degree murder, then the offense is murder is the second degree.' (Italics added.)
Defendant contends that the California version of the M'Naughton rule which provides the test of the defendant's knowledge of the difference between right and wrong deprived him of a fair trial on the issue of sanity. Defendant urges that this court abolish the rule and adopt the Durham rule which applies the test of whether the unlawful act was the product of a mental disease or defect. (Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 875, 45 A.L.R.2d 1430.) However, as recently as in People v. Wolff, supra, 61 Cal.2d 795, 803, 40 Cal.Rptr. 271, 275, 394 P.2d 959, 963, this court said: 'As we have repeatedly stated in recent years, the M'Naughton test (of course, as evolved and applied in the California rule) has become 'an integral part of the legislative scheme for the appraisal of criminal responsibility in California and any change therein should come from the Legislature.''
4. Defendant claims error in the admission of the expert testimony of prosecution witness Dr. Rapaport because such testimony was based upon a single interview without augmentation by supplemental interviews with other persons acquainted with defendant, or other outside data. Dr. Rapaport's interview with defendant was approximately three hours in duration and elicited a comprehensive history of defendant's circumstances and conduct. The doctor's training and experience in the field of psychiatry was extensive and he was properly qualified as an expert and was competent to relate his opinion as to the ability of defendant to [48 Cal.Rptr. 363] [ 409 P.2d 203] have deliberated and premeditated. In People v. Delhantie, 163 Cal. 461, 125 P. 1066, one of the physicians who testified had observed the defendant for an hour six days prior to trial. This was held sufficient. Furthermore, although we have considered the foundation issue, it is noteworthy that no objection on the ground of insufficient foundation was interposed by defendant at trial and the objection need not be considered for the first time on appeal.
5. Defendant contends that the testimony of Dr. Rapaport was barred by the Dorado rule (People v. Dorado, supra, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361) and should have been excluded, sua sponte, by the court. A similar objection was raised in the recent case of In re Spencer, 63 A.C. 418, 430-431, 46 Cal.Rptr. 753, 761, 406 P.2d 33, 41, in which we held that 'the presence of counsel at the psychiatric examination is not constitutionally required so long as certain safeguards are afforded to defendant. * * *
'Before submitting to an examination by court-appointed psychiatrists a defendant must be represented by counsel or intelligently and knowingly have waived that right. Defendant's counsel must be informed as to the appointment of such psychiatrists. (See People v. Price (1965) 63 A.C. 388, 46 Cal.Rptr. 775, 406 P.2d 55.) If, after submitting to an examination, a defendant does not specifically place his mental condition into issue at the guilt trial, then the court-appointed physchiatrist should not be permitted to testify at the guilt trial. If defendant does specifically place his mental condition into issue at the guilt trial, then the court-appointed psychiatrist should be permitted to testify at the guilt trial, but the court should instruct the jurors that the psychiatrist's testimony as to defendant's incriminating statements should not be regarded as proof of the truth of the facts disclosed by such statements and that such evidence may be considered only for the limited purpose of showing the information upon which the psychiatrist based his opinion.'
Other considerations are related in Spencer but the above reference is adequate for present purposes. Defendant did not object at trial to the introduction of Dr. Rapaport's testimony in rebuttal. Neither did the trial court instruct the jury as required by Spencer. Accordingly, defendant's contention regarding error in admitting Dr. Rapaport's testimony is correct. However, under the circumstances present here, as in Spencer, such error does not compel a reversal. Substantially the same history, background information, and details concerning the killing supplied by defendant to Dr. Rapaport, and testified to by the doctor, were supplied by defendant to the medical experts called by him and testified to in his own defense and, therefore, cannot be deemed to have prejudiced defendant.
6. Photographs of the dead children were introduced in evidence, without objection. They were not inordinately gruesome. Defendant now urges that their prejudicial effect outweighed their probative value and it was error to permit their admission; that there was nothing of evidentiary value in the photographs that had not been testified to by the autopsy surgeon. The trial court carefully considered each photograph, admitting some and rejecting others. It is the province of the trial court to determine the issue of prejudice in the admission of such evidence and there was no abuse of discretion shown. The photographic evidence was material and no miscarriage of justice resulted from its admission during the guilt phase of the trial.
