*1 In Bank. Oct. No. 8143. 1965.] [Crim. VIE CARL Respondent, v. DO PEOPLE, Plaintiff THE Appellant. MATHIS, Defendant *3 O’Brien, appointment by Supreme D. under Samuel Appellant. Layne for Court, and Donald M. Defendant Lynch, Attorney General, Harris, Jr., Thomas Albert W. C. Deputy Attorneys Granucci, General, and Robert R. Respondent. Plaintiff and appeal MOSK, This isan automatic under Penal J. Code judgments pursuant (b), from section subdivision guilty finding appellant
verdicts Dovie Carl Mathis mur- degree robbery degree fixing der the first first trial at death. The court denied trial penalty. and for reduction of the motions for new Billy Still was also convicted of murder and Codefendant robbery trial but received a sentence of im- at the same life prisonment. killing Ray The two defendants were convicted of Vernon process robbing approximately him $600
in the which evening person. place had on events took on the early morning Saturday, 1963, and the October hours Ray 20, 1963, displayed large Sunday, October after *4 presence a amount of cash in the of waitress at Fisher’s bar evening Ray early Saturday had bar in San Jose. been shortly p.m. and left before Bill during Still arrived at Fisher’s bar sometime the eve- ning Bay left, after and money heard tales from the waitress. Mathis arrived later, and Still recounted story calling upon him, the waitress to confirm it. Testi- mony offered which established that both defendants were evening. in financial straits that midnight proposed Sometime after Mathis the two leave the He then bar. drove Still to the home of his sister they San Jose where admitted key themselves with Mathis’s telephoned Bay. Bay Mathis told that his car was stuck in the Park, mud Alum Bock Jose, Bay San and asked park pull to drive to the him pickup out with his truck. Bay agreeably and, upon informing consented his wife and guests of his intentions, left his home about 1:30 a.m.
Mathis and Still then drove Alum Park, positioned Bock their automobile off the road and Bay waited for who arrived momentarily. Mathis, meanwhile, had instructed Still to take Bay the revolver he had in his car and hit over the head with appropriate objected it at an moment. Still to the use of the revolver, proposed so Mathis then that Still use a tire wrench which he obtained from the trunk of his car. Still took the nearby. wrench and hid in the bushes Bay When arrived he backed car, his truck to the Mathis connected a line vehicles, between the two attempted placed tow the car. Mathis, however, his foot brake of impression his ear to create the car was stuck. He eventually allowing Bay pull released the free, brake the car whereupon got Bay out proceeded of his truck and to release moment, Bay cable. At that towline, was bent over the crept up Still from behind and hit him over the head with Bay stunned, the tire iron. unconscious, but not and fled nearby to a him, creekbed. Mathis and Still chased and Mathis caught point quarter him at up of a mile the creek. during A scuffle Bay ensued which Mathis knocked uncon- large with a get money scious rock. He then told Still to Bay’s pocket, from Still did. Mathis then adminis- coup grace by striking tered the de several frontal blows to supine the head of victim with either the same or another large rock. departed two scene, driving Bay’s then from the Still
truck, using pair gloves furnished Mathis, and Mathis driving apartment his own car. Mathis returned to the young East Palo Alto where he lived with a woman named arriving complained about 3 a.m. He in- Taylor, an Kathy *5 fight had in a and telling Kathy that he been jured thumb, say had been to that he home anyone inquired she was if that evening. p.m. that since disposed Sunday morning met and and Mathis Still throwing night by previous they worn the clothes had the them Sunday, bay. p.m. About Mathis was arrested into the deputies to Red- County and taken the by Mateo sheriff’s San questioned jail police him. City San officers where Jose wood Kathy con- night, home all told he been Mathis them to for further story. was then taken San Jose his He firmed sleep. to p.m., he was allowed questioning until about when appeared to be Mathis’s thumb At the time was arrested he injuries. told other He officers split, but he had no serious caught in the door of his ear. he had his thumb that interrogation morning about Monday the resumed 8:30 On deny all, that continued to even told and Mathis a.m. Kathy changed story her and had admitted that he had During until course the not returned home a.m. interrogation Monday morning requested to his Mathis see Cyril attorney. being represented by Ash, then a San He was matter. at- attorney, in another criminal The officers Jose busy. Ash, ques- line tempted telephone but his The tioning continued. gave Monday, immediately arrested and At 11 a.m. Still was implicating complete police Mathis
a statement major perpetrator with the evidence crime. Confronted again possessed, requested to his police Mathis see now police placed office, attorney again a call to Ash’s attorney reaching secretary them the this time who told police for to call the was in court. The officerleft word Ash regard to client who wished to him. department a see truth,” Following agreed “to call Mathis tell the from him. That a was taken statement recorded statement at trial. was later introduced gave, however, Mathis was neither a The statement which attempt truth. It was an to absolve himself confession nor the casting robbery suspicion murder both and the from although police that Mathis told upon a third individual. parked Rock Park and had his ear off had been Alum he suggestion; stuck, though had done so at Still’s road as impor- merely accompanied Still the latter’s that he had tuning planned Ray’s do about idea what Still and had no cable, hooking up myste- a Ray the tow money; while confusing stranger and, him appeared from the bushes rious rendering him Mathis, head, uncon- Ray, him, hit over with Ray. stranger and then robbed and killed that the Still ; scious stranger person named resembled indicated He talking with at Fisher’s bar. Larry he had seen Still Jones apprehended Jones, who was held police then