JAMES M. CRAMER, as District Attorney, etc., Petitioner and Respondent, v. LUTHER TYARS, Objector and Appellant.
L.A. No. 30918
Supreme Court of California
Jan. 12, 1979.
151 Cal. Rptr. 653 | 588 P.2d 793 | 23 Cal. 3d 131
Charles E. Ward, Public Defender, and Littleton M. Gunn, Deputy Public Defender, for Objector and Appellant.
Paul Halvonik, State Public Defender, Gary S. Goodpaster, Chief Assistant State Public Defender, Paul Fogel, Quin Denvir and Richard E. Shapiro, Deputy State Public Defenders, as Amici Curiae on behalf of Objector and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, Karl J. Phaler, Jay M. Bloom and Cecilia H. Johnson, Deputy Attorneys General, for Petitioner and Respondent.
OPINION
RICHARDSON, J.—May a mentally retarded person who is the subject of a petition for civil commitment to the state Department of Health pursuant to former
Preliminarily, we review certain provisions of
Upon the filing of such petition the matter is set for hearing. The alleged mentally retarded person must be notified of the hearing, and, if the petition is filed by a probation officer, district attorney, the Youth Authority, or the Director of Corrections, the person‘s parent or guardian also must be given such notice as is deemed proper by the court (
Against this statutory background we trace appellant‘s history. Tyars was born on February 12, 1957. At the time of the commitment proceedings under consideration he was almost 20 years old. Before 1965 he had lived with his mother in the Los Angeles area, and from 1965 to 1971 he was in a residential center in Ontario, California. In January 1971 Tyars was placed in the Patton State Hospital in San Bernardino County because of assaultive behavior against his family. Appellant has resided at Patton since that time.
On April 12, 1976, the District Attorney of San Bernardino County filed in the superior court of that county a petition for the commitment of appellant as a mentally retarded person pursuant to
At the hearing and over the objections of his counsel appellant was called as a witness pursuant to
Because of his speech handicap Tyars had difficulty in making himself understood. The trial court thereupon caused an “interpreter” who was familiar with appellant‘s speech to be sworn to “translate English into English,” i.e., to make his answers intelligible. The court‘s questions posed to Tyars were not restated by the interpreter; moreover, Tyars’ understandable words were not always the same as those repeated by the interpreter who would either summarize Tyars’ answer or simply answer the court directly. In substance, Tyars admitted several acts of violence including the throwing of chairs, “breaking someone‘s head wide open,” and striking a hospital technician; he also named victims of other assaults and batteries and illustrated his testimony by swinging his arms in descriptive punching motions.
After 38 minutes of deliberations the jury returned its verdict finding that appellant was a mentally retarded person who is a danger to himself
AVAILABILITY AS A WITNESS
The principle issue raised by appellant is the propriety of calling him, over objections, as a witness in his own commitment hearing.
We stress, preliminarily, the two separate and distinct testimonial privileges here involved. In a criminal matter a defendant has an absolute right not to be called as a witness and not to testify. (
Several features of the applicable statutes (
The predominantly civil character of the proceedings created by
It follows from the foregoing that while appellant could properly be called as a witness at his commitment proceeding, like any other individual in any proceeding, civil or criminal, he could not be required to give evidence which would tend to incriminate him in any criminal activity and which could subject him to criminal prosecution. Referring to the sweeping nature of the privilege against self-incrimination, the United States Supreme Court has said: “The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory ... it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.’ [Fn. omitted.] (Italics added.)” (In re Gault, 387 U.S. 1, 47-48 [18 L.Ed.2d 527, 557, 87 S.Ct. 1428], from conc. opn. by Justice White in Murphy v. Waterfront Comm‘n., supra, 378 U.S. 52, 94 [12 L.Ed.2d 678, 704].) As we have noted previously, no mentally retarded person may be committed unless such person is a danger to himself or others (
Because appellant‘s counsel initially objected to Tyars testifying, we infer no waiver of the privilege against self-incrimination by counsel‘s failure to renew his initial self-incrimination objection in response to subsequent specific questions. In the light of the trial judge‘s clear expression of his position on the issue such repeated objections would have been futile.
