People v. Preston

• Decision Date: 05 April 1973
• Docket Number: Cr. 12966
• Court: California Supreme Court
• Parties: , 508 P.2d 300 The PEOPLE, Plaintiff and Respondent, v. Kenneth PRESTON, Defendant and Appellant. In Bank

Page 300

107 Cal.Rptr. 300

9 Cal.3d 308, 508 P.2d 300

The PEOPLE, Plaintiff and Respondent, v. Kenneth PRESTON, Defendant and Appellant.

Cr. 12966.

Supreme Court of California,

In Bank.

April 5, 1973.

Robert Y. Bell, Santa Rosa, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci, Derald E. Granberg, and William D. Stein, Deputy Attys. Gen., for plaintiff and respondent.

BY THE COURT.

This is a companion case to People v. John Sommerhalder, Cal., 107 Cal.Rptr. 289 508 P.2d 289. The defendants were jointly charged with two counts of murder (Pen.Code, § 187), but were separately tried and convicted of murder in the first degree (Pen.Code, § 189). Each received the death penalty. This is the automatic appeal of Kenneth Preston.

Substantially the same evidence was presented by the prosecution as in the companion case, and it will be considered here only to the extent that it was different or that it affects issues not already determined by this court in that case.

Change of Venue.

Preston contends that the Marin Community was exposed to prejudicial publicity before and during his trial and that he was deprived of a fair trial by reason of being tried in that county. The trial court did not err in denying the pretrial motion jointly made by these defendants for change of venue. (People v. Sommerhalder, Ante.)

Independent review of the voir dire of the Preston jury establishes that all of the prospective jurors except one were closely examined on this issue. The jurors that were seated stated that they had either never heard of it, had heard of it but formed no opinion, or they had formed an opinion which they no longer held. One juror was not questioned on this by the defense and the record does not, therefore, show prejudice. (Cf. People v. Parker (1967) 255 Cal.App.2d 664, 673, 63 Cal.Rptr. 413.) Each juror affirmed that he knew of no reason why he could not be fair and impartial. ¹ Such statements must be presumed to be true. (People v. Magee (1963) 217 Cal.App.2d 443, 473, 31 Cal.Rptr. 658.)

During the course of the trial the court continuously instructed the jury that they should not read newspaper articles, that the articles might contain references to evidence which had not been admitted and which it was not proper for them to consider, that they should not infer or even reflect as to whether that evidence would be favorable or unfavorable to either side, and that they should avoid any course that might make such evidence available to them. (See A.B.A. Standards Relating to Fair Trial and Free Press, Approved Draft, 1968, § 3.5, subd. (e).) It is presumed that these instructions were obeyed. There is nothing in the record to show otherwise nor to require further questioning of the jury on this subject during the trial. (See A.B.A. Standards, supra, § 3.5, subd. (f).)

We find that defendant received a fair and impartial trial under the standard of 'reasonable likelihood' set forth in Maine v. Superior Court (1968) 68 Cal.2d 375, 66 Cal.Rptr. 724, 438 P.2d 372.

Adoptive Admissions.

Extra judicial out-of-custody statements made by Sommerhalder which incriminated himself and Preston, and the words or conduct of Preston in response thereto, were admitted into evidence over defense objections, after a hearing outside the presence of the jury on their admissibility. (Evid.Code, §§ 1221, 400--406.) ² These statements were admitted under a well-recognized exception to the hearsay rule. (See Witkin, Cal.Evidence (2d ed. 1966) §§ 529--530, pp. 501--504; 4 Wigmore on Evidence (Chadbourn Rev. 1972) §§ 1071--1072, pp. 102--129.)

If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt. (People v. Tolbert (1969) 70 Cal.2d 790, 805, 76 Cal.Rptr. 445, 452 P.2d 661; People v. Robinson (1964) 61 Cal.2d 373, 401--402, 38 Cal.Rptr. 890, 392 P.2d 970; People v. Briggs (1962) 58 Cal.2d 385, 408--409, 24 Cal.Rptr. 417, 374 P.2d 257; People v. Davis (1954) 43 Cal.2d 661, 670, 276 P.2d 801; see People v. Osuna (1969) 70 Cal.2d 759, 765, 76 Cal.Rptr. 462, 452 P.2d 678; Evid.Code, §§ 1221, 1204.) ³

