*1 July No. 7825. Bank. 12, 1965.] [Crim. PEOPLE, THE Respondent, Plaintiff and v. ROBERT LEE

NYE, Appellant. Defendant and *2 Hallinan, Shapiro, B. Patrick Sarsfield Halli Carl Vincent Appellant. LeRoy Defendant W. Rice for nan and Attorneys Lynch, General, Stanley C. Mosk and Thomas Attorney General, and Gordon James, William E. Ringer, Assistant Deputy Attorney General, for Plaintiff Re- spondent. PEEK, guilty jury found J. Defendant was after trial of degree, penalty murder of first and the was fixed at appeal automatically Thus his death. before this court comes

pursuant (b), section subdivision of the Penal Code. question

Defendant does not that the victim met her death January at primary his hands 1963. His contention is killing, the circumstances, view of did not consti- degree, tute murder the first and that several errors which guilt phase in the require occurred the trial reversal. He urges error in penalty phase further of the trial. toAs this latter People contention the concede error concerning the admission of practices Authority, argument Adult of counsel and instructions of the jury relating court to possibility parole those felons committed for Accordingly, judgment life. *3 must be reversed insofar penalty. relates to (People the Morse, Cal.Rptr. 201, 60 Cal.2d 631 33].) 388 P.2d briefly The relevant facts are January these: On years defendant, the then 20 of age, Doctors, met Susan the daughter of his victim. After a short conversation he was given telephone number, her days and a few later he called arrangements and visit During made to Susan at her home. met this visit he Mrs. Doctors. January 9, again On went to the Doctors’ resi- transpired only dence. What on that date is from known the physical and evidence the of defendant. He testi- upon fied that Mrs. Doctors was alone in the house his cup that he was admitted and a arrival; offered of coffee; place long concerning that a conversation took in the kitchen Susan; that, to date request be allowed to with after his he concerning aspects information various had volunteered of life, experiences request; and Mrs. Doctors denied his his pleading during his declaration the course of and that that unfair, requested she on several attitude was Mrs. Doctors’ the that he defendant leave refused premises; that occasions

169 spite do so in to telephone her that going declaration was she to police or husband; during her that this conver- cleaning sation Mrs. Doctors had been kitchen utensils with a hunting knife; suddenly that she ran telephone, toward the hunting near which sitting, he was with the knife in her hand; her; that he arose and seized that he remembers noth- ing standing from that time until he found himself over the Doctors; changed then dead Mrs. that he then from his bloody clothing clothing belonging into clean Doctors; to Mr. money jewelry he took and from the Doctors’ bedroom expedite in order escape; his to then decided make appear killing it rape, that the had occurred the course of a pulled and to this end he down around her ankles the “capri pants” underclothing worn and Mrs. Doctors and prosecution’s then physical fled. The did not con- evidence prosecutor testimony, largely tradict this sought, but through cross-examination, to it as it related weaken defendant’s intent and state of mind. People’s The was to the effect that Mrs. Doctors evidence being independ- times, been of the wounds stabbed ently adequate mass of cir- to cause her death. There was a killing. connecting cumstantial defendant with the fingerprints consisted, part, bloody of his Such evidence bloody prints body, fingerprints

near the and shoe throughout containing clothing house, of his discarded type blood, victim’s smears of blood the same as his occupied by knife, defendant, in a concealed room which weapon could have been contained evidence murder type. human was blood of the victim’s The knife not the cleaning utensils, with victim one according which the had been kitchen Furthermore, a knife to defendant’s account. belong body sheath found Doctors’ beside did household. There was substantial evidence from jury might which the

properly have found the deceased sexually had been attacked lay defendant at the time of killing. body capri back, pants undergarments its had been pulled upper down to the ankles legs spread were apart. type There smears blood of the victim’s fly around and trousers, inside on the *4 part jacket front of the and on shorts the lower of the worn by The blood stains the appeared defendant. victim to be wiped pelvic in and around area, either smeared her markings very there were also smears and in the extensive

