THE PEOPLE, Plaintiff and Respondent, v. RICHARD MARCELLUS DAVIS, Defendant and Appellant.
Crim. No. 7590
In Bank
May 26, 1965
Respondent‘s petition for a rehearing was denied June 23, 1965.
62 Cal.2d 791
I would hold, in accord with the rationale of People v. Harrison, supra (1959) 176 Cal.App.2d 330, that the killing is that of the felon whether or not the lethal bullet comes from his gun or that of his accomplice and whether or not one of them shoots first, and would affirm the judgment of conviction of murder in the instant case.
McComb, J., concurred.
Respondent‘s petition for a rehearing was denied June 23, 1965. Mosk, J., did not participate therein. McComb J., and Burke, J., were of the opinion that the petition should be granted.
Stanley Mosk and Thomas C. Lynch, Attorneys General, William E. James, Assistant Attorney General, and Norman H. Sokolow, Deputy Attorney General, for Plaintiff and Respondent.
TRAYNOR, C. J.—Defendant killed his victim, Marion Burnett, by pounding her on the head and arms six or more times with a 16 1/2-pound stone. A jury found him guilty of murder of the first degree and sane at the time of the crime, and fixed his penalty at death. This appeal is automatic. (
Defendant‘s wife of six months, Dorothy, left him and moved to her mother‘s house four days before the killing. Defendant had asked her several times to return. She always refused, in part apparently because of her belief that he was having sexual relations with her unmarried friend, Marion. Defendant had admitted to her that he had once engaged in
On the night of the killing, defendant went to his mother-in-law‘s home to attempt again to persuade Dorothy to return to him. Dorothy and Marion were there together, but were leaving to go to Marion‘s home. When Dorothy remarked that he arrived just as Marion was leaving, defendant became angry and left. He walked across the street toward his home, ran after he turned a corner, and headed toward Marion‘s home. When he arrived at the street on which Marion lived, he crossed the street and picked up a large stone. He recrossed the street and hid behind a hedge near the sidewalk. Several minutes later, Marion appeared alone. Defendant advanced toward her, she turned to face him, and he beat her repeatedly with the stone. He then ran, threw the stone into a bush, and returned to his home to join a game of dominoes. An autopsy revealed that Marion was pregnant when she died.
At the trial on the issue of guilt, the prosecution sought to prove that defendant was guilty of murder in the first degree on the grounds that the killing was premeditated and deliberate and was perpetrated by lying in wait. (
The defendant testified that he had intercourse with Marion only once, while he was drunk, and had no emission. He denied knowing of her pregnancy before he killed her. He presented a witness who testified that Marion accused the witness of being the father of her expected child. Defendant also testified that he thought both women would pass the hedge on their way to Marion‘s home. His defense was based on three, interrelated theories:
(1) Defendant claimed that the killing was not premeditated. When he hid behind the hedge, he expected both women to pass and he wanted only to scare or talk to them. When Marion passed alone, defendant emerged from his hiding place. She turned to him and he hid his face behind the stone. He stated, “I didn‘t want to hit her at first but I didn‘t know she couldn‘t have seen me. I kept thinking ... if I don‘t
(2) Defendant claimed that the killing was committed in a heat of passion. Several days before the killing, he read some notes, passed between Dorothy, Marion, and a third girl in high school the previous year, that convinced him that the girls had been practicing Lesbians. Because Marion and Dorothy were still friendly and were often together, defendant thought their relationship was another reason for Dorothy‘s leaving him. When Dorothy linked him with Marion on the night of the killing, he became incensed. When he later encountered Marion, he killed her in a heat of passion.
(3) Defendant claimed that he did not have the mental capacity at the time of the killing to premeditate and deliberate. A clinical psychologist, Dr. Robert G. Kaplan, testified that defendant was suffering from a temporary functional psychosis at the time of the killing and was incapable of wilful premeditation and deliberation.