We conclude that, while appellant could not be questioned about matters that would tend to incriminate him, he was subject to call as a witness and could be required to respond to nonincriminatory questioning which may have revealed his mental condition to the jury, whose duty it was to determine whether he was mentally retarded. Reason and common sense suggest that it is appropriate under such circumstances that a jury be permitted fully to observe the person sought to be committed, and to hear him speak and respond in order that it may make an informed judgment as to the level of his mental and intellectual functioning. The receipt of such evidence may be analogized to the disclosure of physical as opposed to testimonial evidence and may in fact be the most reliable proof and probative indicator of the person‘s present mental condition. (See People v. Ellis (1966) 65 Cal.2d 529, 533-534 [55 Cal.Rptr. 385, 421 P.2d 393] [voice identification not within the privilege against self-incrimination]; People v. Arnold (1966) 243 Cal.App.2d 510 [52 Cal.Rptr. 475] [handwriting identification not within the privilege against self-incrimination].) Similarly, a defendant even in a criminal proceeding may be required to give “real or physical” evidence in contrast to “communications or testimony” in the sense of disclosing knowledge. Thus the criminal defendant may be asked to stand, wear clothing, hold items, or speak words. (People v. Ellis, supra, at pp. 533-534; People v. Sims (1976) 64 Cal.App.3d 544, 552 [134 Cal.Rptr. 566].) It was proper for the jury to have the benefit of its own observations of Tyars’ responses, both in manner and content, to the court‘s questions.
Appellant Tyars’ remaining contentions necessitate only brief comment.
Appellant now argues that he was incompetent to be a witness because of mental incapacity. His counsel, however, made no objection as to his competency as a witness at any time during the hearing and the objection must therefore be deemed waived. (People v. Berry (1968) 260 Cal.App.2d 649, 652-653 [67 Cal.Rptr. 312].) Nor do we find merit in appellant‘s claim that his speech handicap necessarily made him an incompetent witness. As previously noted, a ward attendant who was very familiar with appellant‘s speech served as an “interpreter” and there was no contention made at the hearing that this arrangement was unsatisfactory.
JURISDICTION
Appellant challenges the jurisdiction of the San Bernardino County Superior Court on the basis that, although Tyars has been hospitalized at Patton State Hospital in San Bernardino County since 1971, his parents “reside” in Los Angeles County. The controlling section, 6502, provides that “A petition for the commitment of a mentally retarded person to the State Department of Health ... may be filed in the superior court of the county in which such person resides. . . .” The term “resides” has received differing interpretations depending on the context and purpose of the statute in which it appears. (See Kirk v. Regents of University of California (1969) 273 Cal.App.2d 430, 434-435 [78 Cal.Rptr. 260].) The inquiry into the degree of mental retardation and dangerousness mandated by
Appellant contends that immediately following the jury‘s finding that he was mentally retarded and a danger to himself or others the court should have held a hearing to determine the least restrictive placement facility in which appellant could be placed. Such a hearing is not required.
Appellant nonetheless contends that because former
We conclude, however, that there is a rational basis for the distinction made by the Legislature between the placement procedures to be followed in regard to these two classes of individuals. The Legislature has determined that in the case of the dangerous mentally retarded person the only suitable treatment is confinement in a state hospital. A similar result does not necessarily follow in the case of the developmentally disabled person because no finding of dangerousness is required for commitment of the latter. Assuming, for purposes of discussion, that a strict scrutiny test is the proper equal protection standard to be applied in the instant case because of the liberty interest involved, there exists a clear and
DANGEROUSNESS AS AFFECTED BY MEDICATION
Appellant‘s final contention is that the jury should have been allowed to consider his condition under medication in making its determination whether he was dangerous and that an instruction to the jury to this effect was improperly refused. The proposed instruction read, “In determining whether Luther Tyars is a danger to himself or others you may take into account improvement due to medication if it is likely that in the foreseeable future Luther Tyars would be provided with and take needed medication.” In seeking such an instruction, appellant‘s counsel exceeded review of appellant‘s current mental condition and potential for dangerous behavior and invited consideration of possible future behavior under hypothetical conditions. The pertinent issue under
The judgment is affirmed.
Tobriner, J., Mosk, J., Clark, J., and Manuel, J., concurred.
RICHARDSON, J.
BIRD, C. J., Dissenting.—The authors of the Bill of Rights understood that the common law privilege against self-incrimination was the product of an historic struggle to free individuals from the oppression of government and the secret interrogations of the Star Chamber. Recognizing the privilege‘s central place in our system of liberty, the framers secured it in the firm constitutional footing of the
I
A brief elaboration of the pertinent facts is in order. Pursuant to
Appellant was called as a witness and the judge asked him whether he had been involved in any fights. Apparently unaware of the consequences to himself, appellant dramatized his affirmative reply by swinging his fists like a fighter and by uttering emphatic “pows” in a child-like effort to simulate the sound of his fists making contact. All of this occurred in front of the jury.
As the majority note, because of a speech defect, appellant‘s testimony was “interpreted” by a hospital attendant. However, the majority fail to point out that this “interpreter” was also the prosecutor‘s main witness against appellant on the issue of his dangerousness. Thus, an adverse witness was allowed to “interpret” appellant‘s testimony, even though the “interpretations” sometimes differed from appellant‘s understandable words and the “interpreter” sometimes answered the court‘s questions directly.