period released when his alibi was substantiated. brief gave investigation no During Mathis remainder during trip statements, and, to the scene of the further cooperate urged with the Still, he Still crime with duty reminding do him that he had no so. police, was used to discredit trial the recorded statement At the veracity. prosecution demonstrated *6 story Mathis, fabrications. exculpatory were elements enticing Ray behalf, into the admitted testifying on his own Ray part with plan it of a devised Mrs. park, but said was surprised fidelity to He said that he was Ray’s his wife. to test giving denied Ray over the head. He Still Still hit when disappeared the bushes as that Still had into and said tool it they parked the car and that he assumed was had needed to relieve soon as because Still According Mathis, himself. to enough him Ray hit hard to knock unconscious did Still charged tool from and after Ray had taken the Still then uttering “playing around” oaths about Mathis while Mathis Ray ran to creek where Mathis said he his wife. with up Ray attempted hit him caught with him. eventually protested that he did not want Mathis times while several managed warding blows Mathis off several fight. After picked creek. Mathis said he then trip Ray, fell into the who then Ray on the back of the head hit once up rock and apparently that Still had followed said from the scene. He ran ran, Ray until Mathis hit creek, waited down to the them Ray’s money and killed him. taken then had given a false statement to he Appellant testified depressed, wanted to see his tired and police he was because brought story that thought if told a he lawyer, and gain investigation time he would some suspect into the new questioning. from the and relief prosecution trial asked for phase of the penalty At the character not for Still. Two penalty for Mathis but the death prior of violence Mathis instances witnesses testified attorney district stressed convicted. The had been for which implicate an innocent man in this had tried to Mathis crime. judg- grounds reversing the urges for several Appellant statement improper of the recorded including the use ments, The other contentions relate aid of counsel. given without attorney and dam- alleged district misconduct appellant’s Appel- at the trial. wife aging photographs the victim taken color maintains that lant also been not have admitted body discovered should when ground they are inflam- the trial evidence at into matory. appellant’s grappling the use re- with Before containing substance, the most we statement, the issue corded specifications other error. discuss seriatim shall grue are indeed photographs this case The color admissibility probative is whether the some, but the test inflammatory outweighs the it effect of the evidence value 622, (People Harrison 59 Cal.2d may have. People Darling ; Cal.Rptr. 841, 381 P.2d 665] [30 Cal.Rptr. 484, 316]; People 372 P.2d v. v. Cal.2d [22 8]; People P.2d (1959) 53 Cal.2d Brubaker (1957) 48 Cal.2d Carter point in chambers on was considerable discussion There ruling probative outweighed that the value to the court prior photographs used inflammatory effect. The were to dis theory by showing that the the self-defense victim’s credit beyond recognition and that blood and had been beaten face head demonstrated matter around victim’s severe brain supine and had been struck after he was ren been blows deny Appellant does not hors combat.1 eviden dered tiary de objects pictures, to the use of color value of the but photographs which were available could have black-and-white reviewing purpose. It difficult for a the same court served *7 inflammatory if would less to determine black-and-white be considering subject pictures, ap but matter than color it significant. pears unlikely that the difference would be Since pictures unquestionably evidentiary did have value and weighed thoughtfully the trial court since alternatives ruling, do not find an abuse discretion before we admit into ting photographs reached a evidence. We similar comparable People a factual conclusion under situation Cal.Rptr. 59 Cal.2d Modesto People 33], reaffirmed v. Modesto P.2d 436, Cal.2d Cal.Rptr. 398 P.2d 753]. develop prosecution attempted mayhem-murder theory 1The also to eye purpose sought that and for further to show that one the victim theory put out. But this was had been eliminated from case when mayhem give to refused instruction. court attorney the district contends that next Appellant during the at least twice misconduct prejudicial engaged phase once in the guilt in the trial, once bifurcated eliciting inad of otherwise involved incidents Both phase. ohjections followed and both testimony from witnesses missible inquiry. line of to the sustained during redirect examination incident occurred first The designed to attorney questions asked Ray. district The Mrs. Ray which she Mrs. a letter written the date of obtain during appellant’s identify cross-examination. to been asked at- date, and the district Ray not remember could Mrs. torney event. might it in relation to some suggested recall she during he was out the time when Ray “it was then said Mrs. objected. counsel point defense at which and—” on bail admonished the witness stricken and the words court ordered merely and not document was written when the to state attorney per- information. The district additional volunteer repeated time over trying to some reference elicit sisted objections Ray said, I counsel, Mrs. “but until from defense ’’ Kathy. point girl At this say he trying to when shot was denied the for a mistrial. The court counsel moved defense record, and from the the statement stricken motion, ordered disregard had said. what the witness admonished the expected had not attorney apologized and said he The district Appellant contends from the witness. this answer during penalty phase compounded error was Kathy Taylor present as attorney who was dismissed district hearing jury after in full view and prospective witness testimony would not in chambers that her the court had ruled requested that the witness Defense counsel had be allowed. unobtrusively during a recess. dismissed context, one nor both of these incidents Taken in