People v. McDowellPeople v. McDowell
Defendant was charged by indictment with the following crimes: robbery of Bernadette Henderson (count I), assault of Bernadette Henderson with intent to commit rape (count II), assault of Bernadette Henderson by means of force likely to produce great bodily harm (count III), burglary (count IV), murder of Mildred Pedriek (count V), and robbery of Mildred Pedriek (count VI). He entered pleas of not guilty and not guilty by reason of insanity. The jury acquitted him on count II and convicted him on all other counts. In subsequent phases of the trial the jury found him sane and fixed the penalty on the murder count at death. The appeal is automatic. (
The record amply supports defendant’s contention that his counsel did not understand the settled rule that evidence of mental abnormality not amounting to insanity is admissible on the guilt phase of a trial to negate the specific mental states put in issue by the not guilty plea.
(People
v.
Wells
The robbery and assault of Bernadette Henderson. On September 12, 1965, Miss Henderson drove to the Sainte Claire Hotel to meet her fiance. Defendant was standing in the entrance to the hotel garage. He asked her how long she expected to park, and gave her a stub. She drove to a lower level, parked, and got out of her car.
At the trial Miss Henderson had no recollection of the ensuing events, because of amnesia caused by a brutal beating administered by defendant. She was found some 45 minutes later, lying injured and unconscious in a stairwell leading from the basement level to the ground floor of the garage. Her head was battered and bleeding, her skirt was pulled up, and she was naked from the waist down. Her open purse was nearby, its contents scattered and ten dollars missing. Her underclothes were discovered in a pile at the ground level of the staircase. At that location the elevator door mechanism had been jammed by a folded piece of paper, preventing the elevator from operating, and a lampshade from a wall fixture had been placed on the floor. Fingerprints lifted from the lampshade were identified as those of defendant. A number of other persons had seen defendant in the vicinity of the hotel garage that afternoon.
In a statement to the police following his arrest, defendant related that he gave Miss Henderson a parking stub and saw her drive down to the basement level. He jammed the elevator door, removed the lampshade and unscrewed the light bulb. Realizing that the stairwell was then so dark that his victim might become suspicious, he replaced the bulb but did not have time to put the shade on as well. As Miss Henderson appeared at the top of the stairs, he seized her purse. She put her hand into a large knitted bag she was also carrying; fearing she was reaching for a weapon, he grabbed her wrists and pushed her down the stairwell. At the bottom she began screaming, and, according to defendant, "I quieted her down. I hit her a few times. ’ ’ After striking four blows on her head with his fist, defendant ransacked her purse and took her money.
He started to leave, but returned when he saw someone coming. Miss Henderson screamed again, and he gave her
The burglary of Mrs. Willig’s laundromat. On September 19, 1965, Mrs. Maey Willig entered her laundromat and discovered defendant raking candy out of a broken candy machine. In response to her challenge defendant explained, ‘ ‘ I walked by and saw this machine broken so I thought I’d help myself.” After she told him she was going to keep him there until someone came, defendant pulled out his billfold and offered to pay for the candy he had taken. When Mrs. Willig turned to wave to the driver of a passing ear, defendant struck her in the face, pushed her away from the door, and ran out.
The robbery and murder of Mildred Pedriek. On September 23, 1965, two college students saw defendant standing in the doorway of a different laundromat. A half hour later, screams were heard issuing from the laundromat and witnesses saw a man run out and disappear up the street. Miss Pedriek, an elderly retired nurse, was found dying in the laundromat doorway. A knife lay on the floor nearby. An autopsy disclosed that she had been stabbed once in the face and several times in the chest; her hands and arms also bore multiple cuts typical of those suffered by a person resisting a knife attack.
In a statement to the police defendant said that he had followed Miss Pedriek into the laundromat, helped her operate the washing machines, and waited while she did her laundry. He had watched her purse when she opened it for change, and knew she had some money in it. She started to leave by the back door, when he put his hand over her mouth and told her not to scream. He seized her purse and ran towards the door. Miss Pedriek began screaming, and defendant dropped the purse, ran back, and seized her again. He “flashed” his knife at her, assertedly to make her be quiet. He walked her back to the purse and made her bend over so that he could pick it up while keeping her mouth covered with his other hand, “ ’cause she still acted like she wanted to scream a little.” As he went to take the money from her purse, she jerked her head free and screamed again. He then
We meet at the outset defendant's contention that his trial counsel’s misunderstanding of the
Wells-Gorshen
rule deprived him of his constitutional right to effective representation. (Pow
ell
v.
