*1 No. 16831. In Bank. Dec. [Crim. 1973.] PEOPLE,
THE Plaintiff Respondent, CULVER,
FRANK Defendant Appellant.
Counsel Court, Curtis Hillyer, under and Marshall H. by appointment Supreme Lichtenstein, under the Court of for Defendant appointment by Appeal, and Appellant. General, Jr.,
Evelle J. Hinz, Edward A. Chief Assistant Attorney Younger, General, James, General, E. Attorney William Assistant Gloria Attorney Reardon, DeHart and General, A. Timothy for Plaintiff Deputy Attorneys and Respondent.
Opinion TOBRINER, defendant, Culver, J. In 1963 Frank was convicted of at- murder.1 tempted Defendant filed a notice of but thereafter timely appeal, failed to file an brief and the opening was dismissed. appeal subsequently 26, 1971, On February aside,2 the dismissal was set the remittitur recalled and the reinstated. This case is thus before us on direct appeal from appeal defendant’s 1963 conviction.
The defendant
two
contentions
that confessions
presents
appeal:
made
him to the
under the
Town-
rationale of
police
involuntary
send v. Sain (1963)
At 9:45 a.m. on
a
officer arrived at
Frank
police
Culver’s residence in Oakland. He observed a
hose attached to an
garden
charged
brought
magistrate,
Culver was
twice
murder and
before a
and the
with
magistrate
charge
probable
attempted
twice refused
A
to find
cause.
new
murder
examination,
brought
preliminary
was
and after a third
he was held to answer.
2On December
District Court for the Northern District
United States
(Weigel, Judge)
appeal
ground
California
ordered Culver’s
reinstated on
(9th
1969)
Cupp
his counsel was ineffective under the standards of Gairson v.
Cir.
Frank Culver was under arrest and placed then taken to the county to be treated for hospital stomach wounds that he had inflicted him- upon self just prior entry of the officers. He was admitted police to the at 10:10 a.m. a.m., hospital 10:30 he Commencing statement gave investigators. He followed with second statement at 2:40 p.m. *4 afternoon, same day. Later that Culver underwent for his ab- surgery dominal wounds. statement,
In his first defendant admitted the hose to the attaching gas meter and it at placing window 12 through o’clock approximately further, he stated previous night; he believed his wife to be although death, despondent desirous of he had not discussed his idea of joint suicide with statement, her. his second During the defendant indicated the location in the house where he the wrench used to connect the placed hos- to the ing line and stated that “I gas killed wife” and just my was “Guilty as they come.” he Additionally reiterated that his intent had to take been both his own and his wife’s lives.
An autopsy performed defendant’s wife determined the cause of death to be failure and “respiratory hypoxia, due to probably acute alcoholism.” trial, however, At the coroner testified that his were findings consistent with death from inhalation of natural Blood gas. tests atmosphere performed on the victim disclosed the of presence natural in her gas bloodstream. 2. record does not establish that were ob- defendant’s confessions tained while was under the drugs. defendant influence The defendant contends that the two confessions elicited from him by 28, 1963, involuntary were the they prod ucts of and Demerol scopolamine administered to him by hospital per sonnel. Clearly confession that is adduced from an individual whose “will was (Reck overborne” v. (1961) 433, Pate 367 U.S. 440 [6 L.Ed.2d 953]) 81 S.Ct. or is not “the of a rational product intellect (Blackburn and a free will” (1960) 199, v. Alabama 361 U.S. 242, 208 249, L.Ed.2d 80 274]) S.Ct. [4 should not admitted into be 546
evidence because it is the United States involuntary; Court has Supreme indicated that confessions elicited the use hyoscine3 phenobarbital are not the (Townsend of a rational intellect or free will. products Sain (1963) 770, 745]; U.S. 293 L.Ed.2d 83 S.Ct. In re Cameron [9 see. 487, (1968) 529, 68 Cal.2d 633].)4 439 P.2d Cal.Rptr. [67 if, fact, Thus we must examine the record us to before determine Culver’s confessions were the how involuntary5product drug ingestion, ever administered. medical rec beneficially Although hospital’s ords were entered into evidence trial Culver’s counsel although confessions, to the admission of defendant’s counsel did not objected argue of the effect and Demerol No question injections. not, however, medical us were called to This does bar testify. experts from an examination of the medical records and a reevalua independent (People (1958) tion of 51 Cal.2d voluntariness. v. Berve question 286, 576, 97]; People P.2d v. Trout 290-291 Cal.2d [332 1418].) 354 P.2d 80 A.L.R.2d
An not establish the accuracy examination of the records does hospital he was of Culver’s his obtained while contention that confessions were under the these records demon- effects of the Although drugs question. state to defendant that both and Demerol were administered administ on the as to the hour of their day they question, ambiguous *5 ration.6 3Hyoscine and scopolamine equivalent (Blakiston’s drugs. New Gould Medical (1951) 481;
Dict.
