People v. Butler

• Decision Date: 16 April 1975
• Docket Number: Cr. 7592
• Citation: 47 Cal.App.3d 273,120 Cal.Rptr. 647
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Allen Edward BUTLER, Defendant and Appellant.

Page 647

120 Cal.Rptr. 647

47 Cal.App.3d 273

The PEOPLE of the State of California, Plaintiff and Respondent, v. Allen Edward BUTLER, Defendant and Appellant.

Cr. 7592.

Court of Appeal, Third District, California.

April 16, 1975.

Hearing Denied July 3, 1975.

Evelle J. Younger, Atty. Gen., by William G. Prahl, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

George H. DuFort, South Lake Tahoe, court appointed, for defendant and appellant.

JANES, Associate Justice.

Defendant was charged by information with oral copulation (Pen.Code, § 288a), attempted forcible rape (Pen.Code, §§ 261, subd. 2, 664), and attempted rape by threat of harm (Pen.Code, §§ 261, subd. 3, 664). He was convicted by jury on the charges of oral copulation and attempted forcible rape. Sentenced to state prison on both counts, ¹ the sentences to be served concurrently, he appeals from the judgment.

The principal contention advanced by defendant, which we will sustain, is that the trial court committed prejudicial error by refusing the jury's request, midway in its deliberation, that the testimony of five witnesses be reread. In view of the fact that our resolution of the contention will be dispositive of the appeal, our recitation of the facts will be confined almost wholly to the testimony of those five witnesses.

THE RELEVANT FACTS

The prosecution's first witness was Tammy U. ('Tammy'), the 14-year-old victim. On December 21, 1973, at 3:30 in the afternoon, Tammy went to the home of Mrs. Holliday, two doors from Tammy's home, to baby-sit Mrs. Holliday's two children. Tammy put the children to bed at approximately 9:30 p.m., watched television until some time after 1:00 a.m., then fell asleep. Sometime thereafter, Tammy awakened to find defendant in the room changing channels on the television set. ² Defendant, whom Tammy had previously met, was 28 years old and Mrs. Holliday's current boy-friend. After defendant could not find a channel on the television set, he came to where Tammy was sitting and sat down on the arm of her chair. He put his arm around Tammy, fondled her breasts, and there followed, in the living room, the kitchen, backyard, and garage (and over a considerable period of time) the sordid events supporting the charges and detailed at length in the reporter's transcript of Tammy's testimony.

Mrs. Holliday returned home about 3:00 a.m. She found Tammy on the couch and defendant sitting in a chair. She walked Tammy home at approximately 3:30 a.m. Tammy said nothing to Mrs. Holliday, but as soon as she reached home she told her parents what had happened. Her parents testified that Tammy was hysterical. A doctor was called by Tammy's mother and Tammy was given a bath. Meanwhile, her father went to the Holliday home and confronted defendant, who denied Tammy's accusation.

Tammy was examined about 4:00 a.m. by Dr. Walter Mazen (called as a defense Mrs. Holliday testified that prior to leaving her home the afternoon of December 21, the garage (in which Tammy's testimony placed much of the activity) had been straightened up and was very neat, but that after returning home she noticed that clothes which had been hung in the garage were in a little pile in the middle of the garage floor and that a package of cigarettes and a lighter were on the floor along with the clothes. The cigarettes and lighter were identical to those used by defendant. She also found, on the kitchen floor, a bracelet which Tammy had worn when she came to the Holliday home to baby-sit. Mrs. Holliday also testified that she kept a key to the back door on a shelf in the garage, a fact of which defendant was aware, and that the key was missing from the garage after December 21.

witness at trial). Dr. Mazen testified that after thorough [47 Cal.App.3d 277] examination he found no evidence of bruises or violence, but did find her emotionally disturbed, crying and upset, with a rapid pulse. He also determined that she was still a virgin.

The defense presented was one of good character for honesty and peacefulness, and of alibi for the time period in question. Defendant testified consistently with his alibi witnesses, and further that he arrived at the Holliday home shortly before Mrs. Holliday's arrival, went to the front door and knocked, and that when Tammy opened the door there was a young boy standing behind her, approximately sixteen to nineteen years of age and with long brown hair; the boy left the house immediately upon defendant's arrival. Defendant's mother corroborated defendant's testimony in part and also stated that his reputation for peacefulness and honesty was good.

