People v. Schindler

• Decision Date: 30 December 1980
• Docket Number: Cr. 36155
• Citation: 170 Cal.Rptr. 461,114 Cal.App.3d 178
• Parties: The PEOPLE, Plaintiff and Respondent, v. Laura SCHINDLER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 461

170 Cal.Rptr. 461

114 Cal.App.3d 178

The PEOPLE, Plaintiff and Respondent, v. Laura SCHINDLER, Defendant and Appellant.

Cr. 36155.

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

Dec. 30, 1980.

Hearing Denied March 5, 1981.

Paul J. Geragos, Los Angeles, and Jerome D. Savenick, Sherman Oaks, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Michael Nash and Richard D. Marino, Deputy Attys. Gen., for plaintiff and respondent.

POTTER, Acting Presiding Justice.

Defendant Laura Schindler appeals from the judgment of conviction of the second degree murder (Pen.Code, § 187) with use of a gun (Pen.Code, § 12022.5) of her husband, Louis Schindler.

On March 5, 1978, defendant (aged 51) fatally shot her husband who, 11 years before, had shot and killed his previous wife, June. ¹ Though defendant did not remember firing the single shot, it was undisputed that she committed the homicide.

The defense introduced extensive evidence to show that defendant was suffering from diminished capacity and acted in self-defense. Numerous witnesses, including the decedent's daughter (defendant's step-daughter) testified that defendant was a passive, gentle, dependent, severely depressed woman who was afraid of her domineering, explosive, irrationally hostile husband. During the last two years of their seven-year marriage, she had suffered severe weight loss and depression, becoming increasingly withdrawn, nervous and frightened of him. He sometimes slept with a knife under his pillow, enjoyed frightening her, and boasted in her presence about killing June and getting away with it because of his wealth. Defendant indicated to others that she was afraid to leave him because he had killed June when June was in the process of divorcing him. She testified that on the night of March 5, she was sitting on a chair next to the bed when Louis got into bed. He was in a surly mood. He then turned towards her with "a maniacal look on his face," and said in a very quiet, very low voice: "What happened to June is going to happen to you. I know what I have to do." Her next memory was being in jail. ²

It was the opinion of Dr. Rose, a psychiatrist who testified for the defense, that at the time of the shooting, defendant was severely mentally incapacitated and was unable to form the intent to kill, premeditate, deliberate or harbor malice. She was in an extreme "state of panic," triggered by decedent's specific threat to kill her which she took very literally, was in mortal terror of her life, became totally irrational and lost control of her behavior.

In rebuttal, the prosecution called another psychiatrist, Dr. Markman. It was his opinion that defendant had an active physical fear of her husband and that the act of shooting him was inconsistent with her personality, but at the time she shot him, she was not legally insane, could form the intent to kill and could harbor malice.

On rebuttal, the People also attempted to counter the defense of diminished capacity by introducing evidence of a jail house in-custody interview conducted by Officer Osti a few hours after the homicide wherein defendant was advised of and exercised her Miranda rights. Over defense objection, the court ruled that such evidence was admissible to show "her state of mind." After relating his advisement of the Miranda rights, Osti then gave the following testimony with respect to defendant's responses and his opinion as an expert of her mental state:

"A. (by Officer Osti): I asked her if she understood the rights I had explained to her and she said, 'Yes, but I don't want to make any statement until I have talked with an attorney.'

"...

"Q. (By Mr. Wells, the prosecutor): Did you quit questioning her or asking her anything at that point?

"A. Yes.

"Q. And in that conversation with her, did she appear to you that she did understand those rights?

"A. Yes.

"Q. Did she appear to you to understand you when you were talking to her?

"A. Yes.

"Q. Did she appear to be in a daze or a panic state or anything like that that you could describe?

"A. She was a little teary-eyed, but other than that, she seemed to understand what I was saying, appeared lucid to me.

"...

"Q. Do you have any reason to believe in the responses she gave you that she didn't understand what you were saying to her?

"A. No, not at all. As far as I considered, she understood well what I was saying."

The officer further testified that he overheard defendant ask her friend who had come to the police station to see if she could get Mr. Geragos for her defense attorney.

