People v. Palmer

• Decision Date: 24 April 1978
• Docket Number: Cr. 16437
• Citation: 145 Cal.Rptr. 466,80 Cal.App.3d 239
• Parties: , 1 A.L.R.4th 1056 PEOPLE of the State of California, Plaintiff and Respondent, v. Trudie Beatrice PALMER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 466

145 Cal.Rptr. 466

80 Cal.App.3d 239, 1 A.L.R.4th 1056

PEOPLE of the State of California, Plaintiff and Respondent, v. Trudie Beatrice PALMER, Defendant and Appellant.

Cr. 16437.

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

April 24, 1978.

Hearing Denied June 22, 1978.

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Charles R. B. Kirk, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Matthew J. Mason, San Francisco, for defendant and appellant.

CALDECOTT, Presiding Justice.

Trudie Palmer appeals from a conviction of second degree murder, following a jury trial. We affirm the judgment.

Police Officer Leo Plinski was dispatched by radio to appellant's apartment. He had been dispatched in response to appellant's telephone call reporting that someone had been shot.

Appellant's husband, Michael Palmer, was laying across the left side of the bed; he appeared dead, and Officer Plinski could see a small wound in the left side of his skull behind the ear. Appellant, distraught and crying, repeatedly stated that her husband could not be dead.

Asking appellant what had happened, she replied only that her husband had been shot. When Officer Plinski asked if there were any guns in the house, appellant told him that there was a "shotgun" under the bed. Another officer on the scene reached under the bed and found an apparently new and unused .22 caliber rifle in a box. In the nightstand on appellant's side of the bed the officer also found a .22 caliber revolver partially wrapped in plastic. The revolver contained four live rounds and two empty shell casings which bore the same manufacturer's markings as the live cartridges. Although the pistol was tested for fingerprints, only unidentifiable smudges were found. Investigating officers found no evidence of forced entry into or a struggle inside the apartment.

Dr. Chan Lee, a forensic pathologist and the coroner, testified that the cause of death was a .22 caliber bullet which had entered the left-rear of Michael's head. Burned or partially-burned powder particles (stippling) made a circle approximately four inches in diameter around the wound. Based upon his examination of the fatal wound, Dr. Lee was of the opinion that it could not have been self-inflicted.

Wilkaan Fong, a criminalist, test fired the pistol found at the scene, using the ammunition that had been found in it. From these tests, he concluded that the pistol had fired the fatal shot. By experimentation, he also determined that the pistol produced a four-inch diameter stippling circle when fired 12 inches from the target. After firing these test rounds, Mr. Fong took "control" dabbings from his own hands to use in conjunction with tests to be performed on the scanning electron microscope.

Mr. Fong had been a criminalist in the Santa Clara County Laboratory of Criminalistics since 1967. Prior to that time, he had worked in the Minnesota Bureau of Criminalistics Laboratory (10 years), Pittsburgh and Allegheny Crime Laboratory (11/2 years), and the Wisconsin State Crime Laboratory (31/2 years). In the course of his Santa Clara County employment he routinely used such scientific instruments as spectrometers, gastromatographs, and microscopes. But in conjunction with this case he made his first use of the scanning electron microscope. The scanning electron microscope is somewhat similar to a light microscope. What little knowledge is necessary to run the device can be acquired in a short period of time.

One of the particles found on appellant's right hand showed the presence of lead, copper, zinc, barium, calcium, and silica. These same elements were present in the ammunition found in the weapon at the scene. Hence, the elemental composition of this particle was entirely consistent with the ammunition used to fire the fatal shot. Mr. Fong could not think of anything other than a gunshot which would account for such a particle.

I

Appellant first contends that the trial court committed prejudicial error in failing to instruct sua sponte that evidence of a defendant's non-tape recorded admissions must be viewed with caution. (CALJIC 2.70.) The rule is firmly established that such an instruction, when called for by the evidence, must be given, even without a request therefor. (People v. Ford (1964) 60 Cal.2d 772, 799, 36 Cal.Rptr. 620, 388 P.2d 892; People v. Bemis (1949) 33 Cal.2d 395, 398-400, 202 P.2d 82; see People v. Hines (1964) 61 Cal.2d 164, 173, 37 Cal.Rptr. 622, 390 P.2d 398.) An admission is "any statement by an accused relative to the offense charged." (People v. Atchley (1959) 53 Cal.2d 160, 170, 346 P.2d 764, 769, quoted in People v. Ford, supra, 60 Cal.2d at p. 799, 36 Cal.Rptr. 620, 388 P.2d 892.)