DISCUSSION

The case went to the jury at 1:32 p.m. on the third day of trial. At 4:12 p.m. court was reconvened at the request of the jury. The following exchange occurred:

'THE COURT: . . . Let the record show that the jury is in the box. The defendant is in attendance as are respective counsel. I understand the jury has some question?

'THE FOREMAN: Yes Your Honor. My voice is very small. We would like to hear the testimony of all of Tammy's. We'd like to hear the testimony of the doctor, of Mr. Butler and his mother. And Mrs. Holliday.

'THE COURT: That's practically the whole trial.

'THE FOREMAN: That's yes. Some of it was so faint we couldn't really hear it correctly, clear.

'THE COURT: I wish to ask the Jury Foreman if you--I don't want to know how you voted, but have you voted on any of the counts?

'THE FOREMAN: We've not taken a formal vote, no.

'THE COURT: Counsel come to the bench please.'

The following proceedings were then had at the bench, outside the hearing of the jurors, with counsel and the defendant before the court:

'THE COURT: We'll be here forever. What do you think?

'MR. BATHEN: (defense counsel): Appears so.

'THE COURT: It appears so.

'MR. BATHEN: Appears so.

'THE COURT: Totally a retrial practically. Do you have anything to offer?

'MR. WASHINGTON (prosecutor): How many witnesses are there?

'THE COURT: Five.

'MR. BATHEN: Those were the major ones.

'MR. WASHINGTON: Well if they haven't even taken a vote yet maybe you could ask them to do that first.

'MR. BATHEN: Maybe have them take a vote on it first and then we could read it back.

'THE COURT: I think I'll not have it all read. That's practically a retrial.

'MR. BATHEN: Take about two days to reread on the thing.

'THE COURT: Take a day.

'MR. WASHINGTON: Take half a day I'm sure.

'MR. BATHEN: At least that.

'THE COURT: Okay. I mean I've never heard of this type procedure before. Were you ready? Did you have something further you wanted to say?

'MR. WASHINGTON: Well I don't know of, I've heard of readback before, but I've never heard, never had a readback that was that long. Of course we can always try it again.'

At the conclusion of the foregoing discussion at the bench by the court and counsel, the proceeding was resumed before the jury as follows:

'THE COURT: I appreciate your request Ladies and Gentlemen of the Jury and I know the importance of the case, but to reread what you have asked to be reread would perhaps take a full day. And you I trust will go back into the jury room and do your very best to arrive at a verdict Based on the information that you have. Thank you for making the request, but it has to be denied. Go back and give it a good try.' (Emphasis added.)

At 4:18 p.m. the jury left the courtroom to resume deliberation. Shortly after 5:00 p.m. the court reconvened the jury, asked them whether they had voted and how they stood. The reply was nine to three. In response to the court's further question, the jury foreman expressed the jury's feeling that it would be able to reach a verdict upon further deliberation. Again the jurors returned to their task. At 7:47 p.m. court reconvened briefly, at the jury's request, for a rereading of the instruction defining oral copulation and reinstruction on the question of intent as applied to the offense of oral copulation. At 8:03 p.m. the jury returned with its verdicts.

Penal Code section 1138, virtually unchanged from the form in which it was originally enacted in 1872, provides as follows: 'After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.'

Defendant's contention that the trial court committed prejudicial error by denying the jury's request for rereading of the indisputably key testimony is grounded upon the relationship of the claimed statutory mandate of Penal Code section 1138 to the fundamental right of an accused to a fair trial, conducted substantially in accordance with law. (See, People v. Weatherford (1945) 27 Cal.2d 401, 420, 164 P.2d 753.) The Attorney General resists the contention upon the mechanical suggestion that since the jury's request to the court did not indicate any 'disagreement' among the members of the jury as to the testimony in the case, no requirement existed under section 1138 that the testimony be reread. ³ (People v. Stafford (1973) 29 Cal.App.3d 940, 106 Cal.Rptr. 72, discussed Infra.) The argument of the Attorney General ignores a respectable line of authority which holds that upon request by the jury for the rereading of testimony, such assistance must be given.

In People v. Henderson (1935) 4 Cal.2d 188, 48 P.2d 17 the jury requested that all testimony relating to the time the victim had been present at specified places be reread. In complying with the request certain relevant testimony was omitted. In reversing the conviction, the Supreme Court stated: 'Who can say that the jury, in their 5-hour deliberation, might not have reached an opposite conclusion had they had the benefit...