People v. Moore

Citation166 Cal.App.3d 540,211 Cal.Rptr. 856
Decision Date15 March 1985
Docket NumberCr. B001306
CourtCalifornia Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Michael James MOORE, Defendant and Appellant.

Thomas Kallay, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., S. Clark Moore, Asst. Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

JOHNSON, Associate Justice.


This appeal stems from a judgment based upon guilty verdicts in three counts of attempted murder and four counts of assault with a deadly weapon, and subsequent jury finding that appellant was sane at the time the convicted crimes were committed. Appellant urges three separate grounds for reversal: (1) that appellant's confession to a fellow inmate while incarcerated at the county jail was received into evidence in violation of Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 because the inmate may have been a police informant; (2) that it was error for the trial court to discharge a regular juror and replace her with an alternate during the sanity phase of appellant's trial; and (3) that the trial court erred in refusing a jury instruction which outlined appellant's possible institutionalization should he be found to be not guilty by reason of insanity.

Each of appellant's contentions are directed towards the sanity phase of his trial. We find no merit in appellant's first two contentions. However, we conclude that appellant's sanity proceedings may have been prejudiced by the trial court's refusal to instruct the jury on the consequences of a verdict of "not guilty by reason of insanity." We therefore reverse and order the sanity phase retried.


The facts in this case as found by the jury are neither complex nor subject to dispute on this appeal. On June 6, 1982, two uniformed police officers responded to a family disturbance call in a North Hollywood apartment complex. Upon arriving at the scene, the officers heard shouting and proceeded to an upstairs apartment where appellant and his girlfriend were apparently arguing. The officers knocked on the door and were admitted by appellant's girlfriend, Kim. Appellant appeared "very rational" to the officers, and evidently promised there would be no further noise.

Two hours later, Officer James Flint, one of the original two officers, responded by himself to a second family disturbance call at the same apartment. Appellant once more promised there would be no more noise and apologized for having caused the disturbance. Flint testified appellant appeared again to be very calm and very rational. Flint left the apartment and began to walk towards the stairwell.

When he was approximately five yards from the apartment, Flint heard a gunshot. Although he did not realize it at the time, the shot passed completely through Flint's body. He flinched forward, looked back over his shoulder, and saw appellant in a "combat stance" holding a .45 automatic gun in his hands. Appellant fired a second shot, striking Flint on the left side of his back. Flint scrambled out of the hallway as a third shot hit his right hand. Appellant then fired a fourth shot. Once out of the hallway, Flint called for help on a hand-held police radio.

Shortly thereafter, a Mrs. Borrelli heard a noise in her garage, which abutted appellant's apartment complex. Upon investigating, Mrs. Borrelli found appellant in her garage brandishing a .357 caliber revolver. Appellant told her to get in the house, took her arm, and began escorting her toward the house.

Mr. Borrelli also heard the noise, investigated, and found his wife and appellant near the garage. Mrs. Borrelli told her husband that appellant had a gun, and Mr. Borrelli asked appellant not to hurt anyone as they would do what he said. When appellant lowered the gun, Mr. Borrelli attempted to disarm him. In the ensuing struggle, Mrs. Borrelli was shot, causing her to lose the use of her legs.

While Mr. Borrelli was struggling with appellant, a man named Thompson, who was cleaning a nearby pool, heard the shots and ran towards the Borrelli's garage. Thompson wrestled appellant to the ground, and Mr. Borrelli took the .357 revolver from the appellant. Appellant produced another pistol but dropped it when Thompson applied more pressure. Appellant then feigned a heart attack, crying "My heart, my heart," and reached for his left side. Appellant's jacket fell open revealing yet another gun, this time a .45 automatic. Thompson relieved appellant of this gun as well. Appellant then seized a pen from Thompson's shirt pocket and attempted to injure him with it. A bystander interceded, removed the pen, and apparently discarded it.