7. Defendant contends the photographs were not admitted during the penalty phase but only during the guilt and sanity phases, the court having granted the prosecution's motion that all of the 'testimony' at the two previous proceedings (guilt and sanity) be admitted at the penalty proceeding. The photographs played a major part in final arguments of the [48 Cal.Rptr. 364] [ 409 P.2d 204] prosecutor during the penalty phase, the prosecutor stating, in part, 'The victims now you can consider the victims, who they are, and look at the pictures of the delightful little children that this man exterminated.' Such objection, that the term 'testimony' does not include photographs, is hypertechnical in the premises here involved and any claimed error based on any such ground must be held nonprejudicial.
8. Defendant claims the prosecutor injected unjustified personal remarks into his argument to the jury calculated to demean the character of Dr. O'Brien's testimony. For example: 'I find it hard to have a proper respect for Doctor O'Brien'; 'Ever since I heard his testimony I am thinking of changing my name from Sullivan to something else. He didn't remind me of any of my relatives, I'll tell you that.' Such type of argument based on personalities is improper. However, a review of the record discloses that the prosecutor's arguments were directed to his own objective analysis of the evidence and not upon his personal views. Counsel at trial made no objection to the remarks, which could have been corrected by timely admonition or proper instructions; they need not be considered, therefore, for the first time on appeal. (People v. Wein, 50 Cal.2d 383, 395, 326 P.2d 457; People v. Brice, 49 Cal.2d 434, 437, 317 P.2d 961; People v. Romano, 197 Cal.App.2d 622, 17 Cal.Rptr. 399.)
9. A similar reference to Dr. O'Brien's answer to the prosecutor's question, 'Do you believe in God, Doctor?' the doctor stating, 'I think it's irrelevant,' is contended here to constitute further prejudicial misconduct. The prosecutor, in his argument to the jury, distorted this answered by the following statement: 'Dr. O'Brien who think it's irrelevant that he took an oath before God to tell the truth. He thinks it's irrelevant.' There was no objection by trial counsel to the questions asked Dr. O'Brien of this nature and their total effect is not of sufficient gravity in the context of this case to constitute reversible error.
10. During the guilt phase of the trial Dr. Rapaport was asked by defense counsel: 'But if he believed that it was not evil, to that extent he didn't appreciate the distinction between right and wrong, did he?' The doctor stated, 'Well, I don't know whether you want to get into the issue of ' Here the court interposed the statement, 'We do not. The question is improper.' The trial court was correct During the guilt phase of the trial the trial court should properly limit the medical testimony to the issue of mental capacity to commit murder in the first degree. Such rule is stated in People v. Wells, supra, 33 Cal.2d 330, at page 351, 202 P.2d 53, at page 66: 'Evidence which tends to show legal insanity (likewise, sanity) is not admissible at the first stage of the trial because it is not pertinent to any issue then being litigated; but competent evidence, other than proof of sanity or insanity, which tends to show that a (then presumed) legally sane defendant either did or did not in fact possess the required specific intent or motive is admissible.' (Pen.Code, s 1026; see also People v. Henderson, supra, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677; People v. Gorshen, supra, 51 Cal.2d 716, 336 P.2d 492.) The circumstance that Dr. Rapaport was not in court to be cross-examined at the time of the sanity or penalty phases, his testimony having been admitted on motion for such phases, was a procedural lapse not attributable to the prosecution, but rather to the defense.
11. Defendant contends that the voir dire examination of prospective jurors constituted a brainwashing technique, sanctioned by the trial court, to select a 'death-qualified' jury, and denied defendant a fair and impartial trial. Over 20 pages of interrogation of the jurors are recited to demonstrate the purported overemphasis placed upon the freedom of the selected jurors to impose the death penalty.
[409 P.2d 205] [48 Cal.Rptr. 365]Defense counsel recognizes that this court has repeatedly held that a prosecutor has a right to ascertain from prospective jurors whether or not they entertain conscientious opinions against capital punishment, citing subdivision 8, section 1074, of the Penal Code; People v. Mitchell, 61 Cal.2d 353, 38 Cal.Rptr. 726, 392 P.2d 526; People v. Spencer, 60 Cal.2d 64, 31 Cal.Rptr. 782, 383 P.2d 134; People v. Ketchel, 59 Cal.2d 503, 30 Cal.Rptr. 538, 381 P.2d 394; People v. Pike, 58 Cal.2d 70, 22 Cal.Rptr. 664, 372 P.2d 656. Defendant contends, however, that these cases should be overruled, complaining, in effect, that a death-qualified jury does not constitute a jury of one's peers; that it cannot answer guilt-innocence questions as favorably to the defendant; that it cannot be impartial on the nature of punishment in the event of conviction; that it does not take into the jury room a pattern of attitudes characteristic of the community at large; that such a jury is authoritarian in nature and not disposed to humanitarianism. Such contentions are untenable, not only for the reasons stated in the foregoing cases, but specifically, were even one juror committed to a policy opposed to imposition of the death penalty in a proper case the rendition of justice in murder cases, as presently defined in our statutes on the subject, could be nullified. Any fundamental change in such law falls within the legislative domain.
