People v. Jentry

• Citation: 69 Cal.App.3d 615,138 Cal.Rptr. 250
• Decision Date: 10 May 1977
• Docket Number: Cr. 2586
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Elmer Von JENTRY, Defendant and Appellant.

Page 250

138 Cal.Rptr. 250

69 Cal.App.3d 615

The PEOPLE, Plaintiff and Respondent, v. Elmer Von JENTRY, Defendant and Appellant.

Cr. 2586.

Court of Appeal, Fifth District, California.

May 10, 1977.

Hearing Denied Aug. 4, 1977.

Allen Ruby, San Jose, under appointment by the Court of Appeal, for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall and Peter J. McBrien, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

OPINION

GEORGE A. BROWN, Presiding Justice.

Appellant, Elmer Von Jentry, was convicted by a jury of first degree murder (Pen.Code, § 187) and sentenced to state prison. ¹

There is no issue regarding the sufficiency of the evidence to sustain the conviction. Indeed, appellant confessed to the crime and also admitted in court that he struck the fatal blows. His defense was solely diminished capacity based primarily on consumption of an excessive quantity of amphetamine pills and alcohol. The jury, by the verdict, rejected the defense and that conclusion is supported by ample expert and other evidence.

The alleged errors upon which reliance for reversal is based are: (1) improper admission of a tape recorded statement to the police taken November 21, 1974; (2) the use of a tape recorded statement taken November 22, 1974, by the police in violation of Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) for impeachment purposes; (3) the improper admission into evidence of color photographs of the victim taken at the scene of the crime; and (4) instructional error.

The sadistic and depraved conduct of appellant and his wife surrounding the commission of the murder need only be summarized and may be limited to that necessary to the disposition of the issues on appeal.

The victim's (Corky Stuhaan's) desecrated body was found in his apartment on September 22, 1974. His skull had been smashed by multiple blows, his throat had been cut from ear to ear, and his penis, testicles and scrotum had been removed together. The castration of the victim was performed very carefully and very similar to the way a surgeon would have approached it, as evidenced by the precise sharp-line dissection, the symmetry of the incision and the fact the abdominal wall was not severed. It had the appearance of a planned procedure. According to the experts, the probable immediate cause of death was asphyxia resulting from total destruction of the brain caused by approximately four blows to the head by an object like a hammer. One of the experts said the back of the victim's brain was like 'scrambled eggs.' The victim probably died within seconds from the head wounds, and it was unlikely that the victim could have survived 'more than a minute, perhaps two minutes' from the blows to the head.

Appellant was arrested on November 19, 1974, and gave a tape-recorded statement to the police on November 21, 1974, confessing his involvement in the murder. On the same date he went to a mountain location with the police and recovered the private parts of the victim from the place he had buried them. Appellant also took the officers to the cotton gin where he was employed and gave to them two ball peen hammers, one of which was the murder weapon. The police also recovered a pocket knife which was in appellant's possession at the time of his arrest and which was identified as the knife used to sever the victim's genitals. A kitchen knife identified as the knife that was used to slit the victim's throat was also recovered from appellant's mobilehome. It appears over a period of time appellant and his wife and engaged in escalating deviant sexual experimentation and conduct, including sadistic behavior such as infliction of pain on each other in connection with sexual activity. They had over a period of six months to a year fantasized about torturing someone for sexual satisfaction, including castration of a male.

At the trial appellant testified that on the night of September 21, 1974, after consuming a large quantity of amphetamines and some beer, he and his wife discussed realizing their fantasy of killing someone and decided upon their friend, Corky Stuhaan, because Stuhaan knew them well and would let them into his apartment. He admitted that in the past talk of castration had been included but denied they specifically discussed castration on that particular evening. He went to the cotton gin where he worked and obtained a hammer. At the suggestion of appellant, appellant and his wife wore old clothes so he could dispose of them afterwards. Appellant also took along a pair of gloves so as to leave no fingerprints and to wipe the apartment clean.

