People v. Moran

• Decision Date: 23 May 1974
• Docket Number: Cr. 12122
• Citation: 114 Cal.Rptr. 413,39 Cal.App.3d 398
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William John MORAN, Defendant and Appellant.

Page 413

114 Cal.Rptr. 413

39 Cal.App.3d 398

PEOPLE of the State of California, Plaintiff and Respondent, v. William John MORAN, Defendant and Appellant.

Cr. 12122.

Court of Appeal, First District, Division 2, California.

May 23, 1974.

Rehearing Denied June 17, 1974.

Hearing Denied July 17, 1974.

Allan R. Frumkin, San Lorenzo (Court appointed Counsel), for defendant and appellant.

Evelle J. Younger, Atty. Gen. of Cal., Jack R. Winkler, Chief Asst. Atty. Gen.--Crim. Div., Edward P. O'Brien, Asst Atty. Gen., Derald E. Granberg, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

TAYLOR, Presiding Justice.

Defendant, W. J. Moran, appeals from a judgment of conviction entered on a jury verdict finding him guilty of first degree murder of C. Baker and not guilty of the murder of T. Shull. He raises a question of first impression as to the propriety of the trial court's admission of a video tape of the preliminary hearing testimony of the main prosecution witness. He also asserts that the trial court abused its discretion in admitting into evidence photographs and a motion picture of the exhumation of the bodies; erred in its accomplice instructions, in the admission of the evidence of a threat to a prosecution witness by a third party, in denying his motion for acquittal as to the murder of Shull; and that the verdict was against the law as the jury rejected his defense of compulsion established as a matter of law by the prosecution; or, in the alternative, his defense of diminished capacity established as a matter of law by the defense. We have concluded that there is no merit to any of these contentions and that the judgment must be affirmed.

As there are no contentions concerning the sufficiency of the evidence to support the verdict and judgment, a brief summary of the pertinent facts will suffice. In September 1972, Hell's Angels member William 'Whispering Bill' Pifer, met an old acquaintance, Frank Tiscareno, of the Pittsburgh police. Pifer had only six months to live as he had throat cancer, and explained that in January 1971, he and other members of the Richmond Hells Angels club had buried the victims of a double murder in a deep well on a ranch in Healdsburg. In late October 1972, Pifer led the authorities to the Wethern Ranch in Mendocino County where, as Pifer had predicated, the bodies of Baker and Shull were discovered beneath earth, timbers and lime. Although both bodies had decomposed so severely since their interment that the examining pathologist could not assign a cause of death, it was clear that Baker's skull had been fractured.

Pifer was granted immunity for a wide variety of federal and state crimes and testified at the preliminary hearing in November 1972 that the murders occurred at a party after a business meeting of the Richmond Hells Angels. At the meeting on January 15, 1971, in the clubhouse in El Sobrante, were the club president, 'Rotten Richard' Barker; Frank 'Badger' Mumm; 'Junior' Carter; Rollin Crane; Pifer and his 16-year-old son, William, Jr.; 'Big Frank' Herman; Angelo Borburia; defendant Moran and his common-law wife, Liz Ault; a woman named Carol; Chester Green; and the two victims, Tom Shull and Charlie Baker. Shull and Baker had been invited to the meeting by Green and arrived with him about 6 p.m.

After the business meeting, Barker decided to throw a party and supplied cocaine, which was snorted through a rolled-up $100 bill. Other drugs were also in general use. After Shull and Baker were sent out for beer and whiskey, Barker and Green slipped about 10 LSD tablets into Shull's coffee and a similar number into Baker's beer. About 6 o'clock the following morning, Shull became hysterical and paranoid; everyone began 'playing games with his mind.'

After Shull had been provoked to violence, Barker ordered: 'Grab that son-of-a-bitch.' Defendant and others held Shull while Barker telephoned club member Spann for seconal tablets to quiet Shull. The members attempted to force the tablets down Shull but he spat them out. For about 45 minutes, everyone took turns holding him down and trying to knock him out, but without success; there was blood all over the place. At Barker's direction, Shull was hog-tied and carried into a bedroom.

About 7:45 a.m., Barker summoned Green, who had left the party five hours earlier. When Green entered the clubhouse, he saw Shull screaming, hysterical and bleeding and struggling to remove his bonds. When Green suggested that Shull be taken to a hosptial, Barker refused. A few moments later, Pifer emerged from the bedroom and told Barker that Shull was dead. Barker, Crane and defendant then went into the bedroom to verify this fact.

