People v. MacIocePeople v. MacIoce
Opinion
Appellant Thereza Goes Macioce stabbed her husband in the back, and thereby killed him. A jury found her guilty of murder in the second degree. (
On appeal she contends (1) that the trial court erred in denying her pretrial motion to suppress evidence obtained after a warrantless entry and search of her apartment; (2) that the prosecutor used peremptory challenges systematically to exclude women, and particularly “battered women,” from the jury; and (3) the trial court erred in finding a witness unavailable, and in allowing the former testimony of the witness to be read to the jury.
We find no error which warrants a reversal, and we therefore affirm the judgment.
I. Basic Background
Mrs. Macioce does not challenge the sufficiency of the evidence which supports her conviction. But because she claims the evidence was unlawfully obtained, we describe the circumstances leading to its discovery. 1
On the night of Tuesday, August 21, 1984, Officer Rosario was driving a police car on routine patrol in San Jose. At 10:58 p.m. two male citizens in a passing automobile flagged him down. Together the citizens related to Rosario the following information:
Both citizens belonged to the religious group known as Jehovah’s Witnesses. Appellant Macioce and her husband, Giovanni, also were members of the same organization. The Macioces, who normally attended Witness
Officer Rosario followed the citizens to the Macioce apartment, which was located on the second floor of a two-story apartment complex. Rosario noticed a large accumulation of mail in the apartment’s mailbox. He then contacted the manager of the complex, who told him that she had not seen either of the Macioces for a few days. The manager provided Rosario with a spare key to the apartment.
Rosario, the citizens, and the manager all went to the door of the apartment. Affixed to the door was a note which read, as Rosario recalled, “ T had been here, I’ll call later,’ or something to that effect.” Using the spare key Rosario unlocked a deadbolt lock and another lock in the doorknob. At this point Rosario “was just making a welfare check to make sure these people were all right.” From the information he had been given he “assumed that something wasn’t right.” When asked why he did not knock on the door or ring the doorbell, Rosario testified: “Because I felt that no one had responded to the prior knocks on the door from the other two individuals.”
Rosario opened the apartment door. There were no lights on in the apartment. With his feet outside the threshold, Rosario thrust his head through the open doorway, illuminated the interior with his flashlight, and shouted “San Jose Police Department” at least twice. While he was thus engaged he noticed a portable electric fan running in the living room. He also detected what he described as “a foul odor.” He had smelled a similar odor on previous occasions when he had encountered dead people.
No response came from within. Rosario turned on a floor lamp next to the front door and entered the apartment, which proved to have a living room, dining area, bedroom, bathroom, and kitchen. Rosario passed through the living room into the dining area, and shined his flashlight into the bedroom. He saw nothing unusual. He saw a door, which was slightly open, in a hallway. Using his flashlight he pushed the door open and
Rosario made no further search. He left the apartment, closed the front door, and told the citizens and the manager what he had found. Then, using his portable radio, he contacted his immediate supervisor, Sergeant Area. Area arrived about 10 minutes later, obtained permission from the manager to reenter the apartment, and went inside with Rosario. Rosario pointed out Giovanni’s body. Then, using the telephone in the apartment, Rosario summoned the night detectives.
Officer Ireland, one of three night detectives who responded to the call, received a telephone message at 12:16 a.m. and arrived at the Macioce apartment at 12:27 a.m. He checked the bedroom closet and a hallway closet for other bodies. In the hallway closet (which turned out to be a linen closet with shelves) he observed a bottle of rubbing alcohol with bloodstains on it. Ireland and another detective spent between 30 and 45 minutes inside the apartment, and took 17 photographs. Looking closely they observed that blood had been wiped up from an area of the kitchen floor adjacent to the body. At that point they decided a homicide had occurred, and they summoned the homicide investigators.
Officer Ronco, one of the investigators, received a call at 1:43 a.m. and arrived at the Macioce apartment at 2:05 a.m. He spent about 15 minutes inside the apartment looking around. It appeared to him that the body had been there “a day, possibly two.” Drawers in bedroom dresser had been pulled out, and miscellaneous papers were strewn on the bedroom floor. The bed was not made; the sheets and other bedding had been pulled off. There were blood spatters in the hallway. To Ronco these signs indicated a struggle had taken place. He directed his assistants to search the premises for “things that were responsible for the crime and also leading to the disappearance and possible locating Mrs. Macioce, some of the items, papers, items.”