To prove premeditation and deliberation and also to show the circumstances under which the killing was committed, the prosecution introduced a full, corrected, and signed statement made by defendant to the San Diego police. A diagram of the murder scene made by him was also introduced. Defendant was arrested before noon two days after the killing. He was interrogated continuously by various police officers until, at 8 o‘clock that evening he made the statement, recorded by a police stenographer, that was introduced against him. He made the diagram the next morning. Since the record does not show what the officers said to defendant and what he said to them before he made the recorded statement, it does not appear at what point the investigation began to focus on him. It is clear, however, that by the time the recorded statement was commenced, the investigation had focused on defendant and the purpose of the interrogation was to elicit a confession. Although defendant talked to his wife several times before making either the statement or the diagram, there was no showing that he was allowed to see counsel, that he had effectively waived his right to counsel, or that he was informed of his right to remain silent. Under these circumstances the statement and the diagram were inadmissible by virtue of the decision of the United States Supreme Court in Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977]. (People v. Dorado, ante, p. 338 [42 Cal.Rptr. 169, 398 P.2d 361]; People v. Stewart, ante, pp. 571, 576-581 [43 Cal.Rptr. 201, 400 P.2d 97]; People v. Lilliock, ante, pp. 618, 621 [43 Cal.Rptr. 699, 401 P.2d 4]; see also Clifton v. United States, 341 F.2d 649; Galarza Cruz v. Delgado, 233 F.Supp. 944; State v. Dufour, — R.I. — [206 A.2d 82, 85]; State v. Neely, — Ore. — [398 P.2d 482].) Moreover, since this case was tried before the Escobedo decision, defendant‘s failure to object to the admission of the statement and the diagram into evidence does not preclude his raising the question on appeal. (People v. Hillery, ante, pp. 692, 711 [44 Cal.Rptr. 30, 401 P.2d 382] and cases cited.)
It is contended, however, that since defendant took the stand and testified to committing the same acts he confessed to committing in his statement, we should make an exception to the rule that the erroneous admission of a confession into evidence is necessarily prejudicial. (See People v. Dorado, ante, pp. 338, 356-357; People v. Stewart, ante, pp. 571, 581.) When defendant testified, however, the only substantial evidence that had been introduced connecting him with the crime was his statement and diagram. His testimony was therefore impelled by the erroneous admission of that evidence and cannot be segregated therefrom to sustain the judgment. (People v. Dixon, 46 Cal.2d 456, 458 [296 P.2d 557]; People v. Ibarra, 60 Cal.2d 460, 463 [34 Cal.Rptr. 863, 386 P.2d 487]; see also People v. Mickelson, 59 Cal.2d 448, 449 [30 Cal.Rptr. 18, 380 P.2d 658].)
Moreover, defendant‘s testimony at the trial was substantially less incriminating than his confession to the officers. Defendant testified that he did not lie in wait to harm his victim or his wife but only intended to scare or talk to them and that he decided to hit Marion with the rock only after she appeared alone and recognized him. If believed, this testimony would have supported a finding of second rather than first degree murder, and to rebut it the prosecution relied on evidence of premeditation contained in defendant‘s statement. In questioning defendant the officers were careful to probe for such evidence,1 and in his argument to the jury
the prosecutor stressed its importance to show that the killing was premeditated. He pointed out that “Down at the police station before he talked to a lawyer, before he had time to learn about the differences in penalties between different degrees of murder, manslaughter, he was relatively frank with the police and he said a number of things, which I think should help us figure out—help us to confirm in our opinions the fact that he had planned this, the fact that he had been thinking about it for some time. ... So he admits to the police before he had acquired sophistication of learning that murder isn‘t just murder, it is of varying degrees and varying types and varying punishments, back then he admits that he began thinking of getting rid of Dorothy and Marion, way back at 7:00 o‘clock. ...”
Even if we assume that in some cases a testimonial confession can make harmless the erroneous admission of an extrajudicial confession, defendant‘s testimony in this case did not do so. His testimony was not only impelled by the erroneous admission of the extrajudicial confession, but would have supported a verdict of second degree murder. The erroneously admitted confession rebutted his defense that he was guilty of no more than second degree murder. Whether or not its admission into evidence was necessarily prejudicial, it is reasonably probable that had it been excluded, a result more favorable to defendant would have been reached. Accordingly, the error resulted in a miscarriage of justice. (
Other questions remain that may arise on retrial.
A motion picture film of the victim at the scene of
The notes that convinced defendant of the homosexuality of his wife and the victim were written in three high school notebooks. Defendant contends that the notebooks should have been admitted in their entirety. Defendant testified that he learned of the girls’ homosexual relationship by reading the entire notebooks. Upon request of the prosecution, defendant marked the passages that indicated such a relationship to him. The defense was allowed to read these passages to the jury; some 16 passages from various notes were read, and most were reread by defense counsel in his closing argument. The trial court refused, however, to allow the notebooks to be introduced because the great bulk of the material in them was irrelevant and immaterial.
Although the passages read from the notebooks were not used as hearsay, but as circumstantial evidence of defendant‘s state of mind (see People v. Marsh, 58 Cal.2d 732, 737-740 [26 Cal.Rptr. 300, 376 P.2d 300]; 6 Wigmore, Evidence (3d ed.) § 1789; 2 id., § 740), these passages were apparently only a small part of the three notebooks. Defendant was allowed to present whatever passages he considered relevant, and he has not shown that their probative value would be enhanced by reading the rest of the notes. There was therefore no abuse of discretion in refusing to admit the entire notebooks.
