People v. Page

• Decision Date: 31 December 1991
• Docket Number: No. A043127,A043127
• Citation: 2 Cal.App.4th 161,2 Cal.Rptr.2d 898
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Bradley Nelson PAGE, Defendant and Appellant.

Page 898

2 Cal.Rptr.2d 898

2 Cal.App.4th 161

The PEOPLE, Plaintiff and Respondent, v. Bradley Nelson PAGE, Defendant and Appellant.

No. A043127.

Court of Appeal, First District, Division 3, California.

Dec. 31, 1991.

Certified for Partial Publication ^*

Review Denied March 26, 1992.

[2 Cal.App.4th 163] Kyle Gee, Oakland, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George B. Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Herbert F. Wilkinson, Supervising Deputy Atty. Gen., and Joanne S. Abelson, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

WHITE, Presiding Justice.

On November 4, 1984, U.C. Berkeley undergraduates Bradley Nelson Page, his girlfriend, Roberta "Bibi" Lee, and their friend, Robin Shaw, went jogging together in the Oakland hills. During the run, Bibi Lee became separated from the other two joggers and disappeared. Her disappearance and the ensuing search became a cause celebre in the local media.

A month after she disappeared, Ms. Lee's body was found near where she had been running with her friends. The next day, Page was questioned by the police for several hours. Page ultimately confessed he had struck Bibi and left her unconscious in the woods. He also admitted In his first trial, the jury acquitted Page of first and second degree murder, but could not reach a verdict on the charge of voluntary manslaughter. In the second trial, the jury convicted Page of voluntary manslaughter. Page is presently free on bail pending appeal.

he had gone back to the scene of the crime that night, where he had sex with Bibi's dead body, and buried her using a hubcap from his car. However, almost immediately, Page recanted his confession, claiming it was the product of police coercion and his own guilt and confusion.

On appeal, Page contends the manslaughter conviction must be reversed because the trial court improperly restricted a defense expert's testimony on the psychological factors which allegedly caused Page to give a false confession. In addition, Page contends the conviction must fall because the reporter failed to transcribe three days of the jury voir dire. Finally, Page argues the trial court improperly commented on his testimony, implying that it believed Page was guilty, and abused its discretion when it admitted grisly photographs of Ms. Lee's partially decomposed head.

We affirm.

I FACTS

Bradley Page met Bibi Lee in the fall of 1983 when both lived at Lothlorien, a U.C. Berkeley cooperative residence. They began dating in early 1984 and by that summer had developed a "strong commitment" to each other. At the beginning of the 1984 school year, however, Bibi moved out of the co-op to an apartment she shared with other students.

There was some evidence that the relationship between Page and Bibi was tense, particularly just before her disappearance. On the night before Bibi disappeared, a Saturday, Page went to a party with Jan Carmanotti, a woman he knew from high school. Page had strong feelings toward Jan, and Bibi was apparently jealous when she learned Page had gone on the date " 'dressed to kill.' "

Bibi Lee Disappears.

The following morning, Sunday, November 4, Page had planned to go on a run with Bibi, Robin Shaw, and his roommate, Jeff Dlott. Jeff opted out of the run at the last minute and Page met 19-year-old Ms. Shaw, who also lived at Lothlorien, in the co-op living room at about 8:30 a.m. He told Ms. Shaw that Bibi was late, and they both went out to the courtyard to wait for her.

Theresa Nicol, another Lothlorien resident, saw Bibi in the co-op kitchen sometime after 8:30. She seemed angry, and asked Nicol if she had seen Page. Nicol said she thought Page was upstairs. Bibi went to look for him, but returned a few minutes later, still in a bad mood. Bibi wrote a note to Robin Shaw, which said "Robin, I guess I missed you," and put it in Robin's mailbox.

A short while later, Bibi went out into the courtyard where she saw Page and Ms. Shaw. She seemed angry and snapped "you could have waited." Both Page and Ms. Shaw were puzzled by this comment, because obviously they had waited.

The trio then piled into Page's car, a 1969 Dodge station wagon, and drove to the Skyline Gate of Redwood Regional Park in the Oakland hills. During the drive Bibi still appeared upset and the atmosphere in the car was tense.

When they arrived at the Skyline Gate, they decided to run south along the West Ridge Trail, which runs parallel to Skyline Boulevard. This trail begins as a fire road, narrows at an archery range, then empties two miles south at Roberts Park, a small enclave consisting of a pool, playground, and picnic area.

