People v. Griffin
| Decision Date | 03 October 1988 |
| Docket Number | No. S004352,S004352 |
| Citation | 46 Cal.3d 1011,761 P.2d 103,251 Cal.Rptr. 643 |
| Court | California Supreme Court |
| Parties | , 761 P.2d 103 The PEOPLE, Plaintiff and Respondent, v. Donald GRIFFIN, Defendant and Appellant. Crim. 21753. |
John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Joel Carey, Edmund D. McMurray, Michael J. Weinberger and George M. Hendrickson, Deputy Attys. Gen., for plaintiff and respondent.
Defendant Donald Griffin was convicted in the Superior Court of Fresno County (Meyers, J.) of the murder of Kelly W. (Pen.Code, § 187) and the jury found true special circumstance allegations that the murder was committed in the course of rape (Pen.Code, § 190.2, subd. (a)(17)(iii)), sodomy (Pen.Code, § 190.2, subd. (a)(17)(iv)), and a lewd act on a child (Pen.Code, § 190.2, subd. (a)(17)(v)). Defendant was also convicted of rape (Pen.Code, § 261(2) and (3)), sodomy (Pen.Code, § 286, subd. (c)), and a lewd act on a child (Pen.Code, § 288), and the jury found true an allegation that defendant had used a knife in the commission of the murder (Pen.Code, § 12022, subd. (b)). The appeal to this court is automatic.
We affirm the defendant's convictions and the special circumstances findings. We reverse the penalty determination because of Ramos error (People v. Ramos (1984) 37 Cal.3d 136, 207 Cal.Rptr. 800, 689 P.2d 430.)
Defendant conceded that he had killed his stepdaughter, 12-year-old Kelly W., but denied any sexual assault. The prosecution evidence was that defendant stopped by his wife's workplace in Kerman, California, about 7 p.m. on December 13, 1979, along with Kelly. He said they were going to his parents' house nearby, and they left. A few minutes after 10 p.m. he returned, saying that he had allowed Kelly to leave his parents' house for home in the company of a little girl wearing horn-rimmed glasses, but that Kelly had never returned home. He made several expeditions in search of Kelly during the evening and repeated this story of her disappearance. He reported to the police that Kelly was missing, that she had left in the company of a little Mexican girl wearing glasses. He said to several witnesses that if anyone had hurt Kelly, he would kill them.
When the police received a radio report that an injured person had been found on a nearby rural road, they asked defendant to follow them to the police station. An officer coming on duty saw defendant in a cell latrine, on his tiptoes, straddling a washbasin, with his hands in front of him. The officer could not see what defendant was doing, as his back was facing the officer. When defendant turned around, he asked for paper towels, and dried his hands. The officer saw that defendant had a buck knife in a holster at his waist. Defendant went out again to search for Kelly. He returned to the police station later that night, wearing clean pants and a different jacket. An officer observed some spots of blood on his boots, and defendant said that they were oil spots and tried to wipe them off. The officer asked where defendant's knife was, and he said he had lost it during his search for Kelly.
The victim's body was discovered that night on the side of a rural road. The blouse and sweater were pulled up partially over her face, the back of her bra was torn, the left shoulder strap had been torn loose, and one of the cups had been cut with a knife. The left leg was bent at an awkward angle, and the underwear and pants were pulled down below the hips. The left leg of the underwear was cut through. The pants were torn and had also been cut near the zipper. There were stab wounds in the neck and abdominal incisions from the pubic bone to the breast bone, exposing the internal organs. There was a large pool of blood nearby, and a bloody partial footprint. An officer returning from the scene thought that the print matched defendant's boots. An officer went out into the police parking lot and shone a light into the truck defendant had been driving all evening; there was blood on the floorboard on the driver's side and another bloody footprint which looked like the one at the scene and looked like it could have been made by defendant's boots. Later analysis of the blood in the truck showed that it was the victim's unique blood.
