People v. Burden

• Decision Date: 10 August 1977
• Docket Number: Cr. 29782
• Citation: 72 Cal.App.3d 603,140 Cal.Rptr. 282
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Ralph BURDEN, Defendant and Appellant.

Page 282

140 Cal.Rptr. 282

72 Cal.App.3d 603

The PEOPLE, Plaintiff and Respondent, v. James Ralph BURDEN, Defendant and Appellant.

Cr. 29782.

Court of Appeal, Second District, Division 3, California.

Aug. 10, 1977.

Hearing Denied Oct. 6, 1977.

Hugh Peter Bavaro, Glendale, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Michael Nash, Deputy Attys. Gen., for plaintiff and respondent.

POTTER, Associate Justice.

In a trial by jury, defendant was found guilty of murder of the second degree because of the death of his son, approximately five months old, caused by malnutrition and dehydration.

Three contentions are presented on this appeal: (1) the admission in evidence of postdeath colored photographs of the emaciated infant constituted prejudicial error; (2) a tape-recorded interrogation of defendant by the police should have been excluded because defendant did not knowingly and intelligently waive his Miranda rights; and (3) the evidence was insufficient to sustain the conviction of murder.

The child was born on September 6, 1975, at Harbor General Hospital. Dr. Wong testified that he examined the infant at about 8:30 a.m., on September 7, and again on the date of discharge, September 9 at 7:25 a.m.; he found no abnormalities. The weight at birth was seven pounds, one ounce, and on the day of discharge was six pounds, thirteen ounces, the decrease in weight being a normal loss within the first two or three days of life. The infant was pronounced dead in the emergency facilities of St. Mary's Medical Center in Long Beach on February 2, 1976.

Dr. Dykstra, a deputy coroner, performed an autopsy on February 3, 1976. He found that the remains weighed six pounds, that with respect to the child's organs there was no evidence of disease or congenital abnormality, and that the cause of death was a combination of malnutrition and dehydration due to starvation. A portion of Dr. Dykstra's testimony was: '. . . the complete lack of any fat stores and generalized muscle atrophy indicates there has been a prolonged chronic lack of food. And that this prolonged chronic lack of food has resulted in the depletion of the body stores of energy. And finally, the body simply has run out of energy and it stopped functioning.'

Dr. Dykstra further testified as follows: 'A. There was no evidence of any solid food in the entire gastrointestinal tract . . . A. . . . The lack of any food in the intestinal tract, including stomach, small intestine and large intestine, indicates that the child had not had or been able to pass into its intestine solid food I would say certainly for the 16 hours prior to death. Probably for 24 hours. And quite likely for two to three days. Now this is solid food that we're referring to. . . . Q. Doctor, if the child had been fed milk at 7:30 a.m. on the day of his death and had taken some of the milk in, and had died later at 12:10 p.m. that same day, would there have been evidence of that milk in the digestive tract? A. If the child had been given the milk and had retained the milk, yes. In other words had not vomited it or lost it from its stomach, then we should have evidence of milk curd either in the stomach or in the small intestine. With this period of time, actually, it probably would be in the small intestine, rather than the stomach. As I've indicated here, there was no evidence of milk curd in the small intestine.'

Dr. Jacobs, a pediatrician, testified that he concurred in Dr. Dykstra's opinion as to the cause of death.

Witnesses testified at the trial with respect to the care afforded the child by defendant and his wife during the infant's short (four days less than five months) period of life. For the most part, this testimony related to deficiencies in the feeding and care of the child observed by neighbors and friends, public health personnel and social workers in late 1975. At that time, the child did not appear to be getting enough to eat and his parents were advised to hold him during feeding and to add cereals and fruit to his diet.

Detective Wren of the Long Beach Police Department testified that he had two tape-recorded conversations with defendant, the first occurring on February 5, 1975, and the second on February 24, 1975. Defendant was arrested on the latter date.

At the beginning of the February 5 taped conversation, the officer stated to defendant his Miranda rights and asked defendant if he understood each of those rights. Defendant said that he did. The officer then asked: 'Having these rights in mind do you want to talk to me now about this case?' and defendant answered, 'Yes sir.' In this first conversation, defendant stated that he had been separated from his wife for three months, the he only visited occasionally or weekends to see the children. Defendant acknowledged that the baby had been thin a month prior to his death but claimed 'he had seemed to be getting heavier.' Defendant also stated that he had personally fed the baby a jar of baby food and a bottle of milk the Friday night before the Monday that he died and denied knowing that his wife at times had failed to feed the baby all day long.

