People v. Jones

• Decision Date: 10 May 1984
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ed JONES, Defendant and Appellant. A021229.

Page 289

202 Cal.Rptr. 289

155 Cal.App.3d 653

PEOPLE of the State of California, Plaintiff and Respondent, v. Ed JONES, Defendant and Appellant.

A021229.

Court of Appeal, First District, Division 5, California.

May 10, 1984.

Hearing Denied July 18, 1984.

James J. Haight, Haight & Liberman, San Francisco, for defendant and appellant.

John J. Van de Kamp, Atty. Gen., Thomas A. Brady, Mark S. Howell, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

HANING, Associate Justice.

After trial by jury, defendant Ed Jones was convicted of one count of murder in the second degree. (Pen.Code, § 187.) On appeal, defendant asserts the trial court committed reversible error in allowing testimony concerning a statement made by the victim, John McKinney, Jr., to an attending physician. Defendant contends the victim's statement constituted inadmissible hearsay and that testimony at trial concerning that statement violated his rights under the confrontation clauses of both the Sixth Amendment of the United States Constitution and article I, section 15, of the California Constitution. We disagree and affirm the conviction.

The charge stems from a fire at a house in Seaside on March 9, 1982. McKinney received extensive burns in the fire. He died as a result of the burns one month later.

At the time of the fire, both defendant and McKinney lived at the house. Darryl Wardell, whose testimony provided much of the incriminating evidence, had also been living at the house, but was in the final stages of moving out when the fire occurred. McKinney came to live at the house approximately one week before the fire. He was described as a slouched- over "little old meek sort of old man." His nickname was "Dadblasted" because of his frequent use of the term. Wardell described him as a "wino" who only drank and slept all day. According to defendant, McKinney would typically buy wine until he could not walk up the hill to the corner store for more.

On March 9, 1982, at 10:49 p.m., the Seaside Fire Department received an alarm reporting a fire at the house. Firefighters arrived on the scene within ten minutes of the alarm and discovered a fire in the northwest bedroom. No one was in the house. The northwest bedroom was "fully involved" in the fire and flames were beginning to spread out the window and into the hall. Firefighters attacked the fire from both inside and outside the house. Myron Wyckoff, the first firefighter to enter the house, accidentally knocked over a can with his foot as he was crawling down the hallway toward the fire. He did not stop to examine the can. The crew managed to extinguish the fire in five to ten minutes.

Defendant and Wardell spent much of March 9, 1982, drinking at the Ebony Lounge, a local bar. They arrived together at the house at approximately 10:00 p.m. McKinney was in the living room. He and defendant were soon embroiled in an argument. After several minutes of arguing, McKinney lay down on the couch in the living room. According to Wardell, defendant then went outside and came back in with a gas can and began pouring gasoline over McKinney. Wardell took the can from defendant and put it outside. There was still liquid in the can. Hoping to resolve the conflict, Wardell told McKinney to go to his room. McKinney did so. Defendant sat down in a chair in the living room; Wardell left the house "[b]ecause it was sickening." Wardell drove around the corner, thought better of leaving the two alone together, and drove back to the house. From the car he saw flames through the living room window. He parked the car and ran into the house. Entering the front door, he saw defendant standing in front of his bedroom door holding a gas can. McKinney was lying on the floor of his room, on fire. Wardell rolled him up in a rug or a blanket, putting out the fire, and carried him out to his car. McKinney was able to stand up by the car; he was "still talking." Defendant approached Wardell, saying, "You got to do me a solid. You got to do me a solid." Wardell replied, "Man, what are you talking about?" and defendant responded, "Tell them he was smoking in bed." McKinney had not been smoking in bed.

Wardell tried to back his car over defendant, and then drove to the fire department where he got no response, so he drove on to the hospital. During the drive, McKinney was talking to Wardell; he kept saying, "[t]ake me to the doctor," and "[m]an, it burns."

Wardell drove straight to the emergency room of the hospital. A nurse came out to the car with a wheelchair for McKinney, but McKinney walked into the hospital on his own. Wardell estimated that about thirty minutes elapsed between the time that he found McKinney on fire and the time McKinney entered the hospital.

