*1 correct in their view that on this record it trial court were Hayes the service of wine and beer is shown public would contravene welfare or morals. restaurant judgment is affirmed. J., Traynor, J., McComb, J., Peters, J., White, J., Gibson, O. Dooling, J., concurred. rehearing Appellant’s petition for a was denied June 1961. May 25, 1961.] 6685. In Bank. No.
[Crim. PEOPLE, Respondent, v. RAYMOND MARTY THE
HAMILTON, Appellant. *3 Defender, Pulich, Nunes, N. Public D. Chief Martin John Defender, Gasparich, Public and Chris G. Assistant Assistant Defender, Appellant. for Public Mosk, Attorney Harris, Jr., Albert W. and Stanley General, Attorneys Respondent. Deputy Smith, General, E. Arlo Marty charged Raymond Hamilton was with PETERS, J. — of The Hamilton and Lorenzo Bernard. murders Estella degree of the guilty crimes, of both fixed the him found count, penalty at and, as to each fixed the first, as murders degree crimes, made to reduce Motions were death. penalty imposed, for a new to reduce the trial. Defendant appeals judgment denying from the orders his several motions. prosecution conflicting. produced
The evidence is sub- killings stantial evidence show that the were of the first pre- degree “wilful, in that either were deliberate, (Pen. Code, 189), meditated” per- or were committed in the § petration burglary. of a On the other hand the defendant produced evidence to the effect did not enter the house where the two victims were killed intent to commit a felony, killings and that were, most, second degree. is, It therefore, necessary any to determine whether errors were during so, trial, and, committed if whether prejudicial. opinion errors were It is our trial court erroneously admitted, objection, over certain evidence, and that those deprived errors so serious as to have guaranteed the fair trial by to him the Constitu- They were, prejudicial. tion. therefore, Estella Hamilton and the defendant met and married marriage 1950. The stable, being was not characterized periods separation alternate the including and reconciliation. Prior to marriage defendant had been convicted several felonies, grand robbery, theft, theft, car possession of a weapon by a prison. felon in the 1950, state In while on parole, Shortly he married Estella. thereafter he was returned to prison parole aas violator and remained there until June of Upon 1954. Berkeley release he lived with Estella her mother for about three months, when Estella left and went to Texas. Berkeley She returned to in February of 1955. In December of January 1954 or of 1955, defendant had met Yerna Baldwin and had commenced to live with her. After return, Estella’s they she and the defendant met frequently, but together. did not live In March Estella went to Texas, and did not August return until September of that year. same The Hamiltons then divorce, decided on a obtained Texas grounds default on cruelty January 1956. Their child was born in Texas after the divorce. *4 When Berkeley Estella September returned to in 1956,
she and began the defendant seeing again. each other Estella again pregnant by became him, but this prematurely child was born April and in died of 1957. In October of 1957 defendant prison was returned to for violation of parole and remained frequently prison in he was visited months. for 11 While there prison authorities represented herself to by Estella who attempted Following release, the two wife. as defendant's go it,” they make a and “couldn’t a reconciliation Thereafter, he went 1958. in left Estella October defendant Estella. again but continued to see Baldwin with Verna to live he and During general period defendant testified this paid to her arguments attentions over Estella had had several arrested by defendant was man. On one such occasion another an got into disturbing peace and Estella after he for of herself with picture him a altercation when she showed other man. disputes During period several this same defendant had May prior He
with Lorenzo Bernard. testified company, Estella in Bernard’s occasions, on several he had seen argument Bernard had an with occasion, and on one such had scantily in her home when he found Estella and Bernard presence in the of the child. On another occasion de- dressed although present, visited Estella Bernard was fendant go accepted, with him. her to to San Francisco She invited they “got sentimental,” kind of and went to a hotel and home, relations. then took her back to her had sexual He where waiting. day, April 22, The next Bernard was defendant met Berkeley ap- at the Health Clinic where an Estella she had prolonged irregular vaginal pointment in connection with bleeding long which she for a had suffered time. On May Highland Hospital 5th, 4th or visited her before surgery. time, according she underwent fendant, At that to the de- charged him informed that she had been carrying pistol purse. Berkeley concealed her April 30, 1959. testified offensewas committed Defendant help telling Berkeley her him to authori- she asked they argument, thereby giving had her a had ties weapon. carrying the reason Early May 1959, defendant involved another with Lorenzo at the California altercation Bernard Hotel previously given money Berkeley. He that he testified had pay to a bail whom Bernard was Bernard to bondsman at the employed. He met Bernard hotel took ride with during dispute money. him had about the De- “something pulled out like fendant testified that Bernard got out of car went back to knife,” and defendant apologized in later, the hotel. When Bernard came *5 “just get my way.” to him and said out o£ Bernard He had pulled knife A friend of hand. the defendant shop. adjoining defendant into an coffee Shortly thereafter Berkeley, the defendant left and on May 18th Angeles. arrived at the home of his sister Los May 19th, telephone On he received call Verna Baldwin. Inspector She informed him that Bishop Berkeley Police Department apartment been had to her and had told her he wanted the to Berkeley defendant be in Municipal Court May on in regard gun 22nd to Estella’s May incident. On 20th, telephoned place defendant at her employ- Estella Berkeley. ment in Estella told him that she him to wanted Tie in might sentenced; court when she was that she was afraid that she jail go charge to on have to unless the defendant appearance; an made and