Ronco testified that when the search began he was concerned for the safety of the missing wife. “I think what I was concerned with initially when I was there at the crime scene and several hours after that, that I was concerned for her safety, primarily. Where was she? I think I would be remiss in my job in not considering her as a suspect if she was alive. But my
Ronco left the apartment and began interviewing other tenants in the complex. He obtained no useful information. At 4:10 a.m. he interviewed one of the citizens who had flagged down Officer Rosario. The citizen told Ronco that the Macioces had been having marital difficulties, and that other Jehovah’s Witnesses had seen Mrs. Macioce alive either the previous Sunday or Monday, August 19-20. At that point Ronco began to think of the missing wife as a suspect.
Meanwhile, the searching officers took additional photographs and made notes. They seized nothing before the coroner arrived at 4:35 a.m. The coroner turned the body over, revealing a stab wound in Giovanni’s back. After the corpse had been removed the officers began a systematic seizure of evidence. Some of the evidence was in plain view, or had come into plain view in Rosario’s initial entry. For example, a checkbook and check register lay in plain view on top of a chest of drawers in the bedroom; and the bloody towels came into plain view when Rosario opened the shower doors in his search for persons. On the other hand, a pair of lady’s denim trousers with bloodstains on the knees was found inside an opaque plastic bag in the bedroom closet. The murder weapon itself, a butcher knife, was discovered almost inadvertently. The officers were attempting to photograph a bloody fingerprint on the kitchen floor, trying to get the best angle and the best lighting. One of the officers happened to glance sideways, and spotted the butcher knife (bloody and encased in plastic) under the living room sofa. 2 The search and seizures concluded at 8:18 a.m. on Wednesday, August 22, 1984.
On Sunday, August 26, before any warrant had issued for her arrest, Ronco learned that a Jehovah’s Witness had received a telephone call from Macioce, and that Macioce had said she was in New York City. Ronco then telephoned the Witness, and instructed the Witness to have Macioce call him (Ronco) at the police department. About 9:30 p.m. Ronco received a telephone call from a woman who identified herself as Thereza Macioce. Ronco described the conversation thus: “She says she was sorry in what she did referring to the murder. And that she was also confused and she sounded depressed. And then started talking about turning herself in, what she should do, asking my advice. And then I requested that she just stand by where she was at the location. She identified that location—she was at the bus terminal in New York City which comes under the Port Authority of New York. And I contacted them, subsequently, and they took her into custody.”
On September 6, 1984, Ronco flew to New York, took custody of Macioce, and returned with her to California. That evening, after being advised of her constitutional rights, Macioce gave a statement in which she admitted stabbing her husband.
II. Entry, Search, and Seizure
In superior court Macioce moved to exclude all evidence obtained as the result of the search of her apartment, including, but not limited to, police
A. The Initial Entry
Macioce first contends that Officer Rosario’s initial entry was unlawful because he did not knock on the door or ring the doorbell. In serving either an arrest or a search warrant, police officers are required (a) to knock or utilize other means reasonably calculated to give adequate notice of their presence to the occupants, (b) to identify themselves as peace officers, and (c) to explain the purpose of their demand for admittance.
(Duke
v.
Superior Court
(1969)
But strict technical compliance with “knock-notice” rules is not always required. The California Supreme Court has held: “When police procedures fail to conform to the precise demands of the [knock-notice] statute but nevertheless serve its policies we have deemed that there has been such substantial compliance that technical and, in the particular circumstances, insignificant defaults may be ignored.”
(People
v.
Peterson
(1973)
In addition there is the concept of excused noncompliance.
“Substantial compliance
with the knock and notice rule . . . is to be distinguished from
excused noncompliance.
The former can occur only when . . . there has been some attempt to comply. The latter can occur in cases wherein the
Our nation’s highest court has recognized the concept of excused noncompliance: “We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises.”
(Mincey
v.
Arizona
(1978)
With these principles in mind we examine the facts before us. The Ma~ cioces, normally regular attenders, missed a Jehovah’s Witness meeting on Sunday. Giovanni Macioce missed scheduled knee surgery on Monday. On Sunday, Monday, and Tuesday two Jehovah’s Witnesses made repeated attempts to contact the Macioces in person and by telephone, without success. The one and only Macioce automobile was parked in a carport. A large amount of mail rested in the mailbox. A note was affixed to the apartment door. About 20 minutes before they conversed with Officer Rosario, the two Jehovah’s Witnesses had knocked on the apartment door and had received no response. The Witnesses asked Rosario for assistance. The
Given that information, we think Officer Rosario’s conduct was eminently reasonable. It is true that when he unlocked the apartment door he committed a technical “breaking.”
(Sabbath
v.
United States
(1968)
Once inside Rosario looked only for persons. When he found a corpse he stopped searching, left the apartment, and summoned his superior. The extent of his search was commensurate both with his stated motive and with the exigency. “[E]ntering the premises was the only practical means of determining whether there was anyone inside in need of assistance.”
