People v. Barrow

• Decision Date: 13 August 1976
• Docket Number: Cr. 14599
• Citation: 131 Cal.Rptr. 913,60 Cal.App.3d 984
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jimmie Hugh BARROW, Defendant and Appellant.

Page 913

131 Cal.Rptr. 913

60 Cal.App.3d 984

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jimmie Hugh BARROW, Defendant and Appellant.

Cr. 14599.

Court of Appeal, First District, Division 1, California.

Aug. 13, 1976.

Hearing Denied Oct. 21, 1976.

Jacqueline F. MacGregor, Ronald D. MacGregor, Jackson S. Wallace, Pacific Grove, for defendant and appellant

Evelle J. Younger, Atty. Gen. of Cal., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, James D. Hurwitz, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

BRAY, Associate Justice. ^*

Defendant and appellant appeals from a judgment of the Solano County Superior Court, after jury verdict, convicting him of involuntary manslaughter.

ISSUES PRESENTED

1. Appellant's statements to the police were properly admitted.

A. The court applied the proper standard in determining the voluntariness of appellant's statements.

B. Appellant's statements were voluntary.

C. Appellant's confession was not an invocation of his Fifth Amendment privilege.

2. Cross-examination of a witness was not improperly restricted.

3. The prosecutor was not guilty of misconduct.

RECORD

Appellant was charged by information with violation of section 187 of the Penal Code (murder). During the trial the court granted appellant's motion for a directed verdict pursuant to section 1118.1 of the Penal Code, as to first degree murder. The jury returned a verdict of guilty of involuntary manslaughter. Appellant was sentenced to state prison for the term prescribed by law. Appellant appeals from the judgment.

FACTS

Madelyn ('Lyn') Hassett and Ronald Wright met in June 1974. About five months later Lyn moved into the apartment Ron shared with appellant in Vallejo. Difficulties arose, however, between Ron and Lyn because Lyn continued to see her 'ex-husband' Bob. Lyn eventually moved into her own apartment in Vallejo.

On April 1, 1975, at about 1:30 p.m., Lyn came by the service station where appellant was employed and invited appellant to go for a drink. They went to a bar and remained there for about three hours, during which time appellant had seven or eight drinks. Lyn had arranged to meet Ron at 3:15 but she failed to keep the appointment. Lyn drove appellant back to the service station and on her way home saw Ron driving behind her. They pulled into a parking lot where Ron told Lyn that he had lost his roommate and the girl he loved and that he knew what was going on. Lyn returned to her house where she attempted to call Ron but received no answer. After a short while she became worried and drove over to Ron's.

Meanwhile, appellant left work and returned home. As he drove into the driveway, Ron drove in beside him. Ron demanded that appellant take his sunglasses off and after he complied Ron hit him three or four times, screaming, 'I seen you with Lyn.' They moved to the back yard where Ron continued hitting appellant saying. 'I know what's going on between you and . lyn. You're a hell of a buddy, Jim.' Appellant attempted to calm Ron, but when Lyn arrived on the scene Ron became angrier. Ron continued hitting appellant and kicked him in the groin. At this point appellant became angry. He went to the kitchen, grabbed a knife, and went out to the patio. The men continued to struggle and appellant said, 'Ron, let's quit this.' Ron lunged forward onto the knife.

A pathologist testified that Ron suffered two stab wounds. One was a downward wound into the chest cavity to a depth of about two to four inches and was not particularly disabling. The fatal wound was directed upward through the chest to a depth of about eight inches and severed the innominate vein.

The police were contacted. Then appellant called his employer William Pendergast and said, 'I'm in trouble. I think I just killed Ron.' Pendergast went to appellant's home immediately.

Vallejo Police Officer Victor Moore arrived within a minute of the call and assisted the ambulance crew. He then advised appellant of his rights and appellant indicated a willingness to speak. Appellant told Moore that Ron had met him in the driveway and hit him as he got out of the car and that the fight moved to the back yard area where Ron continued to hit appellant. He stated that at that time he found a knife on the patio and picked it up and that Ron was stabbed one time.

Later that evening, Vallejo Police Detective Richard Hoffman and Deputy District Attorney Charles Meyerherm took tow statements from appellant. At the trial, appellant testified in his own befalf.