that she would meet him that evening Berkeley. at her home in agreed defendant to be p. there. He arrived San Francisco about 8 m. and drove to people with some airport. Oakland he had met at the From apartment he Oakland where and Verna Baldwin had living, been he called Estella at her home and told her that delayed. he had been told him She to come to house, not to be “too late.” Defendant walked a considerable dis- tance working to where Verna Baldwin get order to he buying. automobile and she were He asked Verna if she come out could to Estella’s house with him and act as a wit- ness, get duty. but Verna could not off difficulty He testified that in getting he had start, the ear to stopped pay telephone and that at a he booth and called again. Estella changed. Estella’s attitude had She told him should have been he there earlier and that “it nowas him sense for to come” at that late Defendant, hour. however, go decided to to Estella’s house in get order to the matter “straightened out once and for all.” From the tone of Es- tella’s conversation the defendant believed prob- that Bernard ably house, was at the might and that there be trouble. He stated that he determined take a witness with him to “keep ” apartment down confusion. He drove to the of Miss Letha Sheppard. She testified that when the defendant arrived he appear upset did not to be or excited. He told her that he wanted talk with possibly Mrs. Hamilton and induce her Sheppard’s to come back to Miss house with them. He asked Sheppard go Miss to with him to Estella’s and also asked her to induce talk to making them inquiries about the renting apartment, since Estella at that time em- Miss $40 He offered to cancel debt ployed in that business. agree, would which she did. Sheppard owed him if she stopped at Bald- way Berkeley, Verna On the automobile, he he apartment. When returned win's gun had at Sheppard a he taken some Miss showed Angeles for the house in Los time from his brother’s earlier spring safety. fixing the purpose broken avowed brought gun with Sheppard that he Miss had He told might that Bernard be out Estella’s him because feared *6 weapon if for a bluff Bernard should and he wanted the house any start trouble. the from parked the car around corner The defendant up the Sheppard Miss walked to house. He and Estella’s porch rang Estella came to the door and the doorbell. front windowpane. Sheppard Miss glass out asked and looked the open the door talk to her if she would so she could her renting side, apartment. Defendant stood to one about nothing. said Estella refused to vision, out of Estella’s and open Sheppard to contact her the next the door told Miss and porch morning. Sheppard Miss then left the and Defendant directly Sheppard walked started down the stairs. Miss and parked occurred vehicle. What thereafter was back only by and The defendant, the Estella Bernard. witnessed Sheppard that he started to follow Miss defendant states peeking the looking out front window. back, but saw Estella up the side the house went on He then walked around and porch, outside the kitchen and the back which was located kitchen door Estella He knocked the and the bedroom. At he him to the bedroom window. the window asked come to “stooped a conversation with her. told down” and had She come earlier and that now too him that he should have was explain just if she He told her that he could would late. reply did not However, him to talk to her. she and allow According to away from the window. defendant he walked upset” he because the “pretty frustrated and had made was Angeles long trip admittance, and now was refused Los go He to then decided into the he kicked the window. so stepped through gun the broken window. His and house intending anyone. to his He harm pocket. then in denied upon immediately entering the bedroom he He claims “something,” and was stunned on the head struck wearing a hat when he When He was entered. and confused. up got feet and Estella Imees, to on his saw he fell his hit single only light in house was candle the Bernard. and
burning in the bedroom. Bernard started towards him and get ran out, to the kitchen and tried to but the back door was Bernard followed him and attacked him locked. cutting pulled pointed knife, gun, with a him. He then get him Bernard, gun it at to back. He at told fired probably kitchen, Bernard in the more than once. Then he point ran back into the bedroom to near the broken window. grabbed Estella him was between and Bernard. She at his gun arm, trying pull down, it discharged, to slumped Estella again to floor. Then gun defendant fired the Bernard, ran who back into dark kitchen. De- says something dropping” fendant he heard a “knife or when Then, wanting claims, Bernard ran back. he to take Estella put he her out hospital, head the broken window, but get slipping kept she back. In order to out the window him- cutting clothes, self without body. Remembering his he rested knee on his her halfway hat after his he was out the window, looking he came back in the bedroom it. He did it, picked not find but did see a knife which he up, possession Going was later his when he was arrested. out- house, again side over body, attempted Estella’s he trying pull out from the outside. He was lift hung up her but “she was on the window.” There was a lot of He blood. became ran. scared and He claims put gun pulled porch head on back trigger, nothing happened. He ran car back to the where *7 Sheppard waiting. Letha was Sheppard up Miss testified that when defendant ran to the hysterical. appeared car he to be He stated to her that he broad,” accident, “had to shoot the but that it was guy jumped the had also “shot too because he me.” Defend- manner, got ant in fast drove a and erratic and Letha out Freeway of car on the Nimitz in while the vehicle was motion. drove to Defendant then Lodi and from there apprehended he day. Stockton where was next
