People v. Babbitt

Decision Date16 June 1988
Docket NumberNo. S004455,Nos. 22692 and 24440,S004455,s. 22692 and 24440
CourtCalifornia Supreme Court
Parties, 755 P.2d 253 The PEOPLE, Plaintiff and Respondent, v. Manuel Pina BABBITT, Defendant and Appellant. In re Manuel Pina BABBITT, on Habeas Corpus. Crim.

Frank O. Bell, Jr., State Public Defender, under appointment by the Supreme Court, Musawwir Spiegel, Deputy State Public Defender, Sacramento, and Louis N. Hiken, Davis, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Ward A. Campbell, Garrett Beaumont and Edmund D. McMurray, Deputy Attys. Gen., for plaintiff and respondent.

PANELLI, Justice.

Defendant Manuel Pina Babbitt was convicted of the first degree murder (Pen.Code, § 187), 1 robbery ( § 211) and attempted rape ( §§ 664, 261, subds. (2), (3)) of Leah Schendel and the burglary of Ms. Schendel's apartment ( § 459), and of the robbery ( § 211) and attempted rape ( §§ 664, 261, subds. (2), (3)) of Mavis W. The jury found the murder to have occurred in the course of burglary ( § 190.2, subd. (a)(17)(vii)), robbery ( § 190.2, subd. (a)(17)(i)) and rape ( § 190.2, subd. (a)(17)(iii)), found defendant sane, and in the Schendel case imposed the sentence of death. This appeal is automatic. ( § 1239, subd. (b).) We have consolidated defendant's petition for writ of habeas corpus with the appeal.

As will appear, we affirm the judgment and deny the petition for writ of habeas corpus.

I. FACTS

Defendant did not dispute that he committed the charged offenses, but in both the Schendel and the W. cases he asserted the defenses of diminished capacity and unconsciousness.

A. The Schendel Case.

Leah Schendel lived in the Sacramento Manor, a senior citizen's complex located on North Manor Drive in Sacramento. On the evening of December 18, 1980, she dined out with relatives and returned to her apartment about 11 p.m. That same evening, Vernon McMaster, her next door neighbor, went to bed at his usual time between 10:30 and 11 p.m. He awoke sometime between 2 and 4 a.m. While lying in bed he heard a noise like a "thud or a thump" in Ms. Schendel's apartment. After that he did not hear anything. He then heard the television go on. McMaster lay awake in response to the noises for about an hour.

The next morning, December 19, Edna Smith, Leah Schendel's neighbor on the other side, checked on Ms. Schendel at McMaster's urging. The screen door to Ms. Schendel's apartment had been cut or broken and the main door was open. The television was on, but the sound was turned down. Receiving no response when she called Ms. Schendel's name, Ms. Smith called John Balvin, the resident manager of the complex. Ms. Smith had been up until 2 a.m. the previous night and had heard nothing except Ms. Schendel arriving home from dinner about 11 p.m.

When Balvin entered Ms. Schendel's apartment, he found the furniture in disarray. Ms. Schendel's body was on the bedroom floor, covered from the waist up with a mattress or box springs. After determining that Ms. Schendel was dead, Balvin called the police.

The police arrived and secured the apartment. The apartment screen door had been ripped near the latch, apparently by a sharp instrument rather than a hand or finger. The apartment appeared to have been ransacked. The television set was turned on to channel 40, but there was no sound. Playing cards, broken dentures, and some pieces of glass were on the living room floor. A purse was on the floor. A knife was beside the television set. There was blood on the living room and kitchen floors, on the inside portion of the screen door, and on the doorway of the bedroom. Drawers and other items were scattered all over the bedroom.

When the mattress was removed from Ms. Schendel's body, it was noted that she was nude from the waist down. Her nightgown and pajama top were pulled above her breast area. A tea kettle was sitting on top of her pubic area, a leather strap was tied to her left ankle, an electrical cord lay across the lower part of her legs. A pillow by her head was heavily soaked with blood.

According to the pathologist, Leah Schendel died from a heart attack brought on by a severe beating and possible suffocation. She also showed signs of possible rape. Her body had suffered numerous lacerations and abrasions. Had Ms. Schendel not suffered from coronary disease, and had she not experienced physical and psychological stress caused by fright, the struggle, and pain from her wounds, the physical blows she received would not of themselves have proved fatal.

Defendant's fingerprints and palmprints were found on the handle of the tea kettle and on other items strewn about the apartment. Articles missing from the apartment were subsequently found among defendant's belongings.