The prosecutor presented three witnesses. One was a physician who had interviewed appellant for one-half hour. Another was a clinical psychologist whose personal contact with appellant was limited to the administration of intelligence quotient tests. Only the hospital attendant
After a brief deliberation, the jury returned a verdict finding appellant to be a dangerous mentally retarded person.
II
The
This right not to testify serves at least two important functions. It protects the defendant, who is often unschooled in the law, from being called to the witness stand where he might inadvertently waive his privilege against self-incrimination by giving testimony which bears on an element of the crime. (Cf. People v. Schader (1969) 71 Cal.2d 761, 770 [80 Cal.Rptr. 1, 457 P.2d 841].) Further, by granting this broad right to silence, our system acknowledges the prejudicial inference of guilt commonly drawn from an assertion of
It has long been established that the right not to be called as a witness is not limited to defendants in ordinary criminal prosecutions. (In re Gault, supra, 387 U.S. at pp. 49-50 [18 L.Ed.2d at pp. 558-559]; Thurston v. Clark (1895) 107 Cal. 285, 288-290 [40 P. 435]; see also United States v. U.S. Coin & Currency (1971) 401 U.S. 715, 718 [28 L.Ed.2d 434, 437, 91 S.Ct. 1041].) The right also extends to proceedings which, though civil in name, threaten a person with the loss of his liberty. (In re Gault, supra; see McNeil v. Director, Patuxent Institution (1972) 407 U.S. 245, 257 [32 L.Ed.2d 719, 727, 92 S.Ct. 2083] (conc. opn. of Douglas, J.); cf. In re Winship (1970) 397 U.S. 358, 365-366, 368 [25 L.Ed.2d 368, 375-376, 377-378, 90 S.Ct. 1068].)
Thus, Gault teaches that the actual consequences, not the label, of a proceeding determine whether fundamental rights are constitutionally mandated in that proceeding. Three years after Gault, this lesson was reaffirmed when the Supreme Court held that juveniles in delinquency hearings are constitutionally entitled to be judged by the standard of proof beyond a reasonable doubt. (In re Winship, supra, 397 U.S. at p. 368 [25 L.Ed.2d at pp. 377-378].) “We made clear in [Gault] that civil labels and good intentions do not themselves obviate the need for criminal due process safeguards. . . .” (Id., at pp. 365-366 [25 L.Ed.2d at p. 376].) The court decided that such safeguards were needed because an adverse determination could deprive a minor of both his liberty and his good name. (Id., at p. 367 [25 L.Ed.2d at p. 377].)
This court has also held that persons subject to involuntary commitment proceedings have a right to the protections afforded to ordinary criminal defendants. Thus, individuals whom the state seeks to confine as mentally disordered sex offenders (
The reasoning of Burnick, Feagley and Thomas applies equally to the present case because appellant faces equivalent consequences. Commitment to a mental hospital entails a “massive curtailment of liberty” and a comparable loss of reputation. (Humphrey v. Cady (1972) 405 U.S. 504,
Similarly, an adjudication that one is dangerous and mentally retarded creates a greater stigma than an adjudication of delinquency. As this court pointed out in Burnick, juvenile offenses are often discounted or forgiven as the product of a passing phase of youth. (14 Cal.3d at p. 322.) The same cannot be said for individuals found to be dangerous and mentally retarded. This court‘s frank recognition in Burnick of the social disgrace that often attaches to mental illness is equally applicable to the mentally retarded. (Id., at p. 321.) When an official determination of dangerousness is added, “the shame is complete.” (Ibid.)
Thus, appellant faced the same consequences as those at stake in Burnick, Feagley and Thomas—incarceration and social stigma. The logic of those cases compels the conclusion that defendants in
The majority‘s analysis of the consequences to appellant of an adverse determination is wholly inadequate. The majority find it significant that confinement under
Further, the majority identify the aims of confinement in this case as treatment and protection, not punishment. (Maj. opn., ante, at p. 137.) However, benevolent objectives—which may or may not reflect reality in our state hospitals3—will not substitute for criminal safeguards in proceedings where liberty is at stake. (In re Winship, supra, 397 U.S. at p. 365 [25 L.Ed.2d at pp. 375-376]; In re Gault, supra, 387 U.S. at pp. 27-28 [18 L.Ed.2d at pp. 545-547].) The critical fact is the potential for involuntary confinement. It does not matter that the confinement “is designed not so much as retribution as it is to keep individuals from inflicting future harm.” (Specht v. Patterson (1967) 386 U.S. 605, 608-609 [18 L.Ed.2d 326, 329-330, 87 S.Ct. 1209]; see Note (1970) 83 Harv. L. Rev. 648, 663.)4
The majority‘s reliance on People v. Whelchel (1967) 255 Cal.App.2d 455, 460 [63 Cal.Rptr. 258], is equally unsatisfactory. In Whelchel, the Court of Appeal reasoned that proceedings to commit narcotics addicts are “civil in nature” and do not result in “penal” confinement. (Id., at pp. 460-461.) That analysis was categorically rejected by this court in Thomas. (19 Cal.3d at pp. 637-638.) The majority fail to explain the contradiction.
