People v. Modesto

• Decision Date: 11 February 1965
• Docket Number: Cr. 7877
• Court: California Supreme Court
• Parties: , 398 P.2d 753 The PEOPLE, Plaintiff and Respondent, v. Lawrence Glenn MODESTO, Defendant and Appellant.

Page 417

42 Cal.Rptr. 417

62 Cal.2d 436, 398 P.2d 753

The PEOPLE, Plaintiff and Respondent, v. Lawrence Glenn MODESTO, Defendant and Appellant.

Cr. 7877.

Supreme Court of California, In bank.

Feb. 11, 1965.

Richard Gladstein, under appointment by the Supreme Court, and Norman Leonard, San Francisco, for defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., William O. Mackey, Dist. Atty., Riverside, and Roland Wilson, Deputy Dist. Atty., for plaintiff and respondent.

TRAYNOR, Chief Justice.

The appeal is automatic from a judgment imposing the death penalty. (Pen.Code, § 1239, subd. (b).)

In a previous trial defendant had been found guilty of the first degree murders of Connie Mack and Mary Mack, and sentenced to death. The judgment was reversed on the ground that the trial court erred in refusing to instruct the jury on the issue of manslaughter. (People v. Modesto, 59 Cal.2d 722, 727-731, 31 Cal.Rptr. 225, 382 P.2d 33.) Before retrial defendant reinstated his pleas of not guilty by reason of insanity, which he had withdrawn during the first trial. Upon retrial the jury found defendant guilty of two counts of first degree murder, determined that he was sane at the time each crime was committed, and fixed the penalty on each count at death.

At the retrial on the issue of guilt the prosecution introduced substantially the same evidence it introduced at the former trial. The basic facts were summarized in our former opinion as follows.

'Shortly after midnight on October 29, 1961, defendant entered the home of Mr. and Mrs. Ardel Mack carrying a hand sledge hammer with a four-pound head. The Macks' daughters, Connie, age 12 and Mary, age 9, were asleep in the house. At about 10:30 p. m. the previous evening defendant had seen Mr. and Mrs. Mack at a place where Mr. Mack played the guitar with a band and knew that they would not return home until about 2:00 a. m. Upon returning home, the Macks found Mary lying on the floor dead. Connie had disappeared. Her blankets were on the floor, and there was blood on her bed.

'Defendant was arrested at his home at about 2:30 a. m., October 29, 1961. The arresting officers found bloodstains on the right rear fender, the right rear door handle, the rear seat, and the floor mat of defendant's automobile. The blood on the rear seat appeared to have been smeared by a body moving on the seat. Defendant's sledge hammer was removed from the trunk of his automobile. A chemist testified that the hammer had been heavily smeared with blood and had been washed.

'At the time of his arrest, defendant was asleep in his bed, wearing only a pair of shorts. His hands were bloodstained, as were his shorts and his other clothes found on the floor of his room. A police chemist testified that there were semen stains on defendant's T-shirt, on the outside of his trousers, and on the shorts he was wearing when arrested.

'At 7:00 p. m. on the day of his arrest, defendant admitted to police investigators that he struck Mary and Connie with the sledge hammer. He stated that he entered the Mack home 'with the intentions of scaring Connie Jean for the way she has been acting, snotty and smart-aleckie, and just to kind of get back at her for a lot of things she said. I went into the house through the side door. The house was dark and the door wasn't locked. So I went to the bedroom, flicked on the light and Connie Jean turned over and mumbled something and I shut the light off again, and I went over to shake her awake, and little Mary turned on the light, and I turned around with the intention of scaring her, and my hand went too far and I hit her with the sledge hammer. She went down, moaning, and Connie Jean started screaming, so I told her to be quiet, and I went like this (indicating) to hit her too, but my hammer just went right on and I hit her too; and I don't know, after that I don't know how many times I hit them three or four or five times apiece I don't know. They were moaning and screaming and I couldn't remember how many times I hit them.'

'Defendant stated to the officers that he then picked up Connie and dropped her on the lawn, returning to the house for the hammer. After putting Connie's unconscious body on the rear floor of the car, defendant stated that he intended to go back for Mary, but panicked and drove away when he saw the lights of approaching automobiles. Shortly thereafter he stopped at a drainage ditch to clean the blood from Connie's head. 'When I opened the door her legs hung out. And the next thing I knew she was on the ground so I grabbed her by the hand and pulled her over to the side of that drainage ditch * * * so I could get some water to clean her off, and she just tumbled into the water, moaning loudly. * * *'

'Defendant also stated to the officers that 'Between there (the drainage ditch) and * * * the house * * * I don't know where I stopped. I'm not sure in my mind, but I think I think I had intercourse with Connie I'm not sure.'

