People v. Milner

• Decision Date: 12 May 1988
• Citation: 753 P.2d 669,45 Cal.3d 227,246 Cal.Rptr. 713
• Parties: , 753 P.2d 669 The PEOPLE, Plaintiff and Respondent, v. Lynn Bernard MILNER, Defendant and Appellant. Crim. 22562.
• Court: California Supreme Court

Page 713

246 Cal.Rptr. 713

45 Cal.3d 227, 753 P.2d 669

The PEOPLE, Plaintiff and Respondent, v. Lynn Bernard MILNER, Defendant and Appellant.

Crim. 22562.

Supreme Court of California.

May 12, 1988.

Rehearing Denied June 30, 1988.

Gary S. Goodpaster, Professor of Law, Davis, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama and Edward P. O'Brien, Asst. Attys. Gen., Ronald E. Niver, Linda Ludlow, Nathan D. Mihara and Morris Beatus, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

PANELLI, Justice.

Defendant Lynn Bernard Milner was convicted of first degree murder (Pen.Code § 187) ¹ and robbery (§ 211), both with use of a deadly weapon (§ 12022, subd. (b)). A special circumstance allegation that the murder was committed in the course of a robbery was found true (§ 190.2, subd. (a)(17)(i)). The jury sentenced defendant to death; this appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

We affirm the judgment as to guilt and the special circumstance finding. We reverse the judgment as to penalty under compulsion of Caldwell v. Mississippi (1985) 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231, because after a review of the record we determine that the jury was misled as to its sentencing discretion. (See also, People v. Brown (1985) 40 Cal.3d 512, 230 Cal.Rptr. 834, 726 P.2d 516.)

I. FACTS

On February 1, 1980, defendant, then 19 years old, entered Gamble's clothing store (Gamble's) after the last customer had left, between 8:30 and 9 in the evening. He had been employed at Gamble's for two weeks in the fall of 1979.

About 9 p.m., maintenance man Richard Rivas noticed two men struggling at the back of the store. ² The iron grating that closed the customer entrance at the front of the store was pulled down. Rivas was close enough to observe that one of the men was blond and the other wore his hair in a "natural" afro style. After seeing that the man with the afro was striking the blond man, Rivas ran for help. When Rivas returned with Officer Dean Reese, no activity was visible from outside the store. Reese radioed for help and then entered the store from the back service entrance.

Inside, Reese saw blood spattered on the wall. He heard moaning as he entered the main room where a blond-haired man, later identified as Charles Street, was lying across a fallen clothes rack. Blood was pumping from a large wound in his chest. He died shortly thereafter. Street was the manager with whom defendant had worked while employed at Gamble's.

The coroner's report revealed that Street had been stabbed twice, in the chest and in the back. Either wound was sufficient to cause death. Also, Street's face was bruised and lacerated in a manner consistent with having received blows from a fist.

Reese found defendant crouched next to the counter near the cash register. He found no weapons in a patdown of defendant's person, but found currency and rolled coins in his pockets. A roll of coins, currency, and a knife with broken blade were found in the area where defendant had been crouched. Another portion of the blade was found in the stab wound in Street's back. Defendant's fingerprint was later found on the knife handle. There was blood on the glove that defendant wore on his left hand, as well as on his clothes and on his right hand, and on the coins and money.

On the morning following the arrest, Detective Don Myers interrogated defendant. According to Myers, defendant stated that he needed money and that he and Street had discussed the possibility of a sales job for defendant at Gamble's. Defendant also stated that he and Street were alone and that he did not remember having a fight with Street. Myers twice asked defendant whether he had stabbed Street. Defendant responded once that he did not stab and once that he did not remember stabbing Street.

Defendant admitted to Myers that he was carrying the knife with which Street was killed when he entered the store. He maintained that he routinely carried the knife for protection. He also told Myers that he could not recall how the roll of coins and other cash had gotten into his pockets; he had entered the store with no money on his person.

Around 10:30 on the same morning, psychiatrist Dr. Mervyn Shoor examined defendant to determine his psychiatric status in connection with possible charges. During the interview, which lasted some 30 minutes, Shoor asked defendant whether he had killed Street. Defendant responded, "There's blood all over me." However, he was still unable to recall the stabbing.

