People v. Susan Mae Polk, A117633.

CourtCalifornia Court of Appeals
Citation190 Cal.App.4th 1183,118 Cal.Rptr.3d 876
Decision Date13 December 2010
Docket NumberCertified for Partial Publication. ,No. A117633.,A117633.
PartiesThe PEOPLE, Plaintiff and Respondent, v. Susan Mae POLK, Defendant and Appellant.
190 Cal.App.4th 1183
118 Cal.Rptr.3d 876

The PEOPLE, Plaintiff and Respondent,
Susan Mae POLK, Defendant and Appellant.

No. A117633.
Certified for Partial Publication.*

Court of Appeal, First District, Division 1, California.

Dec. 13, 2010.

118 Cal.Rptr.3d 880

Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Seth K. Schalit and Catherine McBrien, Deputy Attorneys General, for Plaintiff and Respondent.


190 Cal.App.4th 1188

Defendant was convicted of the second degree murder of her husband following a trial at which she acted as her own attorney. The husband's body had been found in a cottage at their home, stabbed repeatedly. Defendant admitted the stabbing but testified she acted in self-defense.

Defendant argues the trial court should have dismissed the jury panel after the prosecution was unable to explain its peremptory challenge of a female juror, erred in failing to give an instruction on heat of passion voluntary manslaughter, and should not have admitted her statements to police, which were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ( Miranda ). In addition, defendant contends the court, prosecutor, and jury committed prejudicial misconduct in the course of the trial. Finding no prejudicial error, we affirm the conviction.

During the proceedings, defendant executed a promissory note, secured by a lien against the family home, agreeing to reimburse the County of Contra Costa (County) for costs incurred in her defense. Following the trial, the County sought an order compelling defendant to reimburse those costs from the proceeds of the sale of her interest in the home. Although the trial court held a hearing with respect to the amount of reimbursable costs incurred by the County, it refused to consider whether defendant had the "present ability" to pay those costs, as required by Penal Code section 987.8, subdivision (b), concluding the presence of the lien made such a finding unnecessary. We conclude the County's lien did not obviate the need for the trial court to determine whether defendant had the financial ability to reimburse the County's expenses, and we remand for the necessary hearing.


Defendant was charged in a single-count indictment, filed August 27, 2003, with the murder of her husband. (Pen.Code, § 187.) The indictment further alleged defendant personally used a deadly and dangerous weapon. (Pen.Code, § 12022, subd. (b)(1).) During defendant's initial trial, she was represented by counsel, but

118 Cal.Rptr.3d 881
the court declared a mistrial when her attorney suffered a family tragedy. Following a second trial in which defendant represented herself, a jury convicted her of second degree murder, with a finding she used a deadly and dangerous weapon. The trial court imposed a sentence of 16 years to life.
190 Cal.App.4th 1189

Defendant and her husband, Felix Polk, had been married for 21 years at the time of the killing and had three teen-aged sons.1 At 71, Felix was 26 years older than defendant. They first met nine years before their marriage when Felix, a psychologist, began treating defendant, then a high school student.

In October 2002, when the killing occurred, the couple was enmeshed in divorce proceedings. When Felix first retained divorce counsel in 2001, he told his attorney defendant "could be violent" and was "unpredictable and ... possibly dangerous." As the proceedings progressed, Felix became more concerned about defendant. By August 2002, Felix was "in fear for his life." According to the couple's youngest son, Gabriel, defendant said on several occasions she intended to kill Felix and discussed the manner in which she would do so. As a result of the frequency and intensity of these threats, a week before the murder Gabriel told his father he "was scared for his [father's] life."

On October 2, 2002, while defendant was away in Montana, Felix obtained a court order granting him custody of Gabriel and exclusive use of the family home in Orinda. When defendant learned of the court order soon after, she and Felix had a "heated" telephone call, during which she threatened to kill him. Felix took the threat seriously enough to report it to the police.

Defendant returned to Orinda on October 9. While Felix was at work the next day, she persuaded Gabriel to help her move Felix's bed and other possessions into a cottage on the property. After Felix arrived home, they had another angry argument, during which defendant again threatened to kill Felix. The police were called, and Felix and Gabriel moved briefly into a hotel. Three days later, a Sunday, Felix and Gabriel awoke early to drive the family's oldest son, Adam, to school at UCLA, returning to the Orinda home late at night. Gabriel went to sleep in the house, while Felix retired to the cottage.

