People v. Miller

• Citation: 245 Cal.App.2d 112,53 Cal.Rptr. 720
• Decision Date: 22 September 1966
• Docket Number: Cr. 2512
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lucille Marie MILLER, Defendant and Appellant.

Page 720

53 Cal.Rptr. 720

245 Cal.App.2d 112

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lucille Marie MILLER, Defendant and Appellant.

Cr. 2512.

District Court of Appeal, Fourth District Division 1, California.

Sept. 22, 1966.

As Modified on Denial of Rehearing Oct. 20, 1966.

Hearing Denied Dec. 14, 1966.

[245 Cal.App.2d 121] Holcomb, Kassel & Ward and Edward P. Foley, San Bernardino, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

BRAY, Justice. ^*

Defendant appeals from judgment of conviction, after jury trial, of murder in the first degree with life imprisonment.

QUESTIONS PRESENTED

1. Sufficiency of the evidence.

2. Alleged misconduct of the district attorney.

a. Opening statement.

b. Cross-examination of defendant.

c. Examination of witness James.

d. Cross-examination of Priscilla Slagle.

e. Impeachment of Dr. Ford.

f. Evidence of bad checks.

g. Examination of Dr. Modglin.

h. Examination of witness Nourse.

i. Argument.

j. Defendant's attorney's instructions to defendant not to talk.

3. Should prospective jurors opposed to capital punishment have been excused?

4. Admission of evidence.

a. Search of the Volkswagen.

b. Testimony of the undercover agent planted in defendant's cell.

c. The Hayton affair.

d. Insurance.

e. Experiments.

5. Instructions.

a. Manslaughter.

b. Bad checks.

6. Denial of motion for new trial.

7. Excusing juror No. 5.

8. Denial of motion to dismiss indictment. (Grand jury proceedings.)

9. Publicity.

1. SUFFICIENCY OF THE EVIDENCE

The trial was bitterly contested and much of the evidence was conflicting. The case is one of circumstantial evidence substantial enough to support the verdict. We will discuss principally the evidence supporting the verdict.

About 1:45 on the morning of October 8, 1964, defendant came to the door of the home of Mrs. Maurice Swenson in Alta Loma and said, 'Help me, help me. My car is on fire. Cork is all burned.' ¹ Mrs. Swenson invited defendant in and telephoned the sheriff. She then asked defendant if she should call anyone else and defendant asked her to call Harold J. Lance, her attorney. In answer to Mrs. Swenson's call, Lance drove over to her home and was greeted by defendant saying 'Cork' was all burned up. While waiting for the sheriff, the three persons talked. Defendant thought she had a bump on her head, but Mrs. Swenson couldn't find one. There was a scent of burned hair on the back of defendant's head. Defendant held a scorched scarf. Her clothes were rumpled, but Mrs. Swenson did not notice any dirt or disarray.

In the meantime, Charles Hogancamp, Chief of the Alta Loma Fire Protection District, had received a fire call and was trying to find the car. He arrived at Mrs. Swenson's house just as Lance and defendant were driving out the driveway. Lance said he was an attorney and suggested that the chief follow him in the fire truck. Defendant seemed uncertain as to the exact location of the burned car. At a point where the road was partially blocked, they saw the car burning. Arriving there, they found the car, a Volkswagen, was burning at the rear around the motor and the rear tires. The door on the left side was wide open. The trunk and the engine lids were closed. There was a body on the seat of the car. Hogancamp's efforts to extinguish the fire failed so he radioed for a pumper which, on arrival, put the fire out. There was an uncapped gasoline can in the passenger compartment immediately behind the driver's seat. This can defendant had bought some days before. Dr. Miller, the body in the car, was dead, having, according to the medical evidence, died in a matter of seconds as a result of the fire.

Lance drove defendant home but returned with her to the scene about 3:00 a.m. There defendant told substantially, though not in as much detail, the same story which later she told Sergeant Robinson at the police station and related on the stand.

The Volkswagen was on the outside of the roadway on the dirt shoulder, a portion of the car being on the pavement. Officer Robinson saw a tire mark made by an inflated tire (not a flat) leading up in an easterly direction to the dirt shoulder portion of the roadway. The dirt shoulder is next to a retaining wall which is four feet high down to a lemon grove. The road was a lonely, dark one, apparently not much used, although defendant testified that she had used it occasionally going to her home. The gasoline can showed no indication of distortion or bulging. It was empty. The threads had a burned residue but were not stripped; the neck was still on it.