p.
see
(1963)
293,
Townsend v. Sain
372 U.S.
298
L.Ed.2d
[9
745].)
83 S.Ct.
4In Townsend the
dosage
court found that
injection
-grain
the
by
combined
of Vs
phenobarbital
withdrawal
The
1/230-grain
hyoscine
and
of
given
petitioner
drug
to alleviate
related
symptoms
rendered Townsend’s
constitutionally
statements
inadmissible.
expressly
court
refused to
a finding
make
dosage
as to the effect
specific
(372
309,
administered to Townsend
p.
U.S. at
5
783].)
fn.
L.Ed.2d at p.
[9
It should
Townsend,
additionally
be noted
that
case,
in
unlike the instant
respondent
specifi
cally admitted that Townsend’s confession
immediately
injection
occurred
after the
drugs. Further,
of
sides
in Townsend considerable expert testimony was elicited on both
concerning
probable
drugs
effect of the
which were administered.
5Because of
original
the reinstatement of defendant’s
appeal in 1970 this case did
technically
judgment
not
People
reach a final
prior to the
v.
decisions of
Dorado
(1965)
169,
361],
62
Cal.Rptr.
(1964)
Cal.2d 338
398 P.2d
Escobedo v.
[42
Illinois
977,
6The records state that 75 grain of Demerol and of 1/150 that all of review dictates intendments A well settled principle appellate and that the court be the trial court findings reviewing indulged support (People consider the evidence in a most favorable to the light respondent. Cal.Rptr. 793, 1049].) Sweeney (1960) P.2d 55 Cal.2d When, here, the record is as to the hour when ambiguous administered, we the trial determina medications must court’s uphold s.7 court, the con tion of the voluntarines The trial after initially admitting fessions, law in effect instructed the that under California jury properly time, issue voluntariness.8 at that was the final arbiter of the of jury fact, any In scopolamine were administered on 28 at an “hour not shown.” to be drawn indicates that the medication inference was from handwritten notations sur- prior the confessions but to the late-afternoon probably administered after directives, gery. handwriting relevant records indicate two sets of doctors’ each in different The signed by a the first opposite different doctor. The nurse’s notations p.m. set indicate that carried out between 10:10 a.m. and 3:10 such directions were drugs however, question, appears The order to administer the in the second set in directions, thereby suggesting carried out the confessions that such order was after were elicited. suggestion scopolamine 7The dissent raises the that the was administered to de inducing purpose fendant This is behalf of the for the defendant’s confessions. history suggestion lengthy has the entire first time such been made in argued, significantly, and does not now con proceedings; these tend, defendant has never drug prescribed purpose. that the or administered for such a conjecture assumption regard in this an that the apparently The dissent bases its advantage only its “truth scopolamine patient medical for to a is to take prescribing reason assertion; authority support qualities. Yet medical does not this bare serum” leading dictionary mainly that the “is used as a a sedative medical states surgery.” (Italics added.) (Blakiston’s psychiatry in New Gould Medical 915.) (1951) p. upon The medical authorities relied in the dissent do not Diet. Thus, record, usage. present support dispute this reasonable inference from judgment, shortly is that the was administered to defendant as a sedative surgery his late afternoon and several hours after both of his confessions. before There support “scopolamine is no the record for the dissent’s assertion 551) {infra, promptly p. upon been the doctor” defendant’s Demerol had ordered hospital. admission to been