THE PEOPLE, Plаintiff and Respondent, v. LANE W. SCOTT, Defendant and Appellant.
Crim. No. 19905
Supreme Court of California
May 16, 1978
21 Cal. 3d 284 | 578 P.2d 123 | 145 Cal. Rptr. 876
Bruce Robert Kay, under appointment by the Supreme Court, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Robert F. Katz, Shunji Asari and Theodora Berger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHARDSON, J.—Defendant appeals from a judgment of conviction after jury trial on an information charging four counts of child molestation (
She did not immediately report the foregoing incidents to anyone, but revealed them in May 1975 when her grandmother, with whom she was then living, had her examined medically to learn the cause of a vaginal discharge. Dr. Fletcher, a pediatrician, diagnosed a nonspecific vaginal infection. A subsequent examination by Dr. Woodling in early June of 1975 revealed the presence of trichomoniasis, an infection primarily transmitted through intercourse. When questioned by the physician, the minor admitted that she had had sexual relations with her father, but with no one else.
In September 1975, just prior to trial, the People moved to have defendant medically tested for trichomoniasis. The motion was supported by two declarations, one from the deputy district attorney prosecuting the case, and one from Dr. Woodling. In summary, these documents described the results of the daughter‘s examination, the usual method of transmission of trichomoniasis, and her statements that defendant was the only person with whom she had had intercourse. Dr. Woodling asserted in his declaration that trichomoniasis organisms are often present in the male genital tract and remain unless treated. The routine test for trichomoniasis, as he described it, consisted of a manual massage of the prostate gland administered through the rectum and causing a discharge of a sample of semen. Dr. Woodling said the 15-minute examination was not painful and “would have approximately a seventy percent probability of showing whether or not a male had trichomoniasis.”
On the basis of this information, and over defendant‘s objection, the court ordered the requested examination which was then conducted. While the results of the test were “negative” for trichomoniаsis specifically, they did reveal a chronic prostate inflammation, of which trichomoniasis was one of three probable causes. These results were introduced by the People at trial without further objection by defendant.
Preliminarily, we dispose of the People‘s contentiоn that defendant waived his objections, first, by failing to raise them with sufficient specificity before the trial court, and second, by declining to renew them after the test results were known. We cannot accept the contention.
At the hearing on the motion to compel the examination, defense counsel stated: “The basic opposition is, your Honor, it‘s not relevant....” After an extended discussion of that issue counsel said he also understood that the examination was “rather demeaning... quite demeaning....” Counsel then urged that the procedure was more intrusive than a blood test, but made no specific cоnstitutional reference and cited no authorities. The People urge that counsel‘s efforts were insufficient to raise any constitutional questions.
An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide. (
The People further argue that defendant should have renewed his objections by means of a motion to suppress evidence under
We are unable to find a waiver in defendant‘s spirited attempts to persuade the jury in closing argument that the test results tended to establish his innocence. The People suggest that defendant‘s conduct at trial went beyond mere “defensive aсts” (People v. Sam (1969) 71 Cal.2d 194, 207 [77 Cal.Rptr. 804, 454 P.2d 700]; Jameson v. Tully (1918) 178 Cal. 380, 384 [173 P. 577]), and that defendant decided not to oppose admission of the test results once he learned that they were “negative” for trichomoniasis. We decline, however, so to speculate when the People, equally aware of the possible interpretations of the results, chose to introduce them as part of their case in chief. Concluding, as we do, that defendant has not waived his challenge to admission of the test evidence, we turn to the merits of his constitutional claims.
Preliminarily, we reject defendant‘s contention that the test violated his rights against self-incrimination under the
Defendant‘s principal argument is that the test violated his constitutional rights to be protected from unreasonable searches. It is well settled that unjustified intrusions beneath the body‘s surface may violate a suspect‘s “due process” rights guaranteed by the
Moreover, because of the
Finally, the degree of the intrusion, reliability and humaneness, and the conditions under which it is performed have been considered in deciding whether a warrantless intrusion was “reasonable.” Thus, blood tests for alcohol, performed under medical conditions, have been consistently upheld as routine, minor, and highly reliable (Schmerber, supra, 384 U.S. at pp. 770-771 [16 L.Ed.2d at p. 919]; Breithaupt v. Abram (1957) 352 U.S. 432, 439 [1 L.Ed.2d 448, 452-453, 77 S.Ct. 408]; People v. Duroncelay (1957) 48 Cal.2d 766, 772 [312 P.2d 690]), while more substantial invasions have been subjected to stricter scrutiny (e.g., Bracamonte, supra, 15 Cal.3d at pp. 401-402, 404-405).