170 including body, of her defend- on either side blood stains hip. right palm print about 5 inches from the left ant’s found in fingerprints could not be lifted were which Other found on body. Pubic hairs were around the the blood legs. outspread floor between including missing home, from the items were Numerous cash, containing approximately $50 in three wallet, victim’s jewelry earrings, pendants and other rings, watches, wrist clothing. Many of the $3,000, having in excess a value through the testi- missing traced to defendant items were mony prosecution witnesses. extrajudicial statements prosecution also introduced that he had visited he admitted wherein made had a conver- day killing, of the on the home the Doctors’ concerning ransacked Susan, Doctors with Mrs. sation while, and absent for a short Doctors was Mrs. home while uneventful conversation. and further her return left after given, which these statements under The circumstances later. will be discussed of their admission the effect contends, among things, other Defendant prose abused its discretion when it allowed the trial court objection pictures introduce over he describes cution to up full of the nude and “blown almost to size “monstrous” gory well as of the body of the decedent as the whole scene photographs defend killing.” We have viewed the of which They pleasing eye. They complains. are not to the are ant black-and-white, 16 Their rele and measure inches. killing occurred prosecution’s claim that to the vance they alia, rape clear, show, inter course of a is clothing. disarray body and the position of the court, ruling clearly shows that the trial The record pictures after extended objection admission of the to the the argument weighed hearing jury, properly of the out against preju photographs their probative value of the 772, 801 People Ford, (compare dicial effect appear 892]). that its It Cal.Rptr. 620, 388 P.2d does an abuse of discretion. constituted determination contends that he next was denied a fair Defendant of the Fourteenth in violation Amendment trial compelled when he was Constitution States United objection, physically personal demon courtroom, over claimed to have been him acts done after the strate certain complained The demonstration killing had occurred. prosecutor when during cross-examination asked occurred *5 using defendant, policeman a chair first and then a live represent body Doctors, pulled to the of Mrs. show how he capri pants underclothing down the and in order to simulate rape. part a For a time in defendant took this demonstration objection, progressed objected without personally but as it he proceed. During and refused to the course of defendant’s exchanges expostulations, prose- and court, between the the counsel, prosecutor cutor and defense the remarked response to defendant’s declaration that it him bothered to proceed “Well, might with the demonstration: occur that Mrs. considerably Doctors was bothered too. I think that the required witness should be to illustrate what he has been telling us, please.” if the Court On another occasion the court stated that the matter was spectacle not a dramatic but a serious affair. Defense counsel agreed young boy’s that it was serious because a life was at stake, prosecutor to responded: which the young lady’s “A life at stake ’’ because life was forfeited. where, spite On still another occasion of the court’s proceed order to demonstration, with the defendant refused to do conscience, prosecutor so for the reason of the re- marked : “Is that the same bothering conscience that’s now you you you put your bothered at the time that shorts in her blood.” The reference to defendant’s shorts was con- sistent with defendant’s earlier statement had raped arranged but physical the victim evidence to give appearance killing that the had been committed in perpetration rape. of a foregoing The frustrated demonstration and the other and prosecutor similar remarks assigned without admonitions are prejudicial error. While such comments are not commended, be there is no basis for defendant’s claim that sought the demonstration was “not impeaching as a means of achieving defendant justice, or of but as a means of exposing calumny disgrace.” the defendant to and Defend- ant had testified on examination, direct in furtherance of his only account of rape, changed a contrived that he had from bloody clothing clothing his tim’s belonging to clean to the vic- husband, arranged and physical then had give appearance to prosecutor rape. The record is clear that sought on cross-examination to have defendant position body demonstrate his when, claimed, over the as he he was arranging the not have done victim order to show that he could soiling clothing,

