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People v. Rigney

California Court of Appeals, Fourth District
Apr 5, 1960
3 Cal. Rptr. 855 (Cal. Ct. App. 1960)


Hearing Granted June 2, 1960.

Opinion vacated 10 Cal.Rptr. 625.

Newberry & Prante and Stafford W. Prante, San Diego, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for respondent.

GRIFFIN, Presiding Justice.

Defendant was charged in an information with three counts of assault with a deadly weapon with intent to commit murder, in violation of section 217 of the Penal Code. Defendant originally entered pleas of not guilty and not guilty by reason of insanity, but the latter plea was withdrawn before the trial. After a jury trial, defendant was found guilty of the lesser included offense of assault with a deadly weapon as to Counts I and III and guilty of assault with a deadly weapon with intent to commit murder as charged in Count II of the information. Defendant appeals from the judgment and from an order denying his motion for a new trial.

The evidence discloses that on October 11, 1958, Janet Rigney, defendant's wife, lived in an apartment building in La Mesa, with the 13-month old daughter of Mrs. Rigney and defendant. Previously, on July 18, 1958, Mrs. Rigney had obtained an interlocutory decree of divorce which awarded her the custody of the infant daughter and gave defendant the right of reasonable visitation with the child. At Mrs. Rigney's request, defendant customarily visited with the daughter one afternoon each weekend at a hotel in San Diego where Mrs. Rigney's father resided. On October 11, 1958, a Saturday afternoon, Mrs. Rigney did not appear at the hotel with the child and defendant went to her apartment, arriving there between 4:30 and 5:00 p. m. At that time Gaither Brown, a friend of Mrs. Rigney with whom defendant was not on friendly terms, and Sharon Brown were also at the apartment. Defendant asked Mrs. Rigney why she had not kept the appointment and she reminded him that during the preceding week he had informed her that he was not going to be downtown that Saturday. Defendant requested permission About 6:00 p. m. that same evening Mrs. Rigney observed the defendant approaching the apartment. At that time, Sharon Brown, Gaither Brown's stepdaughter, was in the dedroom; Gaither Brown was in the bathroom, and Mrs. Rigney was sitting in the living room with her daughter and Lynette, a teenage friend of Sharon Brown. The front door was open but the screen door was closed and locked. Defendant came up to the front door and asked for Mr. Brown who was then summoned by Mrs. Rigney. Mr. Brown came into the living room carrying his coat in one hand and a glass in the other. He tossed his coat to Sharon and Lynette and handed his glass to Sharon who dropped it. As Mr. Brown approached the door, defendant suggested that they go outside and 'finish this thing now.' Mr. Brown said, 'All right,' and reached out to open the screen door, whereupon defendant suddenly produced a pistol and fired at Mr. Brown. Upon seeing the gun, Mr. Brown flattened himself against the wall on the left side of the screen door. Defendant fired four shots through the screen door wounding Mrs. Rigney severely and Sharon Brown slightly. After the fourth shot was fired, Mr. Brown observed that defendant was either reloading or experiencing a malfunction of the weapon. Immediately he unlocked the screen door and grappled with the defendant for control of the pistol. Their struggle carried them into the house, through the living room and into the kitchen where the gun discharged again. At that time no one knew where the bullet went, but it was later discovered at a hospital that this bullet had wounded defendant in the left arm and shoulder. Brown and defendant continued their struggle which carried them outside next to the swimming pool where defendant was disarmed, subdued and held for police officers who arrived at the scene a few minutes after the shooting began.

Subsequently the police recovered the defendant's pistol from the pool. It had one empty brass casing in the cylinder under the hammer and one loaded round in the chamber to the right of the empty casing. Four empty cartridge cases were found immediately outside the screen door. Three bullet holes were found in the walls of the living room and one in the wall of the kitchen. Medical X-rays disclosed that a bullet was lodged in Mrs. Rigney's left lung. Four bullet holes were found in the screen door. Two of these holes had apparently been made by bullets fired straight through the screen and from a gun held a few inches away, and two of the holes appeared to have been made by bullets fired through the screen on an angle toward the position Brown had taken against the wall on the left side of the door.

