Opinion
Page __
For Opinion on Rehearing, see 46 Cal.Rptr. 763, 406 P.2d 43.
McComb, J., dissented.
[394 P.2d 946] [40 Cal.Rptr. 258] Paul A. Mansfield, San Jose, under appointment by Supreme Court, for defendant and appellant.
Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., and Robert R. Granucci, Deputy Attys. Gen., Louis P. Bergna, Dist. Atty., and John Schatz, Jr., Asst. Dist. Atty., for plaintiff and respondent.
TOBRINER, Justice.
In this case the jury returned its verdict finding defendant guilty of first degree murder of a ten-year-old girl; it held defendant to be sane and fixed the penalty at death. We have concluded that because of the improper introduction of defendant's incriminating statements the recent opinion of the United States Supreme Court in Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, compels reversal. Since the investigation of the police had focused upon defendant, defendant had been taken into police custody, the police had carried out a process of interrogation that lent itself to eliciting incriminating statements, defendant had requested and been denied an opportunity to consult with an attorney, and the police did not effectively warn him of his absolute constitutional right to remain silent, defendant was denied 'the assistance of counsel' in violation of the Sixth Amendment of the Constitution as 'made obligatory upon the States by the Fourteenth Amendment' (Gideon v. Wainwright (1962) 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799) and no statement elicited by the police during the interrogation should have been used against him at the trial.
We briefly state the sequence of events which disclose that the investigation had focused upon defendant. Defendant, a San Jose cab driver, had been living for about eight months with a Mrs. Hammond and her three children, Cynthia, aged 17, Kenneth, aged 13 and the victim, Victoria, aged 10. On the morning of the day of the crime, December 7, 1962, Mrs. Hammond departed for work; the children left for school. Defendant, who had been drinking, and who had not worked for the past few days, stayed home.
Kenneth testified that when he arrived home from school at about 4:30 p. m. he noticed that all the blinds had been drawn. He went directly to the basement, where he had a microscope, and stayed there approximately 15 minutes. While in the basement Kenneth heard sounds from the room overhead 'like she (Victoria) was cleaning up her room' and also heard the shower running. The boy then proceeded upstairs to his room by way of the back porch changed his clothes, and returned to the back porch, where he knocked on the locked kitchen door. When defendant, dressed only in slacks, opened the door, Kenneth noticed blood on the kitchen floor and asked defendant about it. Defendant answered that he had cut himself. The boy then left the house.
Mrs. Hammond testified that when she returned home at about 5:00 p. m. she noticed blood on the couch and asked defendant what had happened. Defendant replied that Kenneth had cut himself. When, somewhat later, Mrs. Hammond saw Kenneth, she discovered the falsity of defendant's statement. She confronted defendant with the discrepancy; defendant then told her that Victoria, not Kenneth, had been cut but that Victoria was 'all right' and visiting a friend. At 6:00 p. m. Kenneth entered Victoria's bedroom, discovered the brutally slain body of his sister, ran out of the house screaming, and called the police.
When the police arrived, defendant, after first failing to open the door, finally did so. The police saw the body of the victim, found a knife upon the bed and blood throughout the premises. Defendant gave them no explanation as to what had happened.
The police interrogated defendant that night and the following morning. Defendant at all times admitted he must have killed the girl, but insisted that he did not remember committing the act. At the morning interrogation defendant on numerous occasions requested counsel and declared [394 P.2d 947] [40 Cal.Rptr. 259] that without a lawyer he had 'nothing more to say.' Ignoring these requests, the police persisted in the interrogation. Subsequently, and, upon further interrogation, defendant admitted that he had engaged in prior sexual activity with the victim. As evidence in support of the charge of first degree murder the prosecution at the trial introduced and relied on these damaging admissions.
The record discloses the following colloquy between defendant and the interrogating police officers, prior to the time defendant gave his incriminating admissions:
'Q. Now, do you want to go back out there and take a look at what you did, Anderson? Would it refresh your memory?
These events leave little doubt that at the time of the questioning the police were engaged in a process of interrogation that lent itself to eliciting incriminating statements from the accused; the police were not merely conducting a general investigation of the crime. Not only did the totality of the factual situation point to defendant's guilt but defendant had repeatedly admitted that he must have committed the crime although he did not remember doing so.
We find no merit in the suggestion that, because defendant admitted that he must have committed the crime but did not describe the motivation, the police were merely 'investigating' the motivation and hence had not reached the accusatory stage. Such a contention confuses the meaning of the investigatory and accusatory stages. The latter begins at the point when the police have ascertained guilt; once defendant admits he must have committed the crime the police are necessarily engaged in accusatory questioning.
