People v. Milton
| Decision Date | 05 March 1969 |
| Docket Number | Cr. 14790 |
| Citation | 75 Cal.Rptr. 803,270 Cal.App.2d 408 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Bernell MILTON, Defendant and Appellant. |
Donald F. Roeschke, Tarzana, under appointment by the Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Suzanne E. Graber, Deputy Atty. Gen., for plaintiff and respondent.
Defendant was charged with murder (Pen.Code, § 187). He pled not guilty and not guilty by reason of insanity. Defendant was charged with a prior felony (Pen.Code, § 487, subd. 1), and admitted the prior conviction. Pursuant to Penal Code, section 1027, two physicians examined defendant regarding his sanity. The jury found defendant guilty of first degree murder, and defendant, while outside the presence of the jury, withdrew his plea of not guilty by reason of insanity. After the penalty phase of the trial, the penalty was fixed at imprisonment for life. Motion for new trial was denied, defendant was sentenced to state prison for life. The court revoked probation in the admitted prior conviction (case No. 332282), the sentence to run concurrently with the sentence imposed in the present case. Defendant appeals. 1
Ann Magee and Mrs. Margaret Anita Milton drove home together after work. Decedent (Mrs. Milton) went into the house to see if her husband was home. She came out and talked with Mrs. Magee and reentered the house and was not seen again by Mrs. Magee. About five or ten minutes after Mrs. Magee drove away--approximately 12:45 a.m.--Mrs. Magee saw defendant crossing 4th and Western--about four or five blocks from decedent's home. Defendant told Mrs. Magee her car door was open, and asked her to come back to have a beer. Mrs. Magee said decedent told her that she (decedent) and defendant had a fight. Mrs. Magee told defendant not to argue with Margaret and defendant said he would try not to. Mrs. Magee did not notice any scratches on defendant's face. However, except for a streetlight, it was dark. Mrs. Magee testified that decedent and defendant appeared to get along well during the month, and defendant never used force on his wife.
A neighbor, Mrs. Jones, saw defendant come out of his house at 9:30 a.m., on June 21, 1967, and when he was standing three feet from her she did not notice any scratches on him.
Mrs. Queen Esther Brown, decedent's mother, and babysitter for the baby of decedent and defendant, telephoned her daughter's home between 9:30 and 10:15 a.m., on June 21 and was told by decedent to bring the baby over. Mrs. Brown went to her daughter's home at 11:35 a.m., on June 21. She was parking her car and defendant tried to open her car door which was unusual. Defendant was not nervous. Defendant took the baby and said decedent went shopping with someone named Ann. Pursuant to Mrs. Brown's request, defendant took pictures of the baby and gave the film and camera to Mrs. Brown. Mrs. Brown did not notice blood or scratches on defendant's face, but she did not look closely.
Mrs. Jones saw a male friend of defendant's enter defendant's home sometime later. Defendant, the friend and the baby left about noon. Later, at about 3:00 p.m., she saw them stop outside the house again, look at it, and drive off.
Mr. Martin drove to defendant's house at noon and the two men drove to defendant's sister's house but she was not home. They went to the bank and returned to the sister's house and returned home. Mr. Martin left about 1:15 p.m. He did not recall a knife on the table, but the room was in disorder.
Defendant and the baby arrived at Kay Camp's house so that she could babysit. She did not notice scratches on defendant's face, or blood, nor did Mr. Martin see scratches or blood on defendant.
Mrs. Queen Esther Brown and Kay Camp kept calling decedent's home and there was no answer. Mrs. Brown went to her daughter's house, she knocked, there was no answer and she let herself in the backdoor. Mrs. Brown found decedent's unclothed body on the bed with a cord around her neck. The room looked as if some one had been tussling in it.
Sergeant Green, a police officer, noticed a shiny petroleum-based substance on decedent's legs and buttocks. A jar of vaseline-like substance, labeled O-Press Pressing Oil, was found in nearby clothing. A knife was found with a small piece of cord on it. A coroner's investigation showed decedent had been dead 18 to 24 hours prior to an examination at 11:40 a.m., on June 22. Male sperm was found in the decedent's rectal area and the rectal area was dilated. Flesh or skin from decedent's fingernails were removed and examined and compared with scratch marks depicted in an enlarged photograph of defendant's face. The size and shape of the material from under the fingernails compared closely, but not exactly, with the size and shape of scratch marks. Dr. Noguchi testified that the material from the fingernails came from a dark complexioned person, not necessarily a Negro, and this material resembled the skin on defendant's face, neck and hands.
