People v. Smith

• Decision Date: 25 June 1973
• Docket Number: Cr. 6642
• Citation: 108 Cal.Rptr. 698,33 Cal.App.3d 51
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence Otis SMITH, Defendant and Appellant.

Page 698

108 Cal.Rptr. 698

33 Cal.App.3d 51

The PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence Otis SMITH, Defendant and Appellant.

Cr. 6642.

Court of Appeal, Third District, California.

June 25, 1973.

Evelle J. Younger, Atty. Gen., by Arnold O. Overoye and Robert D. Marshall, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

Robert Carl Anderson, San Francisco, for defendant-appellant.

FRIEDMAN, Associate Justice.

On the night of July 12, 1971, an unknown assailant entered the Dog Bar campground, located on the Bear River in Nevada County. He entered the tent of Mr. and Mrs. Kenneth Garbe, attacked them, pursued them outside, then attacked other campers, hacking and stabbing with a curved knife which witnesses compared to a sickle. When the episode had run its course, two campers were seriously wounded and two were dead. The assailant disappeared.

Ultimately, defendant Clarence Otis Smith was identified as the attacker. He lived approximately two miles from the Dog Bar campground by road and about one and one-tenth miles cross-country. Tinted prescription eyeglasses (bearing bloodstains and with a cracked lens) belonging to him were found at the Dog Bar campground. In a sump behind his house officers found a curved knife resembling the death weapon and a .41 caliber Reuger pistol which had belonged to John Simmons, one of the dead victims. During the two days preceding the attack defendant had displayed such a curved knife to friends and acquaintances. Kenneth Garbe, a wounded camper, identified defendant as the assailant.

A jury trial resulted in verdicts finding defendant guilty of assault upon Kenneth Garbe by means of force likely to produce great bodily injury; of the second degree murder of John Simmons; of assault upon Marie Parker with intent to commit murder; of first degree murder of Donna Fitzhugh. He had pleaded not guilty by reason of insanity and the insanity issue was tried before the same jury which had passed upon his guilt. The jury found him sane. The trial judge imposed four consecutive sentences including a life sentence on the first degree murder count. ¹ Defendant appeals.

In January 1971 Everett Richardson, a preacher ordained via mail order, moved in with the Smith family. The household consisted of Smith, his wife, and their children. Smith convinced Richardson that the house was occupied by demons. The group indulged in prayer and fasting in an attempt to exorcise these demons. On July 2, 1971, defendant threatened to kill Richardson, Mrs. Smith and the children unless they left immediately. They left and moved into a Sacramento motel, leaving defendant alone in the house. Richardson and Mrs. Smith ran out of funds, returned to the Smith residence and took some tools. Returning to Sacramento, they exchanged or sold the tools for food and rent.

On Saturday morning, July 10, defendant spent some time with Carl Stevens. He exhibited dislike of hippies and longhaired persons, stating that some hippies had stolen some of his tools. He told Stevens that he was going down to the (Bear) river and take revenge on the people that had stolen his stuff. He invited Stevens to go along, stating that he would supply a weapon for Stevens. He showed Stevens a curved knife which he intended to use.

The next morning, July 11, three men stopped at defendant's residence to investigate a yard sale. During their visit defendant consumed several large glasses of whiskey, becoming increasingly intoxicated. He said that some hippies had been stealing stuff from him and that he wanted to 'overhaul' some of them and 'work them over.' Toward the end of the visit defendant became 'real bad drunk' and said that he could cut somebody' throat. He displayed a long knife (which had the same appearance as the knife later found in his sump). When one of the visitors said, 'God damn, that's a beautiful knife,' defendant threatened him with the knife, telling him never to use the Lord's name in vain.

On July 12 (the day of the attack at the Dog Bar campground) Mrs. Smith, Richardson and the children returned to the house. They observed that defendant was wearing spectacles which wre unbroken. When they arrived defendant was in 'a fairly glad mood.' Defendant and Richardson then engaged in some drinking. Defendant then displayed a knife (which Richardson identified as the same knife which the officers later found in defendant's sump). The knife had a taped handle. Richardson himself had made the knife in 1969. Defendant then threatened to kill Richardson, Mrs. Smith and the children and they left.