Although defendant did not immediately request counsel but initially said he could not remember what had happened, [394 P.2d 948] [40 Cal.Rptr. 260] he did not thereby forfeit his right to counsel. Before he gave the incriminating statements defendant asked for counsel, and such request, at the accusatory stage, under any possible reading of Escobedo, is more than ample. Indeed, we have held in People v. Dorado, 40 Cal.Rptr. 264, 394 P.2d 952, that at this stage defendant need not even make the request.
Since the ruling of the United States Supreme Court in Escobedo compels the reversal of this judgment, we do not discuss other possible errors as to the guilt phase of the trial. Grave doubt arises as to the following issues: (1) whether the prosecution properly introduced, in the absence of independent proof of the commission of such a crime, defendant's admissions of prior sexual molestation of the victim (People v. Hamilton (1963) 60 Cal.2d 105, 129, 130, 32 Cal.Rptr. 4, 383 P.2d 412); (2) whether the court properly instructed the jury upon the theory of diminished responsibility pursuant to People v. Henderson (1963) 60 Cal.2d 482, 489-494, 35 Cal.Rptr. 77, 386 P.2d 677; (3) whether the evidence supports the verdict of first degree murder under the theories advanced by the prosecution or shows only an uncontrollable outpouring of defendant's aggressive impulses which would constitute second degree murder as in People v. Granados (1957) 49 Cal.2d 490, 319 P.2d 346; People v. Craig (1957) 49 Cal.2d 313, 316 P.2d 947, and People v. Tubby (1945) 34 Cal.2d 72, 207 P.2d 51. Finally, as to the penalty phase, errors occurred which have been condemned in People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33.
The judgment is reversed.
GIBSON, C. J., and TRAYNOR, PETERS and PEEK, JJ., concur.
SCHAUER, Justice (concurring).
I am not satisfied that there has been a miscarriage of justice as contemplated by the law of California (Cal.Const. art. VI, s 4 1/2; People v. Watson (1956) 46 Cal.2d 818, 835-837(12) 299 P.2d 243), but under the compulsion of Escobedo v. Illinois (1964) 378 U.S. , 84 S.Ct. 1758, 12 L.Ed.2d 977, I concur in the judgment of reversal.
McCOMB, Justice.
I dissent. The jury returned a verdict finding defendant guilty of first degree murder, finding him sane, and recommending the death penalty.
In my opinion, there is ample evidence to sustain the jury's findings (1) that at the time defendant killed Victoria Hammond, age 10, he was attempting to have sexual relations with her and (2) that he was sane, and knew what he was doing, at the time he perpetrated the crime.
The record discloses the following: Defendant drank alcohol during the day while waiting for the victim to come home from school. She was late reaching home and wanted to go out again at once.
Defendant apparently gave the victim something alcoholic to drink, in order to induce her to have sex relations with him; and when she refused, he flew into a rage, beat her, and chased her throughout the house with a knife in his hand. When she tried to evade him, he pulled out part of her hair, and finally tore her clothes off, all the while cutting her with the knife.
That he knew what he was doing, and what he did, during the perpetration of the crime is evidenced by the fact that he covered up the victim's naked body, cleaned himself of blood by showering, cleaned the knife, and tried to clean up the blood on the floor. From the fact that no bloodstained clothing of his was found, it may be inferred that he was naked at the time of the crime.
The crotch of the victim's panties had been cut out, and a large spot of blood on her bed was evidence from which the jury could have inferred that defendant had orally copulated her.
Defendant had orally copulated the victim on at least three other occasions, and probably more. He had also engaged in mutual [394 P.2d 949] [40 Cal.Rptr. 261] masturbation with her. These acts took place in the master bedroom either before the child left for school (after her mother had gone to work) or after she returned from school (before her mother came home from work).
Defendant stated that the victim reached home around 4 p. m., that she came in the front door, and that she was wearing a print dress and her school shoes.
He stated that he was sitting on the sofar in his shorts and socks and apparently a T-shirt; that the child wanted to go out; and that he told her to clean up the kitchen or the sink and then she could go.
He remembered striking her with his fists, which fact is corroborated by the fresh bruises and cuts found on both of his hands when he was examined by the police in the early evening of the day of the crime.
The knife with which the crime was committed had been, according to defendant, on the living room coffee table for a couple of days.
Defendant said he had blood all over himself and on his shorts. He said he threw the shorts into one of the rooms before taking his shower, but no bloodstained shorts were ever found. The inference is clear that at the time of the crime defendant was naked except for his socks, the soles of which were heavily encrusted with blood.
The 13-year-old brother of the victim reached home from school at approximately 4 p. m. The victim had been seen a short distance from home by a schoolmate at 3:30, and therefore should have arrived home prior to 4 p. m.
The boy went directly to the basement, where he had a microscope, and stayed there about 15 minutes. He heard sounds from his sister's room and then heard the shower running. He went to his room by way of the back porch, changed his clothes, and went to the kitchen door, which he found locked. In response to his knock, defendant appeared, wearing only slacks, and let him in. The boy asked about the bloodstains in the kitchen, and defendant said he had cut himself.
