People v. Hutchinson

• Decision Date: 18 June 1969
• Docket Number: Cr. 13154
• Citation: 71 Cal.2d 342,78 Cal.Rptr. 196
• Court: California Supreme Court
• Parties: , 455 P.2d 132 The PEOPLE, Plaintiff and Respondent, v. Robert Bee HUTCHINSON, Defendant and Appellant.

Page 196

78 Cal.Rptr. 196

71 Cal.2d 342, 455 P.2d 132

The PEOPLE, Plaintiff and Respondent, v. Robert Bee HUTCHINSON, Defendant and Appellant.

Cr. 13154.

Supreme Court of California,

In Bank.

June 18, 1969.

Rehearing Denied July 16, 1969.

Don Edgar Burris, Los Angeles, under appointment by the Supreme Court for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen. and Robert T. Jacobs, Deputy Atty. Gen., for plaintiff and respondent.

TRAYNOR, Chief Justice.

Defendant Robert Bee Hutchinson was accused by information of possession of marijuana for sale, and a jury found him guilty of the lesser included offense of possession of marijuana. (Health & Saf.Code, § 11530.) He appeals from the order granting probation and from the order denying a new trial. The latter appeal is dismissed. (Pen.Code, § 1237.) Defendant contends that the evidence is insufficient to support the verdict and that the trial court committed prejudicial error in instructing on flight and in refusing to consider the affidavit of a juror in ruling on the motion for new trial.

Defendant lived at his mother's and stepfather's home and shared a bedroom with two brothers and a stepbrother. For about a week before July 25, 1966, only defendant and one brother occupied the bedroom, since the other two boys were away on vacation. On that date, while cleaning the bedroom and its closet, defendant's mother discovered a box containing stems and green plant material that appeared to her to be roots. She was unable to identify the clothing that covered the box as belonging to any one of the boys and testified that 'it had to belong to all of the boys, because it's there where they throw their real dirty clothes.'

She continued cleaning and discovered another box under defendant's bed. Defendant's brother Ronnie, who was then 16 years old, also used the same bed from time to time. The contents of the second box resembled tobacco leaves, but Mrs. Long could not tell what they were. At the trial it was established that both boxes contained marijuana. After discovering the second box Mrs. Long became suspicious. When defendant came home with his stepfather after work about 5 o'clock in the afternoon, Mrs. Long told her husband about the boxes while defendant was in another room. She then called defendant to the living room and accused him of knowing to whom the boxes and their contents belonged because she felt 'that he's the oldest of the children (he was then 18 years old) and when we're not at home, he's responsible. And I was screaming at him, you know, and things, really was. * * * I told him if he didn't tell me where it came from, I was going to call the police.' Defendant replied that 'it wasn't his and he didn't know anything about it.' Defendant and his mother became emotional and began to cry. Defendant said to his stepfather, 'God, dad, do something with mother. I can't stand this.' He then left the living room and went toward his bedroom.

About 25 minutes later Mrs. Long called the police, who arrived within half an hour. Defendant had left the house through his bedroom window. About half an hour after the police had left with the boxes, defendant called his home from a telephone some five blocks away and asked his stepfather if his mother was all right. Mr. Long replied that she had 'calmed down' and that 'We called the police.' Defendant asked 'Well, you want me to come home?' and Mr. Long replied 'No, no. I'll come and get you.' He did so, and the next morning defendant and Mr. and Mrs. Long went to the police station, where defendant was placed under arrest.

Defendant testified that he had not seen the two boxes at any time until he came home on the day his mother confronted him with them. He had never seen any of his brothers with material like that found in the two boxes and had never seen marijuana in his home. He admitted that he had seen marijuana in cigarettes at other places and knew that it was a green leafy substance similar to tobacco. He further testified that his mother did not tell him that she was going to call the police and that he did not hear her call them. He left the house by going out the window only to avoid further conflict with his mother.

On the evening before the discovery of the marijuana, friends of defendant and his brothers and sisters had visited the Long house for a swimming party. Mr. and Mrs. Long went out and left defendant in charge. The boys who attended such swimming parties dressed and undressed in the Long boys' bedroom. Defendant's brother Ronnie had been away on vacation for several days but returned after defendant was arrested. When told that defendant was to be released on bail and was coming home, Ronnie left the house, ostensibly to go to school, but instead to stay with his father in Oklahoma.