When Barker returned from the bedroom to the living room where Baker was seated, Barker pulled out his gun and instructed Pifer to kill Baker as 'we don't want no witnesses.' Pifer refused. When Baker stood up, Crane knocked him down by hitting him on the head with a chair leg. Defendant then strangled Baker at Barker's direction for about 15 minutes with his hands and then his belt. After remarking 'This guy don't want to die,' defendant finally placed a rope around Baker's neck, inserted a stick and twisted it. Green and young Pifer left the room.

Baker's body was subsequently stored with Shull's in the bedroom closet. Defendant joined the others in the removal of the blood-stained furnishings of the club-house and clean-up. The following Monday, the two bodies were stuffed into the trunk of Green's Cadillac, taken to the Wethern Ranch and buried by Crane, Pifer, Sr., Carter and Green, with Mitten and Barker both armed and standing guard. Carter was originally charged with the murders along with defendant; Green and Mitten were charged as accessories. Green testified for the prosecution at the trial.

Defendant testified that he never touched Shull and could not remember strangling Baker. He did, however, remember seeing Barker with a rope around Baker's neck. He also recalled seeing Baker lying on the floor and Barker saying 'Get this guy out of here.' Defendant was able to assist in removing Baker's body but could not remember any of the events of the evening or morning as he was bloated with large amounts of whiskey and drugs. Defendant repeatedly acknowledged that he would do as Barker directed to maintain his membership in the Hells Angels and to keep his Hells Angels 'patch,' his status symbol.

The major contention on appeal concerns the admission into evidence of the eight-hour video tape of Pifer's preliminary hearing testimony. ¹ The question is one of first impression in this state.

The record indicates that immediately after the prosecution indicated that it planned to introduce the video tape, defendant objected on several grounds, discussed below. Defendant clearly indicated that if the court determined that the video tape was admissible, the entire tape should be admitted into evidence without the excision of any portions contrary to the suggestion of the prosecution.

When defendant raised the threshold question of Pifer's availability for the trial, his physician, Dr. Cohen, indicated that Pifer had just been admitted to the hospital and was near death. In fact, Pifer died during the first days of the jury trial. ² Pifer's condition was known at the time of the preliminary. Accordingly, it 'was assumed by all concerned that Pifer would be dead by the time of trial.' Defendant's counsel at the preliminary, Mr. Russell, indicated that his cross-examination of Pifer would be 'considerably more lengthy' than that of the other attorneys. Mr. Russell was true to his word and made extensive efforts to impeach Pifer on the basis of his prior acts of misconduct, his consumption, sale and transportation of narcotics, the grant of transactional immunity for all state and federal offenses, his prior statements his physical condition and motive for testifying, ³ and his bias against defendant.

The record indicates that the entire eight hours of the video tape was carefully previewed by the court and all counsel. Almost the entire week of pretrial proceedings was spent on the viewing, and discussion of the issues relating to the video tape. The trial court then ruled that the entire video tape would be admitted. Thereafter, the parties stipulated that no additional reporter's transcript of the video tape was to be made at the trial since there was a correct transcript already in existence. ⁴ Prior to the playing of the video tape before the jury, an extensive foundation was laid as to qualifications and exact procedures (including placement of the microphones) followed by J. P. Ruisinger, the special agent who recorded the video tape. Reisinger explained that Mr. Corson, an experienced and qualified lip reading interpreter, was used on the sound portion to clarify some of Pifer's whispered words on the tape. At all times, the court and counsel took extreme care to assure that everyone had a good view. Defendant expressly consented to the showing of the cross-examination of Pifer by all counsel. During the showing, Reisinger identified every reel.

Defendant, citing Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, and Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934, first contends that the use of the tape improperly deprived him of his Sixth Amendment right of confrontation. There is no merit to this contention. It is well established that pursuant to Evidence Code sections 1290, 1291, the testimony of an unavailable witness at the preliminary hearing is 'former testimony' and may be admitted at the trial. (People v. Benjamin, 3 Cal.App.3d 687, 694, 83 Cal.Rptr. 764.) The requirements of the confrontation clause are satisfied if at the prior hearing the accused was afforded a complete and adequate opportunity to cross-examine (California v. Green, 399 U.S. 149, 165--168, 90 S.Ct. 1930, 26 L.Ed.2d 489.) In the instant case,...