People v. Morse

Citation388 P.2d 33,12 A.L.R.3d 810,60 Cal.2d 631,36 Cal.Rptr. 201
Decision Date07 January 1964
Docket NumberCr. 7339
CourtCalifornia Supreme Court
Parties, 388 P.2d 33, 12 A.L.R.3d 810 The PEOPLE, Plaintiff and Respondent, v. Joseph Bernard MORSE, Defendant and Appellant.

William B. Enright, San Diego, under appointment by the Supreme Court, and Harelson, Enright, Von Kalinowski & Levitt, San Diego, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

This case involves an automatic appeal under Penal Code section 1239, subdivision (b) following verdicts finding defendant guilty of two counts of murder in the first degree and imposing the death penalty.

The three separate counts of the indictment charged defendant with the murder of his mother and sister and with assault upon the person of one Ellen Young. To these counts defendant entered a plea of not guilty and not guilty by reason of insanity. Finding defendant both guilty and sane, the jury imposed the death penalty for each of the murders. The trial court thereafter denied defendant's motions for a new trial and for reduction of penalty.

Defendant, a young man of eighteen and one-half years, became involved, prior to the murders, in an incident with a Miss Young. He first encountered her on a bus when, in the early hours of a Sunday morning, he was returning to his home. She alighted from the bus, and defendant followed her. After she had walked several blocks, defendant accosted her, taking her purse and beating her about the head and shoulders. When Miss Young screamed, defendant returned the purse and apologized, but continued to molest her until she took refuge with the occupants of a nearby dwelling.

Defendant then went to his home, where he lived with his mother and a 12-year-old sister who suffered from cystic fibrosis. Somewhere outside the house he picked up a rock, concealing it under his shirt. His mother let him into the house. When his mother returned to her bedroom he called to her on some pretext, anticipating that she would get out of bed and come to the bedroom door. When she opened the bedroom door he was waiting in the hall; he hit her with the rock and killed her. The struggle awoke his sister and she started 'yelling or something'; he struck her; later he secured a baseball bat from the kitchen closet and beat her until she was quiet.

When defendant related this episode to the police, he said he had felt the urge to kill or 'snuff' someone, a recurrent urge with him. That night he had intended to kill his mother as well as the girl on the bus. The identity of his victim was of no consequence.

After the commission of the crimes, defendant roamed the city in the family car in search of companionship, but he found none. He considered and rejected suicide; he thought, too, of the possibility of successfully disposing of the bodies and decided that it would be futile. He did not sleep at all that night but finally about 4 or 5 P.M. on Sunday he visited the home of his sister-in-law, Gail Morse, and her mother, Mrs. Keating, whom he informed that he had found his mother and sister dead. Mrs. Keating sought the assistance of a neighbor who was a police officer; he called other officers to meet him, and they escorted defendant back to investigate the crime scene. The officers found the bodies and the murder weapons, the rock and a baseball bat, on the premises just as defendant had left them.

Defendant remained phlegmatic until one of the police officers in the car transporting him to headquarters mentioned that he would give defendant a pencil and paper so that he might make notes to refresh his memory. Defendant responded: I don't think that will do me any good, and prison won't help me. It must be something in my head.' When the officer asked whether that meant defendant had committed the murders, defendant said 'Yes.' At the police station defendant voluntarily responded to interrogation; the officers taperecorded his confession; the prosecution played the tape-recording at the trial and thereafter an officer read a transcript of its contents to the jury.

At the trial defendant recanted some of the statements he had made in his confession. He asserted that he had procured narcotic drugs in Tijuana the Saturday preceding the killing and, contrary to his earlier denial, stated that during all of that evening and the next day he had remained under the influence of benzedrine and barbiturates. He denied that he felt an urge to kill but stated that he was 'bombed out' from the effects of the drugs. He claimed that he kept this fact from the police because at the time of his confession he was so shaken that he wanted to die. Defendant further testified, in substance, that the crimes were not premeditated. He said that he intended merely to steal Ellen Young's purse. He was induced to strike his mother by her accusations when he tripped over the doorsill that 'You are going back to jail because you are messing around with dope again.' He struck his sister to silence her screams.