Defendant testified that after leaving his wife's apartment at about 5:00 p. m. he returned to San Diego and had two or more martinis in a bar. The pistol used in the shooting was in defendant's hotel room, but he did not remember going to his room and getting it. He did not remember driving back to his wife's apartment, except for an interlude when the car was parked near a bridge. During this interlude, defendant remembered discovering the pistol in the waistband of his trousers. The next thing he remembered was walking to the apartment door and saying, 'Tell Chuck I have changed my mind, I would like to see him outside.' Defendant testified that Brown appeared in front of the door, made a grab for his back pocket, and jumped to the side of the door. Defendant did not remember drawing and firing his pistol. The Dr. Robert F. Brandmeyer, a member of the psychiatric staff of the U.S. Naval Hospital in San Diego, testified that he examined the defendant after the shooting and in his opinion the defendant was suffering from retrograde amnesia concerning some of the events surrounding the shooting episode. During interviews the defendant told Dr. Brandmeyer that he was afraid of Brown physically and that he had taken the gun along to defend himself and to show that he 'meant business'; that he intended to see his baby and if he had to make Brown go away at gun point he would do it.

Defendant contends that the court erred in curtailing the voir dire of the jury. Each member of the jury was questioned by the trial judge regarding his occupation; marital status; number of children and their ages; acquaintance with the defendant, victims and counsel; knowledge of the case; whether he had ever been charged with, or been a victim of, a felonious assault; and whether he would be able to fairly and impartially try the case. Then the trial judge permitted both sides to voir dire the jury, after advising counsel that repetition of questions already asked by the court would not be permitted and questions seeking to elicit information useful merely as a basis for peremptory challenges would not be allowed. The district attorney then questioned the panel collectively as to whether the fact that the defendant was in the navy would bias or prejudice them in any way. A negative response was obtained. Then defendant's counsel inquired as to which branch of the military services, if any, the members of the jury had been affiliated with in the past. The trial judge then commented that in view of the fact that defendant was a navy petty officer the question might provide a clue as to how the defendant might desire to exercise his peremptory challenges. But the court ruled that past service in the armed forces would not be evidence of bias or prejudice such as would disqualify a prospective juror and ruled out further inquiries as to the past military affiliations of the jurors.

It is a well-settled rule that a juror may not be examined on voir dire solely to elicit information useful in the exercise of peremptory challenges. People v. Edwards, 163 Cal. 752, 754-755, 127 P. 58; People v. Ferlin, 203 Cal. 587, 598, 265 P. 230; People v. Canales, 12 Cal.App.2d 215, 219, 55 P.2d 289. Inquiry as to membership in organizations whose beliefs or teachings would prejudice a prospective juror against either party to the case is proper. People v. Buyle, 22 Cal.App.2d 143, 146, 70 P.2d 955; People v. Reyes, 5 Cal. 347. However, it does not appear that the attitute of the armed forces toward felonious assaults differs in any regard from the attitudes of the general populace. Therefore, past membership in the armed forces would not have disclosed any bias or prejudice on the part of the jurors. People v. Daily, 157 Cal.App.2d 649, 656, 321 P.2d 469. In his brief, defendant's counsel points out that Gaither Brown is a former marine and contends that this additional fact made the inquiry proper. With this contention we do not agree. Defendant's counsel did not call to the court's attention this additional fact during the voir dire examination. If defendant desired to show bias and prejudice by these questions, he should have informed the court of his reason for asking the questions. People v. Hinshaw, 40 Cal.App. 672, 674, 182 P. 59. Defense counsel attempted to question the jury panel as to whether they had friends or relatives who were employed by law enforcement agencies and again the court refused to permit the inquiry. Defendant, in urging that this ruling was erroneous, relies on People v. Boorman, 142 Cal.App.2d 85, 90, 297 P.2d 741, which held that it was proper to inquire whether a juror was a deputy sheriff. Whether this rule should be extended to permit questioning as to relationship or acquaintance with law enforcement officers generally is questionable. Sharkey v. Sheets, 87 Cal.App. 99, 261 P. 1049. But even if the court's ruling would have been error in the ordinary criminal case, we are convinced that the defendant's rights were not prejudiced by the ruling in the present case. The testimony of police officers did not bear in any material part on the issues actually contested, i. e., defendant's intent at the time of the shooting and whether he acted in self-defense. The testimony of police officers pertained only to physical evidence such as the location of various objects such as bullet holes, cartridges, and the pistol after the affray was ended. No admissions or confessions by defendant to police officers were offered in evidence. Since the testimony of the police officers did not controvert defendant's testimony or his defenses in any material degree, the jury was not called upon to compare the credibility of defendant with that of any law enforcement officers. Nor were the offenses with which defendant was charged directed against law enforcement officials. Therefore, even if a juror had a bias arising from acquaintance with a law enforcement officer, it could not have prejudiced the defendant in this case. In holding that the scope of defendant's inquiry was not unduly limited in the instant case, we nevertheless recognize that the trend of decided cases and customs generally followed in the trial of actions in this state permits a broad and searching inquiry of jurors on voir dire to ensure that they are free from prejudice or bias. In People v. Bennett, 79 Cal.App. 76, 89-90, 249 P. 20, 25, it was stated:

