People v. Modesto

• Decision Date: 23 May 1967
• Docket Number: Cr. 10267
• Citation: 59 Cal.Rptr. 124,427 P.2d 788,66 Cal.2d 695
• Court: California Supreme Court
• Parties: , 427 P.2d 788 The PEOPLE, Plaintiff and Respondent, v. Lawrence Glenn MODESTO, Defendant and Appellant. In Bank

Page 124

59 Cal.Rptr. 124

66 Cal.2d 695, 427 P.2d 788

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

Cr. 10267.

Supreme Court of California,

In Bank.

May 23, 1967.

Rehearing Denied June 21, 1967.

Russell E. Parsons, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

For the third time, a jury has found defendant guilty of the first degree murders of Connie and Mary Mack and has fixed the penalty at death. ¹ This appeal is automatic. (Pen.Code, § 1239, subd. (b).)

The record before us suggests seven possible bases for reversing the judgment below. After careful examination, we find them all to be without merit.

We examine here the contentions (1) that the trial court should have granted defendant's motion for a change of venue; (2) that defendant's statements to the police should have been excluded; (3) that the evidence adduced by the prosecution failed to support a conviction of first degree murder; (4) that the trial court erroneously limited defense counsel's closing argument; (5) that the prosecution improperly suggested that, if the defendant were found not guilty by reason of insanity, he would be 'set free' rather than confined in a mental institution; (6) that the prosecution erroneously commented upon the defendant's failure to take the stand; and (7) that the prosecutor's improper references to the defendant's first two trials infected both the guilt trial and the penalty trial with reversible error. Preliminarily, we summarize the evidence introduced at defendant's trial.

Guilt Phase

At approximately 10 p.m. on October 28, 1961, Mr. and Mrs. Ardel Mack left their two daughters in bed and went to a bar where Mr. Mack worked as a guitarist in a dance band. Upon returning home around 2 a.m., the Macks found their nine-year-old daughter, Mary, lying on the floor. A trail of blood near her dead body indicated that she had been dragged a short distance after her face and head had been badly beaten.

Mary's sister, Connie, who was to have celebrated her thirteenth birthday several days later, had disappeared. The brassiere which she usually wore to bed was lying on top of her blankets and sheets on the bedroom floor; the brassiere, the blankets, and the sheets were stained with blood, as were Connie's mattress and pillow. Her underpants were similarly bloodstained; although she had apparently put them on before going to bed on October 28, they were later discovered stuffed next to a toy in a box at the foot of Mary's bed.

Suspicion immediately focused upon the defendant, a family friend who had spent most of the preceding day drinking beer with Mr. Mack. During the afternoon of October 28, the two men picked up Connie to drive her home; she refused to ride in the front seat next to the defendant until her father insisted that she do so. After taking Connie home, the men drove around town and continued their drinking. Later that evening the defendant saw Mr. Mack at the bar; around 10:30 p.m. the defendant left after a misunderstanding with Mr. Mack over who was to pay for some drinks; he knew the Macks did not plan to return home until 2 a.m.

The defendant was arrested at his home at approximately 2:30 a.m., October 29, 1961. Asleep in his bed, he was wearing only a bloodstained pair of shorts. His hands, as well as the clothes strewn about the floor of his room, were stained with blood, as were the right rear fender, the right rear door handle, the floor mat, and the rear seat of his car. The blood on the seat appeared to have been smeared by a body moving in many directions. Semen stains marked defendant's T-shirt, the outside of his trousers, and the shorts he was wearing. Officers removed a sledgehammer with a four-pound head from the trunk of defendant's car; chemical analysis disclosed that the hammer had been heavily smeared with blood but had been washed.

Police began to question defendant around 6 a.m., after an intensive search for Connie's body had begun. Officers suggested to the defendant that Connie might still be alive and that, if he could help them locate her, they might be able to save her life. Defendant did not respond immediately, but after a few minutes of silence he said 'Water.' Several minutes later he added, 'Avenue 62 and the storm drain.' Officer Mabbitt immediately telephoned Captain Brooks and suggested that the search be extended to include the area indicated by the defendant's remarks.

