People v. Ney

• Decision Date: 17 December 1965
• Docket Number: Cr. 4969
• Citation: 48 Cal.Rptr. 265,238 Cal.App.2d 785
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Erving Eugene NEY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 265

48 Cal.Rptr. 265

238 Cal.App.2d 785

PEOPLE of the State of California, Plaintiff and Respondent, v. Erving Eugene NEY, Defendant and Appellant.

Cr. 4969.

District Court of Appeal, First District, Division 1, California.

Dec. 17, 1965.

Herbert R. Kessler, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen. of State of California, Edward P. O'Brien, Paul N. Halvonik, Deputy Attys. Gen., San Francisco, for respondent.

SULLIVAN, Presiding Justice.

Defendant was charged in an information with mayhem (Pen.Code, § 203), assault with intent to commit murder (Pen.Code, § 217) and assault with a deadly weapon (Pen.Code, § 245). He pleaded not guilty to each of the three counts. Thereafter the court granted defendant's motion to sever count three from counts one and two and ordered that the cause proceed to trial on the first two counts. (Pen.Code, § 954.) A jury found defendant guilty of mayhem as charged in count one and of assault with a deadly weapon in violation of Penal Code, section 245, a lesser and included offense within the crime of assault with intent to commit murder, as charged in count two. Defendant appeals from the judgment of conviction. ¹

No question is raised before us as to the sufficiency of the evidence to support the judgment. Defendant contends that on a number of occasions the prosecuting attorney committed prejudicial misconduct. As we explain, we have concluded that some of the acts complained of have not been properly raised herein and those properly assigned as error do not compel a reversal in the light of the entire record. We therefore affirm the judgment.

In view of the issues, we need not recite the facts in any great detail. We discuss, infra, in our separate consideration of the several specifications of alleged misconduct, the facts pertinent to each. It is sufficient at this point to set forth the following background facts.

Defendant and Kay Hinch Ney were married in 1960. During the next three years there was almost continuous marital discord because of Mrs. Ney's drinking and associating with other men. The parties separated on several occasions. Finally defendant sued his wife for divorce and was granted an interlocutory decree in November 1963. Shortly thereafter the parties became reconciled and lived together until March 30, 1964, when defendant moved out of the house.

There was testimony of an altercation the day before between defendant and the victim Jack Ackley over the relationship between the latter and defendant's wife, and of defendant's threats against Ackley in the course thereof. There was also testimony that a week before the commission of the crime defendant told Mrs. Ney's brother that if there was an illicit relationship between Mrs. Ney and Ackley he would 'knock' the latter senseless and commit the very act of mayhem charged in the first count. The record also reflects evidence that defendant on a number of occasions had expressed animosity towards Ackley. No useful purpose would be served by setting forth the details of these incidents.

On the morning of June 28, 1964 defendant went to his wife's home in Millbrae and entered her bedroom where Ackley and Mrs. Ney were in bed together asleep. Billy Hinch, Mrs. Ney's ten-year-old child by a former marriage, saw defendant leaning over Ackley and hitting the latter about the head and neck with a black object that looked like a hammer. Having spotted Billy in the doorway, defendant brought him back to his room and closed the door. Defendant then returned to his wife's bedroom and, according to Billy after spending about five minutes there, finally left the house. Billy then returned to his mother's bedroom, saw Ackley in bed covered with blood and awoke his mother. The police were called.

Subsequent examination of Ackley disclosed that his entire penis had been removed in what appeared to be a deliberate manner. As a result of the blows to his head, Ackley lost the sight of his right eye and sustained serious damage to the sight of his left eye.

Defendant testified that at the time he was greatly wrought-up by his wife's conduct, that he recalled being in her bedroom and seeing the victim in a bloody condition but that he had no recollection of committing the acts charged. The defense introduced expert opinion evidence by a psychiatrist to the effect that defendant's consciousness was so clouded that he was not aware of what he was doing and 'would be unable to deliberate and formulate and carry out any rational judgment.' As defendant's brief puts it, the defense was based on his state of mind and his mental collapse precipitated by his wife's conduct.