The evidence was sufficient to support the verdict. 'Unlawful possession of narcotics is established by proof (1) that the accused exercised dominion and control over the contraband, (2) that he had knowledge of its presence, and (3) that the accused had knowledge that the material was a narcotic.' (People v. Groom (1964) 60 Cal.2d 694, 696, 36 Cal.Rptr. 327, 329, 388 P.2d 357, 361.) When contraband is found in a place to which a defendant and others have access and over which none has exclusive control 'no sharp line can be drawn to distinguish the congeries of facts which will and that which will not constitute sufficient evidence of a defendant's knowledge of the presence of a narcotic * * *.' (People v. Redrick (1961) 55 Cal.2d 282, 287, 10 Cal.Rptr. 823, 827, 359 P.2d 255, 259.)

If the evidence showed only that two boxes containing marijuana were found hidden in the closet and under a bed in a bedroom defendant shared with his brothers and to which guests also had access, the applicable rule would be that 'proof of opportunity of access to a place where narcotics and found, without more, will not support a finding of unlawful possession.' (People v. Redrick, supra, 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 825, 359 P.2d 255, 257.) There was more in this case, however, for defendant fled from his home when his mother confronted him with the marijuana, demanded an explanation, and threatened to call the police. The jury was not required to accept defendant's explanation that his flight was motivated only by a wish to escape from his mother's emotional outburst. The jury could reasonably infer that his flight reflected consciousness of guilt and that he therefore knowingly possessed the marijuana found in the bedroom and closet. It follows that the trial court did not err in instructing the jury on the significance of flight pursuant to Penal Code, section 1127c.

In support of his motion for a new trial defendant submitted an affidavit of a juror alleging misconduct on the part of the bailiff. ¹ The trial court refused to consider the affidavit on the ground that: 'They (the jury) can't impeach their own verdict.'

The rule that jurors cannot impeach their verdicts, although almost universally assailed by the commentators as without foundation in logic or policy, ² has been a common law rule in this state since our first volume of reports. (See People v. Baker (1851) 1 Cal. 403.) The rule first sprang full blown and unprecedented ³ from the opinion of Lord Mansfield in Vaise v. Delaval (1785) 1 T.R. 11, 99 Eng.Rep. 944, and was based on an extension of the principle Nemo turpitudinem suam allegans audietur--no man shall be heard to allege his own turpitude. ⁴ With several exceptions, the rule was adopted by the courts in American jurisdictions, including California, even though the principle on which it was originally based was largely repudiated as applied to other areas of the law of evidence. (See 8 Wigmore, Evidence (McNaughton rev. 1961) § 2352, p. 696.)

The erroneous view that the California rule is statutory (see People v. Gidney (1937) 10 Cal.2d 138, 146, 73 P.2d 1186) had its roots in Boyce v. California Stage Company (1864) 25 Cal. 460, 475. Before 1862, the rule was not reflected in any statute but was based on the court's view of public policy. (See People v. Baker (1851) 1 Cal. 403; Amsby v. Dickhouse (1854) 4 Cal. 102; Wilson v. Berryman (1855) 5 Cal. 44.) In 1862, apparently in reaction to a scandal, the Legislature amended section 193 of the Practice Act (now § 657 of Code Civ.Proc.) to provide that verdicts obtained by 'resort to the determination of chance' might be impeached by affidavits of the jurors. (Stats.1862, ch. 48, § 1, p. 38; see People v. Ritchie (1895) 12 Utah 180, 194, 42 P. 209.) The court in Boyce found that in creating the exception to the general rule, the Legislature 'upon the maxim, Expressio unius, exclusio alterius est, has declared that verdicts of a different class shall not be so impeached.' (Boyce v. California Stage Company, supra, 25 Cal. 460, 475.) This reading of the statute was followed in People v. Azoff (1895) 105 Cal. 632, 634, 39 P. 59, and later cases. (E.g., People v. Reid (1924) 195 Cal. 249, 261, 232 P. 457, 36 A.L.R. 1435; People v. Gidney, supra, 10 Cal.2d 138, 146, 73 P.2d 1186.)

Although purporting to recognize legislative preemption of the field, the court in Gidney also acknowledged the existence of the judicial exception to the rule that allows jurors' affidavits to be used to prove that one or more of the jurors concealed bias or prejudice on Voir dire. (People v. Gidney, supra, 10 Cal.2d 138, 146, 73 P.2d 1186; see Williams v. Bridges (1934) 140 Cal.App. 537, 35 P.2d 407.) This exception is now well settled (see e.g., Kollert v. Cundiff (1958) 50 Cal.2d 768, 773--774, 329 P.2d 897; People v. Castaldia (1959) 51 Cal.2d 569, 572, 335 P.2d 104) and has been extended to allow the use of juror affidavits to show that a juror was mentally incompetent at the time of trial (Church v. Capital Freight Lines (1956) 141 Cal.App.2d 246, 248, 296 P.2d 563) and to show that a juror did not...