'Hence, to a party whose rights are to be committed to the arbitrament of a jury, it is always of singular importance that he should be convinced that those individuals who are to compose the jury will be governed * * * by the evidence * * * [and] the law * * * the field of inquiry in the ascertainment of whether a prospective juror is or is not free from actual or implied bias is and should be broad. In other words, such inquiry should not be so restricted as to prevent a thorough probe of the juror's mind to the end that it may thus be satisfactorily determined whether such juror, if selected to try the accused, would accord to him, as well as to the people, a perfectly fair trial upon the evidence and the principles of law appropriate to the case.'

The questions asked of the prospective jurors by the trial court were extensive. Under Penal Code section 1078, it is the duty of the trial court to examine the prospective jurors in order that a fair and impartial jury may be selected. It was proper for the trial court to request counsel not to ask questions repetitive of the examination by the trial court. People v. Spraic, 87 Cal.App. 724, 262 P. 795; People v. Casserio, 16 Cal.App.2d 223, 227, 60 P.2d 505. When its questioning disclosed that a prospective juror was a social acquaintance of the deputy district attorney conducting the trial, the court excused him Defendant next contends that the trial court erred in excluding evidence. Defendant sought to bring out during a cross-examination of Sharon Brown that after defendant's first visit and before his return to the apartment Mr. Brown said, 'If Rigs comes back, I'll tear him apart.' The testimony is uncontradicted that this threat was never communicated to the defendant.

The court refused to permit testimony as to Brown's uncommunicated threats to harm defendant at that time. The record contained no evidence tending to show that Brown was the aggressor and that defendant was acting in self-defense when he fired his pistol. Before a defendant can put in evidence of uncommunicated threats toward defendant by the victim of a deadly assault, the befense must lay a foundation by some evidence tending to show that the victim was the aggressor and the defendant acted in self-defense. People v. Arnold, 15 Cal. 476, 481; People v. Scoggins, 37 Cal. 676, 684, 696; People v. Spraic, 87 Cal.App. 724, 728-731, 262 P. 795. In 1 Wigmore, Evidence (3rd ed. 1940) 546-554 secs. 110, 111, the rule is discussed at length. On page 550, Wigmore says:

'A necessary condition of relevancy of uncommunicated threats is that the fact of killing is conceded, and is justified as done in self defence, and that the virtual controversy is whether there was in truth any need of defence, i. e. whether the deceased was the aggressor. This is universally settled, expressly or by implication.'