Alabama
(1932)
First, much evidence was brought out by defense counsel during the trial of the plea of not guilty by reason of insanity that would have been relevant to a defense of diminished capacity on the issue of guilt. 2 To begin with, defendant’s extremely unstable childhood and adolescence was explored. Born an illegitimate Negro, he was left with his elderly grandparents in Louisiana at the age of eight months. He soon developed into a problem child, given to fits of uncontrollable rage and wanton, senseless destruction. When he was 13 years old he was brought to California to live with his mother and stepfather. His earlier tendencies became more acute, and he engaged in bizarre and irrational behavior both at home and at school. He also exhibited a morbid interest in women’s underclothes, and began wearing them instead of his own.
Soon after his fourteenth birthday he was referred to the Monterey County Child Guidance Clinic, and spent seven months under psychiatric treatment. His doctors were of the opinion that he was mentally disturbed and needed additional
When defendant was 15 years old his mother was herself admitted to Agnews State Hospital for a period of six months, during which time he lived with an aunt. Upon his mother’s discharge, the family moved to Santa Clara County. Defendant soon became embroiled with the law, and was declared a ward of the court. For the remainder of his minority—some five years—he spent most of his time in institutions under the jurisdiction of the Youth Authority. Studies conducted in 1960 showed a regression in his behavior, and found him to be an “acutely disturbed” person with psyehoneurotie tendencies. Two years later his probation officer observed defendant’s “bizarre kind of behavior towards other people,” concluded that he was “a real serious emotionally disturbed kid,” and recommended referral to a psychiatric clinic. At the age of 18 defendant was admitted to a second mental hospital (Agnews) for further observation and diagnosis. Meanwhile, his homosexuality had been confirmed by institutional experiences, and he continued to wear women’s underclothing whenever he could. Upon reaching the age of 21, he was discharged from his then current Youth Authority confinement at Vacaville,- a few months later he committed the crimes of which he now stands convicted.
Expert testimony was also introduced bearing on the issue of defendant’s mental condition. Dr. Winston Rankin, a staff psychologist at Agnews, reviewed defendant’s background and history and administered a number of tests. The doctor testified that although defendant’s abstract intelligence level was within the normal range for his age, he exhibited severe impairment of other ego functions such as control of impulses, predictability of behavior, and self-identification. The doctor testified that “a person who suffers from this kind of ego defect, faced with a situation of unbearable stress, easily breaks down into psychosis.” Such a person’s behavior would be " irrational . . . lacking in reason,
lacking in intent,
lacking in anything that makes wilfulness of behavior meaningful to another human being.” (Italics added.) The witness then read from a report stating that “For Clarence the
Dr. Rankin further reported that defendant exhibited “blunted affect,'' i.e., that Ms emotional response to a given act was either nonexistent or inappropriate, to a degree demonstrating the presence of mental illness. The doctor testified that “I don’t think he is capable of planning a crime,” explaining that in “Any situation that he sees as threatening, as most threatening to himself, he wouldn’t be able to respond in a rational willful manner” and “in a very stressful situation such as the one he found himself in prior to the murder, . . . his behavior would be that of a person who has lost complete control of his actions. ’ ’
Dr. Jack Barsman, a clinical psychiatrist, testified that the situation prior to the murder would have produced in defendant the kind of stress he was incapable of handling except by “blind rage.” That stress, the doctor testified, “reduced his psychological functioning to an extremely low level, maybe a level of a four year old, maybe a level less than that,” i.e., to the level of a four-year-old “falling apart, screaming and breaking things.” The doctor concluded that defendant was in need of psychiatric treatment, and that even so, his prognosis was extremely poor and he should probably be confined in mental institutions for the rest of his life.