More officers arrived and the struggle continued. Appellant first tried to reach his own guns and then the officers' guns. Even more officers arrived and appellant was finally restrained and handcuffed. After being handcuffed, appellant made such articulate statements as "You should have seen the pig I just shot. He looked just like you," and "I shot that pig twice with my .45." Later, while being transported, appellant announced his expressed hope that Flint, the police officer he had shot, would die. More weapons were discovered when appellant's apartment was searched pursuant to a warrant, including a .20 gauge shotgun.

While incarcerated at county jail, appellant was placed in a cell with Leslie White, an inmate awaiting trial for grand theft auto. Because appellant had previously manifested suicidal intentions while in jail, a police sergeant requested White to "babysit" appellant. White testified appellant said "Hi," and in turn White asked appellant why he was in jail. Appellant responded he had "shot a cop," and was concerned about the length of sentence he could receive. Appellant had been told he could receive up to 60 years.

The next day, in the course of further conversation, White told appellant he was curious about appellant's having said he shot a police officer. Appellant then proceeded to explain the events of June 6, 1982, in detail. White testified that in the course of the conversation appellant said he "would have shot everybody there to get away," and he would do anything to convince people he was insane. Appellant asked for White's assistance in completing a Minnesota Multiphasic Personality Inventory Test to make it look as if he were crazy. Moore apparently also told White he would testify he thought the police officer who came to his apartment was his father and that he thought he was shooting at his father.

Appellant entered pleas of not guilty and also not guilty by reason of insanity. Because the insanity defense was fairly interposed, the trial was bifurcated into separate guilt and sanity phases pursuant to Penal Code section 1026. In the guilt phase, appellant was found guilty and convicted of three counts of attempted murder and four counts of assault with a deadly weapon.

During the sanity phase, extensive expert testimony by three psychiatrists on the subject of appellant's sanity was introduced. In essence, the witnesses agreed that Moore knew the wrongfulness of his conduct at the time the offenses were committed but lacked substantial capacity to conform his conduct to the law. There was also some testimony to the effect that appellant was capable of feigning mental illness, and that he had some control over his actions.

The jury found appellant to be sane at the time the convicted offenses were committed. Based on the jury's findings, the trial court sentenced appellant to some 19 years in prison and entered judgment accordingly. Appellant appeals.


Appellant first contends on appeal that statements made to Leslie White, an inmate in appellant's jail cell, were received into evidence in violation of Massiah v. United States, supra, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. Appellant argues the admission of this allegedly improper confession into evidence alone compels reversal. We disagree.

Massiah has long been interpreted in California to stand for the proposition that "incriminating statements made by a defendant after he has been formally charged by indictment or information ... while ... in custody are inadmissible where they have been deliberately elicited from him by enforcement agents or the police in the absence of his counsel." (People v. Brice (1966) 239 Cal.App.2d 181, 191, 48 Cal.Rptr. 562.) (Emphasis in original.)

In this case, the statements in question were made by appellant to White while both were in a jail cell in the county jail. Admittedly no counsel was present. Nonetheless these admissions are excludable under Massiah only if they were "deliberately elicited" from appellant by law enforcement agents or the police. Absent evidence that White was an agent of the police, no violation of appellant's rights is shown. (People v. Hernandez (1968) 263 Cal.App.2d 242, 255, 69 Cal.Rptr. 448.)

Appellant was placed into White's cell at county jail. Because appellant had previously manifested suicidal indications, a police sergeant asked White to "babysit" appellant. No evidence was adduced that White was asked to remember anything appellant said to him, or that White was even asked to talk with appellant.

Appellant urges White was "clearly" an informant by his own admission. White did admit to having been an informant in the past; however, we find the following exchange particularly noteworthy:

"Q. Have there been any types of promises of any nature made to you by any person to get you to testify?

"A. No.

" * * * *

"Q. Now, when you indicate that nobody has made any promises to...

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