so impli- clean without arrangement clothing being Mrs. Doctors’ cation that the rape course of an actual de- occurred before changed clothing. into the circum- fendant had clean Under legitimate purpose, demonstration had this stances the resulting not such as shock conscience scene was deprive a fair trial. otherwise without merit is defendant’s contention Likewise change venue because of unfavorable that his motion publicity press in the local have been should and sensational granted. publicized widely in both the local case was metropolitan press shortly after the commis (Pasadena) appeared in article also the local news sion of the crime. An *6 jury began. However, nothing day paper the before selection judge’s of the trial assessment local in the record refutes publicity, hearing on at the the motion new rendered very “very and fair to both sides of the trial, as factual jury that, of 12 Moreover, voir dire discloses the case.” the juror during replaced jurors who a the and one alternate eight nothing only trial, case, of the had read one bad read crime, had coverage at the time of the three read both the the appearing day coverage the crime and that the at the time of began, only one read the jury and latter before selection opinion stated that he had formed no Each of the 13 article. ease, that had not dis to the merits of the he relative foregoing, view the persons. it other In of it is with cussed by declining not its equally court did abuse discretion that the clear change place trial. It is clear that there is the of related contention that was to defendant’s no merit by impartial jury pub an a fair trial because deprived of upon licity the trial. attendant given attacks instructions and refusal Defendant next the give judge instructions relative to mur other the trial degree. by were advanced first Three theories der of the prosecution degree support (1) a first conviction: felony rape, (3) felony (2) murder premeditation, jury instructed on of these robbery. The was each murder argues jury not have should Defendant theories. no because there was evi premeditation instructed been emphasizes that he had met action. He premeditated dence through only a brief and only and then once Doctors Mrs. killing (cf. People day of the before the formal introduction only 947]), P.2d and that Craig, 313 49 [316 v. Cal.2d concerning premedi matter of psychiatric psychiatrist, concluded the defense tation, that of

173 automatically reflexly by a “performed killing was ’’ in a of disassoeiation. who was state defendant is that simple defendant’s contention answer to A given at premeditation was two instructions on each challenge he cannot request, and for that reason defendant’s (See People Cebulla, 137 314 P. propriety. v. Cal. their [70 People 215]; 155 808 181]; People Bradbury, Cal. P. v. [103 513].) Cal.App.2d 458 P.2d Williams, 128 v. [275 jury any ample from which the there was event pre defendant’s action was reasonably could conclude that regard Especially significant in this is the testi meditated. tending mony prosecution to show that adduced weapon used Mrs. Doctors was not the knife murder killing, preceding the as defendant conversation brought by him with knife claimed, but the second killing. day on the to the Doctors’ residence erroneously argues that the court Defendant also required have which would refused an instruction first jury, a verdict of murder of the in order to render unanimously upon agree one or more of the three degree, erroneously and that it prosecution; theories advanced gave authority supporting the contrary instruction. No a urged by cited, and are not position defendant has been we People Chavez, depart our decision in persuaded to from 632], P.2d where an identical contention “ page In that case we held at 671: ‘... So was made. jurors necessary agree that all should this case was premed that there was deliberate and in the determination deceased, design the life of the the con to take itated *7 engaged at the time in the the defendant was clusion that attempt felony, one; an to commit it was of a or commission juror beyond a reasonable that each was convinced sufficient had committed the crime of murder the defendant doubt that degree by is that offense defined the stat in the first ’’ ute.’ guilt final contentions relative to the Defendant’s phase concerned with the admission of certain of the trial are shortly police officers after his statements made to arrest. January 21, Arizona, Phoenix, was arrested Defendant 1963, in a Phoenix motel room. He told for an armed assault Angeles arresting officers that he was wanted Los by Angeles day questioned Los Later in the he was murder. police to his activities immedi officers Phoenix relative killing. during January day ately prior 9, to and substantially story the same to which He told the officers trial, conspicuous later at exception testified with the that he killing. did admit He said that he stole and con- cealed the various articles from the Doctors’ house while briefly during Mrs. Doctors was absent their conversation coffee, over but he insisted that she was alive when he left the house. Defendant waived extradition and was taken to Los Angeles, again questioned where he was January 22, giving substantially the same account of during his activities period. the relevant Both of these statements by were prose- introduced objection cution part without as a in chief, pre- its case sumably lay in order to showing foundation for a of con- guilt sciousness of if the statements were later shown to be (See People untrue. v. Underwood, 61 121 [37 Cal.Rptr. 313, 389 P.2d Wigmore, 937]; (3d Evidence ed. 1940) pp. 241-242.) The officers § who related the state- they ments declared freely voluntarily given. After defendant had recounted on direct examination his then version of Mrs. death, Doctors’ the statements served as vigorous the basis for a cross-examination which the prosecutor sought to show that the inconsistencies between them and defendant’s direct examination indicated that guilt defendant was conscious of when the statements were given any story and that told him by per- was motivated sonal expediency alone. As defendant introduced no credible evidence contradict- ing extra-judicial officers state- given ments were voluntarily, we find no merit in defend- ant’s contention that the statements should have been ex- involuntary. cluded as that, contention