Secondly, the record demonstrates that defense counsel misunderstood the basic rule that would have allowed the foregoing evidence to be introduced in the guilt phase to negate the existence of specific intent. Counsel’s opening statement to the jury seemed to suggest that such a defense, with supporting evidence, would be introduced on all counts as to which it was available.
3
But when the prosecution rested, counsel
Thus counsel elicited from defendant’s mother a summary of her son’s teenage years; but whenever the questioning turned to the details of defendant’s commitment to Napa or difficulties with the law, counsel abruptly terminated the inquiry with the statement that “we can’t go into all these phases now.” The witness thereafter testified she felt it was not safe for defendant to be in the company of his younger siblings, “knowing his condition.” When asked to explain the latter remark, she referred to his transvestitism “and other things which I don’t know whether it would be out of order for me to bring it out now or not. ’ ’ Counsel declined to let her do so, stating that “I can only ask you about the transvestitism. I can't go into the other aspects of insanity. . . .” Again, counsel inquired if defendant was admitted to Agnews solely because of his transvestitism or for other reasons as well; the witness replied that there were a number of other reasons, but counsel cut her off and said, “We are not permitted to discuss them now. If we have to later we will. . . .” Similarly, counsel told, the witness “we can’t discuss now” the troubles experienced by defendant when he was growing up in Louisiana and shortly after his arrival in California.
Counsel then called defendant and Dr. Rankin to testify on
Not surprisingly, the prosecutor thereafter argued to the jury that except for the evidence of transvestitism “there isn’t anything in the record to show there was anything wrong ’ ’ with defendant’s mental condition. In his own oral argument, defense counsel revealed time and again his misunderstanding of the relevant rule of law. Thus he told the jury that he was not permitted to show defendant was “insane,” but was ‘‘ only allowed to show certain things as it applies to the charge of assault with intent to commit rape.” Counsel then correctly informed the jury that “you can consider a man’s emotional, nervous and mental makeup to decide the question of specific intent”; but he immediately restricted such evidence to “the limited purpose of deciding the question of rape. ...”
Apparently referring to defendant’s history of commitments to Napa and Agnews, counsel asserted that “Ladies and gentlemen, I can’t go into that until we get into the insanity
In the closing portion of his argument counsel sought to persuade the jury that defendant was “emotionally impoverished,” that his “controls” might be “brittle,” that he has “no identification of himself,” that the “sound of a female screaming like that drives him crazy, ’ ’ and that his response is totally “impulsive.” Each of these arguments could have been supported by substantial evidence, as we have seen; but counsel had not introduced any such evidence because of his erroneous belief that it was inadmissible. Indeed, in his final remarks counsel told the jury that when defendant “pulled his knife out after she started screaming, this man was berserk. I believe the evidence later will substantiate [it], but you can’t consider it. ’ ’
A defendant who pleads not guilty manifests his desire to contest the issue by every means lawfully at his disposal, and it is the duty of his counsel to assist him in this endeavor by the preparation and presentation of his defense. Under our adversary system, of course, the choice of strategy and tactics remains committed to counsel’s judgment. Accordingly, in appropriate cases counsel may justifiably decide to oifer no affirmative defense and stand instead upon the presumption of innocence; or counsel may, as here, offer a defense on one count only of a multiple charge, standing on the presumption as to the remainder. But either of these courses of action presupposes that counsel is fully informed of the defenses that could actually be interposed on behalf of his client. “It is counsel’s duty to investigate carefully all defenses of fact and of law that may be available to the defendant, and if his failure to do so results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled.”
(People
v.