Instead, they summarily assert that application of the “defendant‘s privilege” to commitment proceedings would contravene the language and purpose of the privilege. (Maj. opn., ante, at p. 138.) In support, the majority state that the traditional purpose of the right not to testify “has been to assure that the criminal justice system remains accusatorial....” (Id. at p. 137, italics original.) That statement simply begs the question.
The values and policies underlying the guarantee against testimonial compulsion are as operative in a commitment proceeding as in an ordinary criminal prosecution.5 “Not only is the ‘public interest’ present and aligned against the subject, but it actively participates in the imposition of liability. This creates the very situation in which the privilege was designed to operate.” (McCormick on Evidence, supra, pp. 258-259.) It is curious that the court‘s respect for “the inviolability of the human personality” is not offended by a proceeding in which the state is excused from having to produce the evidence against a retarded person by its own labors, and is allowed to employ “the cruel, simple expedient of compelling it from his own mouth.” (Miranda v. Arizona, supra, 384 U.S. at p. 460 [16 L.Ed.2d at p. 715].)
No one familiar with the popular meaning of the term “taking the Fifth” can doubt the prejudicial impact of the first alternative. No one familiar with the mentally retarded can doubt that the risk of inadvertent admissions is greater for them than for other defendants. Thus, today‘s decision places persons subject to potentially lifelong commitment under
There is no compelling reason to subject persons like appellant to the serious dilemma which the “defendant‘s privilege” was meant to avoid. Requiring defendants to testify in these proceedings is unnecessary either to insure their treatment or to protect the public. To be committed under
Appellant should not have been compelled to be a witness against himself at a proceeding designed to deprive him of his freedom.
While holding that appellant could not refuse to testify altogether, the majority recognize that he did have a right not to incriminate himself, once he was called as a witness. The trial judge violated this right by requiring appellant to answer all questions. Yet the majority dismiss this error, which led to appellant‘s dramatic and damaging testimony, as “harmless beyond a reasonable doubt.” I disagree.
The actual standard for measuring the harm caused by federal constitutional error is whether the benefiting party can show beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman v. California (1967) 386 U.S. 18, 23-24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. McClary (1977) 20 Cal.3d 218, 230 [142 Cal. Rptr. 163, 571 P.2d 620].) In Chapman, the Supreme Court expressed concern that in finding constitutional errors harmless, California courts might be giving too much emphasis to what they considered “overwhelming evidence” in support of the verdict. (386 U.S. at p. 23 [17 L.Ed.2d at p. 710].) The Supreme Court sought to correct this problem by focusing the inquiry on whether the error may have contributed to the verdict.
In the present case, respondent simply cannot establish beyond a reasonable doubt that the error in compelling appellant‘s incriminating testimony did not contribute to his being found a dangerous mentally retarded person. It is difficult to imagine an error leading to more harmful testimony. The assaults which appellant said he had committed showed his dangerousness. His child-like dramatizations of those assaults, complete with sound effects, demonstrated his retardation. In effect, appellant was compelled to give testimony which proved both elements of the district attorney‘s case. It simply cannot be said to a moral certainty that appellant‘s performance did not contribute to the verdict against him.
I would reverse the judgment.
BIRD, C. J.
NEWMAN, J., Dissenting.—I concur in the dissent of the Chief Justice except to the extent it may imply that the
We learn from the majority opinion that, in “understandable words ... not always the same as those repeated by the interpreter . . . . Tyars admitted several acts of violence including the throwing of chairs, ‘breaking someone‘s head wide open,’ and striking a hospital technician; he also named victims of other assaults and batteries and illustrated his testimony by swinging his arms in descriptive punching motions.”
That sad demonstration—in major part testimonial—was not, I believe, authorized by the precedents that appear to permit voice or handwriting identification, as well as requiring defendants “to stand, wear clothing, hold items. . . .” The potentially prejudicial impact of what was done to Mr. Tyars here seems incalculably greater.
Finally, I have found no evidence suggesting that, in proceedings like these, “[t]he Legislature has not elected to authorize consideration of the factors of medication. . . .”
Appellant‘s petition for a rehearing was denied February 21, 1979, and the opinion was modified to read as printed above. Bird, C. J., was of the opinion that the petition should be granted.
NEWMAN, J.