We expressly reserved in Bracamonte the question “of when, if at all, a search warrant may issue authorizing an intrusion into a suspect‘s body.” (15 Cal.3d at p. 400, fn. 3.) That question is now squarely presented, because the requirements for the court-ordered medical test of the type here at issue can be no less than those required for issuance of a search warrant. (For convenience, references in the ensuing discussion to the term “warrant” will accordingly be understood to include any form of prior judicial authorization for a physical search. No “warrant,” in the generally accepted meaning of that term is involved here.)
The
The human body is not, of course, a sanctuary in which evidence may be conceаled with impunity. (E.g., People v. Sanders (1969) 268 Cal.App.2d 802, 804 [74 Cal.Rptr. 350].) Appropriate procedures to retrieve such evidence are neither “unreasonable” per se under the
On the other hand, Schmerber, Hawkins, and Bracamonte, all supra, have made clear that the circumstances which permit penetrations beyond the body‘s surface are particularly limited, since such intrusions may readily offend those principles of dignity and privacy which are protected by the
We therefore hold that where a warrant authorizing a bodily intrusion is sought, the issuing authority after finding probable cause to believe the intrusion will reveal evidence of crime, must apply an additional balancing test to determine whether the character of the requested search is appropriate. Factors which must be considered include the reliability of the method to be employed, the seriousness of the underlying criminal offense and society‘s consequent interest in obtaining a conviction (cf. Breithaupt v. Abram, supra, 352 U.S. 432, 439 [1 L.Ed.2d 448, 453]; People v. Duroncelay, supra, 48 Cal.2d 766, 772), the strength of law enforcement suspicions that evidence of crime will be revealed, the importance of the evidence sought, and the possibility that the evidence may be recovered by alternative means less violative of
These considerations must, in turn, be balanced against the severity of the proposed intrusion. Thus, the more intense, unusual, prolonged, uncomfortable, unsafe or undignified the procedure contemplated, or the more it intrudes upon essential standards of privacy, the greater must be the showing for the procedure‘s necessity.
Applying the above standards to the facts before us, we conclude that the People‘s showing in support of its request for the test here at issue was inadequate to justify it. The intrusion contemplated was very substantial, consisting essentially of a prolonged massage of the prostate gland, through the rectum, to induce involuntary ejaculation. This constituted a very significant invasion of both dignity and privacy. There was no evidence whatever that this was a procedure whiсh was routinely conducted in medical examinations, and the trial judge so conceded. Involving as it did the most intimate of bodily functions, traditionally and universally regarded as private, we think it is as extreme as the forced regurgitation at issue in Bracamonte and Rochin, both supra.
Furthermore, the evidence sought to be obtained, though possibly “relevant” in the broadest sense of the term (see
The People urge that the requirements for authorization of bodily intrusions should be relaxed in sex cases because of the peculiar need to produce evidence either to corroborate or rebut the evidence of the complaining witness. (Cf. People v. Rincon-Pineda (1975) 14 Cal.3d 864, 882 [123 Cal.Rptr. 119, 538 P.2d 247].) The balancing test set forth above allows for just such problems of proof in particular cases by inviting consideration of the seriousness of the crime, the importance of the evidence sought, and the likelihood of its recovery by less intrusive means. However, it is precisely the general paucity of independent evidence which renders the criminal defendant in a sex case particularly vulnerable to questionable efforts at obtaining “corroboration.” Here, we have concluded, those efforts violated constitutional standards.
Was admission of the fruits of the illegal search harmless beyond a reasonable doubt? (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 711, 87 S.Ct. 824, 24 A.L.R.3d 1065], rehg. den., 386 U.S. 987 [18 L.Ed.2d 241, 87 S.Ct. 1283].) We conclude that it was not. Paradoxically, the questionable relevance of the test evidence, which points to our conclusion of inadmissibility, also argues against а finding of prejudice. Nonetheless, we cannot say that admission of the evidence was harmless beyond a reasonable doubt.
The People introduced the test evidence with the explanation that, despite the “negative” results, there remained a 30 percent chance that defendant had trichomoniasis at the time of his examination. The jury was also told of the prostate inflammation and the possibility that it had been caused by trichomoniasis. The People obviously intended the jury to draw the conclusion that defendant had transmitted the infection to his daughter. Though the probative value of this evidence was weak, we cannot say with assurance that the jury disregarded it, and therefore must reverse the judgment.