The car's tires were deflated except the left front one. They were burned through in different degrees. The right rear wheel was below the surface of the ground in a hole. There was a large rock in the middle of the rear seat. The headlight switch was in the parking light position. The hand brake was off and the gear shift was in low gear.

An autopsy on Dr. Miller's body disclosed large amounts of barbiturates taken two to four hours before death in the bloodstream. These drugs were readily accessible to defendant and her husband, a dentist. The morning of his death, defendant procured some nembutal capsules for him to take. A witness saw defendant driving the car shortly before the fire; a form which defendant said at the trial was her husband, was slumped over in the front seat and covered with a blanket.

Experts testified that the Volkswagen could not have burned the way it did without an accelerant. As will hereinafter appear, a similar auto was burned under experimental conditions approximating the People's theory of the case, pouring gasoline (accelerant) inside the car, leaving the open can tilted on the back floor, igniting the gasoline while standing outside the car by means of a stick used as a torch (a charred stick was found near the car), opening the door on the driver's side for draft, etc. The results were similar to those of the Miller car and the gasoline cans were similarly scorched. Other experiments (also hereinafter discussed) indicated that the fire could not have been accidentally caused and refuted defendant's theory that a blown-out tire caused the stopping of the car on the road.

Dr. Miller had considerable life insurance, including double indemnity, payable to his wife, of which defendant had knowledge. Although his practice of dentistry was fairly successful, netting approximately $25,000 yearly before taxes, the Millers had debts of $64,000, of which $30,000 was attributable to the recent construction of their new home, the building of which the doctor did not favor, although he went along with it to keep peace in the family.

Defendant and Arthwell Hayton, an attorney, whose families were close, were even closer; on three different occasions they stayed together in motels. Defendant wanted very much to marry Hayton. The record shows that defendant's involvement was very deep, she having asked Hayton to divorce his wife and having advised Mrs. Hayton to divorce him, but he was content with simple adultery. Finally he became tired of her and did his best to break off the relationship, particularly when she began publicizing their affair and threatened to 'expose' him if he would not marry her. In spite of his attitude toward her, the evidence clearly indicates that she was still attempting to contact him and raises the reasonable inference that if she were free to marry she believed Hayton would marry her.

Defendant denied all guilt. She explained her obtaining the barbiturate pills as necessary for her husband's illness. She recounted the details of the night in question. About 7:30 p.m., the doctor drove defendant in the Volkswagen, intending to go to a dry cleaners in Pomona. En route, their car killed a large German shepherd dog and damaged the left front light of the car. The accident upset the doctor because this was the third car of his that had been damaged in four months. Nevertheless, he drove to a hobby shop where defendant purchased glue for her boy's model toys. Then they went to the cleaners. He complained of a headache and asked defendant to drive on the return home. At home, the doctor reclined on a couch and watched television with a pillow under his head and a blanket over him. Defendant joined him under the blanket. When the movie was over, the doctor asked defendant to fix him some hot chocolate. She discovered that there was only about 1/8 gallon of milk left in the refrigerator. She told the doctor that this would not be enough for breakfast if she used any of it for hot chocolate. He suggested that they drive to Woody's Market and get some. The doctor took the pillow and blanket to the Volkswagen, which the doctor had rented. They did not take her car. The doctor climbed into the right front passenger seat, wrapped the blanket around himself and leaned his head on the pillow against the window. Defendant drove and, noticing that her husband was leaning against the door, reached over and locked it. Woody's Market was closed. They then decided to go to the Mayfair. A witness saw them as they approached it. This was about 12:30 a.m. The witness noticed defendant sitting in the driver's seat and what appeared to be a large bundle covered by a blanket with a lump, which could have been a human being, and if it were, the person's head was probably against the window. There was evidence that defendant parked at the Mayfair in a place where the parking lot's lights would not show Dr. Miller's side of the car, nor be likely to awaken him. Defendant went into the market and brought out two half-gallon cartons of milk, placing them on the floor of the rear passenger compartment of the Volkswagen. She did not notice the gasoline can. The evidence showed that the route she took home was circuitous and long and a rather peculiar one for a...