At the beginning of the February 24 taped conversation, the officer again stated to defendant his Miranda rights. The officer then asked defendant if he understood each of those rights. Defendant said that he did. The officer then asked: 'Having these rights in mind do you want to talk to us now?' Defendant answered, 'Yes, sir.'

Early in the February 24 conversation, defendant was confronted with the fact that investigation disclosed the falsity of his claim that he was living separate and apart from his wife. Defendant explained this deception as necessitated by the wife's having collected welfare on the basis that he had left her. Defendant admitted that he was aware that the baby wasn't getting enough to eat and stated that he had fed him himself at least every other night. When confronted with the inconsistency between this claim and the fact that the child had died of starvation and dehydration, defendant admitted that 'for the last couple of weeks' he hadn't 'fed him at all,' and 'made no effort whatsoever to see that he got anything to eat.' Though at first he claimed to have seen his wife feed the child about three or four times during this period, he later conceded that during the last two weeks he never saw anyone feed the child.

During this taped conversation, defendant was questioned extensively concerning his understanding of what was happening to the child during the final two weeks of his life and his explanation for his conduct in respect of such circumstances. The taped conversation included the following questions and answers: 'Q. You were aware that he wasn't getting enough to eat? A. Yes sir. . . . Q. You were aware that your wife was starving the kid wasn't feeding him enough? A. Yes sir. Q. But you did absolutely nothing about it? A. No sir. . . . Q.--you knew Linda (defendant's wife) wasn't feeding him right? A. Yes sir. . . . Q. But you knew he was starving to death didn't you? A. Yes sir. Q. And you didn't really care did you? A. I don't guess so. . . . Q. Okay we're not playing crossoword puzzle. What we're playing is that you knew the kid was starving to death right? A. Yes sir. Q. And you did absolutely nothing about it? A. Yes sir. Q. Now, why didn't you do anything about it? A. Uh, I gue (sic) I, I, I just didn't care. . . . Q. You didn't care if Mikey lived or died? A. No . . . Q. Why didn't you care whether he lived or died? A. I don't know, I ca--Q. Did you ever care from the day he was born whether er not he was your son and stayed alive? A. Yes. Q. When did you stop caring about him then? A. It, I, uh, it was after he was born.'

Defendant testified in his own behalf. He was 27 years old. Usually his wife would feed the baby by fixing him a bottle, sometimes containing just plain milk. Sometimes she would mix a jar of baby food in the milk and take the bottle and 'prop it up for him in the crib.' She did not make it a habit to hold the child. When defendant fed the baby, he would usually hold him and feed him baby food or cereal with a spoon. Then he would give him a four-ounce bottle of milk. He requested his wife to take the baby to a doctor on more than one occasion, mostly in December and January. Defendant was working. When he would attempt to do anything with the baby, his wife would usually get mad and an argument would ensue.

Defendant realized 'that if you did not feed a child, the child would die,' but he 'couldn't stand the arguing constantly.' He '(j)ust felt rejected, and I guess in a way I just give up, I couldn't stand arguing any more.' However, he continued to live at home with his wife and children throughout the month of January and up to the date of the child's death. He threatened to leave but didn't do so, '(b)ecause I love my wife and kids.' In his direct examination defendant also testified that on the date of the baby's death he had fixed a bottle for him and had put it in the crib about 7:30 in the morning. He also admitted that he had told police sergeant Dunyon that he 'had been faithfully feeding the child' in the course of the February 5 interrogation.

Defendant further testified that his wife Linda was retarded. He did not know that she had been in several mental institutions. He relied on her to take care of the children. He further testified that he was hurt when the infant died because he 'really loved' his child.

On cross-examination, defendant was obliged to admit that he had lied to Sergeant Dunyon when he denied that he was living in the same house with his wife and children. When asked to explain why he had not taken the baby to a doctor in January, though aware that he 'was extremely thin,' defendant referred to the ...