Certain other evidence was in regard introduced to the Joseph commission of homicides. Mr. Labarile testified adjoining in a on he lived house property situated about evening 15 feet from May Estella’s house. On the of 20th p. breaking at glass about :30 m. he heard the of followed immediately by shot, pause almost one then a when he heard scream, a woman then succession of shots. Mr. Clarence Burkes testified that also he next door lived night to Estella. shooting On of the what heard first breaking like glass sounded rapid o£ and then three shots in gave succession. conflicting Mr. Burkes testimony as elapsed breaking time glass between the and the firing finally of the last shot but testified that the interval about four was and one-half seconds. police The officerswho arrived scene after the shoot- ing found the doors to the body house locked. The of Estella lying
was on the bedroom deep window with a laceration lights across her neck. The electric were off in house, but burning candle in was the bedroom. Lorenzo Bernard was lying on the kitchen floor near the door to the bedroom. He only pair was in a appeared clad of shorts, and to be wounded. spots There parts were blood various of the bedroom and glass kitchen, and there was broken in the bedroom, as well as outside the expended casings window. Four were found in the kitchen, just one the bedroom and one outside the bedroom window. autopsy surgeon The testified that the cause of death of gunshot Lorenzo Bernard was pelvis. wound He also gunshot had right wound his back close to the shoulder autopsy surgeon blade. The also testified the cause of gunshot Estella’s death awas combination of a wound and the laceration of her neck. After the rested, defense had the prosecution, over defense objections, introduced numerous declarations claimed to have many been Estella to persons, made most whom were officials, law enforcement to the effect that not was she afraid that he had threatened her with death many occasions, had beaten her and had forced his at- against tentions on her her will. These declarations dealt past conduct, part is, past for the most pleted with with com- simply acts, and not were threats as to future conduct. many Moreover, of them related to defendant’s “state hearsay mind” rather than to that Estella. But all of these to show the “state declarations were admitted mind” proving Estella, purpose not for the the truth of charges. judge trial that “state of ruled mind” was in put testimony the defendant had issue issue because friendly, Estella were and that she had that he and invited night him to her home the she killed. These declara- ostensibly admitted, to show that Estella was tions friendly defendant, that her “state of mind” *8 testimony. to cast doubt defendant's as judge that such declarations were After trial had ruled
admissible, then, carefully thereafter, he and several times being pointed jury out to the that the evidence was admitted showing purpose for the state of limited the declarant’s jury any mind, and it for other that the to consider purpose. jury In again the instructions to the the court re- principles. stated these pointed that, prosecution It should also be out after the had evidence, permitted offered testify the trial to court many of the in events described the declarations had, in fact, not occurred. argues spite
Defendant in of the iteration and reitera- judge purpose tion the trial of the limited limiting admitted, evidence was and the instructions to that effect, prejudicial error, error, it was to have admitted because, asserts, this evidence. This is so it was an im- possible separate mental feat for the “state of mind” charges. many the truth of the Because of these declara- past part tions dealt with claimed conduct on deceased, defendant, asserted, placed so it is impossible position attempting show Estella’s declarations did not reflect her only by true state of mind. This he could do offering testimony to rebut the truth of the assertions made falsity in such declarations. the truth or Thus of the asserted inevitably facts placed contained such declarations was agree issue. We opinion these contentions. We are of the declarations, past as insofar referred conduct defendant, they purported and insofar as to reflect defend- ant’s, mind, rather than Estella’s were state inadmissible. opinion We are also of the that, even as to those few declara- admissible, tions that were the trial court abused its discretion permitting prosecution to introduce cumulative testimony of nine witnesses on this issue. to the content of the declarations will be reference A brief (the testimony from this résumé actual will be seen helpful. As pages transcript), sepa- of the nine matter covers on this law enforcement officials, most of them witnesses, rate length hearsay testify at detail as to these permitted to this evidence was cumulative. Much of declarations. Berkeley Bishop police certain Inspector of the identified diary kept and found in her Estella bedroom pages diary pages were then read to her Those after death. prosecutor. are jury by The dates of those entries May 20, The entries was killed on 1959. important. prior May jury all in the month 20th. were made read *9 May April 22, 6, and 21, were read as of Entries diary April 21, the that Ham- date of states jury. Under open that at she refused to house; first ilton came to Estella’s money for then offered her some their child door; that he “grabbed me, opened door; that he then forced and she ’’ my way friends, and took me to Francisco. in, his ran off San diary that Hamilton met April states Under date out of a officeand “forced me to her when she came get doctor’s house, put car, in took me to a friend’s threatened to his him, my accept slapped me, and arm, forced me to needle family, much kill me then cried and said how threatened to and diary May states that while he loved me.” As of 6th the surgery hospital being prepared Ham- Estella was for way was ilton in to the room and told her that he forced his “going my stepfather, kill Mr. Bernard. everyone, mother, easy He told me how be to kill me and be China would police before the would catch him.” diary with It should that all of entries dealt be noted these past part relevant Hamilton, conduct on the and were mainly as to that state of mind of rather than defendant those statements, Estella. of these as well as most of Some charged below, after had been referred were made Estella probation. illegally seeking carrying gun, with and was any safe- reasonable Under guards circumstances there were reliability for such probable that tended to show and, as will They trustworthiness, statements. are doubtful should have pointed reasons later, be out for that and other been excluded.
