People v. Nichols

• Decision Date: 25 September 1970
• Docket Number: Cr. 14527
• Citation: 89 Cal.Rptr. 721,3 Cal.3d 150,474 P.2d 673
• Court: California Supreme Court
• Parties: , 474 P.2d 673 The PEOPLE, Plaintiff and Respondent, v. Richard Randolph NICHOLS, Defendant and Appellant.

Page 721

89 Cal.Rptr. 721

3 Cal.3d 150, 474 P.2d 673

The PEOPLE, Plaintiff and Respondent, v. Richard Randolph NICHOLS, Defendant and Appellant.

Cr. 14527.

Supreme Court of California In Bank.

Sept. 25, 1970.

Rehearing Denied Oct. 28, 1970.

Richard Randolph Nichols, in pro. per.

Robert C. Anderson, Carmichael, under appointment by Supreme Court, and Gary M. Merritt, San Bruno, under appointment by Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci and John P. Oakes, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Richard Randolph Nichols was charged by indictment with two counts of murder (Pen.Code, § 187), one count of burglary (Pen.Code, § 459), and one count of arson of a dwelling house (Pen.Code, § 447a). There being no evidence of premeditation, the People sought to establish that the offense was murder in the first degree on the theory that the deaths occurred during the perpetration of arson (Pen.Code, § 189). A jury found defendant guilty of murder in the first degree on both counts, and not guilty of burglary and arson. Sentenced to concurrent terms of life imprisonment, defendant appeals from the judgment of conviction.

Audrey Nichols, the defendant's wife, had separated from him and lived in San Francisco with Mr. and Mrs. Hutchins and the Hutchins' two children, Tracey and Kimberly, aged two and five respectively.

In the early evening of February 8, 1968, defendant twice telephoned the Hutchins' home and asked to speak to his wife. On both occasions at the request of Mrs. Nichols, Hutchins told defendant that she was not there. Shortly before 8 p.m., Hutchins left his home, and Mrs. Nichols, two of her friends, Dorothy Harris and Marvin Bibbs, and the two children remained in the house. Mrs. Nichols' car was in the garage beneath the living quarters of the house. Bibbs' car was parked in the driveway.

About 8 p.m. there was a persistent ringing of the doorbell at the Hutchins' home. The two girls looked through the living room window and one or both of them told the adults that defendant was at the door. No one answered the bell. Shortly thereafter the sound of breaking glass was heard and about 10 minutes later there was the smell of smoke. Several of the adults went to investigate and discovered that one corner of the garage was on fire. Mrs. Nichols noticed the hood of her car raised up. Bibbs, after locating the children, proceeded to bring them downstairs, and as he did so the lights failed. The intense heat and dense smoke forced the group back up the stairs. As Bibbs was breaking open a bedroom window, he lost track of the children in the smoke and dark. He stumbled about the room in an effor to find them and then, feeling himself about to be overcome by smoke, he jumped out of the window. The two children who remained in the home died from smoke inhalation.

The uncontradicted testimony of an expert from the Bureau of Fire Investigation of the San Francisco Fire Department established that the fire started in the engine compartment of Mrs. Nichols' car and then, fed by gasoline from the carburetor, quickly spread to the garage and house. The evidence clearly proved that the fire in the car was intentionally set.

Police investigators questioned defendant the following day and on a later occasion. Each time defendant denied knowledge as to how the fire was started. Several days thereafter the police asked him to come to police headquarters for further questioning. After having been informed of his rights, defendant told the officers that he went to the Hutchins' home to ask his wife if he could use her car that night. He rang the doorbell, but no one answered. He looked inside the car in the driveway and saw that it was registered to a man he did not know. Defendant then noticed his wife's car in the garage. After breaking a glass window in the garage door, he reached inside and opened the door. When he discovered the engine of the car was cold, he concluded that his wife was in the house and had been there for some period of time. Thinking she was both avoiding him and seeing another man, he became angry and decided to frighten her. He wadded some newspaper he found on the floor of the garage around the carburetor and ignited it. He then heard noises in the house, became frightened and ran away. He stated that he never intended to harm anyone.