This result makes it unnecessary for us to reach defendаnt‘s alternative arguments that admission of the test evidence was an abuse of discretion (
Defendant seeks a complete dismissal of the charges against him because his conviction was not supported by substantial evidence. We reject the contention. The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable. The rule is applicable to sex cases. (People v. Sylvia (1960) 54 Cal.2d 115, 122 [4 Cal.Rptr. 509, 351 P.2d 781]; People v. Ozene (1972) 27 Cal.App.3d 905, 910 [104 Cal.Rptr. 170].) As previously noted, the complaining witness’ testimony was neither inherently improbable nor wholly uncorroborated. Defendant
For guidance in any retrial, we consider defendant‘s contention that the trial court erred in presenting CALJIC instruction No. 10.35 to the jury. We agree that the instruction was improperly given. CALJIC instruction No. 10.35 permits the jury to consider uncharged lewd acts between the defendant and a minor prosecutrix as evidence of defendant‘s lewd disposition toward the child, thus tending to establish intent to commit the charged offenses. (See
Where the sole evidence of uncharged sexual conduct is the uncorroborated testimony of the prosecutrix herself, it is inadmissible since it contributes nothing to a determination of her credibility on the charged offenses and is highly prejudicial. (People v. Stanley (1967) 67 Cal.2d 812, 817 [63 Cal.Rptr. 825, 433 P.2d 913].) If, on retrial, prosecutrix’ testimony appears to be the only basis for a reading of CALJIC instruction No. 10.35, it should therefore not be given. Moreover, if the prosecution can offer no corroboration for her charge that defendant participated in the lewd conduct, all evidence concerning it should be excluded from any retrial.
Defendant has advanced several additional claims of trial court error including (1) refusal to order an independent psychiatric examination of the prosecutrix, (2) permitting impeachment of a defense witness with a poliсe report describing uncharged homosexual activity by defendant, (3) admitting medical testimony as to whether and when the minor had intercourse, and (4) denying probation. Defendant also claims ineffective assistance of counsel in the failure to object to the giving of CALJIC instruction No. 2.52 (flight after crime). We have carefully examined each of these contentions and agree in each instance with the conclusion reached by the majority of the Court of Appeal in rejecting the claims as lacking merit. (People v. James (1977) 19 Cal.3d 99, 118 [137 Cal.Rptr. 447, 561 P.2d 1135].)
Tobriner, J., Mosk, J., Manuel, J., and Newman, J., concurred.
Bird, C. J., concurred in the result only.
CLARK, J., Dissenting.—Applying the balancing test set forth in the majority opiniоn, I conclude that the medical examination ordered by the court did not constitute an unreasonable search or seizure under the circumstances.
Stating the factors to be weighed in the balance, the majority hold that “where a warrant authorizing a bodily intrusion is sought, the issuing authority after finding probable cause to believe the intrusion will reveal evidence of crime, must apply an additional balancing test to determine whether the character of the requested search is appropriate. Factors which must be considered include the reliability of the method to be employed, the seriousness of the underlying criminal offense and society‘s consequent interest in obtaining a conviction ..., the strength of law enforcement suspicions that evidence of crime will be revealed, the importance of the evidence sought, and the possibility that the evidence may be recovered by alternative means less violative of
“These considerations must, in turn, be balanced against the severity of the proposed intrusion. Thus, the more intense, unusual, prolonged, uncomfortable, unsafe or undignified the procedure contemplated, or the more it intrudes upon essential standards of privacy, the greater must be the showing for the procedure‘s necessity.” (Ante, p. 293, citations omitted.)
The severity of the proposed intrusion. It is appropriate to begin discussion with this factor for, as the majority recognize, it is the most important of the several variables. “[T]he more intense, unusual, prolonged, uncomfortable, unsafe or undignified the procedure contemplated, or the more it intrudes upon essential standards of privacy, the greater must be the showing for the procedure‘s necessity.” (Id.) Conversely, of course, the less severe the proposed intrusion, the lesser the requisite showing of, for example, reliability.
