People v. Mahle

• Citation: 78 Cal.Rptr. 360,273 Cal.App.2d 309
• Decision Date: 23 May 1969
• Docket Number: Cr. 7352
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence Paul MAHLE, Jr., Defendant and Appellant.
• Court: California Court of Appeals

Page 360

78 Cal.Rptr. 360

273 Cal.App.2d 309

PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence Paul MAHLE, Jr., Defendant and Appellant.

Cr. 7352.

Court of Appeal, First District, Division 2, California.

May 23, 1969.

Hearing Denied July 16, 1969.

R. Corbin Houchins, Berkeley, for appellant.

Thomas C. Lynch, Atty. Gen. of the State of California, Robert R. Granucci, James B. Cuneo, Deputy Attys. Gen., San Francisco, for respondent.

TAYLOR, Associate Justice.

Defendant, Clarence P. Mahle, appeals from a judgment of conviction entered on a jury verdict, finding him guilty of the second degree murder of his wife. He contends that the judgment of conviction must be reversed as: 1) the jury was erroneously instructed on the felony-murder rule, and on implied malice; 2) the court failed to instruct the jury, sua sponte, on involuntary intoxication; 3) he was deprived of his right to fully cross-examine a key eyewitness; 4) the prosecution was guilty of prejudicial misconduct; and 5) he was deprived of the effective aid of counsel during the trial.

As we have concluded, for the reasons set forth below, that the judgment must be reversed, a very brief summary of the pertinent facts will suffice. About 1:20 a.m. on September 20, 1967, Officers Hazen and Esparaza of the San Jose police received a radio report of a stabbing and possible homicide at a nearby apartment building. Officer Esparaza was directed to apartment 23, where he found Shirley Mahle lying on the floor, conscious, but unable to talk, and gasping for breath. Shortly thereafter, Shirley died in the hospital from a large stab wound in her heart.

As Officer Hazen passed the open front door of apartment 21, someone said: 'In here.' Hazen entered and saw defendant, who was sitting in a chair. When asked what happened, defendant replied: 'I did it and I'm very sorry.' Hazen arrested defendant for assault with a deadly weapon and handcuffed him. In the kitchen of apartment 21, the officer found a hunting knife next to the blood-smeared sink. The refrigerator contained a bottle of vermouth and a quart bottle of gin, both nearly empty.

About one week before the homicide, Shirley's sister, Ella Mae Iverson, with her son and a friend, Karen Eves, with her little girl, arrived from Detroit and stayed with defendant and Shirley in apartment 21, while Mrs. Iverson looked for an apartment. On the evening in question, Mrs. Iverson had observed defendant drinking martinis and watching television. About 10:30 p.m., everyone went to bed. Defendant and Shirley occupied one bedroom; Mrs. Iverson, her son and the three Mahle children occupied the second bedroom, while Mrs. Eves slept in the living room.

About midnight, Mrs. Iverson and Mrs. Eves were awakened by defendant's shouts from the kitchen demanding that Shirley get out of bed immediately and defrost the refrigerator. When Shirley refused, defendant threw a package of frozen meat out the window and returned to his bedroom. Mrs. Iverson then heard a thud, after which Shirley ran into Mrs. Iverson's bedroom screaming, and closed the door. Defendant attempted to enter the bedroom occupied by Mrs. Iverson but was rebuffed. Shirley then left the bedroom and the fighting resumed; on one occasion, defendant attempted to strike Shirley with a belt. When Shirley asked Mrs. Eves to call the police, defendant indicated that he would calm down and make no more trouble.

Thereafter, Mrs. Iverson heard more screaming and fighting, with Shirley shouting: 'Leave me alone.' Again, the battle progressed to Mrs. Iverson's bedroom and again defendant ceased his attack and left Mrs. Iverson's bedroom, stating he would make no more trouble. Mrs. Iverson further testified that shortly after Shirley left her bedroom, she heard the sound of a scuffle in the hall and that Shirley again ran into Mrs. Iverson's bedroom, staggering and saying: 'He stabbed me in the heart' and that defendant was standing in the hall with a bloody hunting knife that belonged to Mrs. Iverson and said: 'I got her. I got her good this time.'