administered to de- implies dissent also that even if had not confessions, may physical condition have prior to his defendant’s itself fendant been *6 however, Defendant, involuntary. pre- so serious as to render the confessions evidence, otherwise, physical absolutely no or as to his condition sented the time of the medical testimony interrogations: only in the record is the the relevant evidence officer, coherent, interrogating appeared police of the who stated that defendant was gave throughout questions, questioning to understand all answers responsive doctor, personnel, including a period. testified that several medical The officer also throughout interrogation; presented has not affi- the entire defendant present contradicting testimony. The any officer’s davits from of these individuals judge testimony confessions were trial who heard the determined that defendant’s voluntary, present properly and on the record we overturn that decision. cannot jury, determination of of the issue to the after an initial 8Submission voluntariness (See court, at the time of trial. proper procedure this issue People the trial constituted the Lindsey 870, 251]; People (1944) v. 876-877 P.2d v. 24 Cal.2d [151 Gonzales (1972) 622, 755].) Cal.Rptr. adoption 27 With the of the the Cal.App.3d 630-631 [103 Code, judge January gives the trial Evidence effective California now 548
In light the record before us we must conclude that defendant has not established as a matter of law that his confessions were involuntary. 3. Substantial evidence supports the determination that Mrs. Culver was
alive when placed the hose in the bedroom window. defendant Defendant that his argues actions were not the death; cause his wife’s that her death resulted'from “acute alcoholism.” In reality, defendant ques- tions whether the prosecution sufficient evidence produced to demonstrate that his wife was alive at the time he the hose in the placed bedroom window.
In the evidence reviewing test appeal, is not applicable whether has been guilt doubt, proven beyond reasonable but rather whether substantial evidence the conclusion of the supports trier of fact. (People v. Daugherty (1953) 876, 40 Cal.2d 911]; 885 P.2d Peo [256 ple v. (1969) 745, Redmond 71 Cal.2d 529, 457 P.2d [79 321].) The court reviewing does not the function of perform reweighing evidence; instead, the court must all draw inferences in support verdict that can be reasonably deduced from the evidence. (People Newland 15 Cal.2d 778].) P.2d these we find
Applying sufficient evidence to principles, support the trier of fact’s that the implied finding victim was alive when defendant the hose. The positioned time of death was established as between a.m. Earlier, a.m. on morning 1962. at approximately defendant midnight, line, attached the hose it gas placed through bedroom, window of the and turned the nozzle to the flow of permit Blood gas. tests on Mrs. Culver’s disclosed atmosphere performed body blood, of natural presence her gas indicated that this testimony could be gas absorbed if his only she were alive. The coroner testified that death, i.e., findings cause of concerning failure and hy “respiratory alcoholism,” due to acute would poxia, probably be consistent with death from inhalation of natural gas. the evidence is sufficient to
Accordingly, the verdict. support is affirmed. judgment J., McComb, J., Burke, J., J., Clark, J., C. Wright, Sullivan, con- curred. *7 responsibility determining confessions, final admissibility for the of and the court is required to admissibility determine the of presence of a confession outside the the jury (Evid. Code, 405; (b), People if the party requests. so v. §§ subd.
