People v. Poggi

• Decision Date: 16 May 1988
• Citation: 45 Cal.3d 306,246 Cal.Rptr. 886,753 P.2d 1082
• Court: California Supreme Court
• Parties: , 753 P.2d 1082 The PEOPLE, Plaintiff and Respondent, v. Joseph Carlos POGGI, Defendant and Appellant. Crim. 22855.

Page 886

246 Cal.Rptr. 886

45 Cal.3d 306, 753 P.2d 1082

The PEOPLE, Plaintiff and Respondent, v. Joseph Carlos POGGI, Defendant and Appellant.

Crim. 22855.

Supreme Court of California,

In Bank.

May 16, 1988.

As Modified on Denial of Rehearing June 30, 1988.

Robert L. Walker, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John R. Gorey, William R. Weisman and Ellen Birnbaum Kehr, Deputy Attys. Gen., for plaintiff and respondent.

PANELLI, Justice.

This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law (id., § 190.1 et seq.). Defendant was convicted of the robbery (id., § 211), rape (id., § 261, subd. (2)), and murder (id., § 187) of Patricia Musgrove and the burglary of her residence (id., § 459), and of the assault with a deadly weapon (id., § 245, subd. (a)) and rape (id., § 261, subd. (2)) of B.V. Three special circumstances were found true: (1) felony murder-robbery (id., § 190.2, subd. (a)(17)(i)); (2) felony murder-rape (id., subd. (a)(17)(iii)); and (3) felony murder-burglary (id., subd. (a)(7)(vii)).

Defendant pleaded not guilty and not guilty by reason of insanity. Pursuant to Penal Code section 1027, the court appointed two psychiatrists, Saul Faerstein and Kaushal Sharma, to examine defendant and deliver an opinion as to whether he was sane at the time of the crimes charged. After Drs. Faerstein and Sharma filed their reports, finding that defendant was sane, defendant withdrew his plea of not guilty by reason of insanity.

Before trial defendant moved to sever the charges relating to B.V. from those relating to Musgrove. He was unsuccessful.

I. GUILT PHASE

A. Facts.

At trial the prosecution established beyond dispute the core of facts relating to the incidents in question: On December 15, 1980, defendant was living with his sister, mother, and other family members at 4918 1/4 Santa Ana Street in Cudahy in Los Angeles County; about 8 a.m. on that day B.V., aged 68, was assaulted and raped nearby; later that same morning someone entered the house Patricia Musgrove, aged 24, shared with her husband and son at 4916 Santa Ana Street, stabbed her several times in the chest, and fled; about 3 p.m. that afternoon Musgrove died.

B.V. testified that as she was walking on a street in Cudahy on the morning in question, a man approached her and said, "Merry Christmas"; he then took her arm and stated, "Let's take a shortcut"; she said, "No," but the man put a straight-edged butcher knife to her throat and took her behind a building; he ordered her to undress, she refused, he put the knife to her throat again, and she complied; although he failed to achieve a full erection or to ejaculate, he succeeded in partially penetrating her; he then walked away. In open court B.V. identified defendant as her assailant.

Officer Nasario Flores of the Bell Police Department testified that in response to a call he arrived at Patricia Musgrove's house about 11 a.m. on December 15; he found Musgrove in a very excited state, with blood flowing from her mouth and puffiness under one of her eyes; she was apparently attempting to recount what had happened to her but was rambling and incoherent; he subsequently succeeded in calming her down a little.

When the prosecutor attempted to question Flores on whether Musgrove made any statements and if so, what they were, defense counsel objected on hearsay grounds. Outside the presence of the jury the prosecutor sought to have the declarations admitted under the spontaneous statement exception of Evidence Code section 1240. In support of his position he elicited the following foundational testimony from Flores: the attack apparently occurred about 10:30 a.m.; when he arrived Musgrove expressed a belief that the perpetrator might still be in the house; because her narrative was incoherent he decided to attempt to draw information from her by asking what happened; she showed him that she was bleeding profusely from several wounds to her chest; during questioning she remained excited and several times had to be told to slow down and to become calm; his questioning lasted between 15 and 20 minutes--almost all of it while paramedics were attempting to treat her wounds. Thereupon the court ruled in effect that Musgrove was excited and unreflective and that her declarations relating to the attack were admissible under the spontaneous statement exception.