B. The Mavis W. Assault.

About 10:30 or 11 p.m. on December 19, 1980, Mavis W. was returning to her home on 63d Avenue in Sacramento in her new Volkswagen Dasher automobile. As she approached her driveway she noticed defendant walking slowly by her house. When she turned into her driveway, defendant stopped, turned around, and looked at her.

As Mrs. W. alighted from her car, defendant grabbed her from behind. He demanded her car, but Mrs. W. threw the keys up the driveway. Defendant dragged Mrs. W. behind some bushes and struck her until she lost consciousness. When she regained consciousness, she was lying on her back and defendant was attempting to pull off her pants. Mrs. W. again lost consciousness.

Julie W., Mavis W.'s daughter, was visiting her mother's house the evening of December 19th, as was George Iwamura. When George left the house to go home he saw defendant running across the neighbors' lawn. He also saw Mrs. W. lying on the lawn near the neighbors' house. George ran back to Mrs. W.'s house, told Julie, and called the police.

Julie found her mother lying unconscious on the grass, blood on her face and her clothing. Mrs. W. was nude from the waist down. Her purse was on the ground, its contents strewn about the yard. Taken from Mrs. W. were a silver pendant, money, a silver ring, and a gold watch with a gold band.

C. The Defense.

Defendant did not testify. Sacramento Police Detective Terry Brown testified that in a tape-recorded interview after his arrest, defendant denied any memory of the Schendel attack.

In a videotaped interview with defense psychiatrist Dr. David Axelrad, defendant related that he spent most of Thursday, December 18, 1980, the day preceding the early morning Schendel attack, with a woman whom he had met that morning. The pair spent most of the day at the Stix Bar, where they consumed some liquor and beer and smoked marijuana. That evening about 9 p.m. the woman left in a taxi. Defendant smoked more marijuana with some men who had parked nearby in a van. He then walked to 21st Street where he sat down on the ground and passed out. When he came to, there was a cigar box next to him with "stuff" in it. He denied any memory of the attack on Ms. Schendel.

Gerald Kato testified that on December 19, the day of the Mrs. W. attack, he met defendant at the Stix Bar. The two went out to Kato's truck about 9 or 10 p.m. and smoked marijuana. Kato stated that defendant appeared to act and talk normally.

Defendant's psychiatric defense of diminished capacity and unconsciousness was presented primarily through the testimony of his brother William and other family members, his common law wife Theresa, and Dr. Joan Blunt, a clinical psychologist.

The defense advanced three theories: (1) That as the result of childhood brain damage caused by a bicycle accident and a service-related injury received in Vietnam, defendant's ability to think and function under stress was impaired; (2) that as a result of his combat service in Vietnam defendant manifested symptoms associated with post-traumatic stress disorder (PTSD); and (3) that defendant possibly suffered from psychomotor epilepsy, which condition would have rendered him unconscious of acts committed during a seizure.

D. Rebuttal.

In rebuttal, the prosecutor put on psychiatrist Dr. Lee Coleman. Dr. Coleman's testimony is discussed in detail below in connection with defendant's claim of prosecutorial misconduct. In essence, Dr. Coleman testified that psychiatrists and psychologists are no better equipped than lay persons to infer what a defendant's mental state was at the time of an alleged offense.

II. GUILT AND SANITY PHASES

As error during the guilt and sanity phases, defendant assigns the exclusion for cause of potential jurors opposed to the death penalty, the exclusion of certain evidence concerning his mental state at the time of the crimes, the court's instruction on the "presumption of consciousness" (CALJIC No. 4.31), prosecutorial misconduct, and ineffective assistance of counsel.

A. Denial of Representative and Impartial Jury.

Defendant contends that the exclusion of some potential jurors for cause in accord with Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (exclusion of jurors unalterably opposed to the death penalty) denied him a jury representative of a fair cross-section of the community and denied him an impartial jury on the issue of guilt.

We rejected the first contention in People v. Fields (1983) 35 Cal.3d 329, 342-353 (plur. opn.), 374, 197 Cal.Rptr. 803, 673 P.2d 680 (conc. opn. of Kaus, J.), and the second in Hovey v. Superior Court (1980) 28 Cal.3d 1, 68, 168 Cal.Rptr. 128, 616 P.2d 1301, and People v. Anderson (1985) 38 Cal.3d 58, 60, 210 Cal.Rptr. 777, 694 P.2d 1149. The United States Supreme Court recently rejected the identical contentions in Lockhart v. McCree (1986) 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137.

B. Evidentiary Error.

Defendant contends that through a combination of erroneous rulings excluding...

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