Lindsey (1972) 622, 755].) Cal.App.3d 27 631 [103
549 MOSK, J. I dissent. a rational intellect of is when it is the product
A confession voluntary 199, 208 U.S. (1960) (Blackburn [4 a will. v. Alabama and free accused is overborne 242, will of the 249, 274].) If the L.Ed.2d 80 S.Ct. but for silent he would have remained and if by interrogation involuntary. influence, be deemed confession must resultant improper 580, 568, 532, L.Ed. (1897) v. United States 168 U.S. (Bram (Jackson unreliable. tends to be 183].) 18 S.Ct. An confession involuntary 1774, 919, 908, 368, 84 S.Ct. v. Denno 378 U.S. [12L.Ed.2d a confession whether 1205].) are “These standards applicable 1 A.L.R.3d and, of pressure, intimidation or is the psychological product physical It is difficult statement. course, to a drug-induced are equally applicable less the would be product a confession to a situation in which imagine having a intellect, drug about than when brought a free less voluntary, ” 293, (1963) 372 U.S. Sain (Townsend v. a ‘truth serum.’ the effect of 770, 782-783, 745].) 83 S.Ct. L.Ed.2d 307-308 [9 as a is described its definition only drug scopolamine In judicial a hallucination, its subject gives amnesia truth which causes serum Townsend ex rel. (United States motivation to “heightened cooperate” disorientation in 368) and results F.2d Twomey (7th 1971) 452 Cir. case, Townsend (Id. 367.) scopolamine In the from his environment. p. with phenobarbital, administered (also together known as hyoscine) Demerol, an analgesic. was added the instant case it tranquilizer; dictionary in footnote cite as medical authority majority, no inference sedative I declaring qualities. hope scopolamine, possess use truth arises that through therefrom statements obtained although inadmissible, under sedation of a serum interrogation by suspect is to be condoned. is “truth serum”
While it may be true generally colloquial effects, the same to have some of sodium pentathol, scopolamine appears consciousness, a “twilight sleep,” in that the obtunds producing his defenses. Unlike sodium pentathol, has none of conscious patient however, confusedly, under is to babble tendency answer, this delirium; under where not subject normally might he will answer necessarily truthfully. but not these terms: the effects of
Modern medical texts describe (3d ed. Gilman, Basis Pharmacological Therapeutics Goodman 1970), injection “The behavior and mental symptoms [after 535: page disturbed, orien- is Memory an acute drug] suggest organic psychosis. . . . visual) are common is tation hallucinations faulty, (especially *8 mania and delirium are not unusual. The of an acute schizo- diagnosis or phrenia alcoholic delirium has been episode mistakenly made.” Falconer, Gustafson, Patterson and Drug Current Handbook 60: page brain, exerts a action on the and “[Scopolamine] heart depressant delirium, vision, convulsions, side effects respiration; include with impaired occasional severe depression.” McDermott, (13th
Beeson and 1971) of ed. Textbook Medicine page 146: “The mental of include drowsi- symptoms ingestion scopolamine] [of ness, confusion, disorientation, . . .” and vivid hallucinations . optical Gleason, Gosselin, Smith,
II of Com- Clinical Hodge Toxicology Products, mercial 34: “. . of the Many . untoward page signs symp- toms be can related to scopolamine usage] glands [of paralysis smooth muscles . . . the most manifestations dangerous spectacular arise from intense excitation of the central system. nervous symptoma- restlessness, confusion, includes tology excitement and fatigue, progressing to mania and delirium.” is (24th ed.)
