People v. Davis

• Decision Date: 26 May 1965
• Docket Number: Cr. 7590
• Citation: 62 Cal.2d 791,402 P.2d 142,44 Cal.Rptr. 454
• Court: California Supreme Court
• Parties: , 402 P.2d 142 The PEOPLE, Plaintiff and Respondent, v. Richard Marcellus DAVIS, Defendant and Appellant.

Page 454

44 Cal.Rptr. 454

62 Cal.2d 791, 402 P.2d 142

The PEOPLE, Plaintiff and Respondent, v. Richard Marcellus DAVIS, Defendant and Appellant.

Cr. 7590.

Supreme Court of California, In Bank.

May 26, 1965.

J. Perry Langford, San Diego, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

TRAYNOR, Chief Justice.

Defendant killed his victim, Marion Burnet, by pounding her on the head and arms six or more times with a 16 1/2 pound stone. A jury found him guilty of murder of the first degree and sane at the time of the crime, and fixed his penalty at death. This appeal is automatic. (Pen.Code, § 1239, subd. (b).)

Defendant's wife of six months, Dorothy, left him and moved to her mother's house four days before the killing. Defendant had asked her several times to return. She always refused, in part apparently because of her belief that he was having sexual relations with her unmarried friend, Marion. Defendant had admitted to her that he had once engaged in sexual intercourse with Marion. Dorothy and Marion, however, remained close friends.

On the night of the killing, defendant went to his mother-in-law's home to attempt again to persuade Dorothy to return to him. Dorothy and Marion were there together, but were leaving to go to Marion's home. When Dorothy remarked that he arrived just as Marion was leaving, defendant became angry and left. He walked across the street toward his home, ran after he turned a corner, and headed toward Marion's home. When he arrived at the street on which Marion lived, he crossed the street and picked up a large stone. He recrossed the street and hid behind a hedge near the sidewalk. Several minutes later, Marion appeared alone. Defendant advanced toward her, she turned to face him, and he beat her repeatedly with the stone. He then ran, threw the stone into a bush, and returned to his home to join a game of dominoes. An autopsy revealed that Marion was pregnant when she died.

At the trial on the issue of guilt, the prosecution sought to prove that defendant was guilty of murder in the first degree on the grounds that the killing was premeditated and deliberate and was perpetrated by lying in wait. (Pen.Code, § 189.) The prosecution argued as follows: Defendant regarded Marion as the obstacle to his reconciliation with his wife. He may even have been carrying on an affair with Marion that he wished to terminate, particularly because of Marion's pregnancy. He decided early in the evening to kill Marion, or at least to injure her. When the opportunity arose, he ran ahead of her, secured a weapon, and then waited behind the hedge to attack her.

The defendant testified that he had intercourse with Marion only once, while he was drunk, and had no emission. He denied knowing of her pregnancy before he killed her. He presented a witness who testified that Marion accused the witness of being the father of her expected child. Defendant also testified that he thought both women would pass the hedge on their way to Marion's home. His defense was based on three, interrelated theories:

(1) Defendant claimed that the killing was not premeditated. When he hid behind the hedge, he expected both women to pass and he wanted only to scare or talk to them. When Marion passed alone, defendant emerged from his hiding place. She turned to him and he hid his face behind the stone. He stated, 'I didn't want to hit her at first but I didn't know she couldn't have seen me. I kept thinking * * * if I don't she will tell Dorothy that I tried to or something and she might leave me.' He then hit Marion on the forehead, she raised her arms in defense and screamed, and he hit her several more times.

(2) Defendant claimed that the killing was committed in a heat of passion. Several days before the killing, he read some notes, passed between Dorothy, Marion, and a third girl in high school the previous year, that convinced him that the girls had been practicing Lesbians. Because Marion and Dorothy were still friendly and were often together, defendant thought their relationship was another reason for Dorothy's leaving him. When Dorothy linked him with Marion on the night of the killing, he became incensed. When he later encountered Marion, he killed her in a heat of passion.

(3) Defendant claimed that he did not have the mental capacity at the time of the killing to premeditate and deliberate. A clinical psychologist, Dr. Robert G. Kaplan, testified that defendant was suffering from a temporary functional psychosis at the time of the killing and was incapable of wilful premeditation and deliberation.

