People v. Bynum

• Decision Date: 22 April 1971
• Docket Number: Cr. 15255
• Citation: 4 Cal.3d 589,483 P.2d 1193,94 Cal.Rptr. 241
• Court: California Supreme Court
• Parties: , 483 P.2d 1193 The PEOPLE, Plaintiff and Respondent, v. Theodore Anthony BYNUM, Defendant and Appellant.

Page 241

94 Cal.Rptr. 241

4 Cal.3d 589, 483 P.2d 1193

The PEOPLE, Plaintiff and Respondent, v. Theodore Anthony BYNUM, Defendant and Appellant.

Cr. 15255.

Supreme Court of California In Bank.

April 22, 1971.

Richard H. Levin, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., William E. James, Asst. Atty. Gen., and James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.

McCOMB, Justice.

Defendant was charged with the murder of Mrs. Beatrice Loya (Pen.Code, § 187). He pleaded not guilty. A mistrial was declared after the first jury was unable to reach a verdict. The second jury found him guilty of murder in the first degree. The jury became deadlocked on the penalty phase, however, and was dismissed by the court. The court sentenced him to state prison for the term of his natural life (Pen.Code, § 190.1).

When the evidence is viewed in the light most favorable to the People as we are bound to do following a guilty verdict, the record discloses that on November 26, 1968, Mrs. Loya reported for work at 4:28 p.m. at Coast Plastic Packaging located on 23rd Street in Los Angeles. She had about $80 in bills in a blue wallet in her purse and she placed therein the paycheck she received that night. She was assigned to a machine in the eastern section of the shop by Mr. Douglas Wright, the swing shift foreman. She placed her purse upon a bench behind her machine. Her machine was located near an open door, about 10 feet wide, facing the loading dock on 24th Street. The other employees were working 30 to 40 feet away in the western section of the shop. Boxes were stacked between the two sections limiting visibility. All the machines were noisy, and one had to yell to be heard above the noise.

Mr. Wright saw Mrs. Loya several times during the evening when he passed her machine, the last time being about 8 p.m. At 8:20 the shopowner notified him that Mrs. Loya was not at her machine. Mr. Wright had never known her to leave her machine running while she was away from it. The two men searched the premises and found her car outside but could not find her. She had not returned by 9 p.m. when the employees returned from their meal break. The employee assigned to operate Mrs. Loya's machine discovered blood on the floor behind the machine and notified Wright. He found drops of blood leading from the machine to a nearby pallet, a blood smear on the pallet, and a bloody smear resembling a drag mark on the floor from the pallet to the loading dock door. One of Mrs. Loya's shoes was on the ground below the loading dock between two cars parked there and there were drops of blood on the ground. At 9:10 p.m. Wright called the police, who arrived at 9:15.

The officers found a blood smear on the door of the loading dock and on the hood of one of the cars. They followed drops of blood some 100 feet across the street and over a sidewalk to a weed-filled area. The drops on the sidewalk were about the size of a quarter. There were no large groups. They were 'more like a trail' of blood. The body of Mrs. Loya was found in the lot. Her bloodstained dress, bra and slip were up around her neck, her panty hose were ripped apart and her genital area was exposed. Plant material of the type growing in the area adhered to her clothes. Search of the neighborhood for a blunt object with blood on it was unsuccessful. Her purse and contents were never found.

An autopsy was performed about 11 a.m. the next day by Dr. Horace L. Spear, who found wounds to the jaw bone, the right ear, and the back of the scalp. In his opinion these were inflicted with a blunt instrument, causing a number of injuries to the brain, any one of which could have caused death. There was a bruise on her chest and a large abrasion across the right side of her back, which appeared to him to have resulted from the body being dragged. In his opinion death could have occurred from a minute to an hour, but probably occurred within 10 to 15 minutes of the time the blows were inflicted.

Dr. Spear found no visible trauma to the victim's vaginal area. Examination of a vaginal smear revealed the presence of semen and acid phosphatase but no spermatozoa. He could not ascertain with reasonable medical certainty whether Mrs. Loya had sexual intercourse within 15 hours of her death. He explained that acid phosphatase is a chemical which is found in large quantities in the seminal fluid released by the male at the time of sexual climax, but it is not found in the vagina in amounts detectable with the tests used unless semen is deposited there. Spermatozoa are usually present in the semen but there are instances when they are not, as when the testicles have been removed or are diseased and are no longer producing spermatozoa.