At the trial on the issue of sanity, defendant sought to establish that he was suffering from a transitory or temporary functional psychosis at the time of the killing and was insane. Two psychiatrists testified for the prosecution that defendant was sane at the time of the killing and that temporary psychoses are never functional in nature. Dr. Robert G. Kaplan, a clinical psychologist who also testified at the trial on the issue of guilt, testified for the defense that because of a temporary functional psychosis at the time of the kill-
Dr. Richard E. Worthington was also called by the defense. Dr. Worthington testified on voir dire that he obtained the degree of Doctor of Philosophy from the University of Chicago in 1940 under the Committee on Human Development, specializing in clinical psychology. Although he took the equivalent of about one year of medical school courses in physiology, neurology, and genetics, he did not attend medical school. He testified that he was “the fastest man to go through the University of Chicago“; he passed from freshman to Ph.D. in four and one-half years by taking three times the normal number of courses. He taught psychology at the University of Chicago and Cornell University, and worked as a psychologist at the Menninger Foundation for two years. He has published articles dealing with a wide range of topics within the field of psychology. He was certified by the Psychology Examining Committee of the State Board of Medical Examiners in 1958 (see
Dr. Worthington was excused by the court because of his lack of medical training. The court ruled that only a medical doctor is qualified to testify as an expert on the issue of sanity.3
A witness is qualified to testify about a matter calling for an expert opinion if his peculiar skill, training, or experience enable him to form an opinion that will be useful to the jury. (
The defense attempted to prove through two psychologists that defendant was suffering from a temporary
It does not follow that all psychologists are competent to give an expert opinion on sanity. Many practicing psychologists are not concerned with problems of abnormal psychology and are not familiar with the clinical branch of their field. A certain level of training and experience is also necessary; one with only an undergraduate interest in psychology who has since pursued other fields would certainly not be qualified to give an expert opinion. (Cf. People v. Chambers, 162 Cal.App.2d 215, 219-220 [328 P.2d 236].) Moreover, not all questions relating to legal sanity can be answered by a psychologist. (See 2 Wigmore, Evidence (3d ed.) § 555, p. 634.) The interpretation of an electroencephalogram or the physiological effect of drugs, for example, may be beyond the ken of a psychologist without medical training. Whether a psychologist qualifies as an expert on sanity in a particular case depends on the facts of that case, the questions propounded to the witness, and his peculiar qualifications.
The judgment is reversed.
Peters, J., Tobriner, J., Peek, J., Dooling, J.,* concurred.
SCHAUER, J.* Dissenting. — In my view the evidence which was properly presented to the jury amply supports the verdicts as to guilt, sanity, and penalty. It must be recognized, however, that under the present status of relevant law as developed in Escobedo v. Illinois (1964) 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], and People v. Dorado (1965) ante, p. 338 [42 Cal.Rptr. 169, 398 P.2d 361] (and made applicable ex post facto in favor of the accused and against the People), the prosecuting attorney, properly under the old law
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
The old rule looked with favor on ascertaining the truth; the new rule looks with more favor on giving the illiterate an equal opportunity with the literate to falsify to his own advantage. Thus must police and judicial skills in sorting fact from fiction be developed the more; and thus will the practiced discernment of the trial judge—and of penal boards—probably have better opportunity to correctly recognize basic character and act accordingly. The difference between honesty and cupidity should not be overlooked. Enlightened perjury—or the giving of further opportunity to present it—does not appeal to me as a basis for finding a miscarriage of justice. In the circumstances of this case I am not persuaded that the verdict and judgment work a miscarriage of justice. (See
I must also specifically dissent from the majority‘s holding that the trial court erred as a matter of law in ruling that the witness, Richard E. Worthington, Ph.D. (he had taught psychology and treated emotional disturbances) was not qualified to testify helpfully as an expert witness on any material issue of fact then before the court. A trial judge‘s discretion in this area should be well-nigh absolute. He is in a position far superior to that of any appellate court to appraise the significance of evidence. An appellate judge can merely read what a transcriber typed from what a phonographic reporter‘s notes reflect of what the reporter believed he heard. Perhaps an electronic recording device also recorded on disc or tape the sounds of the courtroom. But human reporter or electronic impression get only sounds; the attentive trial judge sees as well as hears. And as every experienced trial judge knows, that which he sees may well be more truth revealing than that which he hears.
From my reading of the record I cannot conclude that the trial judge in his handling of this case was other than fair, competent, careful, patient and sound in all material rulings, including his denial of a motion for a new trial.
For the reasons above stated I would affirm the judgment.
McComb, J., concurred.