People v. Nicolaus

• Decision Date: 23 February 1967
• Docket Number: Cr. 8313
• Citation: 65 Cal.2d 866,56 Cal.Rptr. 635,423 P.2d 787
• Court: California Supreme Court
• Parties: , 423 P.2d 787 The PEOPLE, Plaintiff and Respondent, v. Robert Henry NICOLAUS, Defendant and Appellant. In Bank

Page 635

56 Cal.Rptr. 635

65 Cal.2d 866, 423 P.2d 787

The PEOPLE, Plaintiff and Respondent, v. Robert Henry NICOLAUS, Defendant and Appellant.

Cr. 8313.

Supreme Court of California,

In Bank.

Feb. 23, 1967.

Quentin L. Kopp and Alvin H. Goldstein, Jr., San Francisco, under appointment by the Supreme Court, Koop & Skinner, Goldstein, Kopp & Skinner and Gilbert Eisenberg, San Francisco, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Edsel W. Haws, Deputy Atty. Gen., for plaintiff and respondent.

BURKE, Justice.

Robert Henry Nicolaus was convicted by a jury of first degree murder on three counts in a trifurcated trial on the issues of guilt, sanity and penalty. He had killed his three children by shooting each several times in the head. The jury found defendant sane at the time of the offenses and imposed the death penalty. Motions for a new trial and to reduce the degree of the offenses were denied. His appeal before us is automatic under section 1239, subdivision (b), of the Penal Code.

Autopsies revealed the daughter Heidi had four gunshot wounds; Roberta and Donald each had three. Heidi was the daughter of defendant and his wife, Lisa; Roberta and Donald were children of his former common law marriage to Jean Lara.

A nurse testified that on May 24, 1964, at approximately 8 a.m. defendant was brought to the emergency room of the Bart Memorial Hospital at Lake Tahoe for treatment. Defendant said to her, 'I have a confession to make. I killed my three children.' He said he had bought them toys to make them happy, taken them for a ride, had them climb into the trunk of the car to look for a key he told them he had lost, and shot them. The toys and other evidence were found the day of the homicides in a field in Rio Linda about 180 feet off the roadway. The statements to the nurse were made voluntarily, without any questioning by her; no police officers were present when the statements were made.

In September 1960, defendant's children, Roberta and Donald, were living with Jean Lara, their mother and defendant's former common law wife. Defendant sought legal advice to secure their custody and his then counsel testified at the trial that defendant advised him he felt that Jean was immoral and that the children were being raised in an improper environment. Counsel informed him that he would have to improve his own life and establish a proper home into which the children could be received.

Lisa Nicolaus, defendant's wife, testified that she met defendant in 1961; they went together about six months during which they would pick up Roberta and Donald on weekends and take them someplace; defendant was very fond of and generous with his children; he was most concerned about them; he believed their mother Jean was subjecting them to psychological mistreatment and physical abuse, all of which upset defendant considerably; he and Lisa decided upon a plan; they would get married, improve themselves, Lisa would finish high school, defendant would get a job, and save money; they would lead upright lives and someday obtain custody of Roberta and Donald; defendant and Lisa married September 7, 1961, and for about three years lived in accordance with their plan; they had a child, Heidi; defendant had been drinking heavily before he got a steady job, but, thereafter he quit drinking; he did part-time work also, but lived penuriously with Lisa, spending nothing except for bare necessities; eventually they were out of debt and were able to save some money; however, she testified, she became dissatisfied with such a frugal existence and thought they should be able to spend some money on themselves; arguments occurred frequently over this issue and on May 22, 1964, the day before the homicides, she told defendant she was going to leave him. When defendant left for work she began to pack her personal effects, with the help of her mother, putting them in the mother's car; defendant came home about noon, again asked her not to leave, and expressed concern about her living with her mother whom he considered immoral and unfit to be closely in contact with their child, Heidi; there was conversation about defendant's gun; she had packed the gun with her belongings and placed it in her mother's car; defendant found the gun there and threw it in the trunk of his own car; he followed her to her new apartment; he told her he wanted to verify that she was not going to live with her mother; he returned later and took her and Heidi to a restaurant for dinner; he told her he had withdrawn his savings from the bank, was going to enroll at Sacramento State College and take a course in public speaking because he felt someday he would 'sway the crowds and the masses would be trembling at his feet'; the next morning he picked her and Heidi up and went to the home of Jean Lara and picked up Roberta and Donald. He said he wanted to have their pictures taken. He took them to a restaurant for breakfast, returned Lisa to her apartment, and then left with the children.

