People v. Harrison

• Decision Date: 21 May 1963
• Docket Number: Cr. N
• Citation: 59 Cal.2d 622,381 P.2d 665,30 Cal.Rptr. 841
• Court: California Supreme Court
• Parties: , 381 P.2d 665 The PEOPLE, Plaintiff and Respondent, v. William Lee HARRISON, Defendant and Appellant. o. 7221.

Page 841

30 Cal.Rptr. 841

59 Cal.2d 622, 381 P.2d 665

The PEOPLE, Plaintiff and Respondent, v. William Lee HARRISON, Defendant and Appellant.

Cr. No. 7221.

Supreme Court of California.

May 21, 1963

Martin N. Pulich, Public Defender, and John D. Nunes, Chief Asst. Public Defender, for defendant and appellant.

Stanley Mosk, Atty. Gen., and Edward P. O'Brien, Deputy Atty. Gen., for plaintiff and respondent.

McCOMB, Justice.

This is an automatic appeal from a judgment of guilty of murder in the first degree, the jury fixing the penalty at death. Defendant was also found guilty of assault with a deadly weapon with intent to commit murder.

Facts: Defendant, 49 years of age, had been living in a common law relationship with Doris Ann Martin, 24 years of age, for approximately three years prior to her death on December 11, 1961. They lived in an apartment on Derby Street in Berkeley, but separated four to six weeks prior to December 11, 1961. About December 8, 1961, defendant moved to a friend's apartment in San Francisco.

At the time of the separation, Mrs. Martin returned to the apartment of her mother, Mrs. Presley, in Berkeley. Tony Martin, Mrs. Martin's 10-year-old son, also lived in Mrs. Presley's apartment.

Mrs. Martin was employed as a housekeeper in the home of Dr. Margaret Singer in Berkeley from the early part of 1959 until the time of her death. Defendant had also worked occasionally as a handyman at the home of Dr. Singer.

On December 11, 1961, Mrs. Martin was at the home of Dr. Singer until approximately 5:15 p. m. During the early afternoon of that day defendant telephoned to the Singer home and talked with Mrs. Martin for several minutes. Mrs. Martin returned to her mother's apartment about 6 p. m.

Mrs. Presley planned to go to church that evening, and Mrs. Martin offered to take her in her car. About 7:30 p. m. defendant telephoned the apartment and spoke with Mrs. Martin. At that time Mrs. Presley overheard her say, 'Bill, I'm not always threatening you and calling you names.' Mrs. Presley then took the telephone from Mrs. Martin and said: 'Bill I'm tired of you running over Doris. I'm going to call the police. You will get the same thing that you called her.' Mrs. Presley then gave the telephone back to Mrs. Martin.

About 8 p. m. Mrs. Martin and Mrs. Presley left the apartment to go to the church. Tony preceded them by a few minutes.

Mrs. Presley's home is on Grove Street near the Ashby Avenue intersection. To the south of the apartment building, and parallel to it, there is a driveway, which leads to a parking area behind the building. Between two stores on Ashby Avenue there is an alley or runway leading to the parking area.

When Mrs. Presley reached the front porch, she observed Tony crossing Grove Street. He first crossed Grove and then crossed Ashby to go to the liquor store at the corner of Ashby Avenue and Grove Street to buy candy before he was to go with his mother and grandmother to the church. At no time of his way to the store did he see defendant.

Mrs. Presley preceded Mrs. Martin by a few steps as they walked to the automobile, which was parked directly in front of the apartment building.

When they went down the steps, there was no one else present. When they were half way across the sidewalk, defendant stepped between Mrs. Presley and Mrs. Martin, grabbed Mrs. Martin, and with his right hand pulled out a 12-inch metal object from the left side of his body and struck at Mrs. Martin.

Both women screamed, and Mrs. Presley attempted to force defendant away from Mrs. Martin by pulling at his shoulder and beating on his back. She saw defendant move his right arm with the instrument in it and said to him, 'Bill, you are going to kill my child.' Defendant replied, 'I'm going to kill you too.'

Defendant struck Mrs. Presley over the right eye and she fell to the ground. After she got up and tried to push him away from Mrs. Martin, he again knocked her to the ground, injuring her left ear. She got up, walked to the porch of the apartment building, and knocked on the door of a ground floor apartment occupied by Mr. and Mrs. McConnell. They had heard screaming outside and then a beating on the door.

When Mr. McConnell opened the door, he saw Mrs. Presley with blood pouring down her face and onto her dress. He then looked outside and saw defendant near the car kneeling over Mrs. Martin with his right hand moving up and down upon her.