Approximately two hours later, several officers took the defendant to the storm drain; he showed them where Connie had fallen in. An attorney contacted by the defendant's family then arrived to represent him; he and the defendant conferred privately in a police car and then joined in the search. As the defendant walked along the bank of the storm drain together with his attorney and three police officers, he said that he had parked his automobile at the drain and had dragged Connie's body from his car to the culvert in order to wash some blood off her face; he said that she had somehow slipped into the water through a corrugated metal pipe, that he could not see her but could hear her moans, and that he had searched for her without success before going home to bed.

Soon after the defendant had made these statements, the officers learned that Connie's body had been discovered moments earlier in the drainage ditch downstream from the point at which defendant said she had fallen into the water. She was naked below the waist; four parallel scratches about two inches in length were visible high on the outside portion of her right thigh, and five similar scratches could be seen on the corresponding area of her left hip. A pathologist testified that the scratches could have been caused by human fingernails; defendant's fingernails were caked with blood at the time of his arrest. Although Connie's hymen had apparently been ruptured, the pathologist could not state whether or not she had been sexually molested since her body had remained in rapidly moving water for over nine hours.

Autopsies showed that both girls had been severely beaten with a heavy metallic object sometime around midnight. Mary's death resulted from brain injuries caused by multiple skull fractures. Although the immediate cause of Connie's death was drowning, the injuries to her head would likewise have proved fatal. Many of the injuries to each girl's head could have been inflicted by defendant's sledgehammer.

The defendant's wife admitted that her husband had driven away from home shortly before midnight and had returned some time thereafter covered with blood; he had attempted to account for the blood by referring to a 'fight' with an unidentified man. The defendant's wife testified that she later discovered that no such fight had occurred.

The prosecution sought to prove that the killings were murders of the first degree (Pen.Code, § 189) on the ground that they were either wilful, deliberate, and premeditated, or were perpetrated during the commission or attempted commission of burglary, rape, or an act of child-molesting punishable under Penal Code section 288. Defendant did not testify.

The central theory of the defense was that the defendant, far from killing either of the Mack sisters, had in fact tried to save Connie's life. Defense counsel argued that the defendant, his mind clouded from alcohol, inexplicably decided shortly before midnight to drive from his home to the Mack residence in order to 'check up' on the two girls; that, upon arriving at his destination, he saw Connie lying wounded on the lawn in front of the house; that he put her into his car with the intention of driving her to a nearby doctor; that he suddenly decided to stop at the storm drain to wash some blood from Connie's face; that he dragged her body across the road for that purpose; and that, shortly thereafter, she somehow slipped into the water. According to this theory, the defendant tried in vain to find her before she drowned but soon gave up and returned home covered with Connie's blood.

Defendant's theory, which rested entirely upon unfounded speculation, could hardly be successfully reconciled with his failure to alert anyone, including his wife, to the fact that Connie might still be alive; the theory suggested no possible answer to the key question of who, if not the defendant, had attacked the Mack sisters; it did not account for defendant's attempted exculpatory statement to his wife; it left unexplained the presence of semen stains on his clothing; and it could not account for the blood on his shorts, the blood smeared over the rear seat of his car, the blood which encrusted his fingernails, or the blood which had been washed from his sledgehammer.

Recognizing the weakness of his primary line of defense, counsel for defendant sought to establish that the defendant was so intoxicated at the time of the killings that, even if he had been the assailant, he could not have formed the requisite intent to kill or to commit any of the felonies enumerated by the prosecution. The evidence adduced by the defense in this connection consisted largely of testimony that the defendant had consumed a substantial quantity of beer before a midnight and that he appeared somewhat drunk to several people who had observed his behavior that evening. Based upon tests showing that the defendant's blood alcohol level at 3:30 a.m. was approximately .15 percent, a medical expert testified that, assuming the defendant had consumed no alcohol after 11:30 p.m., his blood alcohol level at the time the girls were killed could have been as high as .20 percent; the expert testified that in the average individual this level of alcohol would markedly impair muscular coordination, visual acuity, and judgment. The...