Resuming his testimony in the presence of the jury, Officer Flores repeated in substance what he had observed about Musgrove and the crime scene at the time of his questioning. He then recounted her statements: the perpetrator was a stranger; he came into her home; he had a knife; he took about $90; he beat her up; he raped her in her son's bedroom; he forced her to fill the bathtub, said he was going to drown her, and attempted to do so; they fought in the tub, and he was unsuccessful; he then said, "I gotta stab you. You gotta die," and he stabbed her; she first identified her attacker as Black or very dark complected and subsequently answered yes to a question whether he could be Mexican. Flores also testified that a serrated steak knife bearing the name "Interpur" was found in the house with its blade bent and stained with what appeared to be blood.

Later that day, Flores continued, he went to the house at 4918 1/4 Santa Ana Street; he was let in by defendant's sister, Philomena Sepulveda, and soon found defendant hiding underneath a bed; he made the arrest; before leaving he discovered a pair of men's shoes that were wet to the touch and a set of "Interpur" serrated steak knives matching the knife found in the Musgrove residence.

Alexandra Panigua testified that on December 15 she lived at 4916 1/2 Santa Ana Street and had previously seen defendant in the neighborhood; about 10:30 a.m. that day she saw him walking from the Musgrove residence at 4916 Santa Ana Street toward his own at 4918 1/4 Santa Ana Street; he had wet spots on his shirt and pants and blood on his hands and arms.

Philomena Sepulveda stated that on December 15 she awoke about 9:20 a.m. and saw defendant leave the house approximately 10 minutes later; on arriving home later that morning he was nervous and shaking, bore scratches or red marks on his upper chest, had blood on his arm and chest, and his shirt, pants, and shoes were wet; he told her that he was bloody because he had been in a fight with some Black men over money he owed them and that he was wet because he had gone through some sprinklers and had fallen. She identified the knife found at the Musgrove residence as matching some knives at her family's house.

Richard Linhart, a criminologist in the serology laboratory of the Los Angeles Sheriff's Department, analyzed bloodstains associated with the incidents at the Musgrove residence and testified as an expert as follows: blood was detected on the knife found at the scene and could have come from Patricia Musgrove; he subjected a bloodstain found on the bathroom cabinet to six different blood-typing systems, determined there was no difference between the stain and defendant's blood, concluded defendant was not excluded as a source, and calculated he was one of the thirteen persons in every one hundred thousand who could have produced it; he subjected a bloodstain found on the bathroom wall to only three different bloodtyping systems because of the small quantity of the sample, determined there was no difference between the stain and defendant's blood, concluded defendant was not excluded as a source, and calculated he was one of three persons in every one hundred who could have produced it. During Linhart's testimony defense counsel unsuccessfully objected to and moved to strike the probability calculations as misleading and irrelevant.

After the prosecution rested, defendant moved for acquittal on all counts under Penal Code section 1118.1. The court granted the motion as to the charge alleging the kidnapping of B.V. and denied it as to the rest.

With the exception of Sergeant John McCrane of the Los Angeles Sheriff's Department, the defense called no witnesses. Sergeant McCrane's testimony consisted solely of the statement that he had inspected the Musgrove residence on December 15 and found no sign of forced entry.

B. Guilt Phase Issues.

Defendant makes a number of contentions relating to the question of guilt. None, as we shall explain, establishes reversible error.

1. Musgrove's Statements.

Defendant's central claim is that Patricia Musgrove's extrajudicial statements were inadmissible hearsay and hence that the court erred in receiving them into evidence. The Attorney General responds that the declarations come within the spontaneous statement exception to the hearsay rule. We agree.

Evidence Code section 1240 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [p] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [p] (b) was made spontaneously while the declarant was under the stress of excitement caused by such perception."

Section 1240 is the codification of an established common law exception to the hearsay rule. (People v. Washington (1969) 71 Cal.2d 1170, 1176, 81 Cal.Rptr. 5, 459 P.2d 259; Tent. Recommendation and Study Relating to the Uniform Rules of Evidence, art. VIII, Hearsay Evidence (Aug. 1962) 6 Cal. Law Revision Com.Rep. (1964) appen. pp. 465-466.)

"To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to...