Shoor formed the opinion that defendant was a man of above average intelligence who suffered from no psychiatric disability and that defendant's lack of memory of the actual killing was the result of suppressive or repressive forgetting that occurred after the stabbing rather than a symptom of a loss of conscious awareness that occurred during or before the murder.

Defendant was charged with murder and robbery. He pleaded not guilty and not guilty by reason of insanity. Pursuant to section 1027 the court ordered sanity examinations by Drs. Gerishon Berman and Charles Casella. Their reports concluded that, despite his memory lapse, defendant was legally sane.

The prosecution proceeded to trial on both felony murder and premeditation and deliberation theories. Defendant's primary defense was diminished capacity at the time the crimes were committed.

Defendant testified in his defense that he went to Gamble's to apply for part-time work. After the last customer had left, he entered the store and had a "friendly" conversation with Street who agreed to talk to his boss about giving defendant a sales job. After Street had finished closing up, he and defendant walked through the hallway in the store toward the rear exit. As they approached the rear exit, defendant dropped his keys and, as he reached down to retrieve them, the knife began to slip from his pants pocket. Street saw the knife and a "peculiar" expression crossed his face. Defendant explained to Street that he carried the knife for protection. As he was repositioning the knife in his pocket, he felt a tremendous pain in the back of his head. He awakened to find himself on the floor by the sales counters with a bump on his head. Defendant believed that he had been knocked unconscious and that someone else had committed the crimes of which he was accused. ³

The testimony of three psychiatric specialists was offered to support the defense theory of diminished capacity. ⁴ Dr. Samuel Benson testified that he conducted a sodium amytal interview during which defendant was unable to remember stabbing Street when questioned directly about his involvement in the killing. However, in response to a query of why he had killed Street, defendant replied "Charlie was fucking with me." ⁵ Dr. Benson concluded that defendant had suffered from an acute anxiety and panic reaction that was precipitated by a dissociative reaction. He also opined that defendant was unable to form the specific intent to rob because, in a dissociative state, an individual is unable to interpret and perceive reality.

Dr. Allan Solomon interviewed defendant under hypnosis. He too testified that it was his opinion that defendant's lack of memory of the murder and robbery was due to a dissociative reaction that had occurred at the time of the killing. Solomon's theory was that the dissociative reaction was triggered by a homosexual panic. He also testified that defendant was incapable of forming a clear intent in the dissociative state.

Dr. Alfred Fricke was present at the Benson sodium amytal interview and also interviewed defendant independently, administering a battery of psychological tests. Fricke testified to his conclusions that defendant was of at least normal intelligence and that his amnesia was the result of repression of what had happened during the period he was unable to recall. ⁶

To rebut the diminished capacity defense, the prosecution offered the testimony of Drs. Shoor, Casella and Berman. Dr. Berman testified that defendant was probably capable of forming the intent to steal on February 1, 1980.

Dr. Casella testified that the defense experts' dissociative-reaction diagnosis of defendant's amnesia was "very flimsy." He also characterized as unlikely the idea that the amnesia experienced by defendant was psychogenic, principally because it coincided with the exact time of the commission of the crimes with which he was charged and because there was nothing in his history which would lead one to expect such an amnesia. Instead, he opined, "by far and away the most persuasive" explanation for defendant's inability to recall was fabrication.

Dr. Shoor also discounted the dissociative reaction defense. He testified that defendant's memory gap could best be explained "on the normal grounds that one would like to forget unpleasant situations." As noted, he believed defendant's amnesia was the result of conscious suppression or unconscious repression that occurred after the fact.

The jury was instructed on both felony murder and premeditated murder. The jury returned a verdict of first degree murder; the robbery special circumstance was found to be true.

At the sanity phase, after two days of testimony by prosecution and defense psychiatric experts ⁷--testimony essentially the same as that presented at the guilt phase--the jury found that defendant was sane at the time of the robbery and murder.

II. GUILT AND SANITY PHASE ISSUES

A. Miranda.

Defendant moved pretrial to suppress the statements, and tapes and transcripts thereof, that he made to Officer Reese, Dr. Shoor, and Detective Myers, on grounds that Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) either were not given or were improperly given. The motion was first continued by stipulation and then ordered off calendar without prejudice to...