In discussing limitations on the admissibility of uncommunicated threats, Wigmore states at page 552:

'(a) The evidence of threat is inadmissible where there is clear evidence that the defendant was the aggressor. Most jurisdictions adopt this rule, and none seem to negative it.

'(b) Furthermore, the threat is only admissible * * * where there is some other evidence of an aggression by the deceased. * * *'

The trial court properly refused to admit the evidence of threats where the necessary foundation had not been established. People v. Spraic, supra. Later in the trial, when the issue of self defense was raised by the evidence, the evidence might have been admissible but it was not reoffered at that time. In refusing to admit the evidence, the court commented that the state of mind of Mr. Brown was not an issue in the case. Considering the state of the record at the time the comment was made, this was a correct statement. No objection was made to the court's comment nor was an offer of proof made by defense counsel regarding future evidence which would tend to show that Brown was the aggressor and defendant was acting in self-defense. Later in the trial, the jury was instructed to disregard the reasons for rulings on offered evidence and not to draw any inferences from those rulings. Under the circumstances, the comments of the trial court did not constitute error prejudicial to the defendant. People v. Kuykendall, 134 Cal.App.2d 642, 651, 285 P.2d 996; People v. Ritz, 86 Cal.App. 791, 797-798, 261 P. 526.

Subsequently, while cross-examining Lynette, defendant's counsel asked whether Brown seemed to be belligerent or 'mad' when he answered defendant's call to come outside immediately before the shooting. The court pointed out that this question sought to determine the witness's opinion as to Brown's inner feelings. Defendant's counsel then asked about the manner in which Brown answered and the witness replied, 'It was harsh.' The court then made a lengthy comment which in essence said that at that point in the Bennett v. Hoge,

Defendant next contends that the trial judge committed prejudicial misconduct in his examination of defendant and the defense psychiatrist, in that he indicated to the jury that in his opinion their testimony was untrue and that this error was compounded by the failure of the court to sufficiently instruct the jury that they were the exclusive triers of the facts. The questions of the judge centered on the defendant's claim that he could not remember certain of the events which occurred. Testimony by the defendant and other witnesses cast considerable doubt on certain aspects of defendant's claim of having suffered amnesia. In questioning defendant about conflicts in his testimony, the trial judge was forceful and persistent, but he did not comment on defendant's answers or tell the jury of his disbelief of his testimony. In questining the defense psychiatrist, the trial judge asked numerous questions about amnesia, its causes, and the grounds for the witness's opinion that the defendant was suffering from partial retrograde amnesia with respect to the events occurring at the time of the shooting. A trial judge has the right to question witnesses in a fair and discreet way to elicit the truth and clarify the testimony or bring out some feature of the testimony in greater detail. People v. Candiotto, 128 Cal.App.2d 347, 359-360, 275 P.2d 500; People v. Pruitt, 155 Cal.App.2d 585, 593, 318 P.2d 552. The mere fact that the court questioned the witnesses at some length does not establish misconduct. People v. Corrigan, 48 Cal.2d 551, 559, 310 P.2d 953. In People v. Lancellotti, 147 Cal.App.2d 723, 730, 305 P.2d 926, 930, a case involving similar facts, this court said:

'While the better practice would have been to allow full cross-examination of witnesses by respective counsel before cross-examination by the judge, it has been repeatedly held that if a judge desires to be further informed on certain points mentioned in the testimony it is entirely proper for him to ask proper questions for the purpose of developing all the facts in regard to them. Considerable latitude is allowed the judge in this respect as long as a fair trial is indicated both to the accused and to the People.'