Other witnesses testified that at 2 p.m. defendant parked his car in an open field near some apartment houses and left it there.

Laurie Woodworth, Lisa' sister, testified: On the afternoon of May 23 defendant went to her apartment saying he was looking for Lisa; he and she drank beer and talked; defendant's demeanor was unusual, rambling and incoherent; he said he had always wanted to obtain custody of the children but now this could never be; she said, 'Well, * * * you may not ever get your two older children, but you have Lisa and Heidi;' defendant said, 'No, I don't have Heidi anymore.'

His wife testified that later in the afternoon he found her at her apartment; told her he had left the children with his mother who was happy to see them and to babysit for him while he took Lisa and her mother to Stateline; they went to Stateline and during the ride defendant was friendly with Lisa's mother, whereas he had always been hostile toward her previously; he said he wanted them all to 'work together to save the children;' he cried and asked unusual questions; he said he felt he was going to die, and asked about heaven; he asked Lisa and her mother to sing hymns; he occasionally appeared to become paralyzed; arriving at Stateline they changed clothes and went out; defendant said he felt sick; they returned to the motel where he went to bed and lay in a 'half sleep' for the rest of the night; the following morning, May 24, defendant felt weak and could not move; Lisa called an ambulance and defendant was taken to a hospital where he made the before-related confession to the registered nurse.

The gravamen of the trial on the guilt phase was the issue of premeditation and deliberation. Accordingly, first the defendant, as a matter of defense, and then the prosecution, in rebuttal, introduced testimony of psychiatrists with respect to defendant's capacity to reflect and deliberate. Each of the psychiatrists who testified at the trial had examined defendant and stated that he was cooperative and fully communicative. Their testimony included a case history which they elicited from defendant and in composite indicated:

Defendant had a strict religious upbringing. When young he did not smoke, drink or go out with girls. He joined the air force after finishing one year of junior college. At this time his attitudes changed; he embraced atheism and Marxism and began to drink and chase women. One homosexual experience ultimately resulted in his receiving an undesirable discharge from the service. When he got out of the air force he returned to college, became interested in Nazism, admired Hitler, considered himself like him, and collected books and speeches about him. He wanted his wife and children to wear armbands with swastikas on them. He would talk about how he could walk on water and break bread and feed thousands of people. He was hospitalized in the psychiatric unit of the Sacramento County Hospital in 1956 at the behest of his common law wife who reportedly had accused him of trying to kill the baby. Defendant had yelled that he was Frankenstein. He graduated from Sacramento State College in 1958, receiving a degree in psychology and social sciences. He entered into a common law relationship with Jean Lara, bearing Roberta and Donald. The relationship terminated and the mother kept the children. Defendant was concerned about this because he considered the mother unfit to raise them. She had gone to live with an ex-convict who had molested two of her children, and he feared that it might happen to his own children and that they would grow up to be delinquents; his former common law wife was forever frustrating his desires to visit and be with the children.

When Lisa decided to leave him defendant felt his plan for securing his children had failed; he thought he would never be able to save his children from their environments which he considered intolerable; all his earlier efforts were wasted. He began drinking--this was on May 22--and drank so much that he became ill--he was still ill the morning of the homicides. He decided he would bring the children to a state of extreme happiness and kill them. At the time of the killings, he asked the children to climb into the trunk of his car and find a key that he told them he had lost there. He decided he wanted to kill them in the order in which they were born, so he had them climb into the trunk according to their ages, and with his last bit of strength he shot them, emptying the gun a second time to make sure and as a last expression of his ultimate love. He said he felt no pain and that he just went limp. Then he drove home. He parked the car in an open field because he noticed blood dripping from the trunk. He noticed blood on his clothes and changed them.

In summary, the respective psychiatrists expressed conflicting opinions on the issue of defendant's capacity to premeditate...