People v. Muszalski

• Decision Date: 29 March 1968
• Docket Number: Cr. 6142
• Citation: 260 Cal.App.2d 611,67 Cal.Rptr. 378
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Alexander Joseph MUSZALSKI, Defendant and Appellant.

Page 378

67 Cal.Rptr. 378

260 Cal.App.2d 611

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alexander Joseph MUSZALSKI, Defendant and Appellant.

Cr. 6142.

Court of Appeal, First District, Division 4, California.

March 29, 1968.

Hearing Denied May 22, 1968.

Jerry G. Wright, San Francisco, for appellant (under appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen., John T. Murphy, William D. Stein, Deputy Attys. Gen., San Francisco, for respondent.

DEVINE, Presiding Justice.

Appellant was convicted of first degree murder for the killing on August 4, 1965, of his wife, Nancy Muszalski; and of attempted murder for the shooting of his father-in-law, Frank Paloutzian. Appellant's wife had separated from him and was living with her parents. There was an interlocutory decree of divorce; a final decree would have been available in about a month. Appellant blamed his wife's parents for the separation and for preventing a reconciliation. They had accused him of being a 'free-loader' because his wife was working and he was going to college, and because they said he bought nothing for her.

Following the separation from his wife in March of 1964, appellant made many attempts at reconciliation. At times the two cohabited; at other times, they were seen together by neighbors. On the day before the homicide, appellant talked with his wife on the telephone about three hours. He testified she told him she was still very much in love with him and wanted to come back to him, and that maybe if he had a good job her parents would not feel so bad if she came back, but she didn't think she was strong enough to break with her parents.

On the fatal day, appellant asked his mother to telephone Nancy, but she got Nancy's brother, Ray. Appellant's mother told her son that Ray said Nancy did not love him and could not 'stand the bloody sight of him.' Appellant did not appear to be upset. On this same day, appellant's mother had a conversation with appellant's attorney, who told her that attempts at reconciliation seemed to be no use. She testified that she related this, too, to her son. She advised him to forget Nancy and he said he would.

That morning appellant made an appointment to see a priest. He told the parish housekeeper that he wanted a reconciliation. He seemed upset and said it was urgent.

At dinner he appeared to his mother to be normal. At about seven o'clock he phoned a friend, told him of his three-hour conversation with Nancy, said she had been undecided what to do because she wasn't sure how her folks would take it, and said he would abide by whatever decision she made.

Appellant went to the priest's house, but had to wait because of an emergency appointment which had been made with others by the priest. He left after a wait of about 45 minutes, at about eight-fifteen.

He intended, he testified, to visit friends, but after recalling one of them would not be home, he decided to go to the Paloutzian home, to get everybody together and to see 'who was lying or not.' He arrived at about eight-thirty. He parked around the corner from the home because he thought Nancy's parents would call the police. One reason for this conclusion was an episode of August 26, 1964. On that day, appellant had come to the same home, had pointed a screwdriver at Nancy's throat and had said, 'I'll kill you if you don't come out with me.' Nancy's mother had grabbed the screwdriver; whereupon, appellant picked up a kitchen or butter knife and dragged Nancy across the street. He was met by a policeman, who had been summoned.

After parking his car, appellant testified, he walked towards the house, then recalled that Paloutzian was bullheaded and went back and got a gun from the car, thinking he could force everybody to talk and find out who was lying.

When Paloutzian came to the door, appellant told him he had a job as supervisor over five women at a cannery and that this was the lunch hour. (This was false; he did not have the job, although he may have had prospects for one.) He said he wanted to talk to Nancy, that if she said she didn't love him he would go away and wouldn't bother her any more. Appellant looked perfectly normal to Paloutzian. He kept his right hand in his pocket. The two talked for several minutes. Then Paloutzian called Nancy.

Just what was said when Nancy appeared is uncertain. Paloutzian testified that she started to say, 'Bunny (appellant's nickname), you know I don't love you.' Appellant testified that, following his colloquy with Paloutzian about seeing Nancy and Paloutzian's statement that she did not want to see him and did not love him, he appellant, said he told Paloutzian that Nancy had told him just the opposite and that he wanted to talk to everyone to see who was lying. Nancy appeared. Appellant testified that she said, 'Bunny, it's a lie' (that is, appellant's charge). It would seem likely that these were Nancy's words because Mrs. Paloutzian, her mother, so reported to the police, and they put this into their investigating report.

