People v. Ing
| Decision Date | 27 January 1967 |
| Docket Number | Cr. 10192 |
| Parties | , 422 P.2d 590 The PEOPLE, Plaintiff and Respondent, v. Lawrence W. ING, Defendant and Appellant. In Bank |
| Court | California Supreme Court |
Belli, Ashe, Gerry & Ellison, Melvin M. Belli and Robert L. Lieff, San Francisco, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., Doris Maier, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., for plaintiff and respondent.
Defendant was indicted on three counts charging rape of the prosecutrix to whom he allegedly administered an intoxicating narcotic or anesthetic substance that prevented her from resisting (Pen.Code, § 261, subd. 4). He was found guilty by a jury on each count. A motion for a new trial was denied, and he appeals from the judgment.
The principal question presented concerns the breadth of the waiver of the privilege against self-incrimination by a defendant who takes the stand to testify in his own behalf. Defendant asserts that by testifying on direct examination regarding the offenses charged he did not waive his privilege against self-incrimination as to other offenses concerning which evidence had been introduced to show a common scheme or plan and that therefore errors were committed of the type condemned in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. In addition he contends that the evidence is insufficient to support the verdict, that evidence was improperly admitted, that the prosecutor was guilty of misconduct, that error was committed with respect to the instructions to the jury, and that the trial court abused its discretion in denying his motion for a new trial.
S.M., the prosecutrix, testified to the following effect:
In October 1964 she went to the office of defendant, a doctor practicing in Sacramento, because she suspected she was pregnant and had been told that he would perform an abortion. She was then 17 years old. After examining her and having laboratory work performed, defendant informed her she was pregnant. She asked him 'if something could be done about it,' and he agreed to help her and told her to move close to his office because he would see her at irregular hours. A few days later she moved to a room near his office. On November 12, 1964, he gave her a shot that caused her to pass out, and upon awakening she felt 'light-headed.' On November 20 and 26, 1964, she returned to his office, and each time he gave her injections that made her feel dizzy and then had intercourse with her. On November 27 and 28 and December 4, 1964 (the dates charged in the indictment) defendant again had intercourse with her at his office after giving her shots.
The prosecutrix testified that when she received a shot she 'just didn't care about anything,' that she did not believe that she would have had intercourse with defendant had it not been for the shots because she 'wouldn't be interested in someone like him,' and that she never had intercourse with defendant when she was not under the influence of drugs. She further stated that the reason she had continued to see him was to get the shots, that she became more interested in the shots than in the abortion.
The owner of the rooming house where the prosecutrix lived on the dates of the alleged rapes testified that the prosecutrix appeared to be 'high' 70 or 80 per cent of the time and did not act like a normal '19' year-old girl; that she would be either bleary-eyed and groggy or depressed and moody; that the pupils of her eyes were dilated; and that she wanted to sleep all the time, on occasions would fall asleep while talking, and sometimes slept 18 hours without waking. The witness, who as a student nurse worked with narcotic addicts, further testified that she thought the prosecutrix was on drugs. She also stated that while the prosecutrix lived with her defendant called 10 to 12 times asking for 'Nancy,' the name the prosecutrix gave him when she first went to his office.
The prosecution introduced the following evidence of other rapes to show a common scheme or plan:
I.A. testified: In 1949 defendant, after giving her an examination, told her that she was pregnant but that he would 'take care of it.' He gave her a shot of sodium pentothal at his office and then raped her while she was unconscious. A few days later he told her to return to his office so that he could remove some packing that had been inserted. When she returned, he gave her a shot despite her protests and again had intercourse with her while she was unconscious.
J.W. testified: In 1962, after being raped, she went to see defendant at his office to inquire about an abortion. He gave her a shot, which he said would abort her, and she became unconscious. When she awoke she was wearing no clothes and defendant, who was nude from the waist up, was holding her shoulders and speaking to her in endearing terms. She asked what he had done, and he laughed and said that if she had not been pregnant she would be now. By the way she felt she was aware that an act of intercourse had occurred.
C.K. testified: During several months in 1964 and 1965 she worked one day a week for defendant, and generally each time after work he gave her a shot and then had sexual intercourse with her at his office. She desired having intercourse with him but did not believe she would have voluntarily participated without the injections.