1. Appellant's statements to the police were properly admitted.

At a hearing outside the presence of the jury, the court determined that appellant's statement to Officer Moore and his later statements to Detective Hoffman were made following a knowing and voluntary waiver by appellant of his Miranda rights and were therefore admissible. Appellant challenges this determination on the following grounds: (1) That the burden of proof used to determine the voluntariness of an admission or confession should be the 'reasonable doubt' standard rather than the 'preponderance of the evidence' standard; (2) that appellant's statements were not the product of a rational intellect and free will; and (3) that his confession was unlawfully obtained because his request to talk to his employer at or near the commencement of the

interrogation was an invocation of his Fifth Amendment privilege. A. The court applied the proper standard in determining the voluntariness of appellant's statements.

The court determined that the voluntariness of appellant's confession must be proved by a preponderance of the evidence rather than by proof beyond a reasonable doubt. In People v. Chen (1974) 37 Cal.App.3d 1046, 1049, 112 Cal.Rptr. 894, 896, the court stated: 'Although California cases have held that the 'reasonable doubt' standard is to be applied in determining the voluntariness of a confession (see People v. Stroud (1969) 273 Cal.App.2d 670, 78 Cal.Rptr. 270), those holdings were based upon what was believed to be a federal rule implied in Jackson v. Denno (1964) 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1 A.L.R.3d 1205). The United States Supreme Court has since declared that the 'preponderance of the evidence' standard meets the requirements of the Fourth Amendment and that Jackson v. Denno, supra, did not hold to the contrary (Lego v. Twomey (1972) 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618). A state may adopt a higher standard than that required by the United States Constitution, but we do not find that California has done so. The record contains substantial evidence in support of the finding by the trial court that the confession was voluntary.' (See also People v. Hutchings (1973) 31 Cal.App.3d 16, 19--20, 106 Cal.Rptr. 905.) It is concluded that the court applied the proper standard.

B. Appellant's statements were voluntary.

Appellant contends that his statements were not voluntary. 'In numerous decisions it is said that an appellate court is not bound by the trial court's determination of the voluntariness of a confession. It is the duty of a reviewing court to examine the uncontradicted facts to determine independently whether the trial court's conclusion of voluntariness was properly found. (Citations.) In determining whether the defendant's confession is the product of a rational intellect and a free will, the totality of the circumstances surrounding the confession must be considered. (Citation.) Where the evidence is conflicting, an appellate court will accept the trial court's finding if the evidence relied on by the trial court 'is not so improbable as to be entirely unworthy of belief.' (Citation.)' (People v. Hutchings, supra, 31 Cal.App.3d 16 at p. 20, 106 Cal.Rptr. at p. 907.)

Appellant contends that when he gave his statement to Officer Moore shortly after the stabbing, he was intoxicated and in a highly emotional state and that therefore his confession was not the product of a rational intellect and free will. Officer Moore testified that when he arrived on the scene he knew only that a stabbing had occurred. The ambulance arrived at about the same time that Moore arrived and departed with the victim about three minutes later. Appellant commenced explaining to the officer what had happened. Moore stopped him and read him his rights from a card, asked him if he understood his rights, and if he wanted to say anything. Appellant stated that he understood his rights and that he would talk to Moore. Moore stated that he detected that appellant's eyes were bloodshot and that there was alcohol on appellant's breath but that appellant was able to respond to the questions he asked. It was stipulated that appellant's blood alcohol level at the time of the stabbing was between .17 and .19. Having reviewed the record, it is concluded that the prosecution sustained its burden of proving that appellant's statement to moore was voluntarily given.

Appellant also contends that his two statements to Detective Hoffman and Deputy District Attorney Meyerherm approximately four or five hours later at the Vallejo Police Department were not the product of a free will but were induced by Hoffman and Meyerherm. It was stipulated that the validity of these two statements which consist of a tape-recorded statement and a transcribed statement would be decided together.

Appellant concedes and the tape recording indicates that appellant was again informed of his rights. He stated that he understood his rights but that he did not know what to say. Between lengthy pauses he was told that it was a decision he would have to make, that only he could make up his mind, and was advised not to say anything until he made up his mind. Appellant then asked if he could talk to his employer Bill Pendergast. He was told 'no' but that he would certainly be allowed the services of an attorney. After a discussion of how the victim's parents...