Semen is not recognizable as semen in the vagina five minutes after emission because it then looks like any clear liquid. It can be detected on clothes a matter of months later. Spermatozoa are recognizable much longer than the time mentioned for the physical appearance of semen. The detectable presence of spermatozoa diminishes but not in the same way as acid phosphatase. Many variable factors influence the rate of disintegration of the recognizable form of a spermatozoa. With acid phosphatase there is a steady decrease in the quantitative measurement after intercourse depending upon variable factors, but the decrease continues whether the body into which it is deposited is alive or dead. It is detectable for as long as 12 to 24 hours after deposit. A significantly large amount would be designated as 'four plus' on a test scale which descends to 'one plus,' 'a trace,' and 'absent.' In the specimen here examined there was a reading of 'two plus,' which would indicate that a larger quantity was present earlier. This was a 'borderline result' and did not positively rule in or rule out the occurrence of sexual activity shortly before death, the doctor testified.

Defendant was never seen with Mrs. Loya or at Coast Plastics. He was placed in the vicinity of the crime under suspicious circumstances by Harry Swann. Mr. Swann died before the trial but he testified and was extensively cross-examined at the preliminary hearing held January 27, 1969. Over defense objections, this prior testimony was admitted at the trial.

On the evening in question he was behind a liquor store at 24th and Long Beach sitting next to a 50-gallon drum, in which a wood fire was burning. (This store was about two blocks from Coast Plastics.) Defendant, whom he knew, came up to him and offered him $2 for a ride. Mr. Swann noticed what appeared to be fresh bloodstains splattered on the front of defendant's suit coat from the shoulders all the way down to the bottom of the jacket. He told defendant that he couldn't go with him with that coat on because if the police saw it they would both go to jail, and that he didn't know what happened but he didn't want defendant in his car with that coat on. At Swann's suggestion defendant put the coat in the fire. The two men then got into Swann's car and went to a liquor store at 27th and Hooper. Defendant told Swann that he had had a misunderstanding with his wife and that he had nicked himself. Mr. Swann did not see any cuts on defendant. He did see defendant flip through a pink or red wallet containing about $50 to $70 while they were in the car. Defendant made some purchases, paid Swann the $2 and Swann drove him home. Defendant wore a green coat, dark pants and a turtleneck sweater.

Swann gave conflicting testimony as to the time when defendant came to him at the barrel. On direct-examination he gave the time as between 8 and 9 p.m.; on cross-examination he stated it was between 7 and 8 p.m.; on redirect, he stated it was between 7 and 8 p.m., but when shown his prior statement to the police he stated that the writing correctly stated that the time was between 8 and 9 p.m.; on recross he reaffirmed that it was between 8 and 9 p.m.

Another witness, Frank Nabors, also placed defendant near the barrel after 8 p.m. Mr. Nabors was lying on the ground about 8 to 10 feet from the barrel when he heard the voices of defendant and Swann. He thought it was after 8 p.m. because the liquor store at 24th and Long Beach was closed. He heard defendant offer Swann $2 to take him some place. He heard Swann remark 'Your coat is cut for high water' and defendant reply 'Do you want to buy it?' After a period of silence he heard Swann ask 'What all (sic) that on your coat?' He heard no discussion about blood or about burning a coat. Defendant left in Swann's car. About 8:30 two police officers came, returning again about 9 p.m. He said that another person, Preston Ishop, was also there but was asleep in an old car about 30 feet away.

The owner of the liquor store at 24th and Long Beach testified that it had closed at 8 p.m. on the night in question. A clerk at the liquor store at 27th and Hooper testified that it was after 8:00 when defendant made his purchases that night, and that he recalled it because of the unusual nature of the purchase (for defendant), $13 or $14. Defendant paid him with a $20 bill, and then asked him to change another $20.

Officer Kenneth D. Sturm was at the intersection of 24th and Long Beach at 8:30 on the night in question looking for two robbery suspects. Stopping by the barrel he saw Harry Swann, Frank Nabors, and Preston Ishop. He was not certain if there was a fourth person; and he did not see defendant. The fire was burning brightly, the flames being well above the barrel. At 8:35 he received another call and left. At 9:10 he received a call to investigate the Coast Plastics incident. About 10:30 he and his partner returned to the barrel but found only Frank Nabors still there.

Relying on information supplied by Swann, Officer Raymond E. Gendreau and his partner, Sergeant Tyrpak, went to defendant's home at 7:30 p.m. on December 3,...