Mrs. Hammond, the mother of the victim, arrived home about 5 p. m. The front door, through which she entered, was locked; all the blinds on the windows were drawn; and she saw blood on the sofa. Defendant was in the living room, and when she asked him about the blood he told her that the boy had cut himself.
Mrs. Hammond then left and went to the grocery store. When she returned shortly before 7 p. m., she asked her son about the cut defendant had said he had. The boy showed her that he had not been cut.
When Mrs. Hammond again asked defendant about the boy's having been cut, he replied that it was Victoria who had been cut, and said she had gone around the corner to a girl friend's house. Mrs. Hammond and her son then decided to search for her.
On the way to his room for a jacket, the boy looked into his sister's room and saw a large pile of clothing and boxes next to her bed. Under the pile lay her naked body.
In the house there was blood on the living room floor, on the sofa, on the inside of the front door knob and latch, on the floor leading from the dining room into the kitchen, all over the kitchen floor extending into the master bedroom, and in the master bedroom and the bathroom. The victim's bloodstained bracelet was found on the refrigerator; her bloody shoes were found in the kitchen; and there was a pool of blood in the victim's bedroom and a large bloodstain on her bed.
Leading from the master bedroom to the victim's bedroom were four bloody footprints, approximately the size of the victim's feet without shoes. There was a 'wad' of hair between the kitchen and the master bedroom area, from which evidence the jury could reasonably have concluded that defendant had grabbed the victim by the hair when she tried to elude him.
[394 P.2d 950] [40 Cal.Rptr. 262] The kitchen floor had been mopped in an effort to remove the bloodstains. Defendant admitted he tried to clean it up. He also admitted that he took a shower to cleanse himself of the blood and that he washed the knife and put it back on the coffee table.
The victim's dress, which had been cut and torn in many places, was found, still damp with blood, wadded up and pushed under the bed next to her body. The buttons down the back were torn loose from their threads but were still in the buttonholes.
The crotch from the victim's panties was found near her dress by the bed in her room. It had either been torn or cut from the panties; the remainder of the panties was found, covered with blood, on top of a sewing machine in the dining area. The victim's bloody petticoat, torn at each arm strap, was under the bed in the master bedroom.
The coroner's report discloses: 'Cause of death: Multiple lacerations with left hemothorax from laceration of left lung.' It further shows: 'There is no hymen. The introitus shows small carunculae.'
Dr. Alcott testified, in explaining the coroner's report, that the introitus means the opening of the vagina and that the carunculae are in the area of the opening of the vagina and are little nub ends that are presumed to be remnants of the hymen.
The coroner, Dr. James C. Gerdes, who performed the autopsy, was in Brazil at the time of trial and was, therefore, not available for cross-examination. Dr. D. L. Alcott, who admittedly had not seen the body of the victim, was called as a witness to explain Dr. Gerdes' report. His testimony was received in evidence over repeated objection by the prosecution.
Defendant stated that the victim liked to have sexual relations with him and oral copulation once in a while. He further stated that on the morning of the crime the victim came into his room before going to school and kissed him goodby. When asked if he tried to persuade her to come into bed with him, he answered, 'No, because I knew it was too late,' and that he just 'patted her on the ass.' He stated that he was 'in love' with her and that when she had masturbated him, he had kissed her long and passionately.
When defendant was accused of killing the child because she refused to have sex relations with him on her return from school, he replied, 'She didn't say that.'
All witnesses testified that defendant did not appear to be drunk, that his speech was not slurred, and that his gait was not unsteady even when his hands were handcuffed behind his back.
Escobedo v. Illinois (1964) 378 U.S. 478 (84 S.Ct. 1758, 12 L.Ed.2d 977) is not applicable to the facts in the present case. In this case the crime occurred about 4 p. m. At approximately 7:30 the same night defendant was taken into custody by the police and was interrogated for an hour and a half to two hours, commencing about 8:15 that evening.
During this interrogation defendant stated that he had 'nothing to say.' His reason for having nothing to say was not because he wanted an attorney but because he insisted he could not remember having committed the crime, although he said on numerous occasions that he must have been the one who did it.
He stated that he had 'a legal right to a lawyer,' and was informed that he did have 'a legal right to a lawyer.' He said he had nothing more to say because, as before mentioned, he could not remember and said he wished he could tell the officers what had happened.
The police asked defendant if he knew he had legal rights, to which he replied that he did. He told the police he knew what he had done. He said he would 'like to have a cigarette and then I'd like to get a hold of a kind of a lawyer. * * * I know what I've done.' He said 'I wanta talk to a lawyer anyways.' The police asked defendant, 'You want a lawyer?' to which there was no response by defendant.