A close question does arise as to whether the trial judge did extend himself beyond this general rule. We have examined the entire record, including all instructions given, and have fully considered the various claims made, particularly in reference to the alleged conduct of the trial judge in his extensive cross-examination of the defendant and his medical witness. From an examination of the transcript of the proceedings had in chambers during the trial, it is apparent that the trial judge had little faith in defendant's story pertaining to his claimed defenses. The judge remarked, 'I'm not going to let the jury swallow it. And I'm not going to help you try to get the jury to swallow it.' It was after this discussion that the trial judge, in open court, vigorously cross-examined the medical witness. He had previously recalled defendant for further and more extensive cross-examination on the subject. Defendant's counsel thereafter, unsuccessfully, moved for a mistrial on the ground the court manifested its prejudice against defendant's case and accordingly the jury was swayed into disbelieving his witnesses. In People v. O'Donnell, 11 Cal.2d 666, 671, 81 P.2d 939, 942, it was said that: 'A trial judge is rigorously prohibited from action or words having the effect of conveying to the jury his personal opinion as to the truth or falsity of any evidence.' See also People v. Talkington, 8 Cal.App.2d 75, 47 P.2d 368, and People v. Sheffield, 108 Cal.App. 721, 732, 293 P. 72, 77, where it was held that it is the court's duty to ensure the defendant his constitutional rights, and to maintain an attitude of unswerving People v. Mason,

Since the evidence of defendant's guilt is so conclusive, we conclude that the judgment should be affirmed. (Cal.Const. art. VI, sec. 4 1/2.) We reiterate the rule stated in People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243, 254:

'That a 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' We cannot say this in the instant case.

Defendant next contends that the court erred in giving instructions regarding the effect of the interlocutory decree of divorce on the rights of defendant and Mrs. Rigney and on the law of self-defense. Defendant also urges that the trial court should have given certain instructions pertaining to these issues which the defense offered.

The jury was instructed that the evidence established that defendant's wife had obtained an interlocutory decree of divorce, that although an interlocutory decree does not end the marriage relationship, until some change is effected by legal action or a reconciliation, the law contemplates a legal separation and termination of personal relations between the parties, which is rightful in substance, and that under such circumstances neither spouse may legally invade the other's home without permission. nor eject a guest therefrom, nor exercise any dominion over it. The jury was also instructed that these rules are not affected by the fact that one spouse has been given the right of visitation with a child in the custody of the other spouse.

This instruction correctly stated the legal relationship of married persons after the granting of an interlocutory decree of divorce. Barker v. Barker, 139 Cal.App.2d 206, 214, 293 P.2d 85; Stauter v. Carithers, 185 Cal. 160, 196 P. 37; People v. Gunn, 170 Cal.App.2d 234, 338 P.2d 592. The divorce decree provided that the defendant would have the right of reasonable visitation with the child. But if the wife, having custody, unreasonably refused to permit the defendant to visit with the child, this would not entitle the defendant to use force to obtain visitation. People v. McGinnis, 55 Cal.App.2d 931, 132 P.2d 30. The terms of the decree imposed the requirement of reasonableness and the use of force would be an unreasonable means of obtaining visitation. If unreasonably denied visitation, the defendant should have enforced his rights by way of judicial process. Therefore the evidence and instructions offered by the defendant regarding Mrs. Rigney's denial of his visitation rights pertained to an immaterial issue and were correctly refused by the court. People v. Whitehead, 113 Cal.App.2d 43, 48, 247 P.2d 717; People v. Jackson, 42 Cal.2d 540, 546, 268 P.2d 6. Defendant contends that the evidence of his wife's previous conduct was relevant to show her bias. Citing People v. Lee Ah Chuck, 66 Cal. 662, 6 P. 859. The evidence would have been merely cumulative and could have added little weight to the other evidence showing Mrs. Rigney's claimed bias against defendant. Under the circumstances, no error resulted from the court's exclusion of the evidence. People v. Dwyer, 24 Cal.App.2d 639, 75 P.2d 653; Witkin, California Evidence 621 sec. 564.

