People v. Macioce

• Decision Date: 28 December 1987
• Docket Number: No. H001108,H001108
• Citation: 242 Cal.Rptr. 771,197 Cal.App.3d 262
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thereza Goes MACIOCE, Defendant and Appellant.

Page 771

242 Cal.Rptr. 771

197 Cal.App.3d 262

The PEOPLE, Plaintiff and Respondent, v. Thereza Goes MACIOCE, Defendant and Appellant.

No. H001108.

Court of Appeal, Sixth District, California.

Dec. 28, 1987.

Review Denied April 20, 1988.

Gretchen O. Burford, Palo Alto, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Michael I. Mintz, Deputy Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

BRAUER, Associate Justice.

Appellant Thereza Goes Macioce stabbed her husband in the back, and thereby killed him. A jury found her guilty of murder in the second degree. (Pen.Code, §§ 187, 189.) She was sentenced to serve a term of 15 years to life in the state prison. She appeals from the judgment of conviction.

On appeal she contends (1) that the trial court erred in denying her pretrial motion to suppress evidence obtained after a warrantless entry and search of her apartment; (2) that the prosecutor used peremptory challenges systematically to exclude women, and particularly "battered women," from the jury; and (3) the trial court erred in finding a witness unavailable, and in allowing the former testimony of the witness to be read to the jury.

We find no error which warrants a reversal, and we therefore affirm the judgment.

I. BASIC BACKGROUND

Mrs. Macioce does not challenge the sufficiency of the evidence which supports her conviction. But because she claims the evidence was unlawfully obtained, we describe the circumstances leading to its discovery. ¹

On the night of Tuesday, August 21, 1984, Officer Rosario was driving a police car on routine patrol in San Jose. At 10:58 p.m. two male citizens in a passing automobile flagged him down. Together the citizens related to Rosario the following information:

Both citizens belonged to the religious group known as Jehovah's Witnesses. Appellant Macioce and her husband, Giovanni, also were members of the same organization. The Macioces, who normally attended Witness meetings faithfully, missed a meeting the previous Sunday, August 19. On succeeding days both citizens made numerous attempts to contact the Macioces by telephone and by knocking on the door of the Macioce apartment, but they received no response. Giovanni Macioce had been scheduled to undergo knee surgery on Monday, August 20, but he did not appear. The only automobile the Macioces owned was parked in a carport, and mail had accumulated in the apartment's mailbox. The Macioces were not likely to be out of town because they were extremely poor and could barely afford the rent. About 20 minutes before they encountered Rosario (i.e., around 10:30 p.m.), the citizens had gone to the Macioce apartment and knocked on the door, but still had received no response. They were concerned about the welfare of the Macioces.

Officer Rosario followed the citizens to the Macioce apartment, which was located on the second floor of a two-story apartment complex. Rosario noticed a large accumulation of mail in the apartment's mailbox. He then contacted the manager of the complex, who told him that she had not seen either of the Macioces for a few days. The manager provided Rosario with a spare key to the apartment.

Rosario, the citizens, and the manager all went to the door of the apartment. Affixed to the door was a note which read, as Rosario recalled, " 'I had been here, I'll call later,' or something to that effect." Using the spare key Rosario unlocked a deadbolt lock and another lock in the doorknob. At this point Rosario "was just making a welfare check to make sure these people were all right." From the information he had been given he "assumed that something wasn't right." When asked why he did not knock on the door or ring the doorbell, Rosario testified: "Because I felt that no one had responded to the prior knocks on the door from the other two individuals."

Rosario opened the apartment door. There were no lights on in the apartment. With his feet outside the threshold, Rosario thrust his head through the open doorway, illuminated the interior with his flashlight, and shouted "San Jose Police Department" at least twice. While he was thus engaged he noticed a portable electric fan running in the living room. He also detected what he described as "a foul odor." He had smelled a similar odor on previous occasions when he had encountered dead people.