(People
v.
Hill
(1974)
We hold that Rosario’s entry and limited search were lawful.
B. Subsequent Entries And Searches
Macioce next contends that the subsequent entries and searches made by the police were unlawful because they were accomplished without a search warrant. For this proposition she relies principally upon two decisions of the United States Supreme Court, which we now pause to examine.
In
Mincey
v.
Arizona, supra,
The Arizona Supreme Court reversed the murder and assault convictions on state law grounds, but affirmed the narcotics convictions. The court did not hold that the search of Mincey’s apartment fell within any of the recognized exceptions to the warrant requirement embedded in the Fourth Amendment; instead, it held that the search of a homicide scene should be recognized as an additional exception to that requirement.
The United States Supreme Court reversed and remanded. The high court held “that the ‘murder scene exception’ created by the Arizona Supreme Court is inconsistent with the Fourth and Fourteenth Amendments—that the warrantless search of Mincey’s apartment was not constitutionally permissible simply because a homicide had recently occurred there.”
(Mincey
v.
Arizona, supra, 437
U.S. at p. 395 [
In
Thompson
v.
Louisiana
(1984)
Thompson was indicted for the second degree murder of her husband. She moved to suppress the pistol and the two notes. The trial court granted her motion as to the pistol and the suicide note. The state applied for a writ of review. A sharply divided Louisiana Supreme Court held all of the evidence seized to be admissible. The court attempted to distinguish Mincey on the grounds (a) that the search of the Thompson home had lasted only two hours, and (b) that Thompson herself had requested medical assistance.
The case before us is distinguishable from
Mincey
and
Thompson
in several particulars. First, we have no doubt that the body of Giovanni Macioce inevitably would have been discovered. The corpse was beginning to smell, and eventually would have attracted the attention of the neighbors. Ultimately the coroner would have been called by someone, and he would have been obliged by law to investigate the death. (
Second, unlike the situations in
Mincey
and
Thompson,
an exigency existed with regard to the whereabouts of Macioce herself. She was missing. The apartment appeared to have been ransacked. As Officer Ronco testified: “But my first concern was: Was she alive. Had she been abducted. Had she met with some physical threat or was she being held. And that was my first concern at that point.” Although the superior court made no express finding on credibility, it evidently believed Ronco; in its ruling on the motion to suppress evidence the court said, among other things, this: “And when they did get inside and found the husband was killed, they had every reason to believe that the wife was in serious trouble. True, statistically, she might also have been the killer, but they didn’t know that at the time. . . .
Third, we reiterate that some of the evidence seized in this case was in plain view.
Mincey
itself points up the significance: “Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. . . .
And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities.
”
(Mincey
v.
Arizona, supra,
437 U.S. at pp. 392-393 [
Fourth, we note that most of the evidence seized from the apartment was not particularly incriminating. Bloody towels were taken, and the blood proved to be consistent with that of Giovanni Macioce; but the towels themselves provided no clue as to his killer. The murder weapon and several other items were dusted for latent fingerprints; but at trial no fingerprint expert testified. Photographs taken and diagrams made of the scene constituted no more than a memorialization of what the officers observed. True enough, a pair of lady’s denim trousers was discovered with blood on the knees; but no prosecution witness testified that the trousers belonged to Macioce, or that they were her size, or that she laid claim to them. At trial Macioce claimed that she did the stabbing in self-defense, i.e., that her husband had beaten her in the past, that he threatened her with a knife and then dropped it, and that she then stabbed him because she was in fear of her life. Neither the towels, nor the murder weapon, nor the denim trousers, nor the checkbook nor register negated her claim of self-defense. Indeed, to the extent that police photographs showed evidence of a struggle, they supported Macioce’s version of the facts.
We find no error in the admission of the seized evidence at trial. But if error there was, in view of Macioce’s admissions it was harmless beyond a reasonable doubt.
(Chapman
v.
California
(1967)
C. Pretrial Statement
Macioce further contends that her pretrial statement given to the police in San Jose was the product of the unlawful entry and search of her apartment. Her argument appears to run thus: the search of the apartment was unlawful; the unlawful search produced evidence which led to her arrest; therefore the arrest itself was unlawful, and her subsequent statement likewise. We find this argument difficult to accept.