Inspector Bishop also testified certain conversations had with in 1958 and 1959. The officer Estella stated that police keeping help away for defendant asked continually coming her, that was and stated defendant to her against forcing wishes “and himself on house her her sexu- “ ally” bodily harm, with and would threaten her [s]he very stated that she was much afraid” defendant “because ’’ probably kill her. The officer also he would testified that she again bodily that “had threatened her with said harm, Again, was afraid of him.” was and she “She asked explained carrying gun that she had been because she life, Ray of her that Hamilton kill fear would her if he saw her. . . went on to the street . She relate whole forcing troubles of series of incidents and himself into forcing go allegedly her him the house and to with at knife- point to San Francisco. ...” Whaley Berkeley police April
Elda testified that on 30, 1959, had a Estella, she conversation that Estella bleeding vaginally had days; told her that she had been for 32 responsible bleeding, defendant “was when he repeatedly unexpectedly called at her home and at that time would beat her with his fist in the abdomen. . . . She said kill her, he had threatened to she knew he would her, kill carrying gun.” and that was the she reason Berkeley Herbert Rounds, police, also of the testified that very in 1958 Estella told him that she “was much afraid Raymond her ex-husband Hamilton. She said that he had day night called her at all times he had threatened to kill her.” *10 of Estella, Fanny Smith, permitted mother was
testify daughter as to various conversations with her in which “many” Estella stated that defendant times had threatened her; May that on 13th Estella hospital told her at the her, had to kill mother, threatened her her mother’s baby. husband and the supposed Estella is also to have told her mother hospital that while she inwas defendant created disturbance, got into ruse, “punched her room a her telling in the stomach” her that “he could kill her then and ’’ anybody could be China before happened. knew what had phoned On another occasion Estella her asked mother baby to take care of the going because she was to San Francisco stay Raymond “because wants kill me.” On that oc- arrangements casion Estella made to meet her mother at a hamburger certain stand, and told her “I had to flee the Ray house. came over pushed and raise sand with me, me around, my arm everything twisted got ... he mad. And boxing he started go me around. And then he left to get gun, coming said he was back to kill me.” Estella also staying said she was afraid of in her own home because of her Hamilton; fear of night that on one Hamilton forced car, her into his drove her to San Francisco and tried to hypodermic secure from friends a needle; that he told “her going that he was a tramp to make if her, it was the last thing he did. . . . he forced her ... to have an inter- [Then] course with him in car”; kept she her shades down because Hamilton; of fear of and that she “told me that Raymond her; struck arm; he twisted her knocked [Hamilton] put her over on pillow the bed and over her head and was trying to smother her.” Dutton, deputy
David attorney district .a testified that explanation why carrying gun Estella was just “she carrying gun was purse stated she around her Ray going because she was afraid that to kill her and supposed that ing knew wasn’t she she to do it, carry- but she was thought it around because she she had to.” Dutton also said that Estella had told him about the San Francisco inci- go dent “where he had forced her to to a hotel or a motel and stay sleep him, and that he had threatened her with bodily harm.” Benjamin Major
Dr. testified that Estella told him that Hamilton “had made threats make trouble for her. I ... am not sure that these regarding bodily were threats harm, but that regarding making threats trouble for her any rate.”
Officer Howard Smith testified that in February 1959, Estella told him that defendant had tried to way force his apartment into her and removed a record player, and also that he taken had some of clothing. her Officer Claude Glenn in February testified of 1959 Estella had told him “that her past husband had made against threats her life” him and also told that defendant thought, going “she to kill her, that she feared for her safety. ...” Attorney A. T. Jackson “Well, testified she me, told I eight imagine, or ten times that he had threatened to take ’’ her life. The cumulative testimony effect of was to tell the mainly repeatedly, through the mouths of law enforcement officers,that on innumerable occasions defendant had beaten *11 sexually assaulted his former wife and had threatened to kill her. Most of this testimony, opinion, our was inad- missible. Undoubtedly, proper in a case, and a proper ’’ testimony manner, as to the state of mind of the declarant, ‘‘ where there is an admissible, issue the ease is testimony when such refers threats as future conduct on part accused, of the where such declarations are shown indicating they to have been made under circumstances reasonably trustworthy, are primarily when show then state of mind the declarant and not the state of mind rigid the accused. But are and there should be testimony. limitations on the admission of such One of these testimony limitations is that such is not admissible if it refers 894 solely alleged past part conduct on the of the accused. This is so try separate because to state of mind from the truth charges of the impossible is an almost task. The serious
prejudice from such evidence is obvious. When the declarations are of obviously such a nature as to be prejudicial, any possible proper and where prosecution benefit is outweighed far prejudicial its effect to the accused, such evidence should be excluded. As was said in Estate Ander son, 700, 185 Cal. 407], just 719 P. reference to [198 declarations: circumstances, “Under such where the true evi dentiary bearing of slight the evidence is best and remote, yet very evidence is of a nature such as to make it prejudicial party against whom it is offered, the evidence ” should be excluded.
