People v. Walkey
| Citation | 223 Cal.Rptr. 132,177 Cal.App.3d 268 |
| Court | California Court of Appeals Court of Appeals |
| Decision Date | 23 January 1986 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Frederick Bruce WALKEY, Jr., Defendant and Appellant. D001560. |
John K. Van de Kamp, Atty. Gen., Steven H. Zeigen and Maxine P. Cutler, Deputy Attys. Gen., for plaintiff and respondent.
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A jury convicted Frederick Bruce Walkey, Jr. of first degree murder (PEN.CODE, § 187)1 and child endangerment ( § 273a, subd. (1)). The court sentenced Walkey to prison for 25 years to life for the murder. The court also imposed but stayed a three-year term for the child endangerment. Walkey appeals.
Walkey and his wife Alicia lived in Oceanside with Ellen Cosby and her two-year-old son Nathanel. Walkey was intimate with Cosby and acted as a substitute father for Nathanel, including physically punishing him. At about 1:00 p.m. on February 17, 1983, Walkey, Cosby and Nathanel went to K-Mart where they had lunch. Nathanel ate and was playful and cheerful. They returned home about 3:00 p.m. Nathanel was in the backyard with Walkey and then took a nap on the living room couch. At about 5:30 p.m., Cosby left Vickie Helmstadter went to Cosby's house at about 6:30 p.m. and found Cosby was not home. Helmstadter saw Walkey coming up the stairs from the cellar carrying Nathanel. When Helmstadter called Nathanel's name, he did not respond. She noticed there was no movement of his legs and his arms were hanging relaxed. She also noticed Walkey looked scared. He told her to go in the house and wait for him.
to go shopping while Walkey and his wife stayed with Nathanel.
Walkey put Nathanel in another room and came out to see Helmstadter. She paid Walkey $10 she owed him and left. As she was leaving, Howard Miller and Glenn Faulkner were coming in, looking for Cosby. Walkey told them Cosby was not at home and to come back later. They did not leave. Walkey then said he was going to check on Nathanel. He returned carrying Nathanel, who was motionless, wrapped in blankets. Walkey said Nathanel had defecated in his bed and Walkey was going to clean him up. Miller heard water running in the bathroom. Walkey came out carrying some bed sheets. At Walkey's suggestion, he and Miller and Faulkner went outside to play horseshoes. About 20 minutes later, Walkey's wife called out for them to come in because Nathanel was not breathing.
A paramedic arrived within five minutes and saw Nathanel was not breathing and had no pulse. He also noticed Nathanel looked like he had been severely beaten. Nathanel was covered with bruises and his abdomen was distended. Walkey said he had taken Nathanel out of the bathtub and also said Nathanel had earlier fallen and hit his head.
Nathanel was taken to Tri-City Hospital where resuscitation efforts were unsuccessful. The examining physician pronounced Nathanel dead at 7:29 p.m. The doctor saw bite marks on Nathanel's neck and arms and also saw old and new bruises. An X-ray showed Nathanel had a fractured rib.
An autopsy revealed 17 different bruises, abrasions and lacerations. The fresh bruises probably occurred within two hours of Nathanel's death. Nathanel's facial injuries were most likely the result of a blunt object impacting with relatively severe force. Nathanel's upper body had various abrasions and bruises, including two bite marks inflicted two hours or less before his death. His abdomen was tense and distended due to a large hemorrhage. Nathanel had received a severe penetrating blow, crushing and tearing open the intestines. The cause of death was related to this blow. Nathanel's injuries were nonaccidental and occurred between 5:00 and 6:30 p.m.
The pathologist who performed the autopsy testified at trial Nathanel's abdominal injuries were caused by a blow from a blunt object delivered with extreme force such that an average size female would not be able to inflict the injury. The pathologist testified Nathanel would have experienced extreme pain. Shock would set in either immediately or within one-half hour so that Nathanel would be unconscious or in a depressed state.
Nathanel had additional injuries, including a partially healed fractured rib (about two months old), a hemorrhaged spleen and a partially healed torn liver. These injuries indicated Nathanel had received a previous severe abdominal blow at least two weeks before he died. Nathanel also had two large, deep bruises on the back of his head causing life-threatening injury to the brain and surrounding tissue.