At the emergency room, Wardell was allowed into the treatment room to talk briefly to McKinney. McKinney was on a table on his back, and his clothes had been removed. McKinney asked Wardell to tell his mother what had happened. Wardell left the hospital and went to McKinney's sister's house to tell her instead because he did not wish to be the bearer of bad news to the mother.

Saul Kunitz, M.D., was director of the emergency room at Monterey Hospital and had extensive experience treating burn patients and other emergencies. He was McKinney's first treating physician. Before allowing Kunitz to testify, the trial court held a hearing outside the presence of the jury to determine the admissibility of statements made by McKinney while he was being treated. Kunitz testified that McKinney walked into the emergency room on his own, and "looked very calm for the degree of injury that he had sustained." He also "appeared to be dazed." Kunitz began treatment "within seconds." He first administered morphine sulfate. McKinney had suffered third degree burns over much of his body. McKinney appeared to be in pain, but not commensurate with the magnitude of his injuries. "This gentleman was severely injured and yet he was not yelling or screaming in pain. He was not writhing on the bed. He appeared quite calm." In Kunitz' opinion, "the psychological shock of the trauma permitted him to not realize his degree of injury." Within five or ten minutes of the onset of treatment, Kunitz asked McKinney what had happened. McKinney answered, "The crazy nigger that I live with threw gasoline on me." Kunitz did not remember any lapse of time between the question and the answer. Kunitz repeated the question and McKinney gave the same answer. The court found McKinney's statement qualified as a spontaneous declaration under California Evidence Code section 1240. ¹

Kunitz then testified before the jury. He related McKinney's statement. He described McKinney's burns: third degree burns covering the anterior abdomen from the groin up to the nipples, the lower back, fifty to seventy percent of the left arm, ninety percent of the left leg, forty to fifty percent of the right arm, and the entire right foot and ankle. The inside aspect of the right thigh had spotty second degree splash burns. The doctor's opinion was that the burns had been caused by a flammable liquid.

McKinney died on April 8, 1982, at San Francisco's St. Francis Memorial Hospital's burn center. The autopsy revealed that the burns were the proximate cause of death. The coroner testified that the burns appeared to have been caused by a flammable liquid. The burn on McKinney's torso flowed around his sides, meeting in the small of the back. This flowing pattern indicated that, when burned, McKinney was in a reclining position, lying on something firm, such as a floor. There were no burns on his hands.

Chromatographic tests were performed on the liquid contents of the gas can found in the house, on McKinney's clothing, on a sample of McKinney's mattress, and on a sample of the living room carpet where the gas can was found. The tests revealed the presence of gasoline mixed with some other substance in the gas can contents, the clothing, and the carpet. The mixture was the same in these three items. It was analyzed as being seventy to ninety percent gasoline.

Fingerprint analysis of the gas can revealed prints of Wardell and the landlord only. Flow patterns on the floor of the burned out bedroom indicated an accelerant had been present on the floor when the fire started. Some areas of the floor had been protected for some time during the fire and later burned over. One such spot was consistent with the shape of a person's arm and head.

Defendant testified the fire started accidentally while he was painting in the bathroom; he had opened a can of paint thinner and put it near the door in McKinney's bedroom. He heard a noise and then saw McKinney standing near his bed on fire.

Shortly after the fire, defendant talked with Captain Pehrson, who was on the scene. Defendant said that he had been burned and showed Pehrson some burns on his hand and back. He told Pehrson he had been mixing paint and paint thinner in the bedroom, and an explosion occurred when he lit a cigarette. A witness who was driving by the house at the time of the fire testified defendant "said something about he was painting and he lit a match." A neighbor testified defendant "said something to me about a cigarette, lighting a cigarette and it blew up."

After the fire was extinguished, defendant disappeared from the Seaside area. He was arrested in San Francisco on June 25, 1982.

On appeal, defendant contends Kunitz should not have been permitted to repeat McKinney's statement, "The crazy nigger I live with threw gasoline on me." In allowing the statement the trial court declared: "There appears to me to be sufficient evidence to indicate that, one, it was a description of an act or event that occurred to him as opposed to what other people said to him; and, two, that it was made sufficiently close in time. It was made after severe burns. [p] There is a potential for the shock which was alleviating some of the pain and the answers...