A hearing was held outside the presence of the jury to determine the admissibility of this evidence. Suzanne Mulkey, daughter of one of the victims, testified that she and Sommerhalder's brother Richard had gone to Preston's house at Sommerhalder's request the day after the Ackley murders; that the four of them were closeted in Preston's small bedroom; that she and Preston sat on the floor on a mattress while Sommerhalder stood about a foot away; that Sommerhalder spoke in a low voice but not in a whisper; that he told them 'Suzanne, we went down to your mother's trailer house, and we broke in, and as we were leaving, we had everything ready to go out, and they came in, and there was an accident and . . . but they won't talk'; that Preston looked right at her and Richard and told them 'There wasn't much money' and, she added, 'It was cold the way he said it.'

These statements accused defendant of being with Sommerhalder in the Ackley trailer at the time when the burglary and killings took place. They were voluntarily made, in a private conversation, in a private home, with only these four persons present. Inferences could properly be drawn that defendant heard the statements, understood their import, had the opportunity to deny, and that he chose to remain silent except for an evasive and equivocal statement. There is no basis for any inference that his silence was based upon his Fifth Amendment privilege of silence. We find no error in the admission of this evidence at the trial as an exception to the hearsay rule.

At the trial there was further evidence that in the conversation in Preston's bedroom Sommerhalder had also stated 'If . . . everything would have been all right when they were in the trailer they wouldn't have seen Kraut'; 'Your father walked in and saw Kraut'; 'If he wouldn't seen Kraut, everything would have been all right'; and 'It was either them or us.' There was evidence that defendant was known as 'Kraut.' The witnesses also testified that defendant stated, in that conversation, 'We are sorry that it happened that way' and that they felt threatened by both defendants when Somerhalder warned them 'If any information leaks out, we will know who did it.'

Defendant urges that the admission of this evidence amounted to an improper comment upon his right to remain silent at the trial, in violation of Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; and People v. Cockrell (1965) 63 Cal.2d 659, 47 Cal.Rptr. 788, 408 P.2d 116. There is nothing in Griffin or Cockrell which requires rejection of this evidence. Those cases proscribe drawing an inference adverse to a defendant from his failure to reply to an accusatory statement in a situation where failure to reply was based upon his constitutional right to remain silent. The Fifth Amendment privilege against self-incrimination does not on its face apply to commentary on defendant's nonassertive conduct prior to trial, absent a showing that such conduct was in assertion of the privilege to remain silent. (People v. Wilson (1965) 238 Cal.App.2d 447, 455--461, 48 Cal.Rptr. 55.) No such showing was made here.

Nor do we find any violation of the rule stated in People v. Aranda (1965) 63 Cal.2d 518, 529, 47 Cal.Rptr. 353, 407 P.2d 265, by the admission of this evidence. ⁴ Aranda did not change the law regarding the admissibility of evidence under the adoptive admission exception to the hearsay rule. (People v. Glover (1969) 270 Cal.App.2d 255, 258, 75 Cal.Rptr. 629; People v. Gordon (1966) 244 Cal.App.2d 391, 395--396, 53 Cal.Rptr. 252.)

We find no merit in the contention that the admission of this evidence impaired defendant's Sixth Amendment right to confrontation, and to cross-examination of his accuser. The evidence was admitted not to prove the truth of the statements but to show defendant's response to them. Credibility of the witnesses who testified that they heard these accusations and observed defendant's response, and the weight to be given to their testimony were in issue and they were cross-examined on Voir dire and before the jury. There was no necessity for subpenaing the person who made the accusations and, under the circumstances, it would have been unrealistic to have done so. The accuser was himself charged with these same crimes, he was waiting for defendant's trial to be concluded so that his could commence, and he was entitled to rely upon his own Fifth Amendment privilege. We find no violation of Pointer v. Texas (1965) 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; or Douglas v. Alabama (1965) 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934, in the admission of this evidence.

The court carefully instructed the jury as to its limited consideration of this evidence, namely that it was not received for the purpose of proving its truth but only to explain the conduct of the accused in the face of it. The court outlined the circumstances under which the jury could consider defendant's silence and conduct as 'indicating an admission that the accusation thus made was true'; pinpointed this instruction to the particular conversation; advised that guilt of the accused may not be established alone by any admission made by him 'outside of this trial,' that there must be proof independent of any such statement that the crime in question was committed, but that it was not necessary...