We consider, first, the penalty phase of the trial and explain why we have concluded that the rendition of certain instructions the introduction of certain evidence, and the presentation of certain arguments worked prejudicial error. We then examine the guilt phase of the trial and briefly point out that defendant's four assertions of error lack merit.

A. The penalty trial.

The trial court instructed the jury that 'Every person guilty of first degree murder shall suffer death or confinement in the State Prison for life in the sole discretion of the jury. * * * In making your determination as to the penalty to be imposed, you may, in exercising your discretion to choose between different punishments, consider as a possible consequence that the law of this State provides that a defendant sentenced either to death or life imprisonment may be pardoned or have his sentence reduced by the Governor and that if this defendant is sentenced to life imprisonment he may be eligible for parole at the expiration of seven calendar years. A trial judge may also reduce the penalty from death to life imprisonment.' (CALJIC No. 306 (rev.).)

Statistical evidence of the median and average time served by defendants convicted of first degree murder and of the legal minimum period of incarceration was presented to the jury by means of a stipulation. 1

The quoted instruction illustrates the last and most extreme stage in a progression of instructions in the penalty phase of capital cases. Our present concern as to the impact of the instruction compels us to review our past rulings on this subject and to make certain that the court's statements to the jury in its tragic task do not confuse but clarify its undertaking. Our original purpose in permitting the court to instruct the jury that, if it found for life imprisonment rather than the death penalty, the defendant could possibly be paroled, 2 was to afford it the pertinent facts 'to assist it in assessing the significance of a life sentence' (People v. Purvis (1959) 52 Cal.2d 871, 885, 346 P.2d 22, 30). 3 Although such information may have been relevant, the instruction, abetted by the introduction of evidence as to the possibility of parole, has brought about untoward consequences to defendants. It has brought in its wake a trend of unremitting expansion in the scope of argument and evidence presented to the jury that has coincidentally produced and augurs future confusion.

The very introduction of the fact that a prisoner sentenced to life imprisonment became eligible to parole after seven years inevitably led to ramifications. Confronted with this bare instruction, defense counsel first countered by adducing evidence that the average and median sentences of defendants sentenced to life terms actually ran longer than the minimum of seven years. 4 This evidence, in substance, may have induced some juries to weigh the alternative of a sentence of a particular number of years, rather than a life sentence, against the death penalty. In any event, the fear that such was the case induced defense counsel to attempt to reassure the jury that the Adult Authority properly performed its task of deciding whether a defendant should be paroled and if so, when he should be granted parole. Thus defense counsel developed the practice of calling officials from the Adult Authority as witnesses to testify to the qualifications and background of its membership, the procedures and considerations involved in granting paroles, and the statistical showing of recidivism of prisoners released on parole.

The reaction by prosecuting attorneys to these developments took the form of an attempt to emphasize to the jury the possibility of error by the Adult Authority and the potential grievous harm that might result from the inadvertent parole of a defendant convicted of murder. Thus the apparently innocuous step of giving instructions of the operation of the parole laws has resulted in the jury's attempted evaluation of the competency of the Adult Authority to administer the parole system. The jury sometimes lamentably has 'tried' the Adult Authority (People v. Purvis (1963) 60 A.C. 277, 306, 33 Cal.Rptr. 104, 384 P.2d 424).

Concomitantly with permitting instructions as to the parole laws, this court accepted the procedure of informing the jury that the Governor could exercise the power, among other things, of reducing a death penalty to life imprisonment. 5 The trend in this direction, which, as we shall develop more fully infra, may well tend to reduce the jury's sense of responsibility, was halted momentarily in People v. Linden (1959) 52 Cal.2d 1, 338 P.2d 397. Linden held it improper to inform the jury about automatic appeals in death penalty cases. The present case, however, indicates that the thrust of expansion has fully resumed. Here the jury has been...

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