People v. Kemp

• Citation: 359 P.2d 913,55 Cal.2d 458,11 Cal.Rptr. 361
• Decision Date: 02 March 1961
• Docket Number: Cr. 6632
• Parties: , 359 P.2d 913 PEOPLE of the State of Californla, Respondent, v. Darryl Thomas KEMP, Appellant.
• Court: United States State Supreme Court (California)

Page 361

11 Cal.Rptr. 361

55 Cal.2d 458, 359 P.2d 913

PEOPLE of the State of Californla, Respondent, v. Darryl Thomas KEMP, Appellant.

Cr. 6632.

Supreme Court of California, in Bank.

March 2, 1961.

Rehearing Denied March 29, 1961.

Russell E. Parsons and Daniel N. Busby, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen. and Philip C. Griffin, Deputy Atty. Gen., for respondent.

PETERS, Justice.

By indictment, defendant was charged with the commission of five felonies. In count one he was charged with the murder of Marjorie Hipperson on June 10, 1957. Count two charged the forcible rape, and count three the kidnaping of E. Helen Shelton, on July 15, 1959, while count four charged the forcible rape of and count five rape accomplished by threats of bodily harm to Lelah D. Sherman on May 12, 1959. As to all offenses defendant pleaded not guilty and not guilty by reason of insanity. The jury acquitted defendant of the charge contained in count four, but convicted him of murder in the first degree (count one), of the rape and kidnaping of E. Helen Shelton (counts two and three) and of the rape of Lelah D. Sherman as charged in count five. Thereafter the jury found defendant sane at the time of the commission of the offenses, and, in the separate proceeding required by section 190.1 of the Penal Code, imposed the death penalty on count one. The appeal is automatic under the provisions of section 1239, subdivision (b), of the Penal Code.

In view of the insanity plea, the court, under the provisions of section 1027 of the Penal Code, ¹ at the time of plea, appointed Doctors Bailey and Smith, two qualified alienists, to examine the defendant and to report to the court as to his sanity. These doctors subsequently reported to the court that, while defendant was a sex psychopath, he was, in their opinion, legally sane at the times of the commission of the offenses and at the times of their examinations.

Also before trial, Dr. Gore, a qualified psychiatrist, under the provisions of section 1871 of the Code of Civil Procedure, ² was appointed by the trial court to examine defendant with instructions to report to the court his findings as to the defendant's mental status. Dr. Gore thereafter, and prior to trial, rendered a written report in which he opined that defendant is a sadistic rapist, a sexual psychopath and sexual deviate, is emotionally immature and lacks responsibility, but concluded that defendant was legally sane at the time of the commission of the crimes, and was sufficiently sane to be able to cooperate with his counsel in the preparation of his defense. A Dr. Solomon, also a qualified psychiatrist, retained by defendant, reported that in his opinion defendant was mentally ill, was suffering from delusions of persecution, and was severely depressed. He called attention to an attempt at suicide made by defendant while in jail, and concluded that defendant did not have sufficient mentality to cooperate with his counsel in the preparation of his defense, and was and is legally insane.

After these reports were filed, the trial judge stated for the record that, before appointing these experts, he had had no doubts as to defendant's then sanity but had appointed them out of an abundance of caution, and that after reading the reports of the doctors he still had no doubts as to defendant's present sanity and his ability to cooperate with his counsel in the preparation of his defense.

Prior to trial the defendant orally, and in writing, attempted to discharge his counsel and to proceed in propria persona. When this was communicated to the trial judge he interviewed the defendant in the presence of both counsel. After carefully interrogating the defendant, during which interrogation the defendant repeated his request to discharge his counsel, and during which it developed that defendant was ignorant of the rules of procedure and evidence, the trial court ruled that 'while the defendant understands the nature of the charges against him, he has not had sufficient legal experience or does not have legal knowledge enough to conduct * * * his defenses and Counsel will not be relieved.' This was a correct ruling, and is not challenged by appellant. The court would have violated defendant's constitutional right to counsel had it accepted 'a waiver of counsel from anyone accused of a serious public offense without first determining that he (the defendant) 'understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, or the punishments which may be exacted. " In re James, 38 Cal.2d 302, 313, 240 P.2d 596, 603; see also People v. Linden, 52 Cal.2d 1, 16, 338 P.2d 397; People v. Chesser, 29 Cal.2d 815, 822, 178 P.2d 761, and cases cited; Uveges v. Com. of Pennsylvania, 335 U.S. 437, 440, 69 S.Ct. 184, 93 L.Ed 127.