'Connie's body was found face down in the drainage ditch downstream from the point at which defendant stated she had gone into the water.

'Autopsies of the girls' bodies showed four separate injuries to Connie's head and five separate injuries to Mary's head, which were probably inflicted by the sledge hammer. Although drowning was the immediate cause of Connie's death, the injuries to her head would have been fatal. Mary's death resulted from injuries to the brain caused by multiple skull fractures. Since Connie had been carried downstream in rapidly moving water and had been in the water nine to ten hours, the pathologist was unable to state whether or not she had been sexually molested.' (People v. Modesto, 59 Cal.2d 722, 725-727, 31 Cal.Rptr. 225, 227-228, 382 P.2d 33, 35-36.)

It is not disputed that defendant killed the two girls. The prosecution sought to prove that the killings were murders of the first degree on the ground that they were either wilful, deliberate, and premeditated, or occurred during the commission of burglary, rape, or an act punishable under Penal Code, section 288. (Pen.Code, § 189.) Defendant did not testify. He relied on evidence of intoxication and brain damage to support the opinion of expert witnesses that he did not form a deliberate and premeditated intent to kill or an intent to commit any of the enumerated felonies. Although he presented more extensive evidence of this defense at the retrial than at the former trial, we are not persuaded to depart from our holding on the former appeal that the evidence is sufficient to support the verdicts. (59 Cal.2d at p. 727, 31 Cal.Rptr. 225, 382 P.2d 33.)

Defendant contends that the trial court erred in denying his motion for a change of venue on the ground that he could not obtain a fair and impartial trial in Riverside County. (Pen.Code, § 1033.) He supported his motion with affidavits setting forth the extensive newspaper coverage of his first trial and this court's reversal of the judgment. He asserts that the prospective jurors must have been aware of his criminal record, including the fact that he was on parole from a judgment of conviction of second degree murder at the time of the present homicides; that he had confessed; and that the trial judge at the first trial had stated his agreement with the verdicts and later vigorously criticized the decision of this court reversing the judgment.

The newspaper articles attached to defendant's affidavit were published from October 31, 1961, to July 17, 1963. The case was retried before a different trial judge, who denied defendant's motion to change venue without prejudice on September 10, 1963. The trial was commenced on October 14, 1963, and no difficulty was experienced in securing jurors who were not aware of the earlier publicity. Defendant did not exhaust his peremptory challenges, and he did not renew his motion to change venue. Under these circumstances the trial court did not abuse its discretion in denying defendant's motion without prejudice before trial and did not err in failing to raise the question on its own motion thereafter. It could reasonably conclude that defendant could secure a fair trial in Riverside County. (See People v. Duncan, 53 Cal.2d 803, 812, 3 Cal.Rptr. 351, 350 P.2d 103; cf. Irvin v. Dowd, 366 U.S. 717, 720, 726-727, 81 S.Ct. 1639, 6 L.Ed.2d 751; People v. McKay, 37 Cal.2d 792, 800, 236 P.2d 145.)

Defendant contends that the trial court erred in admitting into evidence photographs and color slides of the victims. We adhere to our holding on the former appeal that the trial court did not abuse its discretion in determining that the probative value of this evidence outweighed any probable prejudicial effect. (People v. Modesto, 59 Cal.2d 722, 733-734, 31 Cal.Rptr. 225, 382 P.2d 33.)

At the trial on the issue of sanity, defendant relied on the testimony of two psychiatrists that he was undergoing a psycho-motor epileptic seizure at the time he committed the homicides and was therefore legally insane. The prosecution relied on the testimony of four other psychiatrists to the effect that defendant was legally sane. In view of this conflict, there is no merit in defendant's contention that the evidence does not support the verdicts finding him sane.

At the trial on the issue of guilt several statements made by defendant to the police were introduced into evidence over objection after the prosecution laid a foundation that each statement was freely and voluntarily made. Defendant contends that at least the last and most damaging of these statements was inadmissible under the decisions of the United States Supreme Court in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. We shall consider the admissibility of all of them in the light of those decisions.

Officer...