First, nothing in the record before us shows that Macioce was made aware of the search of her apartment before she gave her statement. Second, if there was any illegality in the search of the apartment, we cannot perceive how that illegality tainted the voluntary telephone call Macioce made to Officer Ronco while she was in New York. Even if we assume that Macioce suspected the police had found Giovanni’s body and had searched the apartment, we cannot believe that such suspicion prompted her to call the police. When she made that telephone call she was more than 3,000 miles away from San Jose, and could well have been on her way to Europe. The telephone call itself provided probable cause for arrest. Third, Macioce was fully advised of her constitutional rights before she gave her statement. Fourth, Macioce completely ignores the fact (which was established at trial) that when taken into custody by New York authorities she voluntarily told them “I am upset. I just killed my husband. He beat me, and I killed him.”
In
Wong Sun
v.
United States
(1963)
Wong Sun is controlling. In this case we find no connection between any alleged impropriety in the search and the statements given by Macioce. Accordingly we hold that the statements were properly admitted in evidence.
III. Jury Selection
In selecting the trial jury the prosecutor exercised six peremptory challenges and one challenge for cause. Four of the peremptory challeges, and the challenge for cause, were made to women. Out of the presence of the prospective jurors defense counsel twice objected to the prosecutor’s use of peremptory challenges to exclude women. In each instance the prosecutor was asked to explain his reasons for the peremptory challenges, and he did so. In each instance the court concluded that the reasons given were valid. The trial began with a jury composed of nine men and three women. In the course of trial one male juror was excused, and his place was taken by a female alternate. The jury which ultimately decided the case consisted of eight men and four women.
It is Macioce’s position that the prosecutor used his challenges systematically to exclude women, and particularly “battered women,” from the jury. She relies principally on
People
v.
Wheeler
(1978)
In
Wheeler
two Black men were convicted of the murder of a White man. In the course of jury selection the prosecutor used peremptory challenges to strike every Black from the jury. In reversing the judgments the California Supreme Court said this: “We conclude that the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution. This does not mean that the members of such a group are immune from peremptory challenges; individual members thereof may still be struck on grounds of specific bias, as defined herein. Nor does it mean that a party will be entitled to a petit jury that proportionately represents every group in the community: we adhere to the long-settled rule that no litigant has the right to a jury that mirrors the demographic composition of the population, or necessarily includes members of his own group, or indeed
The court defined specific bias as “a bias relating to the particular case on trial or the parties or witnesses thereto." (Id., at p. 276.) The opinion gave several examples of challenges for specific bias: “Thus, both blacks and whites may have prior arrests, both rich and poor may have been crime victims, both young and old may have relatives on the police force, both men and women may believe strongly in law and order, and members of any group whatever may alienate a party by ‘bare looks and gestures.’ ” (Ibid.)
Wheeler
did not specifically address the question of what constitutes a cognizable or identifiable class of persons. But in a later case the court, after quoting the foregoing passage from
Wheeler,
gave a clue: “Implicit in this list of examples is that persons previously arrested, crime victims, believers in law and order, etc.
are not identifiable groups whose representation is essential to a constitutional
venire.”
(People
v.
Fields
(1983)
The question of what
is
an “identifiable group” was addressed in
Rubio
v.
Superior Court
(1979)
The lead opinion in
Rubio
was followed in
People
v.
Fields, supra,
With the foregoing opinions in mind we return to the case before us. We concede, as we must, that women constitute a cognizable group.
(Taylor
v.
Louisiana
(1975)
We also reject the argument that Macioce was denied a representative cross-section of the community because “battered women” were excluded from the jury. Battered women are victims of crime, and therefore are not a cognizable group “whose representation is essential to a constitutional venire.”
(People
v.
Fields, supra,
Finally, we note that of the four women excused on peremptory challenges, only two had actually experienced domestic violence. One of the two had been beaten by her ex-husband some 15 years previously, and had contemplated killing him with a knife; the other, when a teenager, had witnessed a physical altercation between her parents that ultimately led to a dissolution of their marriage. Of the remaining two, one had seen her husband commit suicide, and in court she expressed amazement over Macioce’s age and gray hair; the other had had an unpleasant argument with the police over a traffic ticket. And one woman left on the jury had been hit in the eye by a drunken husband some years previously.
Accordingly we hold that Macioce was not denied a jury comprising a representative cross-section of the community.
At the preliminary hearing a witness named Virginia Gonzales testified for the prosecution. Gonzales was a Jehovah’s Witness, and had known Macioce for over two years. Gonzales’s testimony related principally to events that occurred on Friday, August 17, 1984, the day before Giovanni Macioce was killed. We summarize that testimony here.
