People v. Murphy

• Decision Date: 27 November 1972
• Docket Number: Cr. 15221
• Citation: 503 P.2d 594,8 Cal.3d 349,105 Cal.Rptr. 138
• Court: California Supreme Court
• Parties: , 503 P.2d 594 The PEOPLE, Plaintiff and Respondent, v. Sean J. MURPHY, Defendant and Appellant. In Bank

Page 138

105 Cal.Rptr. 138

8 Cal.3d 349, 503 P.2d 594

The PEOPLE, Plaintiff and Respondent, v. Sean J. MURPHY, Defendant and Appellant.

Cr. 15221.

Supreme Court of California,

In Bank.

Nov. 27, 1972.

Rehearing Denied Dec. 29, 1972.

Robert E. Burke, Downey, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Frederick R. Millar, Jr., Deputy Atty. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

On October 1, 1969, defendant Sean J. Murphy was charged jointly with Warren O. Saling by indictment with conspiracy to commit first degree murder (Pen.Code, § 182) and the first degree murder of defendant's wife, Catherine Murphy (Pen.Code, §§ 187, 189). Defendant pleaded not guilty. His motion for severance was granted and after trial a jury found him guilty as charged and fixed the penalty at death. His case is before us on automatic appeal (Pen.Code, § 1239, subd. (b)). ¹

Defendant contends that (1) certain extrajudicial statements made by him which were recorded on a concealed electronic device and photographs of his deceased wife were erroneously and prejudicially received at trial; (2) he was deprived of his constitutional right to present a defense; and (3) the exclusion of certain jurors for their unwillingness to impose the death penalty resulted in a 'guilt prone' jury and the denial of a fair trial. ² We have determined that these contentions lack merit and therefore have concluded that the judgment as hereinafter modified must be affirmed.

On the evening of August 22, 1969, William Mulhearn was driving on Lopez Canyon Road in the County of Los Angeles and was 'flagged down' by defendant. Mulhearn noticed that defendant had blood on his head and T-shirt and observed a woman's body lying on the ground near a vehicle. Defendant told Mulhearn that the woman, his wife, had been 'beat up' and asked him to call the police.

Deputy Sheriff Jack Boggio, who arrived in response to the call, observed that the woman was dead and that defendant appeared to be injured. Defendant told Boggio that while he was driving southbound on Lopez Canyon Road he observed a red car on the side of the road with two men standing beside it, and he stopped to offer help. The men said they had run out of gas and asked defendant to drive them to a service station. After traveling a short distance one of the men pointed a pistol at Catherine Murphy, told the Murphys they were being robbed and ordered defendant to pull over, stop and get out of the car. One of the men later hit defendant on the head. Apparently Boggio did not pursue the matter further and secured the area for investigating officers who were en route.

Upon his arrival Deputy Sheriff Barrett Fitzgerald found the lifeless body of Catherine Murphy lying near the Murphy automobile and a pool of blood extending from behind a nearby bush to the body's location. Fitzgerald walked northbound up the canyon road about the quarter of a mile and found on the shoulder of the road fresh impressions left by tires which were similar in measurement and design to those on defendant's car. He also found a second set of impressions left by tires similar to those on a maroon 1963 Pontiac which, subsequent investigation disclosed, had been driven by Saling. The officer's investigations and conclusions relative to the vehicles driven by defendant and Saling were corroborated by the testimony of a criminalist, who also testified that the maroon Pontiac appeared to have been turned around and driven northbound up the canyon at that point.

An autopsy performed on Catherine Murphy's body revealed that she had received five stab wounds, any one of which would have been fatal, and the autopsy surgeon determined that the cause of her death was exsanguination.

Several hours after the homicide Fitzgerald interviewed defendant after first advising him of his constitutional rights. Defendant said that he had been planning to purchase a house trailer and that Jerry Carnes had informed him that one was for sale in Kagel Canyon. Defendant and his wife drove up Kagel Canyon Road to look for the trailer. Being unable to find it they decided to drive down Lopez Canyon Road (which joins Kagel Canyon Road near the summit of the elevation) on their way home. Defendant then gave essentially the same account he had earlier related to Boggio, but this time he stated that the men who stopped him were driving at 1957 maroon Chevrolet. He added that after he was told to pull off to the side of the road and to stop the car he was further instructed to back up the car to a wide area of the road. Defendant and his wife were then told to alight from the car. One of the two men opened the trunk and removed a tire iron while the other man forced defendant and his wife behind a bush. The man with the tire iron then came to their location and hit defendant on the head, rendering him unconscious. When he regained consciousness he heard his wife moaning and found her behind the bush. Defendant dragged her to the point where she was later seen by Mulhearn and the police.