neither Ray’s likely prejudiced outcome. inad- Mrs. have shooting Kathy Taylor was an vertent reference during guilt court the three-week trial. The isolated incident properly jury. appellant testified admonished the responsible crime, he had been scene of the the victim being there, the victim and that he struck for the Appellant's testimony that case rested on his with a rock. Ray Ray in self-defense and did not lure into the he struck appellant's prior anti- park in order to rob him. Evidence of likely tip only social conduct would have been balance disprove prosecution had weak or no if the evidence strong appellant’s guilt defense. Here evidence of *8 convincing. attorney appellant The district demonstrated that money Saturday, 19, Sunday needed on October and that on gave Kathy Taylor morning, explana- October he $51. His acquisition money of tion at trial sudden was another fab- testimony exposed effective rication, rebuttal. On the self-defense, medical and photographs issue of evidence probable developed the manner in which the victim had been prosecution appellant killed. The also established that had injuries split no other than the thumb when he arrested, though Ray he testified that had hit him on Finally, head, even leg back, with the tire iron. defendant Still’s testimony clearly implicated Mathis. guilty robbery Since both defendants were found degree murder, jury apparently they first concluded that engaged Ray in a resulting common effort to rob Vernon during perpetration robbery. In his death addi- appellant living tion, Kathy knew that with Taylor originally pro- the time of the murder and that she testimony gave vided him with an alibi. Her no indication appellant. Therefore, unlikely of bitterness toward it seems shooting any remark her that the inadvertent about the say jury, probability effect on the nor can we as a reasonable (People its omission would altered the have outcome. 243]; People Watson 46 Cal.2d P.2d Cal.Rptr. 4, Hamilton 60 Cal.2d Kathy Taylor effect of the ostentatious dismissal of The appear prior penalty trial does not substantial to the prosecution presented The two witnesses who testified error. Kathy Taylor prior appellant; acts of would have violent another such incident. The testified to extremely damaging appellant two witnesses was yet suggestion People produce that the could another subtle appear likely appellant’s to have victim of violence does been the difference between life death. alleged final act of misconduct occurred when the attorney character cross-examined defendant Still’s district during penalty trial. Each witness was asked witnesses nagatively, appellant. witnesses answered if also knew Two the court sustained did not answer because one objection replied affirma question, and a fourth questions attorney claimed that the were district tive. The knowledge testing of Still the witnesses’ proper as a means boyhood. from friends defendants were close since the two questions proper where, here, no in- were additional *9 jury was created since the was aware of the defend- ference undoubtedly friendship and close realized that some of ants’ appellant. Furthermore, knew Still’s witnesses also defense object question posed only did not to the to the counsel affirmatively. witness who answered appellant’s im now reach contention that it was We testify penalty phase proper Mathis to to allow Mrs. of trial because of section 1322 of the Penal Code.2 are, however, exceptions to rule that
There several testify against spouse may not for or the other in a crim one exception spouse may inal action. is that either The basic testify framing in consent, if both thus the rule terms of a privilege. personal Furthermore, privilege is a preserved. right in order to In the which must be asserted Singh leading People 483 (1920) case of v. Cal. “spouse present in court 987], P. this court held that a who is spouse testifies, and and when the other is offered as a witness presumed . . .” object, who does not is to have consented. People Kroeger (Accord, v. 61 Cal.2d 246 [37 ; People (1961) 195 Cal.Rptr. 593, 390 P.2d v. Calderon 369] Cal.Rptr. ; People Cal.App.2d 576, v. Odmann 579 [15 874] ; People Cal.App.2d 693, P.2d v. 696 [325 495] (1937) Cal.App.2d Van Skander testimony objection by spouse of the other must An one Singh, proper ground (People v. explicitly and be made appeal be raised for the first time on supra), and cannot People Singh, supra.) Kroeger, In (People supra-, appellant no present and raised Mrs. Mathis testified case appeal. the fore> objection doing until this Under to her so testimony hold, therefore, that her going we must authorities properly admitted. testimony been would have We hold that the further timely objection. We appellant even had entered admissible in accordance proceeding conducted concerned with a are here following penalty 190.1 to determine with Penal Code section purpose punishable by death. The stated of a crime conviction “of of evidence permit introduction 190.1 is to of section surrounding crime, of the defendant’s circumstances part: provides husband nor wife “Neither relevant 2Section against competent in a criminal action or the other is witness for or parties, except proceeding with the consent of both are to which one or proceedings both, by committed for a crime actions or of criminal or ease other, person property against of ... or eases or one ..." the other. violence one criminal any aggravation or history, facts background testimony penalty.” Clearly the offered mitigation of the Legislature which in- type of evidence Mrs. Mathis fixing penalty. weigh in jury should hear tended physically appellant assaulted Mrs. Mathis testified cutting with a knife and occasions her times, her three on two point un- strangling an electric cord to her with once During Mrs. Mathis one these attacks consciousness. fearing through husband would jumped window, a closed her right duty and the her had both the take life. The testimony making determination, for these its consider this are background certainly aspects history might appropriate penalty. which bear on the question any thus is whether sufficient reason exists to jury. keep this from the We shall otherwise relevant evidence see that to the rules evidence at conforms guidance adopted trials for the which this court has *10 applying only remaining of trial courts in section 190.1. The objection testimony then cannot ad- would be that the be creating mitted without a direct conflict with the terms of hold, developed, section 1322. hereinafter We the reasons 1322 that there is no conflict with section because exclusion promoted by testimony purpose would serve no section. which would inad- types of evidence be present, some At guilt phase permitted of a trial are at the