On Friday morning Macioce telephoned Gonzales and said that her husband was no longer the same person, that he was seeing another woman. Gonzales drove over to the Macioce apartment. There Macioce related that her purse was missing. Her purse contained her identification card, her passport, and her credit cards, and all of her important papers; she feared that her husband Giovanni had taken them. Her keys to the apartment were also missing. She feared Giovanni might lock her out of the apartment. With a screwdriver Gonzales removed the deadbolt lock and chain lock from the apartment’s front door. Macioce then accompanied Gonzales to the latter’s house. Macioce exhibited a bruise on her left arm, and claimed that Giovanni had inflicted the bruise. Macioce said that her husband was romantically interested in a woman named Gina, who was heavy, ugly, very dirty-looking, and who used filthy language. Macioce feared her husband would return to Sardinia. She also feared that her husband was taking drugs. Gonzales suggested that Macioce should withdraw money from the bank. Macioce responded that she would wait to do that, since Giovanni was going to get a paycheck that same day. Giovanni picked his wife up about 3:30 p.m. that day.
The foregoing evidence apparently was elicited in an effort to show that the killing of Giovanni was premeditated. It was the prosecution’s theory that Macioce purposefully laid a foundation for the disappearance of her husband. The prosecutor said in his summation: “Then why does Thereza tell these things to her friends? And one explanation of that later on you can relate to other evidence of her intentions is that she was laying the ground work for people to believe that Giovanni was going to be gone and be gone very soon; that at any time he might leave her.”
Gonzales testified at the preliminary hearing on November 14, 1984. In December of 1984 Gonzales became a patient of Dr. Mary Defigard, a physician in family practice. According to Dr. Defigard, Gonzales exhibited symptoms of extreme stress, including absence of menstruation, water retention, acne, hair loss, chronic gastritis, and hyperventilation syndrome. Gonzales became “suicidal one night and had to be admitted to the hospital because she felt that that was her only way out of her situation with
Macioce’s trial began on June 25, 1985. On July 9, 1985, Gonzales appeared at trial but did not testify. She apparently asserted that testifying again would impair both her physical and mental health. She was in the hallway outside the courtroom, crying. To determine whether Gonzales was truly “unavailable” as a witness (
The court expressed concern for Macioce’s right of confrontation, and noted that “I personally find it hard to understand why a mature, adult person faced with all the variety of stress that we meet every day in urban life, crowded society, why suddenly this one demand placed on her has caused such stress, such an hysterical reaction.” But the court ruled that “I’m satisfied from Dr. Defigard’s testimony that there’s a clear and present danger that requiring this lady to testify would cause her present and future mental and physical harm. And under the Code, I believe that I’m obliged to find that the witness is unavailable and that I can’t—it would be improper for me to make—find judgments on how important her testimony is in deciding how much danger to her health we’re willing to tolerate. ... So at this time, I’ll rule that she’s unavailable, and that her preliminary examination testimony can be read back.”
Macioce now contends the trial court abused its discretion in finding Gonzales unavailable as a witness, and thereby deprived Macioce of her right to confront and cross-examine Gonzales. For this proposition she cites a number of cases which antedate subdivision (c) of Evidence Code
Subdivision (a), paragraph (3), of Evidence Code
In this case there was substantial evidence from which the trial court could reasonably have concluded that Gonzales was “unable to testify without suffering substantial trauma.” Accordingly we find no abuse of the trial court’s discretion.
But even if the trial court did abuse its discretion—a point which we do not concede—we would nevertheless deem the error harmless, for two reasons. First, the testimony provided by Gonzales was in many respects cumulative to testimony provided by other witnesses. Second, to the extent that her testimony suggested premeditation on the part of Macioce—again, a point we do not accept—the jury obviously disregarded that testimony when it found Macioce guilty of second degree murder instead of first degree murder. Consequently if error there was, Macioce suffered no prejudice from the admission of Gonzales’s preliminary hearing testimony.
Therefore the judgment is affirmed.
Agliano, P. J., and Capaccioli, J., concurred.
Appellant’s petition for review by the Supreme Court was denied April 20, 1988.
Notes
Macioce did not renew her motion to suppress evidence at trial. Therefore our recital of facts is limited to the evidence presented at the pretrial motion.
(People
v.
Johnson
(1984)
Many of the items seized, including the murder weapon, were dusted for latent fingerprints, but no fingerprint expert testified at trial.
Ronco apparently secured these items from the bank without first obtaining a search warrant or a subpoena duces tecum. However: the point was not raised in the court below; it has not been addressed in the briefs on appeal; and no contention is made here that appellant’s trial counsel was ineffective. We deem the point waived.
Neither the lead opinion in Rubio nor that in Fields constitutes a binding precedent on the reasons set forth therein. (9 Witkin, Cal. Procedure (3d ed. 1985) § 552, p. 540.)