The police officer testified that in response to his inquiry about possible weapons when he first arrived on the scene, appellant told him that there was a "shotgun" under the bed but failed to mention the .22 caliber pistol which he subsequently found in the nightstand. Appellant contends that the cautionary instruction on oral admissions was applicable to this evidence, since the jury could infer that appellant's failure to mention the pistol arose from a consciousness of guilt. However, the cautionary instruction applies only to express admissions predicated upon words, and not to an implied admission of guilt or conduct showing consciousness of guilt. (People v. Atwood (1963) 223 Cal.App.2d 316, 333, 35 Cal.Rptr. 831.) The trial court therefore did not err in failing to give CALJIC 2.71, regarding this testimony.

The only evidence relating to express oral admissions of appellant arose during the testimony of two defense psychiatrists. General instructions relating to oral admissions are inapplicable to statements given in a diagnostic context to a psychiatrist. Instead, the jury should be instructed on the limited nature of the testimony. The same rule applies where the psychiatrist has been appointed or retained at the request of the defendant, ¹ and where the statements are disclosed during cross-examination. "In either situation the defense can have no cause for complaint when the incriminating statements are brought to light as one of the bases of the expressed opinion, provided of course that the proper limiting instruction has been given." (People v. Morse (1969) 70 Cal.2d 711, 726, 76 Cal.Rptr. 391, 399, 452 P.2d 607, 615.)

The appropriate limiting instruction (CALJIC 2.10) was not given by the court. It was not requested by appellant and in the absence of a request, the court was under no duty to instruct the jury concerning the limited effect of incriminating statements disclosed by the psychiatrist's testimony. (People v. Cantrell (1973) 8 Cal.3d 672, 683, 105 Cal.Rptr. 792, 504 P.2d 1256.)

Assuming arguendo that CALJIC 2.71 was applicable, its omission does not require reversal under the facts of this case. Failure of a court to give sua sponte the cautionary instruction regarding oral admissions does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached. (People v. Beagle (1972) 6 Cal.3d 441, 455, 99 Cal.Rptr. 313, 492 P.2d 1.) The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. (Id., at p. 456, 99 Cal.Rptr. 313, 492 P.2d 1.) We find no reasonable probability that the jury would find that the statements either were not made or were not reported accurately. The remarks were made to psychiatrists called by appellant in support of her defense, and there was no conflicting evidence concerning the statements. (See id., at p. 456, 99 Cal.Rptr. 313, 492 P.2d 1.) Hence, it is not reasonably probable that a different result would have been reached had the instruction been given.

II

Next, appellant complains that the court erroneously neglected to instruct sua sponte that the corpus delicti must be proved independently of admissions. (CALJIC 2.72.) Failure to give such an instruction sua sponte, where appropriate, is error. (People v. Beagle, supra, 6 Cal.3d at p. 455, 99 Cal.Rptr. 313, 492 P.2d 1.) However, the omission does not constitute reversible error if, upon a reweighing of the evidence, it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of error.

In the instant case the corpus delicti proof that death resulted from some criminal agency (People v. Cullen (1951) 37 Cal.2d 614, 624, 234 P.2d 1) was convincingly established independently of admissions. The victim, appellant's husband, was found dead of a gunshot wound to the head, and there was no evidence that he himself had fired the fatal shot. Thus, any error in the omission of the instruction cannot be deemed reversible.

III

Appellant next contends that the trial court erred prejudicially in admitting testimony of criminalist Wilkaan Fong, based upon use of a scanning electron microscope. Fong testified that after examining minute particles obtained from the hands of the victim and appellant, he was able to identify, upon the sample obtained from appellant's right hand, particles which are characteristic of gunshot residue (hereinafter GSR). No particles were found on appellant's left hand or on either of the victim's hands. When these GSR particles found on appellant's right hand were compared with GSR particles removed from Mr. Fong's hand after he had fired the murder weapon using cartridges found in the gun, the GSR particles from both sources appeared to be identical. In making these determinations, Mr. Fong employed a scanning electron microscope (hereinafter SEM) equipped with an x-ray analyzer. Appellant now attacks this evidence upon the grounds that: (a) the SEM is a new scientific technique which...