The further even if the statements were they voluntary, should have been excluded because defendant interrogating was at no time advised officers of his rights constitutional to remain silent and to consult with counsel, supports more difficult to resolve. The record is his right claim that he was not advised of his to silent, remain any there is no evidence as to whether he was at time right counsel, advised of his whether he asked to see an attorney prior giving whether, if he did statements ask, opportunity so he was denied the to consult with one. precisely

The evidence clear is not as to when the investi gation began defendant, of the crime to focus on or as to the interrogation exact nature of the to which defendant was subjected Angeles police investigators, the Los but it suffi ciently appears extrajudicial statements were in

175 of the United admissible Supreme virtue of the decision States Illinois, 478 Escobedo v. 378 U.S. S.Ct. Court in [84 Dorado, 62 338 (People v. Cal.2d 1758, 12 L.Ed.2d 977]. Stewart, People 62 Cal.Rptr. ; v. 169, 398 P.2d 361] [42 Cal.Rptr. 201, 97]; People 400 P.2d 571, 576-582 Cal.2d [43 Cal.Rptr. 699, 401 Lilliock, 618, 62 v. 621-622 Cal.2d [43 People Davis, Cal.Rptr. 454, 4]; v. 62 Cal.2d P.2d 402 P.2d 791 [44 tried Since this case was before 142].) object ad failure to to the decision, Escobedo defendant’s preclude into does not his mission statements raising question appeal. (People Hillery, v. 62 Cal.2d 692, Cal.Rptr. 30, 382].) 401 711 P.2d [44 question The difficult more remains whether the admitting in error defendant’s statements resulted in a mis justice carriage requiring judg of our reversal of the entire (Cal. Const., VI, People Watson, ment. §4½; art. v. 46 818, 243]; Cal.2d 836 People Bostick, P.2d v. 62 Cal.2d [299 Cal.Rptr. 649, 820 402 P.2d 529].) [44 exculpatory made defendant inso statements and, argued, charge murder is concerned it is far as the admitting not, could for that the error in statements People Parham, prejudicial. (See 60 reason, v. be Cal.2d Cal.Rptr. 1001].) However, 384 385-386 P.2d [33 not statements were admitted as evidence defendant’s conduct, but factors of rather to demonstrate the a conscious guilt general fabrication of defendant’s ness of testi mony. prejudice, if any, Hence the determination of must possible factors, take into account the effect which such they to inferences to be drawn extent are attributable inconsistencies, may have the trier from defendant’s concluded, fact view of all the have evidence. We follow, which factors have the reasons such could not bearing jury’s had a substantial on the deliberations. took himself the stand to case the instant In extrajudicial statements. his Unlike testify to the lie Cal.Rptr. Davis, 62 791 People situation 454, impelled improper 142], he was P.2d testify in confession to order to dis prior of a

introduction fact, prior statements. his testi effect of count relatively beyond innocent conduct relat far mony went beyond must be Therefore it deemed his statements. ed in dispute very testify to discount the order he chose Ac incriminating testimony prosecution’s witnesses. inseparable exclude his cordingly, we cannot Davis, as in and it improperly admitted statements from his *9 testimony a conscious- manifest that such alone establishes is regard guilt beyond any In reasonable doubt. this ness of that, killing, he took extensive defendant testified after actually occurred; action to conceal what had that he ran- any could in to sacked the home for valuables he find order avoiding fled, possible that he contacts with escape; make his surreptitiously that he hid some and sold other arti- police; cles he taken from had Much of the evasive action home. testimony taken defendant was corroborated direct part prosecution. of witnesses for the view of all these jury, circumstances we must conclude that deter- in mining, if did, guilt, that defendant was conscious of his necessarily irrespective would have made that determination story appre- of whether defendant’s false at the time of his placed in hension was evidence. The further incon- factor inferrible from defendant’s going accounts, testimony gen-