To prove premeditation and deliberation and also to show the circumstances under which the killing was committed, the prosecution introduced a full, corrected, and signed statement made by defendant to the San Diego police. A diagram of the murder scene made by him was also introduced. Defendant was arrested before noon two days after the killing. He was interrogated continuously by various police officers until, at eight o'clock that evening he made the statement, recorded by a police stenographer, that was introduced against him. He made the diagram the next morning. Since the record does not show what the officers said to defendant and what he said to them before he made the recorded statement, it does not appear at what point the investigation began to focus on him. It is clear, however, that by the time the recorded statement was commenced, the investigation had focused on defendant and the purpose of the interrogation was to elicit a confession. Although defendant talked to his wife several times before making either the statement or the diagram, there was no showment that he was allowed to see counsel, that he had effectively waived his right to counsel, or that he was informed of his right to remain silent. Under these circumstances the statement and the diagram were inadmissible by virtue of the decision of the United States Supreme Court in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. (People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361; People v. Stewart, 62 A.C. 597, 602-607, 43 Cal.Rptr. 201, 400 P.2d 97; People v. Lilliock, 62 A.C. 651, 654, 43 Cal.Rptr. 699, 401 P.2d 14; see also Clifton v. United States, 5 Cir., 341 F.2d 649; Galarza Cruz v. Delgado, D.C., 233 F.Supp. 944; State v. Dufour (R.I.) 206 A.2d 82, 85; State v. Neely (Ore.) 398 P.2d 482.) Moreover, since this case was tried before the Escobedo decision, defendant's failure to object to the admission of the statement and the diagram into evidence does not preclude his raising the question on appeal. (People v. Hillery, 62 A.C. 726, 745, 44 Cal.Rptr. 30, 401 P.2d 385, and cases cited.)

It is contended, however, that since defendant took the stand and testified to committing the same acts he confessed to committing in his statement, we should make an exception to the rule that the erroneous admission of a confession into evidence is necessarily prejudicial. (See People v. Dorado, 62 A.C. 350, 368-369, 42 Cal.Rptr. 169, 398 P.2d 361; People v. Stewart, 62 A.C. 597, 607, 43 Cal.Rptr. 201, 400 P.2d 97.) When defendant testified, however, the only substantial evidence that had been introduced connecting him with the crime was his statement and diagram. His testimony was therefore impelled by the erroneous admission of that evidence and cannot be segregated therefrom to sustain the judgment. (People v. Dixon, 46 Cal.2d 456, 458, 296 P.2d 557; People v. Ibarra, 60 Cal.2d 460, 463, 34 Cal.Rptr. 863, 386 P.2d 487; see also People v. Mickelson, 59 Cal.2d 448, 449, 30 Cal.Rptr. 18, 380 P.2d 658.)

Moreover, defendant's testimony at the trial was substantially less incriminating than his confession to the officers. Defendant testified that he did not lie in wait to harm his victim or his wife but only intended to scare or talk to them and that he decided to hit Marion with the rock only after she appeared alone and recognized him. If believed, this testimony would have supported a finding of second rather than first degree murder, and to rebut it the prosecution relied on evidence of premeditation contained in defendant's statement. In questioning defendant the officers were careful to probe for such evidence, ¹ and in his argument to the jury the prosecutor stressed its importance to show that the killing was premeditated. He pointed out that 'Down at the police station before he talked to a lawyer, before he had time to learn about the differences in penalties between different digrees of murder, manslaughter, he was relatively frank with the police and he said a number of things, which I think should help us figure out help us to confirm in our opinions the fact that he had planned this, the fact that he had been thinking about it for some time. * * * So he admits to the police before he had acquired sophistication of learning that murder isn't just murder, it is of varying degrees and varying types and varying punishments, back then he admits that he began thinking of getting rid of Dorothy and Marion, way back at 7:00 o'clock. * * *'

Even if we assume that in some cases a testimonial confession can make harmless the erroneous admission of an extrajudicial confession, defendant's testimony in this case did not do so. His testimony was not only impelled by the erroneous admission of the extrajudicial confession, but would have supported a verdict of second degree murder. The erroneously admitted confession rebutted his defense that he was guilty of no more than second degree murder. Whether or not its admission into evidence was necessarily prejudicial, it is reasonably probable that had it been excluded, a result more favorable to defendant would have been reached. Accordingly, the error resulted in a miscarriage of...