After defendant's arrest, he said, "I think I need a psychiatrist." Then on his way from the crime lab to booking, he said to an officer, "Do you think I'll get 10 years for this?" When an officer took defendant out of his cell after the arrest Dr. Nelson performed the autopsy and testified that the cause of death was strangulation and severing of the carotid artery. The abdominal incision occurred after death. It was his opinion that there had also been a rape and an act of sodomy. The hymen was partly torn and there was a little bleeding near the tear. There was also a small bruise near the opening of the vagina and a bruise of an inch and a quarter to an inch and a half near the tear in the hymen. This testimony was impeached with prior inconsistent statements; in his autopsy report Dr. Nelson had not mentioned any bleeding near the tear in the hymen, and had described the bruise near the tear as much smaller. He explained that the shape of the bruise had become clearer after the tissue had been fixed in formaldehyde.
defendant said, "Go ahead man, it's all right, why don't you just go ahead and kill me. It's all right, just go ahead and kill [761 P.2d 106] me." To the officer transporting him from Kerman to Fresno, defendant said, "Give me your shotgun so I can blow my head off. I'm a fool."
Dr. Nelson also testified that the anus was quite dilated, and he thought it had been stretched so far that it could not close. This testimony was impeached with his prior inconsistent statements; in his autopsy report he said the anus was somewhat "prominent." He explained at trial that this was a nicer word than dilated. At the preliminary hearing he said that the anus was somewhat dilated. He explained that he was not very precise in his speech. The doctor also testified that he took a fluid sample from the anus which showed no sperm, but which in his opinion showed the presence of prostatic acid phosphatase.
Acid phosphatase is an enzyme which occurs in the body in both sexes, but it occurs at higher levels in the male prostate gland and is contained in seminal emissions. Dr. Nelson removed 0.1 milliliters of fluid from the anus. His technician, Ms. Gordon, diluted this with 0.2 milliliters of saline solution, and divided the sample in half. The first test on one-half of the sample showed 14.5 sigma units of acid phosphatase. The test on the other half, involving a chemical reaction with tartrate buffer, showed that of the total, 8.1 sigma units of the acid phosphatase was prostatic acid phosphatase.
The defense experts testified that in the absence of sperm or physical injury to the anus, they would not use any level of acid phosphatase to express an opinion that there had been an act of sodomy. They also disputed the accuracy and reliability of the tartrate buffer test to identify acid phosphatase as prostatic acid phosphatase; one expert went so far as to say that the tartrate buffer test was worthless and that prostatic acid phosphatase could not be distinguished from any other acid phosphatase except electrophoretically. There was also a great deal of controversy among the experts on the conversion factor between sigma units and international units, and about dilution factors. One defense expert, using his conversion factor and dilution factor, found an amount of acid phosphatase which was below the minimum amount which the scientific literature said showed the presence of prostatic acid phosphatase. However, another of the defense experts agreed with the prosecution's dilution factors and used an even higher conversion factor, coming to a total well above the minimum which the literature said indicated the presence of prostatic acid phosphatase. He maintained, however, that high levels of the substance should not be used to support an opinion that there had been an act of sodomy in the absence of sperm or physical injury to the anus. The defense experts also testified that sperm breaks down faster than acid phosphatase, so with the levels of acid phosphatase found here, they would certainly expect to find sperm if there had been any seminal emission.
The defense pathologist, Dr. Herrmann, said that there was insufficient evidence to show either rape or sodomy, that the injuries which Dr. Nelson had described in his autopsy report were not indicative of rape, that dilation of the anus could be simply muscle relaxation after death and before rigor mortis, and that in a child of this age, he would expect much more injury if
there had been a rape or act of sodomy. He thought that the injuries to the vagina could have been caused by a tampon [761 P.2d 107] (though the mother testified in rebuttal that the child had not started menstruating yet) or by a finger. He also thought that Dr. Nelson had erred in considering changes in tissue after fixation in formaldehyde, as the formaldehyde distorts the appearance of the tissue.
At the autopsy, the pathologist took small fluid samples from the victim's vagina and anus. The vaginal sample was tested for sperm and prostatic acid phosphatase, and placed in a freezer. After three months, according to laboratory policy, it was removed from the freezer and placed on a shelf. By the time the defense expert examined it in June 1980, it was useless. The trial court granted defendant's motion to suppress the results of the initial test on this sample, as ...
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