Ibarra
(1963)
supra,
It is settled in this state that on the trial of the issues raised by a plea of not guilty to a charge of a crime which requires proof of a specific mental state, competent evidence is
We recognize that in the case at bar counsel may have been aware of the
Wells-Gorshen
doctrine in general terms, for it was apparently on this ground that he premised his defense to the charge of assault with intent to commit rape. But he seems to have erroneously believed that the doctrine was limited to the issue of defendant’s sexual propensities, and could not also be invoked to negate the variety of specific mental states necessary to support convictions of the other crimes here charged. Counsel’s view appears to have derived from his undue regard for the so-called “conclusive presumption of sanity on the guilt phase.” Yet as we emphatically explained long ago in
Wells
(
If the allegations in Brubaker constituted a prima facie case of denial of effective representation, a showing of such denial has a fortiori been made in the case at bar. In Brubaker it was alleged that because of inadequate investigation counsel “failed to discover’’ the evidence of the defendant’s abnormality; here, the record demonstrates that counsel actually possessed substantial credible evidence to warrant presenting a diminished capacity defense. In Brubaker the appellate court was unwilling to speculate whether counsel’s inaction might have been a judgment decision, and the cause was remanded for an evidentiary hearing; here it clearly appears from the record before us that counsel did not act because he misunderstood the fundamental rule permitting the introduction of such evidence of mental abnormality in the guilt phase of the trial.
The distinction is well illustrated by two decisions handed down on the same day by the same division of the Court of Appeal. In
People
v.
Glover
(1967)
By contrast, in
People
v.
Welborn
(1967)
Reviewing the record, the Court of Appeal determined that the foregoing evidence of mental abnormality constituted a “crucial defense” within the meaning of Ibarra, bearing both on the issue of premeditation and deliberation and on the issue of malice aforethought. The court then reasoned (id. at pp. 522-523), “The record in this case shows unmistakably that defense counsel’s failure to raise the defense of diminished capacity was the result of ignorance of the law, not trial tactics. . . . The psychiatric reports available to counsel before the trial began pointed to the strong possibility of an abnormal mental condition in this case; yet defense counsel took the initiative in stipulating that the ease be submitted on the transcript of the preliminary hearing without reference to the psychiatric reports. The fact that defense counsel again took the initiative in stipulating that the sanity phase of the trial be submitted on the reports of the psychiatrists indicates that counsel probably thought that the reports were relevant only to the sanity issue.” (Italics added.) (Fn. omitted.) Reversing the judgment of conviction, the court concluded (at pp. 515-516) that “the failure of defense counsel to offer in evidence at the guilt phase of the trial psychiatric evidence that the record shows was available, while at the same time neither offering nor arguing any other defense, resulted in a total failure to present the cause of the defendant in any fundamental respect, and thereby deprived him of his constitutional right to effective aid of counsel. ’ ’
In the case before us counsel’s misunderstanding of this basic rule likewise deprived defendant of a meaningful
The judgment is reversed.
Traynor, C. J., McComb. J., Peters, J., Tobriner, J., Burke, J., and Sullivan, J., concurred.
Notes
We recognize there are two superficial distinctions between this ease and
Ibarra.
Here, defendant was represented by retained rather than, appointed counsel; but although that fact is "important” it is "not conclusive.”
(In re Rose
(1965)
There was, of course, rebuttal evidence introduced by the prosecution; but we are concerned at this point with the existence of potential defense evidence, not with its weight.
Thus defense counsel told the jury: "Ladies and gentlemen, this hoy lives in a world where to him it is a jungle. He hates the streets worse than hell. He likes institutions, jails, penitentiaries. His stepfather has given him h-e-1-1 for everything he has done. He is driven to needless, senseless things, and the evidence will show that he is to himself an animal. He has heen in the mental institution. He regards himself as being lower than an animal because they never had a mind to lose. He has been there twice, his mother. He regards himself as an animal or
“Ladies and gentlemen, the statements [of defendant] will be quite what you call consistent. He has a good, logical sequence of the facts in there, one, two, three. This happened and that happened, but where they pertain to him he cannot tell. He doesn’t identify himself as a man. He doesn’t identify himself at all. He is so disoriented he cannot represent himself under frustration or stress or pressure. He can’t when that happens. He goes crazy.’’
On the other hand, we acknowledge that counsel’s confusion in this ease illustrates the practical problems that frequently arise in the operation of California’s system of bifurcated guilt and sanity trials. As a
The foregoing recommendations, however, have not as yet persuaded the Legislature to act. Although some members of this court have growing doubts of the value of our present system of separate guilt and sanity trials, the decision to modify or abolish that system remains a legislative prerogative.