This court has declared that “under certain circum stances prove declarations are admissible to a state of mind particular at a although time uttered before or that time, after apparently theory on the particular that under these circum stances enough stream continuity consciousness has ‘[t]he may expect so we to find the same characteristics for ” up [Citing some distance or down the current.’ authorities.] (People Coupe, v. One 1948 Chevrolet Conv. 613, 45 Cal.2d 538, 621 ; P.2d 55 A.L.R.2d Watenpaugh and see [290 1272] v. System, State Teachers’ Retirement 51 675, Cal.2d 679 165].) P.2d [336 permitting This rule such declarations ap- to be admitted parently originated in the Kinnaird, ease of Aveson v. Ld. Eng. Rep. 188, 195, 1258, (K.B. 6 East 102 1261 1805), Ellenborough where Lord held statements of the decla- part rant’s then condition of health were admissible as (See gestae. Morgan, Suggested res A Utter- Classification of (1922), ances Admissible as Res Gestae 31 Yale L.J. 233-234. But even under this limited rule eminent scholars many in the law saw the difficulties in application, its many (See proper articles scope. were written as to its discussions, Hinton, a few of these States Mind And The Of Hearsay (1934), 394; MeBaine, Rule 1 U.Chi.L.Rev. Admis- sibility Physical Declarations or Mental California of (1931), 231, 367; Condition 19 Cal.L.Rev. Hutchins and Slesinger, Observations On The Law Evidence: Some State Of 147; (1929), Mind In Issue Columb.L.Rev. Hutchins Of Slesinger, On The Law Evidence— Some Observations Of (1929), 283; Mind An Act Yale State To Prove L.J. Of — Thirty-Three Maguire, The Hillmon Case Years After
895 Progress Law, Chafee, The 709; Harv.L.Rev. (1925), 38 of 443; (1922), II Harv.L.Rev. 428, 1919-1922Evidence. 35 Exception Hearsay (1912), 26 Seligman, An To The Rule 146.) Harv.L.Rev. general principles From these discussions have several asserting
developed. directly that, isOne while declarations a part mental on the decedent existence of condition including description declarant, past and not of conduct person may condition, of a third have caused that mental they only are and should be should admitted admissible, be they where there is at least are circumstantial evidence that probably trustworthy and credible. As was said People Brust, this court in 480], v. P.2d 776, 47 Cal.2d 785 [306 quoting People Weatherford, 401, v. 27 Cal.2d 753], only such if P.2d declarations are “admissible [164 appears necessity type there be a for that of evidence and probability (V Wigmore, circumstantial of its trustworthiness p. 202, 1420). ... creates death the declarant § necessity hearsay for declarations, being resort to and the present existing those of a mind, state made in natural manner carry and not under circumstances suspicion, ” probability of (VI 1725,p. 80.) truthworthiness. Wigmore, § (See McCormick, also (1954), 268, p. 568.) Wig- Evidence § more also has stated that such declarations are admissible they when are “made at a time when there was motive to no (6 Wigmore, (3d deceive.” p. 94.) Evidence, 1940), ed. §
Certainly, some of the otherwise admissible declara tions the decedent as to her fear because (as great threats aswell declarations) mass of inadmissible were not under made circumstances indicated probably trustworthy.' They were made Estella to explain why carrying gun, she was trying and when she was escape going jail doing for so. why great
There is additional reason mass of inadmissible, these declarations were them referred to and that is that most of past acts In of the defendant. such cases agreed impossible authorities are is for the separate the state of mind of the declarant from the truth declarations, the facts contained and that reasons such declarations are inadmissible. The late correctly Professor McBaine declared the rule when stated: memory “If declarations of belief or should be received to *13 past prove a there would be not much left act, Hearsay of the generally rule, hold that such courts declarations are hearsay.” Admissibility (McBaine, inadmissible in California Physical or Mental Declarations Condition (1931), 19 of of 367, p. Shepard 231, 370. Cal.L.Rev. And see v. United States, 96, 22, 196]; 290 106 S.Ct. U.S. 78 L.Ed. McCor [54 268, p. (1954), mick, 568; Evidence and Uniform of Rules § Evidence, (12).) 63 rule permitting
The reasons for the rule not such declara to tions be admitted are well illustrated prosecutor the instant ease. By these declarations the able jury, was to tell the mainly through of officials, mouths law enforcement that brutally innumerable defendant had beaten occasions ex-wife, very way and otherwise assaulted her. In subtle jury it told the man that what kind of it was was before them say, attorney on trial. It will not do to as general, does jury that the was told that these declarations were not to be merely considered for their truthfulness but as verbal acts casting light upon Estella’s state mind. is difficult It psychoanalyst that believe even the trained mind of could departmentalize sufficiently obey thus itself the mandate limiting of the Certainly laya instruction.1 mind could not do It be theory upon so. must remembered that the such evidence is that admitted is the declarations are evidence of the real state mind declarant. The state of mind (fear defendant) only reasonably exist, could when based accused, not on threats but on conduct of the when the declara description contain a causing tions of of the conduct that state In mind. other words, such cases it must be inferred only that the declarant had this mental state fear because of the truthfulness of the contained in the asser statements present ease, inevitably In tion. must if it follow that jury believed that life, Estella was fear of her it was because defendant had fact beaten otherwise assaulted Logically, impossible prejudicial her. it is to limit the inflammatory type hearsay effect evidence. conjectural. They These conclusions are not have been rec- by ognized courts, including Supreme several the United States leading Shepard States, In the supra, Court. case of v. United 290 U.S. there had been the declaration of admitted Shepard deceased made about month before she died: “Dr. clearly always recognized 1That such instructions are not effective Brett, 252, pp. 251]; this court in Adkins v. 184 Cal. 258-259 P. [193 Wigmore, (3d 1940), 13, p. see also Evidence ed. section 302. poisoned It has me.” is to be noted that this is a statement past Cardozo, speaking about court, transaction. Justice for the that, facts, first held under the the declaration was not dying declaration, admissible as a then discussed the question mind,” of whether admissible to show “state of as had been held the circuit court. It was contended “state of mind” atwas issue because defendant had introduced declarations the deceased that the deceased had contem- plated legal presented Thus suicide. situation is identical here challenged involved. The court that the held declaration was not admissible to show “state of mind.” In holding particularly language applicable so the court used (p. 104) say the instant case “It will not : do that the any might accept light upon the declarations for cast reject urge, of a the existence vital them to the extent they charged the one death to some else. Discrimination so *14 beyond compass ordinary subtle is a feat the of minds. The reverberating clang accusatory of those words would drown ordinary all It for minds, weaker sounds. is for not psychoanalysts, our rules of evidence are framed. . . . great the risk of upset When of confusion is so toas the balance advantage, goes the evidence out.” Justice then Cardozo pointed out instances in which “state of mind” declarations may admissible, (pp. 105-106) be and stated : “Declarations of light intention, casting upon future, sharply the have been distinguished memory, from of pointing declarations back- past. wards end, nearly to the There an that, would be against hearsajr the rule if ignored. the distinction were testimony questioned “The now faced backward and not This at least in implications. forward. it did its most obvious spoke past is a important, act, What even more it and more that, speaker. than an act some not one the Other tend- ency, if any, it had a disentangled filament too fine to be ’’2 by jury. authority are not without in We In People this state. v. Talle, Cal.App.2d 111 633], 650 P.2d the District Court [245 last-quoted particularly applicable many 2Those comments are to the brutality acts of which the witnesses testified Estella had declared de past fendant had committed. As to of these declarations conduct the part possible theory of is there no under which exception hearsay admissible as an to the rule. These declarations total People over half of those admitted. As was said this court v. Perkins, 631], admissible, especially 8 Cal.2d 517 P.2d to be [66 self-serving, when such declarations not must “a of a be mere narration ’’ past transaction. damaging nearly as not Appeal speaking of declarations of ‘1 here, 670-671) (pp. : Here was voice those as slated brutality acts grave charging appellant past the against charging had made threats cruelty, that he How could the situation here [Precisely wife’s life. involved.] disentangle charges in jury possibly that letter forget mind, of state of as evidence treat letter charges? How could defend about substance ant meet such a situation? He could cross-examine self-serving lips Here deceased. Her were sealed. purpose a partisan against prepared statement ****8 powerless It will not do to the accused was to defend.3 showing say purpose it limited -wasadmitted for the and, erroneously if ad even deceased, state of mind of prejudicial. admissible, be when mitted, be To even could not is issue . . . the must be made under state mind statement reasonably make certain it was not so as to it circumstances plan partisan premeditated to accuse. the result Supreme Court and the District Court The United States speaking of the How Appeal been instant case. could have ‘ ‘reverberating clang” of these jury this avoid the could disentangle grave? How state from the could accusations ? The answer is that of mind from the truth accusations impossible mental feat. is attorney prosecuting that the
Certainly, the record shows separate from the truth of the state of mind was unable to opening to the charges. shows that in his statement The record expected stating prosecuting what he jury attorney, looking be for a motive prove, that the would stated actions motive could be found defendant’s and during during this marriage decedent; and after his against had made threats the life of Estella “defendant period *15 they These they and after were were married divorced. while they just numerous two; not one or occurred threats were one that she of him. ... At became afraid times to the extent forcibly company place at her he had some ... time while she diary many of the be said of one of the entries and 3The same can already pointed out, many at As were made other declarations. charged carrying gun and at when had been time a time when she was Certainly the deceased trying justification to some for this act. establish self-serving statements. (1954), 268, p. 568, 4McCormick, ad Evidence states that to be § ‘ ‘ indicating must under circumstances missible declarations be made ’’ apparent sincerity. go stay home, her to to entered her forced San Francisco overnight. with him ... place place keep also about from to "... She moved away defendant, always the from he’d find out where she . was. . . stop coming the did not over to "... This hospital going she place, operated
her also when was death, met on a while before she her which time he short punch effect, that told words to the he could her the her, operation punch had is where the her in stomach—that she — nobody anything kill the stomach and her and would know about it. questioned concerning vaginal bleeding. was this "... She why explained that At ing vaginally time she the reason she was bleed- beatings torso, was because the about the as it, stomach, by
we
call
that were
would
administered
the defendant.”
only
"evidence” of these
facts
was introduced
during
solely
prove
the trial was the declarations offered
certainly
of mind.”
"state
opening
We must
assume that when this
prosecutor
made
only
statement was
knew that the
prove
he
"evidence”
had to
these facts ivas these declara-
prosecutor
tions. We must also assume that the
knew that such
being
far
declarations, as
as
evidence
the truth of the
charges
concerned,
hearsay
was
were inadmissible
and could
only
introduced,
all,
be
if at
on the issue of the then "state
’’
of the
Moreover,
mind
decedent.
until the defendant took
friendly
the stand and
that he
testified
was
with Estella and
by
night
had been invited
her
her
homicides,
home the
prosecutor
did not know that
might
"state
mind”
be-
Certainly,
come an issue
the case.
we should not assume
prosecutor
deliberately acting
that the
he
If
bad faith.
were,
it would be
serious error. It is much
chari-
more
indulge
table to
that the
other
possible,
inference
that is
prosecutor
acting
good
faith because he could
separate in
charges
his
the truth
mind
from the
mind” of the
If
legal
"state of
of
decedent.
mind
trained
prosecutor
limit
could not
the declarations to the limited
purpose
how
law,
accomplish
allowed
was the
impossible
gymnastics ?