missible at penalty shortly after 190.1 phase. court stated section As this appear the new section embodies would enacted, “It was that has al- of evidence liberal rule admission broad, the ways pleaded guilty and has where a defendant existed degree of the crime and being relate to the only tried issues (1959) 52 (People v. Jones Cal.2d imposed.” penalty (1964) People Terry v. 577]; 61 see also 636, P.2d 647 [343 381].) Cal.Rptr. 605, 390 P.2d Under this 137, 143 Cal.2d [37 of testi- the introduction likewise sanctioned view, have “We necessarily related to crime acts not mony of criminal being (People Terry tried.” the defendant for which 143-144.) 137, Evidence of such acts supra, 61 Cal.2d (1964) admissibility govern- the rules of may if it meets be introduced (People v. Purvis question. ing proof of the crimes 713].) 362 P.2d Since the Cal.Rptr. 97 56 Cal.2d admissible under have been testimony Mathis would of Mrs. for the acts to which a trial 1322 at of section provisions penalty trial. testified, it at this she admissible Nevertheless, question remains whether a literal reading requires of section 1322 us to limit testimony of one spouse upon to criminal hy acts committed him or her spouse, other to an actual trial for acts. those To the contrary, penalty proceeding we conclude that the trial is a where the exceptions may enumerated section 1322 ap found plicable. provides We so hold because no other solution an adequate purpose function and for both code sections here under consideration. precisely Section is not so worded easy as to allow judicial interpretation. contains, It for example, sepa two appear rate exception clauses which to create the same in cases by criminal spouse acts of violence committed one other,3 although apparently given no court has these two independent meanings (Marital clauses Privilege, 8 Stan.L. (1956) 420, 432). Rev. course, suggest Of by we do not language Legislature this erning provisions gov intended to make penalty phase trial, of a murder since the latter
proceeding was not in existence when section 1322 was enacted or last amended. As we seen, however, helpful have analogy has been drawn between the trial and proceeding (Pen. Code, 1192) general plea which is conducted after a § guilty degrees. (People to a crime divided into Terry (1964) supra, People 137, 143; Cal.2d v. Jones (1959) supra, 52 636, 647.) In particular, Cal.2d it has been held that proceeding testimony spouse against latter of one the other may properly (In be introduced. re Cal.App. Steve 2d Moreover, purposes none said to underlie section 1322 by excluding would be served here, offered while operation impaired intended of section 190.1 would be ruling. Apparently such a the common-law rule codified in the now defunct fiction that a origins section 1322 had its single legal entity. (See man and his wife are a Wigmore, (McNaughton 1961) 2228, p. 214.) Evidence rev. Recent § *11 concept attacks this anachronistic have resulted in the many aspects of interspousal legal immunity demise of (e.g., People v. (1964) Pierce 61 Cal.Rptr. 845, Cal.2d 879 395 [40 P.2d [conspiracy ; between husband and Klein v. 893] wife] (1962) Klein Cal.Rptr. 58 Cal.2d 102, 376 P.2d [26 70] [negligent ; (1962) Cal.2d torts] Cal. Self Self in proceedings . or case of criminal actions or for a com crime 3“ . . by against person property mitted one or of the other in ... or cases , ,”, other, upon by (Pen, Code, 1333.) § of criminal violence one Rptr. torts]), and we are not 97, 376 65] [intentional persuaded present to revive the fiction in the context. It has is also said that the rule survived because another harmony. policy consideration, preserve marital the desire to Cal.App.2d 759, (Young Superior (1961) 190 Court (McNaughton Cal.Rptr. Wigmore, rev. 331]; Evidence pp. 216-217; Law Revision Com. 1961) 2228, 1 Cal. § pp. seq.; Privilege, Marital 8 Stan.L.Rev. F-14 et Young however, case, in 421.) agree We court with the ’’ ‘‘ (Id. peace at violence, that after is doubtful. [marital] especially p. appear to be Cal.App.2d.) 764 of 190 This would prior acts of spouse true who has committed the where carry upon a crime his mate has been convicted of violence ing imprisonment, and where the a minimum of life sentence spouse voluntarily against interest of the testifies assaulted keeping in this any purpose If can he found other. useful homage to a formal jury, evidence from the other than mere interpretation statutory language which itself istic may be.4 unambiguous, we fail to that see what spouse of the hold, therefore, penalty trial We latter, testify against may compelled defendant not be the defend- yet may voluntarily do even in the absence so vio- prior acts of testimony ant’s consent when the relates by witness-spouse the defendant.5 lence committed into evidence testimony properly The admitted here was by jury. considered One is mentioned. are 4Two other reasons for the rule often Proc., (Code spouses Civ. “communications” are confidential. between rationale, validity it 1.) passing § of this subd. Without on the question enough cannot in here is be considered to observe that the criminal assaults any privileged term. sense of the “communications” repugnance” may part “natural from a have arisen The rule also might guilty, testi spouse, be convicted however to the idea that one mony theory, sharply Wigmore spouse. criticized has of the other being contrary immunity,
insofar as it underlies testimonial
truth,
pursuit
path
justice.
impediment
of the
aims of
serving
It is an
justice
purpose except
of criminal
administration
to make the
no
1961)
(McNaughton
(8 Wigmore,
rev.
sport.”
