People v. Clark

• Citation: 86 Cal.Rptr. 106,6 Cal.App.3d 658
• Decision Date: 16 April 1970
• Docket Number: Cr. 578
• Parties: The PEOPLE, Plaintiff and Respondent, v. Grady Edwin CLARK, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 106

86 Cal.Rptr. 106

6 Cal.App.3d 658

The PEOPLE, Plaintiff and Respondent, v. Grady Edwin CLARK, Defendant and Appellant.

Cr. 578.

Court of Appeal, Fifth District, California.

April 16, 1970.

[6 Cal.App.3d 661] Thomas A. Harris, J. Montgomery Carter, under appointment by the Court of Appeal, Fresno, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Edsel W. Haws and James T. McNally, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

GARGANO, Associate Justice.

Defendant appeals from a judgment entered on a jury's verdict finding him guilty of murder in the second degree. He contends that during the trial errors of law occurred which resulted in a miscarriage of justice. The alleged errors are: that the trial judge erroneously denied defendant's motion to strike the testimony of Dr. Bryant Rees, an entomologist; that the court improperly admitted evidence that defendant had committed several acts of rape, attempted rape and fellatio; that the prior extrajudicial inconsistent statements of the witness Marjorie Wiser were admitted for all purposes in violation of defendant's Sixth Amendment right of confrontation; that the admission of testimony concerning the conduct of defendant's wife was prejudicial; that the court erred when it refused to admit into evidence a paper napkin found in the victim's purse.

The murder victim, Verda Ribble, arrived in Fresno on March 18, 1967, between the hours of 2 and 3 p.m. She immediately went to see her sister, Shirley Richardson, who was residing in the Plaza Hotel. From there the two women went to the C & B Cafe where Miss Richardson was employed. Verda ate a chicken dinner. Afterward, she told her sister that she was 'going to the Brazil Club and have some beer' and would return later to pick up the key to the hotel room, as she was going to stay there that night. This was the last time that Mrs. Richardson saw her sister alive.

On the same evening, shortly after 9 p.m. defendant walked up to the front door of a house on Grantland Avenue near Shaw and told the occupants (Robert, Raul, Antonette and Antonia Silva, and Rosemary Cisneros) that his car was stuck nearby and asked them to call a tow truck for him. He was wearing a coat with a fur-lined collar, and had blood on his face, appeared to be nervous, and refused an invitation to come in and wash up. When two phone calls met with no success, defendant asked Robert Silva to pull his car out with Silva's pickup truck. Silva agreed, but was unable to extricate defendant's mired automobile; it was in a ditch alongside a small dirt service road that abuts Grantland Avenue and was headed toward a fig orchard. At defendant's request, Silva drove him to a Beacon service station on old Highway 99 and left him there. The service station attendant recalled that defendant was wearing a coat with a fur-lined collar. He said that defendant had two scratches, one on his neck and one on his nose. There were a dozen little spots of blood on defendant's coat.

A few days later, on March 22, 1967, the body of Verda Ribble was discovered in a fig orchard in the vicinity of Grantland Avenue and Shaw Avenue in Fresno County. The orchard abutted the access road in which appellant's car had been stuck. The body was clad in a checked dress with no undergarments beneath; a white collar was knotted around the victim's throat. A shoe with a spiked heel, a collar with snaps that fit the victim's dress, a nylon stocking that was torn practically in half, a black patent leather purse, a head scarf and a small change purse were found strewn around the dead body. A panty girdle, right side out, with a nylon stocking attached, was discovered nearby. The victim's panties were hanging on a tree limb. The grass beneath the tree was trampled, and there was blood on the white collar, on the panty girdle and on the dress. Two different sets of footprints were discovered at the scene of the crime. One set was positively identified as having been made by the victim. The other showed definite similarity to a shoe later recovered from defendant, but no positive identification of this print could be made. Tire tracks were also discovered on a road and into the orchard for a distance of 112 feet. A tread analysis could not be made of these tracks.

Defendant was arrested on the same night at his home in Fairmead, California, by Detective Sergeant Tabler and several other officers of the Fresno County Sheriff's Office. The officers advised defendant of his constitutional rights and searched the premises and defendant's automobile. Traces of blood were found on defendant's shoes, and blood tracings were found in the interior of his automobile. Then, Sergeant Tabler asked defendant if he had a jacket with a fur-lined collar. Defendant turned to his wife and queried, 'I don't have one like that, do I dear?' His wife fainted.