In this case there was uncontradicted evidence that the intrusion was minor. The People‘s evidence was presented by means of declarations
The Ninth Circuit has held that the gentle probing of the rectum incident to a rectal search, or any other body cavity search conducted in a medically approved manner, is not a degrading or shameful physical assault as those terms were used in Rochin v. California (1952) 342 U.S. 165 [96 L.Ed. 183, 72 S.Ct. 205, 25 A.L.R.2d 1396]. Indeed, the court stated that a rectal search is a less pronounced intrusion than the puncturing of the skin pursuant to a blood test. (Rivas v. United States (9th Cir. 1966) 368 F.2d 703, 711; see also Blackford v. United States (9th Cir. 1957) 247 F.2d 745, 752-753.) The Blackford court said of the rectal search in that case “As to the actual physical examinations, they were conducted by qualified physicians, under sanitary conditions, with the use of medically approved procеdures. This kind of examination is a routine one which countless persons have undergone. It is an uncomplicated and nonhazardous procedure. It normally is not painful to a healthy person.” (Id., at p. 752.)
Indeed, the majority appear to concede that this examination was not especially “intense, unusual, prolonged, uncomfortable [or] unsafe,” for their conclusion that it was “severe” is based, instead, on the ground that it significantly invaded defendant‘s “dignity and privacy.” (Ante, p. 294.)
The short answer to this objection is that defendant should have looked to his dignity before he molested his daughter. In rejecting the claim that a rеctal search is an affront to dignity, Judge Chambers in his concurring opinion in Blackford v. United States, supra, aptly observed: “[A]s I see it, the Supreme Court‘s policy is to uphold human dignity.... [¶] But here it was Blackford who created, who first takes us into this disgusting sequence.... I do not say that the depraved have no rights. But I do say that to my sensibilities all of the shockingness was Blackford‘s.” (247 F.2d at p. 754.)
As for privacy, investigation of sex offenses, by virtue of the subject matter, involves inquiry into matters ordinarily considered private. The
In conclusion, the examination ordered here was not especially “intense, unusual, prolonged, uncomfortable [or] unsafe.” Nor, given the nаture of the crimes charged, was it unreasonably offensive to defendant‘s dignity or invasive of his privacy. The less severe the proposed intrusion, the lesser the showing that need be made as to the other factors to be weighed in the balance. Bearing this principle in mind, we now consider those factors.
The possibility that the evidence may be recovered by alternative means less violative of
The seriousness of the underlying criminal offense and society‘s consequent interest in obtaining a conviction. This factor too weighed heavily in favor of the examination. The Legislature manifestly considered the charged crimes to be “serious” for when these offenses were committed and tried the penalty for incest was imprisonment for one to fifty years and the penalty for child molestation was one year to life imprisonment. Moreover, the charged offenses were aggravated insofar as the victim of
The strength of law enforcement suspicions that evidence of crime will be revealed. This factor also supports the trial court‘s order. Defendant‘s daughter had trichomoniasis. Trichomoniasis is acquired through intercourse. The child had had intercourse with defendant and with no one else.1 Therefore, she must have gotten trichomoniasis from defendant. If defendant had not beеn treated in the interim, he would still have trichomoniasis. If defendant did still have trichomoniasis there was a 70 percent chance that the test would reveal it. Clearly there was probable cause to believe that evidence of defendant‘s alleged crime would be revealed by the examination.
The importance of the evidence sought. Sex offenses almost always occur in private, the only direct witnesses being the prosecuting witness and the defendant. Conviction therefore hinges upon the credibility of the prosecuting witness. (People v. Covert (1967) 249 Cal.App.2d 81, 88 [57 Cal.Rptr. 220].) In offenses of the sort committed here this problem is exacerbated by the prosecuting witness’ being a child. Questiоn will arise as to whether the child distinguishes between truth and fantasy and appreciates her responsibility to tell the truth. (See, e.g., Ballard v. Superior Court (1966) 64 Cal.2d 159 [49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416].) It is therefore invaluable in such a case to have circumstantial evidence tending to prove guilt or innocence. Certainly defense counsel recognized the value of this evidence insofar as it tended to prove defendant‘s innocence, for in closing argument he told the jury “I think the medical testimony is about the best thing that an innocent man ... can do to disprove any insinuation of guilt.”
The reliability of the method to be employed. To characterize this procedure as 70 percent reliable is misleading. Admittedly, there is a 30 percent probability that the test will not reveal the presence of trichomoniasis in a man having the infection. But the important question is whether one is justified in placing confidence in a test result indicating that the subject does have trichomoniasis. The answer to that question is, as the majority concede, that the reliability of “positive” results is unchallenged.