Dr. Sperber, a forensic dentist, testified at trial. He had taken photographs and impressions of the bite marks on Nathanel's body. Dr. Sperber also had taken dental impressions of Cosby, Walkey and Mrs. Walkey. Comparing the teeth marks of Nathanel with these dental impressions, Dr. Sperber testified neither Cosby nor Mrs. Walkey could have caused Nathanel's bite marks and he had no doubt Walkey caused them.
Dr. Chadwick, the physician who reviewed the photographs taken of Nathanel Walkey testified in his own defense, claiming Nathanel was with him in the cellar for about ten minutes the day he died. Walkey left the house about 4:30 p.m. and returned about 6:10 p.m. Nathanel was sleeping on the living room couch. Walkey went back to the cellar. Hearing Nathanel cry, Walkey left the cellar and saw Nathanel lying on his face at the bottom of the back door stairway with Nathanel's dog jumping around him. Nathanel's lip was bleeding so Walkey carried him into the house, cleaned his lip and gave him a bath. While bathing Nathanel, Walkey bit him on the forearm because Nathanel had bitten him. Walkey then put Nathanel down on the waterbed in the bedroom. When Walkey returned ten minutes later to check on Nathanel, he found Nathanel had vomited and was not breathing.
at the hospital and during the autopsy, testified Nathanel was a battered child. The number of bruises on Nathanel's body were inconsistent with accidental injuries. He also testified about the various factors that make up the profile of a child abuser.
Walkey testified he never struck Nathanel in the abdomen or anywhere else. He testified he loved Nathanel very much.
The prosecution tried the case entirely on a murder by torture theory. 2 Walkey contends the evidence was insufficient to support a conviction of first degree murder by means of torture. He asserts the court erred in denying his motion under section 1118.1 3 to dismiss the first degree murder charge and asserts the court erred in giving a torture murder instruction. We agree the evidence was insufficient to warrant a torture murder instruction.
Murder by means of torture is "murder committed with a wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain." (People v. Steger (1976) 16 Cal.3d 539, 546, 128 Cal.Rptr. 161, 546 P.2d 665.) The assailant's intent must be (People v. Tubby (1949) 34 Cal.2d 72, 77, 207 P.2d 51.)
Although a defendant need not have any intent to kill to be convicted of murder by torture, the defendant must have the defined intent to inflict pain. (People v. Steger, supra, 16 Cal.3d at p. 546, 128 Cal.Rptr. 161, 546 P.2d 665, citing People v. Mattison (1971) 4 Cal.3d 177, 183, 93 Cal.Rptr. 185, 481 P.2d 193.) Whether a defendant had a wilful, deliberate and premeditated intent to inflict extreme and prolonged pain may be inferred from the circumstances surrounding the killing. Although the severity of the victim's wounds is one circumstance to be considered, undue weight should not be given to such evidence, "as the wounds could in fact have been inflicted in the course of a killing in the heat of passion rather than a calculated torture murder." (People v. Steger, supra, at p. 546, 128 Cal.Rptr. 161, 546 P.2d 665.)
In Steger, the California Supreme Court modified a first degree torture murder conviction to second degree murder on facts similar to those here. The three-year-old victim in Steger died from nonaccidental Here, having reviewed the entire record in the light most favorable to the People, we conclude substantial evidence supports the jury's finding Walkey caused Nathanel's death. The testimony of several witnesses established Walkey was with Nathanel at the time the fatal injuries occurred. There was also testimony Walkey, looking scared, carried a motionless, unresponsive Nathanel wrapped in sheets or a blanket. Walkey bathed Nathanel who was covered with bruises and cuts and was unconscious or in a depressed state, yet Walkey failed to seek medical attention for the child. Further, expert medical testimony established Nathanel's injuries were inflicted with "extreme force" such that a woman would most likely be incapable of causing them. The forensic dentist testified he had no doubt Nathanel's bite marks were caused by Walkey. Walkey admitted biting Nathanel in an effort to discipline him. Thus, the record contains substantial evidence from which a rational trier of fact could have found, beyond a reasonable doubt, Walkey was responsible for Nathanel's death. (See People v. Green (1980) 27 Cal.3d 1, 55, 164 Cal.Rptr. 1, 609 P.2d 468.)
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