almost
bit of mental
prosecuting attorney
That the
to be
con-
charitable,
was,
significance
fused as to
these declarations is also dem-
closing argument. Again
again
onstrated
asserted that
he
proved
had
truth
the matters as-
*16
deceased,
knew
when he
serted
the declarations
them-
the declarations
of them was
only “evidence”
that the
vaginal bleeding
again
the
jury
about
the
He told
selves.
by “the
was caused
of the decedent
this belief
’’
from the
had
defendant.
beatings that she
received
repeated
bleeding,
again
vaginal
and stated:
to the
then referred
He
along and beat me about
abdomen
came
“If someone
expectorated
I
blood and I reached
or another
for some reason
this
that I am
stated, rather,
I
blood
or
the conclusion
beating, am I unreasonable about
is
expectorating
due
accusatory
prosecutor
declarations
Then the
read
it?”
depicted
they correctly
argued that
diary,
contained
days.
vigorously
Defense counsel
happened on those
what had
mind,
to state of
not as
trial
said: “As
objected and the
court
truly happened
arguing now what
on
are
the truth. You
I
a fine
happened there.
admit
is
distinc-
April
is what
21st
stating
rephrase
prosecutor
his statement
tried
tion.” The
’
‘1
’
Later he
the fears of the decedent.
to show
that he wanted
paranoidic
justified?
they
“Now,
her fears
Were
were
stated:
upset
?
emotional,
they thoughts of
woman Or
? Were
[sic]
Were
foundation to them?
that had some
threats
were
’’?
they well-founded
type
Either the
again
of error occurred.
Again and
deliberately flaunting
limita-
attorney
prosecuting
deliberately
by
placed
the court
the evidence
tions
trying
truth of the threats and
jury of the
convince the
actually occurred,
it im-
brutality had
or he found
that the
required
indulge in
mental maneuvers
possible
error,
error
either event it was
limiting
In
instruction.
nature.
most serious
of a
prejudicial? There is undoubt
errors
Were these
very
evidence, that defendant
edly
substantial
evidence, and
premedi
did so with malice and
two
killed the
victims,
story
believed,
hand, if
were
defendant’s
the other
tation. On
killings
of a lesser
that the
erroneously
have found
could
not the
admitted declarations
degree. Whether
possibly know.
something we cannot
balance is
tipped the
reasonably possible
erroneously ad
that the
it is
Certainly,
may
tipped
and could
the scales
have
mitted declarations
the defendant
against
such circumstances
defendant. Under
This
the fair trial to which he was entitled.
has been denied
being
judgments and orders must be reversed.
so, retrial,
mention
court on the
some
the benefit of the
For
given
trial court
the instructions
be made of
should
“
”
felony-murder
Defendant contends that
on the
doctrine.
challenged
instruction was the conven-
this was error.
substance,
jury,
prosecu-
that the
tional one
told the
*17
theory
proceeding
killings
tion,
on the
that the
in addition to
they
degree
wilful,
because
were
were of the first
deliberate
proceeding
premise
on
premeditated, was
the
that
the
and
degree
by
killings
of the first
because
committed
the
perpetration
attempt
perpetrate
in
the
a
explained
burglary.
by the
burglary,
judge,
as
trial
con-
dwelling
entering a
of
with the intent to commit
sisted
felony
namely
therein,
deadly weapon.
an assault with a
Defendant contends that
the instruction on the
1‘
’’
felony-murder
felony
doctrine was error because the
ele
burglary
integral ingredient
an
ment of the
of the homi
urged
cide itself. It is
that to
an ingredient
thus utilize
burglary
homicide
the
to find the elements of a
so that the
automatically
can be
application
homicide
converted
of the
“felony-murder”
into
doctrine
murder of
degree,
the first
is
“bootstrapping”
arrangement which the defendant contends
was never
Legislature.
intended
support
In
of his
urges
where,
contention defendant
felony
here,
as
(burglary)
itself
from the
results
very
existence
intent
necessary to
homicide,
establish the
that the element of causa
necessary
application
tion
of the doctrine is
present.
not
theory
It is the
of the defendant that
“felony-murder”
applied
rule should
independent felony
be
felony
when the
involved is an
integral
an
part
and not
of a homicide
plan.
independent
While it is true that
felony
this
test has
apparently
adopted
been
(People
in
York
New
v. Huter,
6],
184 N.Y.
N.E.
237
that a
and
argument
[77
reasonable
can be made
such
should be the rule, it is not the rule
applied
that has
very
been
early
California. At
date this
adopted
state
the rule set forth in
(People
the instructions
Miller,
v.
121 Cal.
816]).
343
P.
In a case
[53
somewhat
similar to
recently
the one here this court
reexamined and re
(People
affirmed the doctrine
Mason,
v.