Defendant's palm print was found on the electric heater from which the cord had been cut. The jar of petroleum-like substance also had a print that could have belonged to defendant.
Between 4:00 and 6:00 p.m., on June 22nd, the police found defendant sitting on a bench in the bus depot reading a newspaper containing an article entitled, 'Hunt Slayer of Woman, 20,' which dealt with the death of defendant's wife. One of the officers, Officer Less, asked defendant what he was doing in the bus depot. Defendant answered that he was just sitting there, that he was not going anywhere at all, and that he was just watching people. Defendant also said, 'I believe I know what you want me for.' Officer Less arrested defendant, telling him that it was for suspicion of murder. The officer then gave defendant a proper Miranda warning, to which defendant replied that he understood and did not wish to make any statements. Defendant was searched; no bus tickets and no money were found on him.
The arresting officers turned defendant over to Officer Papageorge for booking. That officer observed scratch marks on defendant's face, and such marks were later observed by Dr. Arterberry at Central Receiving Hospital. The doctor estimated that the marks were from one to three days old.
Between 8:00 and 9:00 p.m., on June 22nd, defendant was interrogated by Sergeant Green. The sergeant had given defendant another Miranda warning, to which defendant replied that he understood the warning. Sergeant Green then asked defendant whether there was something he would like to say. Defendant replied, Defendant then made several statements to the following effect:
He said that he had gone to bars, he went to the bus stop to sit because he liked to watch the people, and he heard on the radio that his wife was dead. He said decedent had been dating other men and he admitted slapping his wife a month before. When asked by Sergeant Green how he got the scratches defendant said he had an argument with his wife a week carlier and she slapped him causing the scratches. Defendant said he never noticed the scratches on his shoulder and hands. He didn't go home when he heard of the murder because he and his wife were separated and he did not feel such action was necessary. Defendant said he didn't pick up the baby because he was too drunk to do so. Defendant asked to see a lawyer and the conversation was then terminated.
All defense witnesses testified that defendant and his wife were getting along together.
Defendant testified in his own behalf. He claimed that, in The Moose bar, an inebriated woman approached him, he bought her a beer at her request, she asked him to go home with her, he said he wasn't interested and she became indignant and clawed him across his face, neck and shoulders. Defendant did not subpoena the barmaid Shirley who told the woman in the bar to leave defendant alone. Defendant denied killing his wife. Defendant said he often carried the heater in his hand from room to room.
Decedent had her own checking account and defendant claimed that, with decedent's knowledge, he made out checks to himself and signed decedent's name on checks on many occasions. On cross-examination defendant denied writing decedent's name on a particular check but on surrebuttal he said he might have made out the check, but to the best of his knowledge, decedent made it out.
Defendant contends the evidence is insufficient to support the verdict. We do not agree. The crime of murder may be established by circumstantial evidence. (People v. Reed (1952) 38 Cal.2d 423, 431, 240 P.2d 590; People v. Sigal (1967) 249 Cal.App.2d 299, 307, 57 Cal.Rptr. 541.) Unless it appears that 'on no hypothesis whatsoever' was there sufficient evidence to sustain such a verdict the appellate court will affirm the conviction. (People v. Huffman (1967) 248 Cal.App.2d 260, 262, 56 Cal.Rptr. 255.) The appellate court will not substitute its judgment for that of the trier of fact. (People v. Rightnour (1966) 243 Cal.App.2d 663, 671, 52 Cal.Rptr. 654.)
The evidence in the case at bench, though circumstantial, sufficiently supports the verdict. Defendant was found to have scratches on his face, neck and shoulders when he was arrested. The skin removed from under decedent's fingernails compared closely as to size and shape to the scratch marks on defendant's face at the time of arrest. The pigmentation of defendant's face bore a resemblance to the pigmentation in the skin removed from decedent's fingernails.
Further, there were major inconsistencies in defendant's story. Defendant told Sergeant Green and Sergeant Steele that he received the scratches on his face from his wife during an argument a week prior to her...
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