The next day, Felix did not return home from work at the expected time and could not be located by telephone. When Gabriel asked defendant if she knew where Felix was, she said she did not know. Gabriel eventually became suspicious and, later in the evening, checked the cottage, finding the front door locked. When Gabriel returned to the house and again asked defendant about Felix, she said, "Aren't you happy he's gone? I am," and, later, "I

190 Cal.App.4th 1190
guess I didn't use a shotgun, did I?" Unnerved by these enigmatic comments, an hour later Gabriel returned to the cottage, found a second door unlocked, and entered. Inside, he glimpsed his father lying motionless on his back, covered in blood. Gabriel returned to the house, grabbed a telephone, and hiding from his mother outside, called the police.

When police arrived, they found the floor of the cottage living room covered in

118 Cal.Rptr.3d 882
dried blood. Tracked across the floor were bloody shoeprints matching defendant's shoe size, along with her bloody footprint. Felix's body, hands still clutching a clump of defendant's hair, was found, according to the prosecution's pathologist, to have at least five deep stab wounds, individually penetrating his right lung, stomach, pericardium, diaphragm, and the fat near his kidneys. He also had a large number of superficial stab wounds and defensive cuts to his hands, forearms, feet, and lower legs and a blunt force injury behind his right ear.

When told of Felix's death by police, defendant showed no emotion, saying, "Oh well, we were going to get a divorce anyhow." In a subsequent police interview, she professed ignorance of Felix's death, evenly recounting her marital grievances with Felix and claiming to have last seen him early on the prior morning, before he and Gabriel drove Adam to Los Angeles. Police examined defendant for fresh wounds and found none.

At trial, defendant acknowledged killing Felix, characterizing her acts as self-defense. Defendant described at length her troubled marriage, characterized by Felix's psychological and physical abuse of her. On the night of the killing, she testified, she went to the cottage to talk to Felix between 10:30 and 10:45, taking pepper spray as a precaution. For a time, they discussed financial matters and their children. Felix became angry, and at some point he walked over and struck defendant in the face. Defendant sprayed him, but he was undeterred, hitting her again. After further struggle, he grabbed a knife and stabbed at her leg, piercing her pants. Afraid for her life, defendant kicked Felix in the groin, grabbed the knife from him, and began stabbing him. She then took steps to cover up the killing and denied involvement to the police because she believed she would be "railroaded" by the criminal justice system.

The couple's middle son, Eli, testified in support of defendant. Eli, who was residing at a boys ranch at the time of the killing, confirmed Felix was violent and controlling. Contrary to the testimony of his brothers, Eli denied defendant was ever violent with Felix or had ever threatened him.

Defendant also offered Dr. John Cooper, an expert on forensic pathology, to opine on the cause of Felix's death. According to Cooper, Felix died of

190 Cal.App.4th 1191
"acute coronary insufficiency due to severe coronary artery disease," to which the multiple stab wounds "were a contributing factor." Cooper reasoned Felix's wounds, although serious, were not immediately life-threatening. Felix had, however, serious coronary disease, including severe blockage of two main arteries, that was the primary cause of his death. As a result, Cooper believed Felix's death to have been "natural," rather than the result of a homicide. Cooper also explained the pattern of Felix's wounds was consistent with defendant's claim of self-defense. In addition to Cooper, several other witnesses, including experts, testified for defendant.


Defendant raises a number of challenges to her conviction. We consider each in turn.

118 Cal.Rptr.3d 883

A.-B. **

C. Miranda Violation

Defendant contends the trial court erred in admitting evidence of statements she made to police during an interrogation following the discovery of Felix's killing because she was not given proper warnings under Miranda, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Attorney General effectively concedes the warnings did not comply fully with Miranda's requirements, a failing that would have justified exclusion of the statements in the prosecution's case-in-chief. The Attorney General argues, however, that defendant forfeited any claim of error by failing to raise this issue at trial and that any error from admission of the statements was harmless.

1. Background

Defendant was interviewed by police soon after Felix's body was discovered. The interviewing officer began by telling defendant she was not free to leave and, as a result, was entitled to be...

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1 cases
  • People v. Susan Mae Polk, A117633.
    • United States
    • California Court of Appeals
    • December 13, 2010
    ...190 Cal.App.4th 1183118 Cal.Rptr.3d 87610 Cal. Daily Op. Serv. 15,4492010 Daily Journal D.A.R. 18,653The PEOPLE, Plaintiff and Respondent,v.Susan Mae POLK, Defendant and Appellant.No. A117633.Certified for Partial Publication.*Court of Appeal, First District, Division 1, California.Dec. 13,......

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