[394 P.2d 951] [40 Cal.Rptr. 263] In the second interrogation, which began about 8:15 the following morning, defendant said he remembered everything he had said the night before, and no mention was made of an attorney by either party during this interrogation.
I find no support in the record for the statement in the majority opinion that upon numerous occasions defendant requested counsel and declared that he did not wish to give any statement without counsel and that the police ignored the request and persisted in the interrogation. As I read the record, defendant did not on numerous occasions request counsel and state that he did not wish to give any statement without counsel. Defendant's statements that he did not have anything to say and/or anything more to say were because of his insistence that he could not remember, not because he did not have counsel.
Escobedo v. Illinois, supra, is distinguishable from the case at bar.
In that case, a witness named the defendant as the one who had shot the victim. In the present case, defendant said he had to be the one who committed the crime. In Escobedo, the defendant had an attorney, who was refused access to his client, and the defendant's request to see his attorney was refused. In the present case, defendant was asked if he wanted an attorney and made no response.
In Escobedo, the defendant spoke only Spanish; in the present case, defendant spoke English, and, furthermore, stated several times that he knew his legal rights.
In Escobedo, the defendant's statement was made on the police officer's express promise that he could go home if he made a statement. In the present case, no promises were made or duress of any kind used, nor is there any claim to that effect. None of the questions and answers transcribed from the police interrogations to which defense counsel objected were read into the record.
In the Escobedo case, which points out clearly under the facts set forth above that the rule there announced is not here applicable, it was said: 'Nothing we have said today affects the powers of the police to investigate 'an unsolved crime,' (citation) by gathering information from witnesses and by other 'proper investigative efforts." (84 S.Ct. at p. 1766.) In the present case defendant was picked up at the scene of the crime shortly after it was committed. He had made false and evasive answers concerning the blood to both the brother and to the mother of the victim.
In Escobedo, the court further said: 'We hold only that when the process shifts from investigatory to accusatory when its focus is on the accused and its purpose is to elicit a confession our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.' (Italics added.) (84 S.Ct. at p. 1766.)
In the present case, during both interrogations defendant at all times admitted he must have committed the crime but maintained that he could not remember the details, and he asked the police to kill him. The questioning only concerned his reason for having committed the crime. The questioning clearly was investigatory and not accusatory. Hence, the evidence was properly admitted.
It is my opinion that the judiciary should consider the protection of innocent people in this state and endeavor to support the law enforcement officers in their efforts to prevent the increase of crimes now taking place at an alarming rate in this and other states of the United States.
We should recognize that the prevention of crime may be best enforced by the prompt conviction and punishment of criminals, and we should endeavor in every legitimate manner to protect our innocent citizens and to avoid unnecessary reversals of conviction of manifestly guilt criminals, thereby better protecting the law-abiding public.
For the foregoing reasons, I would affirm the judgment.
Rehearing granted; MOSK, J., not participating.
'Q. What is the reason for it?
'A. Sure, I, I think I have a legal right to a lawyer. Right?
'Q. You have a legal right to a lawyer, that's right. What's the little girl's name out there that was killed? What about her legal rights? What about her legal rights? Don't you think she's entitled to a little something, too? I want to know what happened out there, Anderson. You said the kid came home and talked back to you. What else happened?
'A. Sir?
'Q. What else happened?
'A. I have nothing more to say.
'A. I have nothing more to say.
'Q. You're so proud of it, maybe you'd like to see it once more? Would you like to go back out there and see what you did? Anderson?' (R.T. 654-655.)
'Q. Well, what do you remember about what happened? This is what I want to know. Maybe I can help you piece it together.
'A. Well, sir, I'll tell you this. * * * I'd like to have a cigarette and then I'd like to get hold of a kind of lawyer. I just don't know what's going on. I know what I've done.
'Q. What have you done? Say it and get it off your chest. You killed a ten-year old girl. You've been under gunfire you tell me. You ought to be able to admit something like that. Well, you want to go out to the rest room * * * all right.' (R.T. 671.)
'Q. Well, was she this time? Was she sassy? What did she say? Was it a smart remark to you?
'A. Gentlemen, I just don't know. I'm so goddamn screwed up.
'Q. All right, well let's see how you feel at this time.
'A. But
'Q. You're sitting on the couch. You've been drinking.
'A. Gentlemen?
'Q. She came home
'A. Look
'Q. Bob, think now.
'A. I
'Q. Just a minute.
'A. No, I, wanta talk to a lawyer anyways.
'Q. Do you find this necessary? That what you say you have something to hide. Is that right?
'A. No, I got nothing to hide, but I want to talk to him and see what he says.' (R.T. 701.)
'Q. You know, Bob. It's a question of whether or not you want to remember, or is it a question of whether or not you just don't want to tell us? Now which is it? You want a lawyer? (inaudible).
'A. Well, I want to talk to (inaudible).' (R.T. 704.)