Defendant was examined on the following day by Dr. Thomas Clinton Nelson. The doctor reported that there were scratch marks on defendant's nose and neck, and they appeared to be 'several days old.' He opined that the marks were caused by fingernail wounds.

At the trial, Virgil Phillips testified that he saw defendant in the Olympia House on March 18, 1967. Phillips said that defendant was seated at the bar with Verda Ribble and Marjorie Wiser, and that as he (Phillips) left the bar the trio exited after him.

Marjorie Wiser testified that she was in the Chi Chi Club at approximately 4 or 4:30 p.m. and observed both Verda Ribble and defendant at the bar at that time. She denied being in the Olympia House that night or being with defendant and Verda Ribble.

Defendant was also seen in the Chi Chi Club by one Doris Ford. Miss Ford had known defendant for many years. She said that when she saw him in the club he was wearing a coat with a fur-lined collar.

Glenn Ford (no relation to Doris Ford) testified that he was the tow truck operator who pulled defendant's car from the ditch in which it was stuck. He said that while he was pulling the car out of the ditch, Deputy Sheriff Robert Bowling arrived at the scene and noted the license number of the automobile. Ford recalled that prior to arrival of the deputy sheriff, defendant had been 'joking and cutting up' but after the officer's appearance, he became very quiet.

Defendant took the stand in his own defense and testified in great detail as to his activities on March 18, 1967. He said that he visited one bar after another, arriving at the A & J Bar just outside of Kerman, California, at around 6 p.m. After leaving the A & J Bar, defendant drove toward Fresno on Whitesbridge Road and turned north on Grantland Avenue. He proceeded north on Grantland Avenue to a small bar on Shields Avenue and stopped for only five to ten minutes, as he 'didn't like the looks of the crowd.' From there he proceeded north on Grantland, intending to turn on Shaw in an attempt to find a friend who frequented a bar in that area. Defendant missed Shaw, despite a blinking red stop light, and attempted to turn around in the access road in which he became stuck. He decided to relieve himself, and during the process bumped into the limb of a tree, scraping his face and causing it to bleed. Defendant explained that the blood found in his car came from his injured daughter; this testimony was corroborated by his father-in-law. Defendant also explained that he got the blood on his shoe when he picked up a dead dog to bury it. He claimed that he was not in the downtown area or the bars in that area on March 18.

THE EXPERT TESTIMONY

Defendant attacks the testimony of Dr. Bryant Rees, an entomologist at Fresno State College, who, at the request of the pathologist, examined the larvae found on Verda Ribble's body in order to fix the time of her death. Briefly, he testified that the larvae were of the black blow fly, that these blow fly larvae pass through three 'instars' or larvael stages, and that he was able to determine their exact stage of development when removed from the body. He also explained that the minimum growth period for the larvae between inception and maturity (at 99 degrees temperature) is four days, and the maximum period (at 58 degrees temperature) is fifteen days, and that by applying a series of averages or norms, he concluded that the eggs had been laid about three and one-half days before the body was discovered.

Defendant does not dispute the People's right to establish the time of death of the murder victim through expert testimony. The law on this subject is firmly settled, and prolonged discussion would serve no useful purpose. Moreover, he does not challenge Dr. Rees' expertise in entomology. Defendant contends, however, that the doctor's use of averages in determining the age of the larvae substituted mathematical probability for relevant evidence as the foundation of his opinion, contrary to the rationale of People v. Collins, 68 Cal.2d 319, 66 Cal.Rptr. 497, 438 P.2d 33.

It is fundamental that a trial judge has wide discretion to admit or reject opinion evidence, and that a court of appeal has no power to interfere with the ruling unless there is an obvious and pronounced abuse of discretion on his part (Kennedy v. Reece, 240 Cal.App.2d 769, 49 Cal.Rptr. 915.) We find no abuse of discretion in this case. Dr. Rees, through accepted scientific methods, was able to ascertain the exact stage of development of the larvae found on Miss Ribble's body, and although he admitted that he did not use actual climatological conditions to determine when the eggs were laid, and that such conditions can vary the growth rate of the larvae, he also explained that this was not an important factor in this case. The larvae were found on a human body, a micro-environmental condition, and the growth rate of larvae is influenced mainly by micro-environmental conditions rather than macro-environmental conditions. In short, when Dr. Rees' testimony is considered as a whole, it is apparent...