On the evening of the attack Mr. and Mrs. Garbe were in their tent at the Dog Bar campground, playing cards by the flickering light of a lantern. A strange man entered the tent, greeted them and reached for Mrs. Garbe with his hands. Kenneth Garbe saw that the man had a knife; he told his wife to get out and go to the next tent for help. Mrs. Garbe slipped underneath the side of the tent and went to the Fitzhugh tent nearby. She told Marie Parker and Donna Fitzhugh what was happening and went inside their tent and hid. She heard weird growling sounds and yelling outside.

Kenneth Garbe tussled with the man, who inflicted numerous knife wounds on him. Garbe broke away and ran toward some nearby campers, seeking help. Receiving no affirmative response, he returned toward the Fitzhugh tent.

John Simmons, a neighboring camper, came toward the Fitzhugh tent. Simmons was wearing a .41 Reuger pistol in a holster tied to his leg. The assailant approached him, knife in hands. Simmons pulled out his pistol; he and the attacker started to wrestle. Simmons fired one shot from his pistol and the man then stabbed him in the stomach with his knife.

Donna Fitzhugh and Marie Parker went to their tent and brought out a .22 rifle, but neither was able to fire it. Kenneth Garbe took the rifle and attempted to fire at the assailant, but the gun misfired. Mr. and Mrs. Garbe then attempted to get all nearby campers to flee across the river. Although Marie Parker and Donna Fitzhugh had commenced to leave the scene, they returned toward their tent, fearful for their children who were inside. Mrs. Parker was near the Fitzhugh tent when the assailant attacked her with his knife. He stabbed her in the side; he inflicted serious wounds on her head, neck and ear, broke her jaw and knocked out several of her teeth. The man then attacked Donna Fitzhugh, inflicting multiple wounds on her head, face and neck and stabbing her fatally in the chest area.

The attack on Simmons had taken place approximately 30 feet away from the Fitzhugh tent. The assailant traversed the 30-foot distance in order to attack Mrs. Parker. Mrs. Fitzhugh's body was found 50 feet from the point of the attack on Mrs. Parker and 80 feet from Simmons' body.

The next morning, July 13, Richardson telephoned defendant from Auburn. Defendant asked Richardson to pray for him saying that he was 'cut.' Richardson and Mrs. Smith drove to defendant's house. Richardson noticed that defendant had a cut on his hand, his leg was bandaged and he was limping noticeably. Defendant was not wearing his glasses and told Richardson that he had lost them.

Dr. Stroud, a psychiatrist, had examined defendant under a court appointment. Dr. Stroud testified to his opinion that defendant was functioning under a degree of diminished capacity at the time of the attack, but he still had the mental capacity to form the specific intent to kill, to deliberate and premeditate, to harbor malice and to reflect meaningfully and maturely on the gravity of his acts. Dr. Stroud also expressed the opinion that defendant was not completely truthful as to 'touchy' or critical matters; he believed that defendant possessed a recollection of the events before, during and after the incident at the campground. He stated that a factor bearing upon his opinion of defendant's mental capacity was that the attacker fought as an active man, moved with rapidity and agility from place to place, wielding a weapon in a coordinated fashion, then disappearing from the scene.

The defense produced evidence that at the time of the crime defendant had been distraught by religious fervor aroused by Richardson; that his agitation had been augmented by a dalliance between Richardson and defendant's wife; that it had been intensified by the recent death of his young son in a truck accident for which defendant blamed himself; that he had been drinking heavily for several days before the attack on the Dog Bar campground; that he had displayed irrationality and aggressiveness during this period. Dr. Blinder, a psychiatrist, ² testified that at the time of the events defendant suffered from substantial mental impairment; that he was incapable of formulating an intent to commit the attacks and that by reason of mental impairment he was unable to harbor malice and unable to premeditate; that he had suffered a memory loss due to one of these factors--alcohol poisoning, psychosis or the experience of an event so inacceptable that he had repressed it. On the foundation of this evidence the court instructed the jury on the disminished capacity doctrine, modeling its instruction on the proto-type suggested by the California Supreme Court in People v. Conley, 64 Cal.2d 310, 324--326, 49 Cal.Rptr. 815, 411 P.2d 911.

I

Preliminarily, we dispose of the claim that evidence of defendant's identity was inconclusive and insubstantial. The test on appeal, of course, is whether the finding of identity is supported by substantial evidence, including inferences reasonably deduced from the facts in evidence. (People v. Mosher, 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659.) Defendant's spectacles were found at the campground, smeared with blood and with one lens cracked; the probable death knife and a pistol taken from one of the dead victims were found at defendant's home in a place indicative of concealment; h...