Evidence
a “kind of
p. 217.)
supra, at
newly-
holding
970 of the
section
in full accord with
5Our
herein is
299),
(Stats. 1965,
declares
which
ch.
enacted Evidence Code
privi
person
statute,
has a
“Except
provided
a married
as otherwise
’’
exception
any proceeding.
testify
spouse
lege
against
not to
(largely
proceedings
in section 972
enumerated
the several
refers to
similar
compelled
trial
witness-spouse
may
1322),
Code,
present
§
in which such
Pen.
spouse.
objection
regardless
of either
hence
among
proceedings
listed
section
is not
(Por
testify
privilege
in this situation.
not to
retains
Code,
privilege
spousal
the new Evidence
under
a full discussion
see
178-185.)
(1965), pp.
Revision Com.
Law
7 Cal.
*12
Appellant
two
raises
additional contentions. He asks
alleged prejudice
of
the basis
in the follow
for a reversal on
ing
attorney
“Q.
question
which the district
asked Mathis:
days
you
a conversation four
before the death
Did
ever have
Kathy
Cyril
Taylor
your
and
Ray
Ash,
at
of Vernon
with
concerning getting
Appellant
rid of witnesses?”
an
torney,
objection
negatively, and the court sustained counsel’s
swered
along
attorney
questions
lines. The district
to further
those
being
attempted
justify
question
to
to the issue
as
relevant
upon
Although
question
in
motive.
is based
a remote
of
appears
improper,
prejudice
no
in
of the
and
view
ference
is
negative rseponse.6
questions
of
coun
Appellant also
Still
his
resents
concerning
had ever hit Still and whether
whether Mathis
sel
anyone
questions were
he had ever Mathis strike
else. The
seen
showing
purpose
state of
admitted for the limited
of
Still’s
mind,
jury
It
contention
and the
was so admonished.
was his
tragic night
in
because
participated
the events of
that
refused,
known
fear Mathis and had he
Mathis’s
of his
of
been
him.
propensity
would have
visited
for violence
prior
claiming
may testify about
A defendant
self-defense
defend
only
victim not
directed toward the
violent acts of his
also
others in
to show the defendant’s
but
toward
order
ant
state of mind
(see People
Jones
to
victim
v.
relation
People
544],
v.
Cal.App.2d 175
P.2d
and
(1955) 136
[288
Cal.App.2d
230]).
same
P.2d
(1939) 34
278 [93
Jefferson
rule is
at
applicable to a
in which
codefendant
situation
partner
crime,
tempts
relationship to his
explain his
properly admitted.
challenged was
here
hence
evidence
Cal.App.2d 658, 661
People Villegas
(See
(1938) 29
Sing
People
(1944) 64
;
Chan
R.2d
the extent
480]
contrary,
Cal.App.2d
81], holds
to the
171 [148
disapproved.)
it is
alleged
attorney
referring
6The
a conversation he
district
was
pre
Ray.
shortly
killing
Vernon
Mathis
occurred
before the
of
According
Taylor.
viously
shooting Kathy
charged
been
with
proceeding
attorney,
Mathis
had advised
counsel
district
Mathis’s
testify
Kathy
if
leave California and were unavailable
that
against
attorney
were to
him,
drop
prosecution
The district
would have to
case.
importance
knew
from this that Mathis
desired to show
Ray
thereby
complaining witnesses,
kill
order
motivated to
robbery.
testifying regarding
prevent
of the
In view
Mm from
incident,
questions
further
about
court’s
appellant’s
by
refusal
to allow
prejudiced
unlikely
negative reply,
it
is
’
’
‘
‘
fairly typical
type
error
harmless
matter. This
any
strategy
frequently
trial
a result
and heat of
arises
which
length
importance.
of this
appellant
the court erred
Finally
contends that
the trial
playing
statement at
allowing
recorded
given
aid of counsel at a time
without
it had been
because
(Escobedo v.
right
assistance.7
to such
appellant had
L.Ed.2d
1758, 12
S.Ct.
(1964)
cusatory phase had been
undeniable.