Appellant pulled a snub-nosed revolver from his right-hand pocket. Paloutzian yelled to his son, 'Ray, he's got a gun. Call the police.' Appellant then fired twice through the screen door, hitting Paloutzian in the right chest, one bullet going through the shoulder and lodging in the left arm. Appellant then crashed through the screen door, ripping the center panel. The door bounced open and appellant brushed past Paloutzian as he fell to his knees. Appellant then ran towards the hallway and was grabbed by Mrs. Paloutzian, who was injured trying to stop him. Paloutzian then heard a noise in the hallway and another shot. As Paloutzian made his way down the hall, to Nancy's bedroom, he found his wife holding Nancy up. Appellant was standing against the door and Paloutzian attempted to tackle him with his uninjured arm. Appellant twisted away and ran through the living room into the kitchen where he broke open the latched door and ran off.

The victim, Nancy Muszalski, was shot through the head. She had been pinned in a corner of the room by the door. Mrs. Paloutzian saw appellant 'right over her' (Nancy) immediately after the shot was fired.

When appellant was arrested about two and a half hours after the homicide, he denied any knowledge of it, said he had been hiking and told the police they had better look around for some 'narcotics friends' of his wife's brother. He was wearing light blue-gray denim trousers that had been cut off above the knee; at the time of the homicide he had worn full length trousers. There was no blood on the denims.

Appellant's testimony about the fatal event following his decision to force everyone to talk, continues. He rang the bell, heard Nancy's father say, 'It's Bunny, you better leave, Nancy,' and then the door was opened. As he spoke with her father, the gun was in his right-hand pocket, but he was smoking a cigarette with his right hand. When he put the cigarette out, he placed his hand in his pocket with the gun, 'because I didn't know where else to put my hand.' When Nancy spoke, his 'muscles tightened up,' and the gun went off twice. It blew a hole in his pants pocket. He walked, then ran into the house, went directly to where Nancy was, 'pointed the gun at her and shot her.' He left by the back door, got in his car, and drove off. He became lost, pulled into an orange grove, placed the gun to his head and pulled the trigger four or five times, but the gun didn't fire. He broke the hammer on the gun and threw it out the window. He then drove to a gas station where he changed his pants. He threw the ruined pants into the receptacle at the gas station. He testified that he had no intent to kill Nancy or her father. Appellant remembers pulling the trigger when he shot Nancy in the head, but he doesn't know why he did it.

Before discussing the points of law, we observe several points in appellant's testimony, and his acts or statements, which doubtless made it difficult for the jury to rely on his credibility. First, there is the false denial made to the police. Then there is the fact that appellant threw away the pants which probably were bloody from Paloutzian's tackling of appellant when Paloutzian was covered with blood. Appellant's testimony that he threw the pants away because he discovered the hole in the pocket and they were worthless, would be hard to accept. So would appellant's testimony that he saw no blood on them. The pants were never found.

The shooting from inside the pocket not only contradicted Paloutzian's testimony, but also is inherently improbable. Since Paloutzian was struck in the shoulder, the gun, if in the pocket, would have to have been pointed upward. The gun was not an automatic, so there had to be a separate pulling of the trigger (and not a single 'tensing of the muscles') for each of the two shots at Paloutzian.

Appellant testified he tried to shoot himself but the gun didn't work. But live ammunition had been discharged at the corner of the Paloutzian home. It required pushing of a button and knocking to eject bullets from the cylinder.

Appellant could not remember the full name or the address (other than Glendale) of the man from whom he had taken the gun as a sort of security for a loan, although he also testified that the man 'was a pretty good friend of mine.'

Instructions on the Felony-Murder Rule

The prosecutor relied for a first degree conviction not only on the proposition of a premeditated killing, but also on the theory that the killing had occurred during the commission of burglary. The burglary, as stated by the district attorney, was appellant's entry into the house with the intent to kill his wife or to assault her with a deadly weapon. The felony-murder rule has been construed to include burglary even though the felony element of the burglary is an integral ingredient of the homicide itself. (People v. Talbot, 64 Cal.2d 691, 703, 51 Cal.Rptr....