Defendant took the stand in his own behalf and denied the charges in the indictment. He testified that he saw the prosecutrix to determine if she was pregnant and subsequently treated her for an infection but that he never had sexual intercourse with her and never gave her any injections of narcotics or anesthetic substance that would render her unconscious. He stated that he gave her vitamin shots, some of which contained amphetamin, and also sleeping pills and other medications.
On direct examination defendant testified solely with respect to the rapes charged and did not refer to the other offenses. On cross-examination the prosecution asked him a question relating to one of the other offenses, and an objection on the ground that the question was beyond the scope of direct examination was sustained. Thereafter, in the closing argument, the prosecution commented on defendant's failure to deny or explain the evidence of the other offenses, and the trial court gave an instruction on the effect of a defendant's failure to deny or explain evidence. 1
Before the verdict in the instant case the United States Supreme Court had not rendered its decision in Griffin v. State of California, supra, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. 2 Griffin held that the California constitutional provision permitting comment on the failure of the defendant to testify (Cal.Const., art. I, § 13) violated the Fifth Amendment privilege against self-incrimination made applicable to the states in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Griffin further declared that 'the same standards must determine whether an accused's silence in either a federal or state proceeding is justified.' (See also Malloy v. Hogan, supra, at p. 11, 84 S.Ct. 1489.) In Griffin the defendant had not taken the stand, whereas here defendant testified in his own behalf, and it is necessary to consider to what extent he thereby waived his privilege against self-incrimination.
Under federal decisions a defendant who takes the stand and testifies in his own behalf waives his Fifth Amendment privilege against self-incrimination at least to the extent of the scope of relevant cross-examination. (Johnson v. United States, 318 U.S. 189, 195, 63 S.Ct. 549, 87 L.Ed. 704; Caminetti v. United States, 242 U.S. 470 494, 37 S.Ct. 192, 61 L.Ed. 442; Powers v. United States, 223 U.S. 303, 314--316, 32 S.Ct. 281, 56 L.Ed. 448; Sawyer v. United States, 202 U.S. 150, 165--166, 26 S.Ct. 575, 50 L.Ed. 972; Fitzpatrick v. United States, 178 U.S. 304, 314--316, 20 S.Ct. 944, 44 L.Ed. 1078; Ziegler v. United States, 9 Cir., 174 F.2d 439, 446--447; Branch v. United States, 84 U.S.App.D.C. 165, 171 F.2d 337, 338; Carter v. United States, 8 Cir., 19 F.2d 431, 434; see Brown v. United States, 356 U.S. 148, 154, 78 S.Ct. 622, 2 L.Ed.2d 589; DeRose v. United States, 9 Cir., 315 F.2d 482, 487.) It matters not that the defendant's answer on cross-examination might tend to establish his guilt of a collateral offense for which he could still be prosecuted. (Johnson v. United States, supra, 318 U.S. 189, 192 et seq., 63 S.Ct. 549, 87 L.Ed. 704; Carpenter v. United States, 4 Cir., 264 F.2d 565, 569; see McCormick on Evidence (1954), p. 275.)
Here, as previously stated, on direct examination defendant made a general denial of the rapes charged but did not refer to the other offenses. As we shall see, the other offenses were relevant to show a common scheme or plan and thus would tend to rebut defendant's testimony on direct examination. Cross-examination as to the other offenses would have been proper. (Cf. Johnson v. United States, supra, 318 U.S. 189, 191, 195--196, 63 S.Ct. 549; Ray v. United States, 4 Cir., 255 F.2d 473, 475; United States v. Bradley, 3 Cir., 152 F.2d 425, 426; Ng Sing v. United States, 9 Cir., 8 F.2d 919, 920.) Accordingly, the prosecutor's comments on the defendant's failure to deny or explain the evidence of the other offenses and the court's instruction permitting the jury to draw an inference unfavorable to defendant from that failure did not violate his federal constitutional privilege against self-incrimination. Although the trial court's instruction was general in terms and permitted the jury to draw an inference unfavorable to defendant from his failure to deny or explain Any matters within his knowledge, no claim is made that there was any additional matter beyond the scope of relevant cross-examination that defendant failed to explain or deny.
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