Escobedo was
right
under
to counsel
question raised is whether there
penultimate
right
knowledgeable waiver of
to counsel.
a conscious
supra,
62 Cal.2d
People
v. Stewart
stated
As
right to the
of the
waiver
“in order
establish
de
indicate that the
record must
counsel the
assistance of
right
and to
silent
to counsel
remain
advised
fendant was
intelligently
rights
and know
these
or
ingly
he knew of
Ascertaining
(Italics added.)
them.”
waived
though not
requires
difficult
generally
the latter alternative
however,
have a
subjective determination; here,
we
impossible
knowledge in
objective
significant
disclosure
during
crime
trip
the scene
him
and told
remain silent
urged
which he
his codefendant
than
police. Rather
duty
cooperate with the
he had no
legal
of a
needing
the role
legal advice,
appellant assumed
adviser to his codefendant.
appellant
it is difficult to hold that
Nevertheless
waived
rights
admittedly
which,
he was not advised and
of which
chronology
legal
literature,
virtue of
he could not
fully
interrogation
prior
have been
aware. This
occurred
*14
(1964)
in Massiah v. United States
the decisions
433 showing that he had testimony appellant credit the attempt in an falsehood an elaborate previously constructed appellant’s that the Adopting contention to absolve himself. excluded, its elimination been should have recorded statement upon ap- reflection additional merely removed one have would image. badly already tarnished pellant’s course of an at- made Furthermore, admissions prejudicially received exculpatory are not tempted statement substantially the at the trial testifies to defendant when the Hillery supra, (People (1965) 62 Cal.2d v. admissions. same long adaptation held of a 712.) This rule is modern a subsequently of evidence admission doctrine that erroneous (See People v. is harmless. by defendant himself testified to People 769]; P.2d v. Ketchem (1955) 166 Sykes 44 Cal.2d [280 People 353]; (1886) Daniels 70 635 P. v. (1887) Cal. 73 [15 People (1886) 70 98 655]; v. Marseiler (1949) Cal. 521 P. Cal. [11 Cal.App.2d People 503]; v. Cohen P. [210 [11 Cal.App.2d People (1947) Pratt 911]; P.2d Cal.App. P. People (1925) Booth 888]; difference between the the essential In this instance appellant’s was his shift original statement person a reliance implication of third from greater Thus, trial he conceded at the theory of self-defense. original in his state- personal than he admitted involvement ment. appellant’s de- to conclude no reasonable basis There is “impelled” introduction stand was to take the cision of this At time he made exculpatory attempted statement. already example, following evidence, that decision the against (1) codefendant Still him: properly admitted been had testified robbery- plotted and executed that Mathis that Mathis tele- had testified victim’s wife murder; (2) the presence at the fatal requesting his phoned her husband that the victim expert witness testified rendezvous; (3) an police supine; investi- brutally beaten after hat at the scene of finding appellant’s gator had testified had testified that he girl friend crime; (5) morning early hours on the in the to their domicile returned cash, large amount possession night murder had testified that witnesses other suddenly acquired; *15 person, cash on his usually carried considerable the victim murdered. found when he was but had none ap- under the evidence felony-murder case, This is a The robbery incontrovertible. in the participation pellant’s 434 jury, responsive evidence, to this returned dual verdicts find-
ing guilty robbery both defendants as well as the mur- In attempted der. these circumstances exculpatory merely statement was prominently in effect, cumulative and was no more featured the trial than other evidence that properly damaging. admitted and far more After an examination of the cause, including entire a care ful evidence, opinion review of the we are of the that there is possibility no complained might reasonable that errors have conviction, contributed to the riage and there has been no miscar justice. (Cal. Const., VI, 4½; People art. v. Watson § 818, 46 243]; Fahy Cal.2d 836 P.2d Con v. [299 necticut U.S. S.Ct. 11 L.Ed.2d [84 171]. )) judgments The are affirmed.
Traynor, J., McComb, J., Peek, C. J., Burke, J., con curred.
PETERS, J. I dissent. majority
The
admit
error,
this death
case
error,
committed,
constitutional
but conclude that such
prejudicial
require
error was not so
as to
reversal. With this
agree.
admitting
conclusion I cannot
The error consisted of
evidence,
prosecution's
chief,
into
case in
recorded
statement taken from defendant after he had twice asked for
warning
right
attorney,
his
silent and his
and without
him of his
to remain
right
majority
counsel. The
concede
taking
of such statement under
circumstances vio
such
Illinois,
lated the rule
announced Escobedo v.