They parked a few blocks from the victim's apartment and walked there. After they had talked with the victim for a while, appellant's wife offered to give Stuhaan a back rub on the floor. Shortly after the victim had laid down, appellant hit the victim on the head with the hammer several times. At the request of his wife, appellant then turned the victim over and went into the kitchen and bathroom to wipe off fingerprints. After returning and on his way out of the apartment he noticed that the victim's throat had been cut and his genitals excised. He denied that he had seen or done the cutting. During the walk back to the car appellant's wife mentioned she had the victim's genitals in her purse in a plastic bag.

Thereafter they returned to their trailer home and washed themselves and the various items involved in the crime. Appellant took their clothes to the gin and burned them. Later in the early morning of September 22 they took the genitals to the mountains and buried them.

Appellant was impeached by an officer's testimony that appellant had made several verbal statements to them on the way to and from the mountains to recover the genitals to the effect that he had done the whole thing. He was also impeached with a statement given to the police on November 22. ² He admitted that his wife could have mentioned castration and the use of the victim's genitals for sex before going to the victim's house on the night in question, but he does not remember. He also stated that he cut the victim's throat and that he and his wife had taken the plastic bag to Stuhaan's in which to place the victim's genitals.

In the November 21 tape-recorded statement which was played to the jury, both for impeachment and as substantive evidence (see Evid.Code, § 1235), he admitted the reason for the murder was drugs and sex and that he cut the victim's private parts off with his pocket knife and that the private parts were taken out of the apartment in a plastic bag that may have been taken there or may have been found in the apartment. He admitted the whole thing was premeditated and that there were sexual aspects to the scheme, and stated that his wife did not do any of it.

DISCUSSION

Appellant first urges that the November 21, 1974, statement should have been excluded from evidence because it was involuntary and obtained in violation of his right to counsel.

Appellant was arrested at approximately 7:30 p.m. on November 19, 1974, and was taken to the police department. At approximately 8 p.m. he was given his Miranda warnings, which rights he declined to waive, stating that in view of the seriousness of the case he thought he ought to consult an attorney first. The police immediately halted their discussion with him. Appellant was permitted to use the telephone and called his father-in-law, Mort Kibbler, concerning arranging for an attorney. Appellant stated that his father-in-law would do something about an attorney the next morning. Appellant was contained in a holding cell until 10:30 p.m. when he was transported to the Tulare County jail. Between 1:30 a.m. and 2 a.m., during his booking into the Tulare County jail, appellant requested and was permitted to use the telephone. He called his mother, Mrs. Tony Serpa, Jr., and asked her to find someone to take his place at the gin the next day.

On November 20, 1974, at the request of appellant's wife, he was transported from the Tulare County jail to the Visalia Police Department where he was allowed to meet with Mrs. Jentry at approximately 7:15 p.m. When appellant was led into the room with his wife, Mrs. Jentry stated, 'Honey, I have told them about it, but they don't have a f . . . thing. Keep your mouth shut and we'll beat this.' Appellant responded, 'What are you talking about?' Karen then said, 'You know what I am talking about. I have already told them about it, but they don't have any evidence, and they can't make us. Keep your mouth shut and hang in there.' Appellant kept pushing her away and asking her 'What are you talking about?' The entire meeting lasted approximately 15 minutes. After the meeting appellant asked Agent Sanders what Mrs. Jentry was talking about and Sanders responded that he could not talk to him about it any further because appellant had refused to waive his right to have an attorney present. Appellant was returned to the Tulare County jail at approximately 8 p.m.

On November 21, 1974, at approximately 9:35 a.m., appellant was returned to the Visalia Police Department to complete the necessary booking procedures, including fingerprinting and photographing. Appellant asked an officer if anyone had attempted to contact appellant or if the officer had any knowledge of anyone obtaining legal services for him. The officer advised appellant that he knew nothing about an attorney for appellant, but offered to permit appellant to use the telephone to call anyone he chose. The officer took appellant to an office where appellant was allowed to make as many telephone calls as he wished. Appellant called his mother-in-law, Ruth Kibbler. The officer testified he heard no reference to an attorney during the entire conversation. Appellant asked the officer to talk to Mrs. Kibbler, which the...