At trial defendant testified that the statement was false. He claimed he invented the story to protect his wife from further involvement because he thought her negligence might have been the cause of the children's deaths. Defendant's statement

Defendant contends that the statement should not have been admitted into evidence because he was not informed of his right to the presence of counsel At that particular interrogation. The record negatives this claim. A tape made of his statement contains the following warning: '(Y)ou have the right to remain silent; (2) anything you say can and will be used against you in a court of law; (3) you have the right to talk to a lawyer and have him present with you While you are being questioned; (4) if you cannot afford to hire a lawyer, one will be appointed to represent you Before any questioning if you wish one.' (Italics added.) Moreover, since defendant went to police headquarters specifically to undergo further questioning, it is obvious that the warning had to apply to the interrogation conducted on that particular day.

The trial court instructed the jury that '(t)he guilt of a defendant may not be established alone by any confession or admission made by him outside of this trial. Before any person may be convicted of a criminal offense there must be proof independent of any such statement by a defendant that the crime in question was committed. * * * Now, what we are talking about here is arson. Before you can consider any confession or admission of the defendant, if such there be, you must first conclude that the evidence discloses that arson was committed by somebody. * * * (B)efore you can consider the confession or admission you must conclude that arson was committed, and that gets down primarily to the testimony of the fire expert. If you believe his testimony, then the corpus delicti of arson is established, and you may consider evidence for whatever you deem it to be worth of any alleged confession or admission.'

Defendant contends that these instructions were inadequate because they did not also require that the corpus delicti of murder and burglary be established before his statement could be considered on those charges. But defendant was acquitted by burglary, and thus there was no prejudice in omitting reference to that charge. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) As will be shown Infra, the first degree murder convictions could only be supported by the court's felony-murder instruction on the burning of the car. Since the court adequately instructed on the corpus delicti of that crime, ¹ the instructions properly delineated the only use which the jury could have made of defendant's statement in reaching its verdicts.

Declaration of the Children

On redirect examination Mrs. Nichols testified that one or both of the girls had said it was defendant who rang the doorbell so persistently shortly before the discovery of the fire. Defendant objected to the admission of these declarations on the ground that they were inadmissible hearsay, citing sections 1250, subdivision (b), and 1252 of the Evidence Code. ²

His reliance on these sections is misplaced. During cross-examination, the defense impugned Mrs. Nichols' motives for accusing her husband of setting the fire, insinuating motives for fabrication. On redirect the prosecution could properly offer evidence of the reasonable basis for her testimony to rebut the inference of bias raised by the defense on cross-examination. (People v. Perez (1954) 128 Cal.App.2d 750, 757, 276 P.2d 72; Witkin, Cal. Evidence (2d ed. 1966) § 1277, p. 1181, and authorities cited therein; see People v. La Macchia (1953) 41 Cal.2d 738, 749, 264 P.2d 15.) The children's declarations were introduced for that purpose rather than to prove the truth of the matter stated and did not constitute hearsay. (Evid.Code, § 1200.) The court properly instructed the jury concerning the limited purpose for which they were admitted. Moreover, even if it was error to admit those statements, defendant's own properly admitted confession that he had set fire to his wife's car would make it impossible to hold the error prejudicial as it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the claimed error. (People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243.)

Instructions

The trial court instructed the jury that defendant committed arson if he wilfully and maliciously set fire to either the house or the car. They were told 'the unlawful killing of a human being, whether intentional, unintentional or accidental, which is committed in the perpetration of arson, is murder of the first degree.' '(I)f that fire killed somebody,' the court advised, 'whether it is arson of the house or of the automobile * * * it's murder of the first degree.'

From the evidence presented the jury could have found defendant guilty of intentionally setting fire to the house by using the car as a torch. But since he was acquitted of arson to the house, the only reasonable interpretation of the murder verdicts under the instructions given is that they were based upon the jury's finding that defendant intentionally set fire to his wife's car. The fire in the house caused the children's deaths, and the arson investigator's uncontradicted testimony established that the fire in the car ignited the house. Defendant contends, however, that the above instructions failed to advise the jury that to hold him...