The cited both have v. 818, 836, Fahy Connecticut, Cal.2d v. 375 U.S. 91 [84 171], applying in L.Ed.2d a of re- S.Ct. standard thereby implied error and both versible have that cases estab- disagree. lish I the same criteria. clearly The federal standard reversible stated error Fahy Connecticut, supra, (at p. 86): as follows question possibility “The is whether there is a reasonable that might complained the evidence have contributed to the con- ” Requiring finding a viction. that there is a “reasonable possibility” erroneously that the secured admitted evi- “might dence have contributed to conviction” is far differ- requiring finding ent from a that the error is harmless unless affirmatively that, required by Watson, the court finds “it reasonably probable” is that without the “a result more error favorable” to the defendant would have been reached. The language simply not difference is one of semantics. The may reversed, a an requires, state rule before case be affirma- reasonably finding probable without it tive that the error that different result would have been reached. The federal simply requires possibility there be a reasonable rule might the error have contributed to verdict. part But this of the discussion is academic. error here requires involved is so serious that it a reversal whether the stringent Fahy rule of or Watson the more rule of liberal be applied. judgments For this reason the should reversed. error, Another serious and one that cannot but confuse the law, by majority discussing was committed the admis- sibility testimony given by Mathis, Mrs. the wife of the appellant, as a prosecution. called witness On the penalty permitted testify trial she was to various vicious assaults committed her appellant, which assaults were way in no prosecuted. being connected with the crime for which was testimony This was to the effect Mathis had several times and cut knife, her with attacked another strangled time had into her with an unconsciousness electric highly cord. This if testimony, inadmissible, prejudicial, particularly pictured on the trial. It Mathis as a cruel beast, sadistic and jury could well have been decisive factor convincing impose penalty. the death majority first hold that when his wife was called aas object witness testimony, Mathis did not to her and that this implied testimony constituted an consent to her within the meaning of “consent” as used in section 1322 the Penal In majority probably Code. this determination the are correct. (People Singh, 987], 182 Cal. and cases fol P. lowing it.) sufficiently disposes point. This of this But majority stop They do there. state: “We fur- ther hold that the would have admissible even been ’’ *18 appellant objection. had ing timely Then after entered labor- point majority this the conclude discussion of this the point with the statement: hold, therefore, spouse penalty “We trial at a the of testify against may compelled the defendant the not be to yet latter, may voluntarily do so in the absence of the even testimony prior defendant’s consent when the relates to acts by upon witness-spouse de- violence committed the fendant.” very most dicta dicta and like sheerest is the This discussion particularly vicious because it is is It mischievous indeed. relating help but confuse the law clearly wrong cannot applies penalty privilege as it wife the husband and dicta must there- erroneous penalty cases. in death trials be fore discussed. the testimonv of wife The conclusion directly objection made, had been flies if an
admissible, even This applicable code sections. cavalier treat- of the in the face provisions on several statutory is rationalized ment of argued relevant, that such It is first grounds. trial, on the before the should be it therefore This is a clear non be and is admissible. should and therefore sequitur. forth in two code sections. involved is set privilege here provides: the Penal Code 1322 of Section competent witness for or nor is a husband wife “Neither proceeding action or to which a criminal against the other in except both, or in parties, with the consent or both are one proceedings for a crime committed actions or criminal case of other, property whether person or against the by one upon marriage of criminal violence or in eases after before or by or children of one or the child by other, one proceedings bigamy, or for criminal actions in cases of other or proceedings criminal actions or adultery, or cases or and 270a of provisions section brought under the [s] provisions of the ‘Juvenile any Court or under code ’’ law.’ provides: Procedure the Code of Civil 1881 of Section policy it is particular relations in which “There are inviolate; preserve it there- encourage confidence law to fore, person a witness the follow- cannot be examined ing eases: against cannot examined for husband or his wife “1. A against consent; husband, nor a wife for or her her
without during marriage consent; either, nor can or without other, the consent of the afterward, be, without examined as by during one to other any made communication exception apply does not to a civil marriage; but this action nor to a criminal action against other, by proceeding one or by against other, committed one proceeding for crime or against person by another a husband crime committed or for a committing engaged in with connected while or wife against other; in an action of a crime one or commission person adultery damages against for committed another hearing wife; or or in a held to deter- husband either competency or condition of either hus- mental mine the ’ ’ or wife. band appearing Penal 1881 not Portions of section Code (People applicable trials. held criminal have been section Cal.App.2d Pittullo, *19 to be mis- language too clear statutes, quoted The two spouse’s admissibility of one the interpreted, limit spouse, when by other witness against the to violence for a proceedings or made, to “actions objection is proper property of person against or by one committed crime expressed in section §1322), or as (Pen. Code, other” pro- or criminal action “to a Procedure of Civil of the Code ceeding other, or for against the by one a crime committed or person by a husband against another committed a crime committing with and connected engaged in wife while privi- The against the other.” one of a crime commission proceedings where criminal lege clearly applies to all civil or spouse about testify against other attempts spouse one way with no connected against witness in violence except very limited situations proceeding before the court disregarded and over- majority have involved. The not here dealing or with statute fact that we are here looked the problem the law should be that is not what statutes, and prescribed. agree I could with Legislature but what the has being majority they arguments were many of the made change. legislative But support made a recommended reading they being support out of the law are made to here legislatively prescribed privilege. function of a That is of a court. pend penalty certainly proceeding trial is an action or integral ing part of the court. In fact it is an before trial criminal trial. the bifurcated and trifurcated Otherwise Troche, (People would be unconstitutional. Cal. 767]; app. P. 74 L.Ed. dism. 280 S.Ct. U.S. govern guilt statutory both the Thus the same rules penalty expressly pro except trials where the statutes they only phase applicable vide are to one or the other of the trial. majority 190.1 of the Penal Code hold section impliedly modifies, repeals, that it amends statute,
such
It
that the enumera-
1322.
is contended
and controls section
may
type
190.1 of the
of evidence
tion in section
brought
indicates, in some
on the
trial
before
abrogate
hus-
fashion, an
and abolish the
undisclosed
intent
privilege
kinds of
band and wife
insofar as the enumerated
sequitur.
obvious non
are concerned. This is an
evidence
of “the
provides that evidence
190.1
section
Penal Code
crime, defendant’s back-
surrounding circumstances
aggravation or miti-
any facts in
history, ground
*20
presented
penalty” may
factors
be
to the
as
gation of the
or
This
in
determination of life
death.