sistent to a fabrication of his erally, insignificant weight is likewise of in of all view degree circumstances. While the evidence of first murder premeditation felony robbery may and even murder not be sufficiently require to conclusive a conviction on such theories implications testimony in the absence of fabricated part persuaded defendant, are that we the evidence of felony rape only murder is of such substance. The rebuttal going rape evidence to the is of defendant who concedes physical compels rape, a conclusion that the but only arranged is because he contends this so matters to rape. regard a His in this simulate does merit consideration, however. serious given satisfactory place, In the first defendant has never a why rape reason he simulated the and thus further incrim- himself, usually than to state that inated other women are robbery rape just perpetration in the killed “and it right if didn’t look she wasn’t.” The decision to simulate according rape, defendant, was made not when defend- reacting automatically he ant was as claimed he was in plunging body, the knife into the victim’s but after he had recognized occurred, on what had that he reflected needed changed flight, clothing. assets to finance his into clean body claim that he then concluded to return Thus the to the persuasive. rape far from to simulate is casting story doubt on Also serious defendant’s is his body that when he returned to the he first had diffi- account zipper capri pants in loosening and then in culty pulling pants panties down the blood vic- soaked to the pool lay, literally, tim’s ankles while she a of blood. He pants tight testified that the “skin ... I had hard pulling time It them. took me about two or minutes.” three yank pants He said had to at the he several times: “I fell I slipped, the-my hand, down almost. almost fell in I caught myself in the He blood.” also testified that for a portion squatting of the time he was and on his knees between legs pulling the victim’s blood-stained while her garments spite down. But in of the obstacles which he con- endeavor, clothing tends to have encountered this the clean changed into which immediately he before he claims to rape splattered have in was not simulated blood or smeared any and, stated, prose- manner whatsoever when the opera- cutor asked that he managed demonstrate how he this soiling clothing tion without comply. refused persuaded We are conclusion error extrajudicial admitting defendant’s pre statements not error, was *10 judicial that, for the reason the absence of the reasonably probable totality is not in view of the of the situ guilt ation that a result more favorable to defendant on the phase (People would have been reached. Watson, supra, v. 818, 836.) 46 Cal.2d require Thus the error not does reversal judgment guilt. (Cal. of the of Const., VI, 4.) art. § judgment The is pen- insofar reversed as it relates to the alty. respects judgment In all other is affirmed. Traynor, J., J., J., Dooling, Peters, Tobriner, J.,* C. and concurred. J.,* Concurring Dissenting.

SCHAUER, and I concurin admitting the conclusion that error in “the defendant’s extrajudicial prejudicial statements not was for the reason that, in error, reasonably the absence of the it is probable not totality in view of the of the situation that a result [citation] guilt phase more favorable would have (People (1956) been Watson 818, reached.” v. 46 Cal.2d majority 243].) 835-836 P.2d state “Thus the [12] [299 require judgment guilt.” error does not reversal of the (Cal. (Italics added.) Const., VI, 4½) art. I would § state, accurately, permit more “Thus the error does judgment guilt”; indeed, reversal of the the defined hypothesis, section reversal. 4½ forbids Supreme sitting assign- *Retired Associate Justice of the Court under ment Chairman the Judicial Council. " add, Neither, penalty phase I does the error in the permit penalty judgment. again trial” reversal of the Here Constitution, VI, 4%, article section California forbids re precisely is versal. This so the same reason above artic respect guilt phase; i.e., ulated “in the absence of reasonably probable in error, totality it is not view of the the situation that a result more favorable to defendant on [penalty] phase (See People would been have reached.” (1964) 631, Cal.Rptr. Morse 652-653 [6a] 201, 33].) 388 P.2d By stated, following reason the facts above and cited, judgment affirm authorities I would both as to guilt penalty.

McComb, J., concurred. rehearing

Appellant’s petition August for a was denied participate did not Mosk, J., 1965. therein. July No. Bank. 7577. [Crim. 1965.] Respondent, PEOPLE, THE Plaintiff v. THOMAS LEROY TEALE and ELIZABETH CHAPMAN, RUTH Appellants. Defendants