In argument to the jury, the prosecutor stressed the invocation of her Miranda rights, as follows:

"What does she tell Osti? Osti gets up here on the witness stand. He advised her of her rights under Miranda. 'You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to the presence of an attorney. If you can't afford one, we will appoint one for you. Do you understand your rights?'

" 'Yes, I understand my rights. I don't want to talk to you. I want a lawyer.'

"That is a panic state? It is a turn-off, turn-on panic state, yes. Selective amnesia, that is the word I like to use for it, because that is the only viable defense she has got. She has got a man she has shot in the back of the head and the only defense that she could viably place in front of you is the fact that she did it when she didn't know what she was doing.

"She has enough presence of mind right after that when she is at the police station when Osti walks in there and questions her, she wants to see a lawyer."

The prosecutor further stressed her selection of that particular lawyer, Mr. Geragos:

"Why do you think she asked for Mr. Geragos? Because Mr. Geragos had prosecuted Lou Schindler in one of those past cases. She knows what she wants.

"Panic state?

"Ten years from now, how many people are going to know who the prosecutor of this case was? Here is a woman that knew nothing about the death of June or anything else and she is in a panic state. She is asking for Paul Geragos."

Defense counsel Geragos immediately moved for a mistrial. The prosecutor claimed that it was already in the record through the People's rebuttal witness, Garfield, ³ that Geragos had been the prosecutor. Geragos pointed out that he had "denied it." The court denied the motion for mistrial, indicating that it agreed with the prosecutor that it was relevant impeachment, and suggesting that defense counsel could comment on it if he chose. In his argument, defense counsel did argue that he was not an issue in the case. ⁴

Then, in his final summation to the jury, the prosecutor again stressed defendant's selection of Geragos to show defendant's guilt, stating:

"The reason for bringing that statement in about Mr. Geragos is twofold: One, here is a woman that said she didn't know any of the circumstances about the death of Lou Schindler's previous wife, who just got smatters and pieces from people as she went along and who evidently somewhere along the line picked up the idea that Paul Geragos was the prosecuting attorney against Mr. Lou Schindler. Here is a woman who is in a panic state and within this panic state, she has a miraculous ability, this selective amnesia, to turn it off, reach down to the depths of her mind and pull out one attorney and of all of the attorneys in the world she felt could best give her representation that night-we are talking about the night of the killing-and that is Mr. Geragos. Where do you think she pulled that name from? Out of a hat?

".... And this was a few hours after the commission of the act, the act for which she was in a panic state."

After deliberating about 22 hours, the jury found defendant guilty of second degree murder. This appeal followed.

Contentions

Defendant contends that: (1) her constitutional rights against self-incrimination were violated by use of her responses asserting her Miranda rights to rebut her defense of diminished capacity; (2) her right to counsel was impaired by the use of her particular choice of counsel for impeachment in argument, and (3) the evidence was insufficient to support the verdict of second degree murder. The People controvert these contentions. ⁵

Discussion

Summary

Defendant's constitutional rights to due process and against self-incrimination were violated by the admission in evidence (and use in argument) of her responses asserting her Miranda rights for the purpose of rebutting her diminished capacity defense. Further, exploitation of her choice of counsel for impeachment and rebuttal of her defense impaired her constitutional right to counsel and constituted prosecutorial misconduct. These errors were prejudicial. Accordingly, we must reverse the judgment. However, since the evidence was sufficient to support the jury's verdict, defendant can be retried for second degree murder.

Defendant's Rights to Due Process and Against Self-Incrimination Were Violated

The use of defendant's exercise of her Miranda rights to prove her guilt violated her rights to due process and against self-incrimination. The People claim that Officer Osti's testimony that she responded that she did not want to make a statement until she talked with an attorney, as well as his opinion that she understood her rights, was properly admitted to rebut her diminished capacity defense. We disagree.

In Miranda v. Arizona (1966) 384 U.S. 436, 468, fn. 37, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694, the United States Supreme Court noted:

"(I)t is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation." (Italics added.)

More recently, in Doyle v....