be
its
to
considered
relevancy
not
statute,
one that makes otherwise
simple
ais
only purpose
for the
evidence admissible.
inadmissible
relevancy
in the
is to broaden the
enumeration
on the
statute
because
rules
trial,
much
penalty
of the enumerated evidence
guilt
relevancy reasons, on
admissible, for
the
not be
would
opinion
majority
necessarily holds that
phase of the trial. The
broadening
general
relevancy
the
rule must affect
a
statute
specific
privilege found in a
and wife
statute.
the husband
types
all
of the
enumerated
In other words
relevant
specific
providing
con-
admissible,
spite
statute
is
of
recog-
fallacy
reasoning
that it
to
trary. The
of this
is
fails
cases,
situations, the
in all
and in all
husband
nize that
meaningful only
presupposed that
privilege
when it is
wife
is
very
witness-spouse will relate relevant evidence. The
the
purpose
privilege
otherwise rele-
of the
statute
to exclude
if
testimony.
privilege
be no
for the
There would
need
vant
the
grounds
witness-spouse’s testimony
excluded
could be
irrelevancy.
of
argue
majority
length
purposes for the hus-
at
that the
privilege
not
outgrown,
have been
and would
band and wife
witness-spouse
the
testified
be served in the situation where
against
defendant-spouse
penalty phase
the
at the
of the trial.
arguments
support
legislative
good
repeal
of
These are
of
privilege. They
nothing
than
indict-
the
constitute
more
an
theory
privilege. They
appli-
of
the
ment
the
behind
are not
statutory privilege.
interpretation of the
These
cable to an
judicial
arguments
They
amount to an abuse of the
function.
States,
answered Bassett v. United
were
137 U.S.
all
pp.
(at
762])
as follows:
505-506
S.Ct.
L.Ed.
“It
of the common law
a well-known rule
that neither
competent
husband nor wife was a
witness
a criminal action
against
other, except
personal
in eases of
violence, the one
the
justice
upon
other,
compelled
in which the
the
necessities
power
do
relaxation of the rule. ... We
not doubt the
of the
change
well-supported
legislature
rule;
to
ancient
this
change
lightly
an intention to make such
should
be
but
imputed. It cannot be assumed
it is
indifferent to sacred
things,
holy
the
or that it means to lower
relations of husband
plane
simple
So,
and wife to the material
contract.
before
any
through
departure
ages
from
rule
the
affirmed
having
law,—a rule
its
foundation
common
solid
in the best
society,—can
declaring
adjudged,
language
be
interests of
prevent doubt
clear as to
as
should be so
legislative will
’’
and limit.
intent
its
858],
Commonwealth,
S.E.2d
spouse testify amounting asked to acts to crimes com is by defendant-spouse against her the at a trial other mitted those crimes. In than for the commission of the cases found involving situation courts have held the that such testi improper. Texas mony be Court of would Criminal (Brock held on different v. Appeals State, has so two occasions Tex.Crim.Rep. Am.St.Rep. 100 335 S.W. [71 Rogers 465]; (Tex.Crim.Rep.) 368 L.R.A. State v. S.W.2d only cut back on the rule when clear 772) has dictates (Newman State, necessity 151 Tex. so demanded Crim. (Cf. People 171]). S.W.2d Rep. McCormack, 628 [210 139], App.Div. N.Y.S.2d affd. without opn., N.E.2d 303 N.Y. by recognized its likewise, provisions, has code California circumstances, not present, testimony under certain here against spouse may compelled a be at of crimes committed a Specifically, than for that crime. evidence of trial other upon spouse by child or children of committed a one crimes upon Code, (Pen. 1322) and crimes committed the the other § defendant-spouse course of witness-spouse the the party (Code against Proc., Civ. a third committed crime witness-spouse by the at the may de- 1881) be testified § against crime committed child fendant-spouse’s trial for Legislature provided words, has In person. other or third that most necessity exists sense it thinks that where important (and only) witness would otherwise sometimes be by operation privilege, of the husband and wife unavailable the liberalizing will be relaxed. But the of the rule under rule specific statutory authority under these circumstances is exceptions. not create other the court should already power privilege alter the As noted the statute Legislature. urged by majority solely with the lies power by Quite recently Legislature has exercised adoption The new Evidence Code of the Evidence Code. witness-spouse may be up question as to clears compelled testify against defendant-spouse. The new may compelled witness-spouse provides that the be code spouse proceeding in which one testify charged “A criminal (italics added) and then follows the same with” existing contained statutes. of crimes as is enumeration defendant, the instant (Evid. (e).) The Code, subd. § upon rather charged his wife but with assault case, was Ray. of Vernon for the murder tried majority opinion that the defendant- holding in the may witness-spouse be testified to upon the spouse’s acts undercutting this effect of witness-spouse will have the the specific prior to the effective legislative at a time even intent legislation. of the date judgments. reverse I would majority opinion as to in the I concur TOBRINER, J. penalty trial I dissent as guilt but trial Peters. dissenting opinion of Mr. Justice in the grounds stated rehearing denied November petition for Appellant’s opinion Tobriner, J., were J., and Peters, 10, 1965. granted. petition should