The trial, in its various phases, was a lengthy one.

After rendition of the jury verdicts, the defendant moved for a new trial, which motion was denied. Thereafter, he moved to reduce the murder conviction to one in the second degree, or, in the alternative, to reduce the penalty to life imprisonment. These motions, and also a motion for the court to declare a doubt as to present sanity, were denied, the court reserving to counsel the right to present additional evidence on the latter issue. Thereafter, at the request of defense counsel, and again acting under the provisions of section 1027 of the Penal Code, the court appointed Doctors McNiel and Tutunjian, qualified psychiatrists, to examine defendant and to report to the court their opinions as to his present sanity. Both concluded and reported that, in their opinion, defendant was presently sane. The court then refused to declare a doubt as to present sanity.

The evidence produced by the prosecution substantially supports the findings of guilt on all four counts of the indictment on which appellant was found guilty. The sufficiency of that evidence is not challenged except as to the murder charge, and then only on the ground that premeditation and malice were not sufficiently shown.

The facts in reference to the charge involving the murder and rape of Marjorie Hipperson.

The evidence shows that Marjorie Hipperson was raped and murdered sometime during the early morning hours of June 10, 1957. Prior to her death Miss Hipperson lived in an apartment in Los Angeles, was employed as a nurse in a nearby hospital, and was engaged to be married to Dr. Deike, an intern at the hospital. On the evening of June 9, 1957, the employees at the hospital gave a combined stag party and shower for Dr. Deike and Miss Hipperson. At about 11:30 p. m. Miss Hipperson left the hospital in her automobile, alone, stating that she was going to her apartment. The doctor could not accompany her because he was on duty at the hospital that night. The next morning when Miss Hipperson did not show up for work, Dr. Deike went to her apartment to investigate. He discovered that the front door to the apartment was chained from the inside (there was no back door), that a screen had been removed from a rear window, and that the window was open. He entered the apartment through that window and discovered the dead body of Miss Hipperson lying on the bed in her bedroom. She was lying on her back with her nightgown bunched up around her upper body. There was a stocking wrapped around her neck, another stocking wrapped around one wrist, and a washcloth near her face. Her mouth was bruised, and she had numerous other bruises on different parts of her body. Subsequent investigation disclosed that she had been raped, and had died of strangulation. It was obvious that the washcloth had been used as a gag and that the stocking on her wrist had been used to tie her hands. Investigation by fingerprint experts disclosed a portion of a palm print on the wall beside the bed, which had been pulled out from its normal position, and another palm print on the window ledge where entry had obviously been made. The palm print on the wall was about 18 inches directly across from the buttock of the victim, and the palm print on the window ledge showed that the fingers were facing into the house when the print was made. These prints, according to the experts, had been made within 48 hours of their discovery, which was on June 10, 1957.

After appellant's arrest in July of 1959, prints were taken of his palms, and the prints taken from Miss Hipperson's room exactly matched them. The expert testified that the prints in the room were those of appellant, could not possibly have been made by any other person, and that it is not possible for two different human beings to have the same palm prints. Palm prints, so he testified, are as trustworthy as fingerprints as a means of identification. He was positive that the prints were those of the appellant.

An examination of the vaginal orifice of the body disclosed the presence of seminal fluid, and tests of that fluid disclosed that it was seminal fluid of the male with spermatozoa present in the fluid. Tests of that fluid and, after his arrest, tests of appellant's saliva and blood, disclosed to the experts that the seminal fluid was of a type that could have been that of appellant. This, like the ususal blood test, is an exclusionary test it does not positively identify the person, but it may exclude the person suspected. The test showed that appellant could not be excluded.

The autopsy established the cause of death as asphyxiation due to strangulation. The lacerations in and about the vagina, and the presence of the semen and spermatozoa indicated a forcible entry into the vaginal canal.

The fact that appellant was familiar with the apartment where Miss Hipperson lived was established by the testimony of Marie Weber, who lived in the apartment directly across from that of Miss Hipperson. She testified that sometime in 1956 a handprinted note was slipped under the...