No response came from within. Rosario turned on a floor lamp next to the front door and entered the apartment, which proved to have a living room, dining area, bedroom, bathroom, and kitchen. Rosario passed through the living room into the dining area, and shined his flashlight into the bedroom. He saw nothing unusual. He saw a door, which was slightly open, in a hallway. Using his flashlight he pushed the door open and illuminated the bathroom. The foul odor was stronger there. He moved toward the bathtub, which had a sliding shower door standing open three to five inches. With the butt of his flashlight he slid the shower door further open, and observed five or six blood-stained towels lying in the bathtub. He backed out of the bathroom, turned around in the hallway, and saw the dead body of Giovanni Macioce lying face up in a pool of blood in the kitchen. There were no visible wounds on the body.

Rosario made no further search. He left the apartment, closed the front door, and told the citizens and the manager what he had found. Then, using his portable radio, he contacted his immediate supervisor, Sergeant Arca. Arca arrived about 10 minutes later, obtained permission from the manager to re-enter the apartment, and went inside with Rosario. Rosario pointed out Giovanni's body. Then, using the telephone in the apartment, Rosario summoned the night detectives.

Officer Ireland, one of three night detectives who responded to the call, received a telephone message at 12:16 a.m. and arrived at the Macioce apartment at 12:27 a.m. He checked the bedroom closet and a hallway closet for other bodies. In the hallway closet (which turned out to be a linen closet with shelves) he observed a bottle of rubbing alcohol with bloodstains on it. Ireland and another detective spent between 30 and 45 minutes inside the apartment, and took 17 photographs. Looking closely they observed that blood had been wiped up from an area of the kitchen floor adjacent to the body. At that point they decided a homicide had occurred, and they summoned the homicide investigators.

Officer Ronco, one of the investigators, received a call at 1:43 a.m. and arrived at the Macioce apartment at 2:05 a.m. He spent about 15 minutes inside the apartment looking around. It appeared to him that the body had been there "a day, possibly two." Drawers in bedroom dresser had been pulled out, and miscellaneous papers were strewn on the bedroom floor. The bed was not made; the sheets and other bedding had been pulled off. There were blood spatters in the hallway. To Ronco these signs indicated a struggle had taken place. He directed his assistants to search the premises for "things that were responsible for the crime and also leading to the disappearance and possible locating Mrs. Macioce, some of the items, papers, items."

Ronco testified that when the search began he was concerned for the safety of the missing wife. "I think what I was concerned with initially when I was there at the crime scene and several hours after that, that I was concerned for her safety, primarily. Where was she? I think I would be remiss in my job in not considering her as a suspect if she was alive. But my first concern was: Was she alive. Had she been abducted. Had she met with some physical threat or was she being held. And that was my first concern at that point." When asked why he did not apply for a search warrant, Ronco testified: "At that time I was concerned with the exigent circumstances of the fact that Mrs. Macioce was not our primary suspect. In fact, she could be a possible victim at that point, and if we could locate evidence, things to lead us to her location and possibly rescue her from any harm, things--things that--inside the apartment that would allow us to do that I felt was a very important [thing] to do, and with that in mind that's why I went under that--took that tack, that guideline." "[I]f we had focused in on say, for instance, Mrs. Macioce as the suspect immediately at the scene, if there was something to link her I think it would have been in order to get a search warrant at that time. But under the circumstances with what I was faced with at the time I felt it was more important to forego that at that point so we could work as quickly as possible."

Ronco left the apartment and began interviewing other tenants in the complex. He obtained no useful information. At 4:10 a.m. he interviewed one of the citizens who had flagged down Officer Rosario. The citizen told Ronco that the Macioces had been having marital difficulties, and that other Jehovah's Witnesses had seen Mrs. Macioce alive either the previous Sunday or Monday, August 19-20. At that point Ronco began to think of the missing wife as a suspect.

Meanwhile, the searching officers took additional photographs and made notes. They seized nothing before the coroner arrived at 4:35 a.m. The coroner turned the body over, revealing a stab wound in Giovanni's back. After the corpse had been removed the officers began a systematic seizure of evidence. Some of the evidence was in plain view, or had come into plain view in Rosario's initial entry. For example, a checkbook and check register lay in plain view on top of a chest of drawers in the bedroom; and the bloody towels came into plain view when Rosario opened the shower doors in his search for persons. On the other hand, a pair of lady's denim trousers with bloodstains on the knees was found inside an opaque plastic bag in the bedroom closet. The murder weapon itself, a butcher knife, was...