In our consideration of the errors asserted on appeal we must be guided by the following well settled principles. Misconduct of the prosecuting attorney may not be assigned as error on appeal if it has not been assigned at the trial unless, the case being closely balanced and presenting grave doubt of the defendant's guilt, the misconduct contributed materially to the verdict or unless the harmful results of the misconduct could not have been obviated by a timely admonition to the jury. (People v. Berryman (1936) 6 Cal.2d 331, 337, 57 P.2d 136; People v. Kirkes (1952) 39 Cal.2d 719, 726-727, 249 P.2d 1; People v. Lyons (1958) 50 Cal.2d 245, 262, 324 P.2d 556; People v. Wein (1958) 50 Cal.2d 383, 396, 326 P.2d 457; People v. Perez (1962) 58 Cal.2d 229, 247, 23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946; People v. Rosoto (1962) 58 Cal.2d 304, 357, 23 Cal.Rptr. 779, 373 P.2d 867, cert. denied 372 U.S. 955, 83 S.Ct. 953, 9 L.Ed.2d 978; People v. Golston (1962) 58 Cal.2d 535, 541, 25 Cal.Rptr. 83, 375 P.2d 51, cert. denied 372 U.S. 955, 83 S.Ct. 954, 9 L.Ed.2d 979; People v. Basler (1963) 217 Cal.App.2d 389, 399, 31 Cal.Rptr. 884; People v. Clay (1964) 227 Cal.App.2d 87, 101-102, 38 Cal.Rptr. 431, 100 A.L.R.2d 1421.) Subject to the foregoing two exceptions, it is the general rule that error predicated on the alleged misconduct of the prosecutor cannot be raised on appeal in the absence of (a) an assignment of such misconduct as error and (b) a request to the trial court to instruct the jury to disregard it. (People v. Codina (1947) 30 Cal.2d 356, 362, 181 P.2d 881; People v. Sampsell (1950) 34 Cal.2d 757, 763-764, 214 P.2d 813, cert. denied 339 U.S. 990, 70 S.Ct. 1016, 94 L.Ed. 1391; People v. Kirkes, supra; People v. Wein, supra; People v. Fisher (1948) 86 Cal.App.2d 24, 33, 194 P.2d 116; People v. Tolson (1952) 109 Cal.App.2d 579, 582, 241 P.2d 32; People v. Wells (1960) 187 Cal.App.2d 324, 333, 9 Cal.Rptr. 384; People v. Clay, supra.) A mere objection to the allegedly prejudicial statements without a request to the court to instruct the jury to disregard them is ordinarily insufficient to raise the question of misconduct on appeal. (People v. Knott (1940) 15 Cal.2d 628, 633, 104 P.2d 33, 128 A.L.R. 1367; People v. DuBois (1936) 16 Cal.App.2d 81, 87, 60 P.2d 190; People v. Dunlop (1947) 79 Cal.App.2d 207, 212, 179 P.2d 658; People v. Wells, supra, 187 Cal.App.2d 324, 333, 9 Cal.Rptr. 384.) 'Whether a prosecutor has been guilty of prejudicial misconduct must be determined in the light of the particular factual situation involved.' (People v. Lyons, supra, 50 Cal.2d at p. 262, 324 P.2d at p. 565; People v. Basler, supra, 217 Cal.App.2d at p. 399, 31 Cal.Rptr. 884.)

The only issues presented on this appeal are the following four specifications of misconduct.

First: Defendant's first specification actually embraces four instances of alleged misconduct involving a tape-recorded statement given by defendant to Chief Lawrence Pickett of the Millbrae Police Department. We glean from the record that Mr. Woodman, defendant's attorney at the trial, upon ascertaining that a warrant had been issued for defendant's arrest, made arrangements with the chief to have defendant surrender himself at the Millbrae Police Department on June 29, 1964, the day after the commission of the crime. According to Mr. Woodman, he told Chief Pickett that he would give defendant instructions not to make any statements. Whatever may have been the subsequent misunderstanding among all parties concerned, it appears that the chief took a tape-recorded statement from defendant in which the latter among other things, admitted that he had hit Ackley twice with a two-by-four wrapped in felt at the end, that he had cut off Ackley's penis with a pocket knife, and that he had thrown the two-by-four of the San Mateo Bridge and put the penis down a sewer. Chief Pickett testified at the preliminary hearing without objection to defendant's above statements in response to questions directed to him by Deputy District Attorney Doherty, who was the prosecutor at the trial. At that time, defendant's counsel Mr. Woodman was present, cross-examined the chief, developed that defendant's statements had been tape-recorded and transcribed, requested and then read a copy of the statement and secured an order that both the tape and transcription be made available to him. The prosecutor later furnished defendant's counsel with a copy of the statement.

Defendant complains that the prosecutor used the opening statement to get defendant's 'inadmissible' statement before the jury, reminded the jury of the statement by calling the chief as a witness and compounded the misconduct by using the facts contained in the statement during the cross-examination of defendant and his expert witness.

In concluding his opening statement to the jury the prosecutor said: 'Mr. Pickett, Chief Pickett, will testify, after a conversation with Mr. Woodman, the defendant's attorney, Mr. Ney, the defendant, came to his office and told him that yes, he had struck him a couple of times with a two by four, and he used a pocket knife to remove his penis; that he had thrown the pocket knife and the two by four off the San Mateo Bridge, and flushed the penis down the toilet or into the sewer, and with this, ladies...