The jury was instructed at length upon the law of self-defense. We have examined the instructions given and conclude that the jury was fully and fairly informed After deliberating for some time, the jury requested further instructions on intent and transfer of intent and examples illustrating the application of these rules of law. The court repeated the instructions on transfer of intent and gave examples illustrating the application of these rules. The foreman then indicated that he understood the instructions but was doubtful as to how the rules applied to the instant case. The court replied that the application of the law to the facts was the province of the jury and the court could not help them with that. The defendant contends that it was error not to repeat all the instructions on intent previously given to the jury, that it was error to use examples in which members of the jury were made parties, and that the court erred in referring to the foreman as 'my friend' when addressing him. Before retiring, after receiving the additional instructions, the foreman indicated that the jury's questions had been answered. By its verdict, the jury found that the law of transfer of intent was inapplicable to the facts of the case. No prejudicial error appears from the court's instructions or from the use of examples to illustrate their application. People v. Finali, 31 Cal.App. 479, 488-489, 160 P. 850; People v. Turney, 127 Cal.App.2d 258, 262, 273 P.2d 681; Penal Code sec. 1138. The informality of the court's mode of address to the jury foreman was a trivial matter and no error or prejudice appears. Defendant made no objection to the court's conduct at the time and is precluded from raising the point on appeal.

It appears that the court instructed the jury to return to court when they had arrived at a verdict as to any of the three counts charged. The jury reached a verdict as to Counts I and III and returned to court where these verdicts were received and recorded. The jury was then sent back to the jury room to deliberate on Count II which verdict was later received and recorded. Defendant made no objection to this procedure until making his motion for a new trial. Defendant contends that Penal Code section 1164 required that when the court receives a verdict the jury must be discharged; that the jury was thus, in effect, discharged when the verdict as to Counts I and III were received and that jeopardy attached as to Count II as of that time because it does not appear that the discharge was due to inability to agree or other overwhelming necessity. In support of this ingenious argument, defendant's counsel relies on People v. Phillips, 120 Cal.App. 644, 657, 8 P.2d 228, 233, where it was held not to be error for a trial court to refuse to accept verdicts at different times as to separate counts. By way of dicta, the court said:

'We know of no law that would have permitted the court to accept a verdict on one count of this information and then send the jury out for a further consideration of the other count.'

Subsequently in the case of People v. Hoyt, 20 Cal.2d 306, 316-317, 125 P.2d 29, the Supreme Court held that there was no merit in the contention that the jury upon returning its verdict upon one count exhausted its power to pass upon the two remaining counts since the order in which the verdicts are read and the judgments People v. Ranney,

'* * * the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count.'

In approving a procedure similar to that followed in the instant case, Judge Learned Hand stated in United States v. Cotter, 2 Cir., 60 F.2d 689, 690:

'It would only promote irresponsible hesitation to tell [the jurors] that they must reserve their decision altogether until they got through; the appellants had no right in their subsequent vacillations. The practice adopted promoted despatch and did not impair the fairness of the trial * * *'

See also United States v. Frankel, 2 Cir., 65 F.2d 285, 288, certiorari denied, 290 U.S. 682, 54 S.Ct. 119, 78 L.Ed. 588; United States v. Skidmore, 7 Cir., 123 F.2d 604, 611, certiorari denied, 315 U.S. 800, 62 S.Ct. 626, 86 L.Ed. 1201; and Clainos v. United States, 82 U.S.App.D.C. 278, 163 F.2d 593, 596-597.

In People v. Cohen, 223 N.Y. 406, 119 N.E. 886, the procedure was accepted and found not to conflict with statutes similar to Penal Code sections 954 and 1164. In the absence of an objection, and since there was no showing that the procedure followed affected defendant's rights, we know of no reason why the practice followed in receiving the jury's verdict constituted prejudicial error.

Judgment and order denying a new trial affirmed.

SHEPARD and COUGHLIN, JJ., concur.

Summaries of

People v. Rigney

California Court of Appeals, Fourth District
Apr 5, 1960
3 Cal. Rptr. 855 (Cal. Ct. App. 1960)
Case details for

People v. Rigney

Case Details

Full title:PEOPLE of the State of California, Plaintiff and Respondent, v. Louis…

Court:California Court of Appeals, Fourth District

Date published: Apr 5, 1960


3 Cal. Rptr. 855 (Cal. Ct. App. 1960)