The three joggers began running and stayed close together; the atmosphere was still tense. When they reached Roberts Park, Ms. Shaw, who was behind the others, saw Page run off in one direction while Bibi veered off toward Skyline. Ms. Shaw assumed Bibi wanted privacy, so she followed Page. Page and Ms. Shaw continued When they discovered Bibi was not at the pool area, Page called her name several times. When she did not respond, Page and Ms. Shaw walked the two miles back to Skyline Gate to see if Bibi had gone back to the car. Bibi was not at Skyline Gate. Consequently, Page and Ms. Shaw decided that Page would drive back along Skyline Boulevard to look for Bibi while Ms. Shaw remained at Skyline Gate in case Bibi returned.

running for about 200 yards to a vista point overlooking the Bay Area. They admired the view for a few minutes and then went to another vista overlooking Mount Diablo. After a few minutes, they returned to the pool area to look for Bibi.

Ms. Shaw estimated Page returned approximately 15 to 20 minutes after he left to look for Bibi. When he came back, she noticed he seemed upset, and described him at various times as being "angry," "worried" and "somewhat scared and confused." Page told Ms. Shaw he had not seen Bibi.

They discussed various ways that Bibi might be able to get home on her own and, after about ten minutes, decided to leave. Ms. Shaw was not comfortable with this decision, but acquiesced when appellant said he knew Bibi better than she did and that he would take responsibility.

After Page returned to Lothlorien, he ate breakfast. Around 1 p.m. he called Bibi's apartment and spoke with her roommate, Dana Friedman. He asked her if Bibi was there. When Ms. Friedman said "no," he asked her to leave a message telling Bibi he had gone to San Francisco.

Shortly after he made this call, Page and several other Lothlorien residents left on a prearranged trip to the Exploratorium in San Francisco. Bibi had planned to go on this trip. Jeff Dlott remembered that Page told him that Bibi had become "separated" during the trip to Skyline and might not make it.

Page returned to Lothlorien at 6 p.m., where he had dinner. He had forgotten about Bibi during the trip to the Exploratorium and was "feeling great." Robin Shaw saw him in the dining room and thought of asking about Bibi; however, he seemed in good humor so she assumed everything was fine.

Page called Bibi's apartment after dinner and again spoke with her roommate, Dana Friedman. He asked Ms. Friedman if Bibi was there and asked her to check the message board to see if she had picked up his earlier message.

The evidence is in conflict concerning Page's whereabouts between the time he made this call and 11 p.m. on November 4. This is the period during which Page allegedly returned to the scene of the crime, had sex with Bibi's dead body, and buried her. When first asked by the police, Page told them he could not remember what he had done that evening, although he said he might have written a paper. At trial, he relied on the testimony of three witnesses to establish that he was at Lothlorien during at least a portion of this period.

Amy Hacker, a former Lothlorien resident and appellant's wife at the time of trial, testified that she saw appellant in the Lothlorien courtyard at approximately 8:45 or 9 p.m. while she was studying in her room. However, she never mentioned this to anyone, including the police or appellant's lawyer, until one month before the first trial, by which time she was pregnant with appellant's baby.

Theresa Nicol, who considered Page a good friend, recalled seeing him after dinner on November 4. She "guess[ed]" that she saw him about 8:30 p.m. Although she knew this information was important, she could not recall if she had relayed it to Page's attorney, and in fact had told a police officer in December of 1984 that she had last seen Page at 6 p.m. on the evening of November 4.

Finally, Arnold Henry, another Lothlorien resident, testified that he saw Page in the foyer of the co-op between 8 and 8:30 p.m. on the night of November 4. The prosecution suggested that Mr. Henry confused the night on which this incident occurred, because he also testified that he had seen Bibi at Lothlorien on the night before he saw Page in the foyer. However At about 11 p.m., one of Bibi's roommates, Meg Luther, called Page at Lothlorien. Page's roommate, Jeff Dlott, answered the phone and shook Page awake. Ms. Luther was concerned that Bibi had not come home that night, and asked Page if he had seen her that evening. Page said he had not and, after he hung up, told Jeff Dlott how he and Robin Shaw had lost Bibi while they were running. He said they had gone back to the car and, while Robin waited for Bibi to return, Page had driven slowly up Skyline Boulevard calling Bibi's name, but had not found her. They discussed what they should do, ultimately decided they needed more information, and went back to sleep.

on Saturday, November 3, Bibi was either in her apartment or out dancing in San Francisco.

About 2 a.m. Meg Luther called again; this time she was nearly hysterical. Shortly after Page spoke with her, he got dressed and went to her apartment.

The Search Begins.

When Page arrived at her apartment, Ms....