Defendant testified that on the afternoon preceding the homicide, he arrived home about 5:00 p.m. He had taken two Librium tranquilizers early in the afternoon because he was nervous and had a beer, another Librium capsule and a martini about 6:30 p.m. Throughout the evening, he intermittently repaired Mrs. Iverson's phonograph, watched television and drank martinis. He did not recall how much he had been drinking or going to bed. He did remember having intercourse with his wife, who became annoyed with him because he was unable to achieve orgasm. His wife accused him of being sexually interested in Mrs. Eves and an argument ensued. The next thing he remembered was standing in the living room with the bloody knife. He denied any recollection of the various phases of the fight with his wife in the bedrooms. He recalled that he threw the bloody knife into the kitchen, dressed, combed his hair, sat in the living room, smoked a cigarette, sat in the living the police. He also recalled that the sight of the bloody knife had sobered him up enough to remember the conversation with the police.

Dr. Peschau, an Agnews State Hospital psychiatrist, interviewed defendant for two hours on November 21, 1967, about two months after the killing. On the basis of the interview, his review of the police reports, and the statements of the eyewitnesses, the doctor concluded that at the time of the homicide, defendant was in a state of toxic amnesia, as he had been consuming about a quart of alcohol per day for six days prior to the homicide and had been taking the Librium every four hours. Dr. Peschau concluded that defendant was unable to premeditate or form an intent to harm his wife, had acted impulsively, and was not able to remember the homicide. Defendant manifested no evidence of organic brain damage and was not insane.

A blood sample taken from defendant shortly after his arrest indicated an alcoholic content of .19 percent. The prosecution's chemist testified that an individual may experience various impairments at various stages of intoxication and that two of the gross signs of intoxication were the impairment of the ability to walk or talk; that a person with a .19 percent blood alcoholic content would be considered to be under the influence of alcohol for the purpose of operating an automobile but that the effect of a given quantity of alcohol or an individual's ability to form an intent and carry out a given objective was beyond the scope of his training.

The officers who talked to defendant before and after the arrest smelled a slight odor of alcohol but did not observe anything about his behavior to indicate intoxication. Both Mrs. Iverson and Mrs. Eves, who had occasion to see defendant intoxicated at other times, testified that he did not appear intoxicated to them on the evening of the homicide.

Defendant first argues that it was error in the circumstances of the case to instruct the jury on second degree felony murder. The record indicates that the jury was given an instruction based on CALJIC No. 305 (set forth below), ¹ followed by an instruction upon the elements of the crime of assault with a deadly weapon in terms of CALJIC No. 604. In People v. Ireland, 70 A.C. 557, 75 Cal.Rptr. 188, 450 P.2d 580, decided in February of this year, our Supreme Court held that 'a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide' and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged (as modified April 9, 1969, 70 A.C. p. 750, 75 Cal.Rptr. 188, 198, 450 P.2d 580, 590). The court's reasoning was set forth as follows at page 274, 75 Cal.Rptr. at page 198, 450 P.2d at page 590: 'This instruction might have been understood by the jury in either of two ways. First, the jury might have concluded therefrom that it should find defendant guilty of second degree murder if it First found that defendant harbored malice aforethought and Then found that the homicide had occurred in the perpetration of the crime of assault with a deadly weapon. If the jury had understood the instruction in this way it would have misconceived the doctrine of second degree felony murder as we have explained it above. Second, if the jury derived from the instruction the correct meaning of the doctrine in question, it would have concluded that it should find defendant guilty of second degree murder if it found only that the homicide was committed in the perpetration of the crime of assault with a deadly weapon. This, the proper understanding of the instruction (see People v. Phillips, supra, 64 Cal.2d 574, 584, fn. 9, 51 Cal.Rptr. 225, 414 P.2d 353), would have relieved the jury from a specific finding of malice aforethought.'

The Supreme Court further said in footnote 13 of its opinion: 'In the circumstances of the instant case this interpretation would have substantially eviscerated the defense, which was based upon principles of diminished capacity. Although specific intent to commit the underlying felony is necessary to the operation of the felony-murder doctrine (see People v. Sears (1965) 62 Cal.2d 737, 744 (44 Cal.Rptr. 330, 401 P.2d 938))--so that it is arguable that a defense of diminished capacity would not be entirely unavailable since it could be directed to the issue of intent to commit the underlying felony--nevertheless it is clear that the applicability of such evidence to that narrow issue would be in no way equivalent or comparable to the applicability of such evidence to the broad issue of malice aforethought in the charged offense. (See People v. Conley (1966) 64 Cal.2d 310, 322 (49 Cal.Rptr. 815, 411 P.2d 911.))'

While the instant case was tried long before People v. Ireland, the reasoning and facts of that case are on all fours with the instant one. Here, as...