12. In the trial court at the time for entry of defendant's plea the public defender requested a one-week continuance 'because I am awaiting one medical report.' The court inquired if any psychiatrist had yet been appointed and stated that he would be guided by such psychiatrists, adding, 'It is very questionable in this case quite a problem.' From such italicized statement counsel contends that a sanity trial should have been ordered at that time pursuant to section 1368 of the Penal Code which provides that 'If at any time during the pendency of an action and prior to judgment a doubt arises as to the sanity of the defendant, the court must order the question as to his sanity to be determined by a trial by the court without a jury, or with a jury * * *.' (Italics added.)
In the instant case the court had also asked the question, 'Have you got enough in your reports for me to express a doubt as to the present sanity?' Such query places the case directly under the application of People v. Ashley, 59 Cal.2d 339 at page 363, 29 Cal.Rptr. 16, at page 30, 379 P.2d 496, at page 510, in which the court stated: 'Certainly a judge, particularly in a case where the death penalty may be imposed, has the legal right to seek expert assistance to inform him as to mental condition of the defendant before he is required to express whether he has the 'doubt' as to that condition as that term is used in section 1368.' Accordingly, no error is involved because of the court's remark.
13. The trial court, sua sponte, gave the jury instruction formulated by this court in People v. Morse, supra (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33, regarding a sentence of life imprisonment and the possibility of parole. Defendant contends that the very rationale of the Morse opinion is violated by the suggested instruction; that it is an insidious way to inject into the case the very issue which is proscribed in the opinion, regardless of the inclusion within the instruction itself of the admonition that the jury is not to consider the matter of parole in determining the punishment to be imposed. This court was cautious in resolving the apparent dilemma presented by cases such as the Morse case to avoid the paradox here stated by defendant. The specific admonition to disregard the possibility of parole is a necessary and effective safeguard to protect against improper speculation in the jury room as to parole in which the jury might otherwise engage were no admonition to be given by the court. We reaffirm the position taken in Morse for the reasons set forth therein.
14. Defendant charges that at the trial level he was denied the effective aid of counsel. He indicates twelve instances[48 Cal.Rptr. 366] [ 409 P.2d 206] of the trial counsel's purported inepitude now viewed in retrospect. In this regard remarks of the trial court are helpful. The court stated, referring to defense counsel at a point during the trial when the absence of a witness necessitated a continuance: 'Mr. McDonnell, I have known you for a great many years, as a prosecutor, as a private counselor and as a public defender, and you have my complete confidence. You have done everything possible to justify that confidence in the years you have been before the bar. I have confidence in your approach to this case. I know you are working as diligently as you can, and I am sure you are working in the interests of this defendant. Your conduct of the case is based on experience going back some twenty years. So you need not apologize. I state that for the record, incidentally.' (Italics added.)
The record indicates that defendant did receive the effective aid of counsel. The sole defense on the important guilt issue was that of diminished responsibility and defense counsel introduced a considerable amount of testimony directed to this issue and delivered extensive argument on the subject. The fact that the defense was not successful does not mean it was ineffectively presented or that counsel was incompetent in any phase of the case. (Hester v. United States, 10 Cir., 303 F.2d 47, 49.) In the principal case relied upon by defendant here, People v. Ibarra, 60 Cal.2d 460, 464-465, 34 Cal.Rptr. 863, 386 P.2d 487, counsel's unawareness of a rule of law deprived defendant of a crucial defense. No crucial defense was omitted by trial counsel in the instant case.
It is human to err and the record of the trial of this case, as indicated, does disclose some technical errors. However, neither singly nor collectively do they constitute reversible error, under the provisions of section 4 1/2, article VI, of the California Constitution, or under the tests enunciated in either People v. Watson, 46 Cal.2d 818, 835, 299 P.2d 243, or Fahy v. State of Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171.
The judgment is affirmed.
TRAYNOR, C. J., and McCOMB, PETERS, TOBRINER, PEEK, and MOSK, JJ., concur.