Mrs. McConnell looked outside and saw Mrs. Martin lying on her back on the sidewalk; defendant was standing over her with a knife in his right hand looking down at her.

Mrs. McConnell said to defendant: 'Bill, Bill, I'm so sorry. You have killed Doris.' Defendant replied, 'That's what I intended to do.'

When defendant took a step toward the house, Mrs. McConnell went back inside. She then looked out and saw defendant walking away toward Ashby Avenue.

When defendant was arrested, Officer Rumford said to him, 'I think you have killed the girl.' Defendant replied: 'I meant to kill her. I hope I got the other one too.' He later stated that he had intended to kill both women.

Questions: First. Did the trial court commit prejudicial error by admitting into evidence seven colored transparencies of the body, and the wounds upon the body, of Mrs. Martin?

No. Whether the probative value of photographs offered into evidence outweighs the possible prejudicial effect is a question for the trial court in the exercise of its judicial discretion. (People v. Darling, 58 Cal.2d 15, 21(6, 7), 22 Cal.Rptr. 484, 372 P.2d 316; People v. Brubaker, 53 Cal.2d 37, 48(11), 346 P.2d 8; People v. Carter, 48 Cal.2d 737, 751(11), 312 P.2d 665.)

Seven colored slides depicting the wounds on the body of the murder victim were admitted into evidence during the testimony of Dr. George Loquvan, an autopsy surgeon, who was called as the first witness for the prosecution. During the examination of this witness the slides were projected onto the screen and used to illustrate and clarify the doctor's testimony.

Over objection, the trial judge admitted them into evidence for the limited purpose of illustrating the testimony of the surgeon and as circumstantial evidence of defendant's state of mind as that state of mind had a bearing on his motive and intent.

The court advised the jury concerning the limited purpose for which the slides had been admitted, repeatedly admonished the jurors to consider them for no other purpose, and cautioned them not to allow their emotions to control or to play any part in their deliberations.

A review of the record demonstrates conclusively that the trial court acted quite properly, and well within its discretion, in admitting these slides into evidence.

Contrary to defendant's contention, necessity is not the test for determining the admissibility at trial of photographs of a murder victim. The test is whether the evidence is relevant, and in determining the relevancy the trial court is to weigh and balance the probative value of the pictures as against their possible prejudicial effect. (People v. Darling, supra, 58 Cal.2d 15, 21(7), 22 Cal.Rptr. 484, 372 P.2d 316.) The trial court's determination to admit the slides here in issue was a proper exercise of this discretion.

In addition to illustrating and clarifying the surgeon's testimony, the slides were also competent circumstantial evidence of defendant's malice. The element of malice was graphically pointed up by the nature and number of the wounds, in particular the multiple linear abrasions above the major four-inch laceration on the victim's neck, indicating a sawing action or repeated attempts to incise the neck.

Likewise, there is no merit in defendant's contention that the use of seven colored slides amounted to the use of an excessive number of scenes. (See People v. Brommel, 56 Cal.2d 629, 635(6), 15 Cal.Rptr. 909, 364 P.2d 845.)

Similarly, defendant's contention that it was prejudicial to permit presentation of the slides to the jury at the very outset of the trial is unsound. Such timing was not prejudicial. In fact, it was in defendant's favor, as it is more reasonable to conclude that since the slides were viewed by the jury at the farthest point in time from their deliberations, memory would have had more time to dissipate any inflammatory effect which they might have had.

Second. Did the trial court commit prejudicial error in allowing the prosecution to introduce certain evidence as rebuttal?

No. Defendant contends that the testimony of R. W. Thaler, offered in rebuttal, was improper rebuttal evidence and that the introduction of such evidence in rebuttal so prejudiced him as to result in a miscarriage of justice. His special objection is to the testimony of Mr. Thaler that early in 1961 he had sold People's Exhibit No. 1, a knife, to Mrs. Martin and had personally delivered it to defendant the following day.

The introduction of rebuttal testimony is governed by section 1093 of the Penal Code, which provides, in subdivision 4, that after the prosecution evidence and the defense evidence have been offered, the parties may offer only rebutting testimony unless the court for good reason, in furtherance of justice, permits the parties to offer evidence upon their original case.

We have held that rebuttal evidence is 'restricted to evidence made necessary by the defendant's case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.' (People v. Carter, supra, 48 Cal.2d 737, 753(17), 312 P.2d 665, 675.)

Changes in the order of proof may be made within the sound discretion of the trial court. (People v. Avery, 35 Cal.2d 487, 491(1), 218 P.2d 527.)

In the present case the prosecution put on a clear and convincing case before resting. The prosecution, through the testimony of Mrs. Presley, established that defendant had the knife in his possession and that he immediately pulled it out from his waist and...