During the course of his investigation Fitzgerald obtained statements from Jerry and Richard Carnes, Jim and Susie Armstrong and a man named Rodriguez. The Carnes brothers told him that defendant had approached Jerry and asked him if he would become involved in a 'rough-up job' which ultimately developed into a plan to murder defendant's wife. Jim Armstrong told Fitzgerald that he had been approached by Saling and was offered $300 to steal a car and drive it into Big Tujunga Canyon where it was to be used in a planned hit-and-run accident. Susie Armstrong told Fitzgerald that she was present in her apartment on two occasions when Saling was there and on those occasions she overheard conversations concerning a traffic 'accident' which was to take place in Big Tujunga Canyon. The man named Rodriguez told Fitzgerald that he was present on two different occasions when Saling had money and talked about a hit-and-run accident.

On the evening of September 18, 1969, Jerry Carnes telephoned Fitzgerald and asked him to come to Carnes' apartment for the purpose of listening to a telephone conversation which Carnes was about to have with defendant. ³ Fitzgerald listened to the conversation with the aid of an induction coil and, with Carnes' consent, recorded the conversation with an electronic recording device. On September 19 Jerry Carnes' brother, Richard, authorized Deputy Sheriff William Allen to conceal a transmitting device in Richard's clothing and to intercept and record a conversation between him, his brother and defendant. ⁴

Jerry Carnes was granted immunity from prosecution and testified, contrary to defendant's story, that sometime in the latter part of July or early August 1969, defendant telephoned him at the cycle shop where he was employed and asked whether he wanted to 'rough somebody up that (sic) owed (defendant) some money.' Carnes replied that he did not do that type of thing but 'may (know) somebody that (sic) would.' Defendant subsequently inquired of Carnes' progress on two occasions. The second inquiry was on a Friday, two or three days after defendant's initial phone call. Carnes told defendant that he still had not found anyone but was going to visit a person who might be able to help him and asked defendant to call back later.

After the phone call Carnes contacted Warren O. Saling, whom he also knew as 'Dusty.' Saling told Carnes that he was interested and that he wanted to talk with defendant. About one hour later Carnes and defendant went to Saling's home. Carnes did not pay close attention to the conversation between defendant and Saling but while driving back to the cycle shop defendant told him they were going to rehearse that afternoon about 2 or 3 p.m., with the plan to be carried out about 8 p.m. that night in Big Tujunga Canyon. Defendant said he was going to drive the victim into the canyon and pretend to have a flat tire. He would then stop the car on the side of the road and have the victim remove the lug nuts while he removed the spare tire from the trunk. Saling would then approach in his car and drive into or over the victim. If he failed the first time he would 'just come back and hit 'em on the head and lay him on the road and run over him.' Carnes was to call the police after the accident, claiming to be a witness. He was eventually told that he would be paid for his role. Carnes said that, during the course of their conversation, defendant said 'her' one or two times when referring to the prospective victim.

Later that same day Carnes, Saling, and defendant went to Big Tujunga Canyon in Saling's maroon Pontiac and rehearsed as planned. Still later, about 7:45 p.m., Carnes drove to the canyon and parked at his predesignated spot. After about 40 minutes he saw defendant drive into the canyon with a woman in the car. Defendant, waiting for Saling, drove back and forth past Carnes four or five times but Saling did not appear. Carnes left about 9 p.m. and shortly thereafter encountered Saling and Robert 'Pokey' Jurgenson as they were driving toward the canyon. Saling stopped and said he was late because the police had detained him and stated he would contact Murphy later. Apparently nothing more was said concerning the execution of the plan. Carnes then went to the home of his girlfriend's mother and, thereafter, did not see Saling. Catherine Murphy was killed that Friday evening in Lopez Canyon. ⁵

Carnes heard about the homicide on the Monday following Catherine's death. Approximately one week later Richard Carnes brought his brother Jerry $200 and told him that it was from defendant. About one or two weeks thereafter defendant met with Jerry to find out whether the police had contacted him. Jerry said that they had and defendant told him to 'keep (his) mouth shut because the Courts wouldn't take the word of...