Dorland’s Medical 1355: Dictionary “Scopolamine page an alkaloid as a central nervous and is used family atropo-belladonna system hydrobromide. found in the form of chiefly depressant, amnesia, It has a effect sedative on the brain and retrograde produces out blocking memories pain.” (3d Medicinal
Burger, ed.) 1549: Chemistry “The page poisonous nature of solanaceous alkaloids include been have scopolamine] [which known for centuries. The toxic many properties deadly nightshade are evident . . when . the black berries ... . are . . hedgerow eaten. The become delirious.” And 1544: “Anti-cholin- [victims] page ergic which is drugs with interfere func- [of physiologic one] tions that are dependent nerve transmission.”1 cholinergic
What can be and all gleaned from these reliable is state- references that ments made under the effect of administered for scopolamine, any purpose, not, inherently unreliable and not in sense any voluntary. The is described erroneously majority, mere sedative. If the subject confused, whom the is administered becomes amnesiac and halluci- it would nating, related such cannot be appear anything during period held and admissible. competent Schmidt, (Stecher 1968) 936; Attorney’s 1Also see The Merck Index ed. Dic page Medicine, 274-275;
tionary (22d ed.) page Dictionary page Medical Stedman’s 1129. *9 to was defendant that administered The concede majority confessed, “are the records am- the he but declare day they hospital on the to It is true that records as the hour” of administration. biguous to find credulity it taxes as as be desired. Nevertheless not explicit might with truth serum of a exists between injection that no relationship it is incom- same day, equally on the police qualities questioning 6, that truth as do in footnote to the majority prehensible speculate, to ask: is compelled the confession. One have been may given after could what purpose to ease his possible Demerol had been given pain, since to defendant if not serum to this a of truth type be in administering there his to facilitate interrogation? response
Conceding that the records do not relate the hour hospital precise drugs to confessed, defendant on the he I find a given day chain of per- evidence suasive circumstantial from which one conclude his must response to was not free and police interrogation voluntary.
We are
to resort to circumstantial evidence because of
compelled
gaps
in the record. The lacunae are
not
defendant but
attributable
to
to
of his
same
who failed
file
counsel—the
counsel
to
inadequacy
previous
a brief on
and who was
found
United States
appeal
by Judge Weigel
District Court
Cupp
to be ineffective
Gairson v.
under
standards of
therefore,
(9th
1969)
not,
Cir.
de
deny
Defendant to at a.m. was admitted 10:10 hospital serious was that of stab wound with wounds. The diagnosis preoperative rents, centimeter and two abdomen with two one diaphragmatic officer, him centimeters extent. A with questioned police stenographer, that defendant at 10:30 a.m. for or 20 The officer admitted minutes. It is to infer defendant obvious not unreasonable grimaced pain. The also suffered shock as a result of his traumatic hospital experience. medication, for reflect that defendant in need of records cannot If we and Demerol had the doctor. been ordered promptly directive, the medical assume the staff with immediately nursing complied hours. To suggest there within four must have been certainly compliance otherwise, indictment is do the majority, startling unsupported and treatment of for in the care unconscionable inefficiency hopsital wounded seriously patient. later,
Four hours 2:40 the second precisely took p.m., interrogation officer testified that at that not place. time defendant did appear inbe Since corrective had not been pain. surgery yet performed further had nothing been ordered or done defendant’s discom- assuage *10 fort, it is to attribute the lack of evident and the co- logical abject pain with the to the operation injection interrogator drugs previously ordered—Demerol, truth serum. analgesic, scopolamine, type
Thus, it even if were to wounded initially seriously question proper medication, shock, in obvious need of suspect pain, probably before I to shortly am not surgery—which concede—certainly prepared there is no in the conceivable rationale which the statements induced second have been received interrogation, after should injection drugs, in evidence.
I would hold that an insurmountable burden rests on the prosecution it' when seeks to introduce into evidence confession obtained from a who has been suspect administered a of truth or type serum who drug has been sedated with to any drugs tendency affect his having normal mental Chief Justice processes. Traynor, for of this court in majority re In Cameron 68 Cal.2d 439 P.2d 633], found a to have destroyed defendant’s will to tranquilizing resist, to have rendered him unable seriousness of his comprehend or the significance reconstruc- predicament acceding prosecution’s confession, tion crime. So I would here find the second while given defendant was under the influence of to be involun- clearly scopolamine, I also have serious tary. doubts to the first admissibility confes- sion, before, or, either after the at a given administered if time wounded, when the was seriously in intense suspect pain probably shock, and determined to be in need of medication. by physicians
I would reverse judgment.