Gibson, J., C. WHITE, J.—I dissent. majority opinion concedes, I this case as
As read the “Undoubtedly, proper in a stated, case, therein testimony proper manner, of the ‘state of of the de- mind’ admissible, clarant, case where is issue is testimony only when to threats as to con- such refers future part accused, duct where such declarations are indicating shown to have been made under circumstances they reasonably trustworthy, are when show primarily not the then state mind declarant and state of mind of the rigid there are should be accused. But testimony. on the limitations admission One testimony these limitations is that such it is admissible if solely alleged past part on the refers conduct *18 (Emphasis added.) accused.” sought to absolve himself of case defendant instant the In that he went to Estella’s home contention prosecution’s the testimony by appoint- that he had an intent an evil by home, at her Estella, to see her ment, solicited mind,” Thus, of there. Estella’s “state for his visit accounted put in the defendant was issue toward is, her attitude that Manifestly, of if she was in fear the de- by the defendant. be would thus cast on the doubt defendant’s serious fendant home, him to her evidence of had invited story that she admitting purpose of such evidence is to If the fears. those as where, of mind” of declarant in the “state show the concededly ease, an issue in the then I ease, was it instant why declarations of threats to do understand at a loss to am regarded prejudicial than be as less should violence future surely purpose if the alleged past And of conduct. narration testimony achieved, to be admitting of mind” is “state of a mind as instant state of fear of ease, as in the then by past of engendered brutality, actions could be promised of probably than unexecuted threats fu- more so Complaint majority in the is made harm to the declarant. ture testimony past more of conduct tends to estab- opinion that of than of the of the accused rather de- the state mind lish applicable be as not such conclusion Would clarant. prior of ? violence as to executed acts violence threats of future appear to be distinction without This would difference. may agree that of this character I evidence be excluded if the legally irrelevant court determines that is as its value outweighed by policy lapse prejudice, considerations undue surprise. majority opinion of time or seems to hold that highly prejudicial here so outweighed evidence that it any probative value and have been should excluded. I feel primarily that these are matters addressed to the sound dis- majority completely cretion of the trial court. The would providing testimony emasculate rule for “state of mind” unless refers to as threats to future conduct on part accused, thereby withholding of the from the trier of facts past materially evidence conduct which would aid the ar- in determining biter of facts whether the declarant was ac- tually in fear am apprehensive accused. I lest such against rule would militate proper convictions murder in cases. In the engaging attention, admittedly case now our the court throughout carefully the trial pointed out to the being purpose evidence was for the admitted limited showing the deceased’s state of mind and were to con- purpose only. sider it for that judge one occasion the On trial testimony stated: prove “Such is not admissible to that such threats or you acts of violence did occur are con- proof sider it as appreciate truth thereof. Now I very ais concept, testimony difficult along this line, may whatever it be, by you proof is not to taken be as things actually
those simply It did occur. throws whatever light you may put want it as to the frame of mind Ray Hamilton towards the defendant Hamilton.” judge another occasion the trial On stated: “I think the regardless Jury right wrong of who understands altercations, in very would make these no difference. This ais purpose to
limited show the state mind of Estella to- defendant, Ray Regardless Hamilton. ward That’s all. *19 right wrong or may of who was on these differences that have existed between them.” Again jury, in the instructions to the the court stated: “Testimony by any as to threats made the defendant or acts by upon of him violence the decedent, Hamilton, or Bernard, decedent,
the Lorenzo would of course be admissible given by they if witnesses who state that the heard make such threats or who saw such acts of violence committed, testimony any upon of witness which is based what such ordinarily and not admissible. hearsay, is is him, told decedent of mind of a is the state or frame decedent
However, when testimony for a relevant, is admitted limited such material purpose only, may bearing, any, if as it is, for such of showing of mind said decedent was what the state on have testimony May 20th, 1959. is ad- night not on Such the prove were uttered or such acts to that such threats missible proof it occur, you not to as did are consider of violence thereof. the truth you find from the evidence that either if should “However, to such or statements effect did make statement decedent May you prior 20th, 1959, must then also consider whether to good faith in belief was made honest such statement words, put question to the In other as to the truth thereof. conversely, statement, made ac- was the decedent who such tually such to that in fear of defendant was statement merely expression not true of the a sham and state effect of mind such decedent?” whether the value of material evidence is out-
Manifestly, a matter within weighed prejudicial its character is the trial its decision not be court, should discretion it appeal unless can be shown the court overturned substantially abused its discretion. has upon commentary intelligence To me it seems sad light constant, painstaking of the jurors, court’s specific say they admonitions, were unable to follow to obligations jurors or that in violation of their sworn as them indulge admonitions. I cannot in either cast aside such assumptions, particularly where, in this case, those as guilt beyond established defendant’s a rea- evidence sonable doubt but was thereof. demonstrative question of whether defendant went out to Since (Estella) evening one on the of the home of of his victims latter, important upon the invitation homicides, impressed jury, I am it to be determined issue that the within the court’s discretion conclude value well testimony by the proper and material inferences warranted any prejudice might outweighed re- undue have far particularly stated, as defendant, where, sulted proper gave frequent, meticulous and instructions de- court any prejudice. undue signed to eliminate improper attorney for the district I concede that was setting opening state, forth statement expected prove, that a motive be found would what *20 during defendant’s conduct toward and after his during period marriage in that this defendant made threats against fully pointed the life Estella as is more out in the majority opinion, when the evidence trial offered prove was the declarations admitted to “state of mind” deceased Estella. I am However, any satisfied prejudice regard to defendant was cured the foregoing ad- of the trial judge, monitions has resulted. and that no miscarriage justice (Cal. Const., 4%.) art. VI, § foregoing reasons, For the I judgment would affirm the denying the order defendant’s motion for a new trial. Sehauer, J., and McComb,J., concurred. Respondent’s petition for rehearing was denied June Sehauer, J., McComb, J., 1961. J., were White,
opinion petition granted. that the should be