People v. Watson

Decision Date28 November 1977
Docket NumberCr. 15301
Citation142 Cal.Rptr. 134,75 Cal.App.3d 384
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Howard Duffy WATSON, Defendant and Appellant.

Donavon R. Marble, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Criminal Div., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Charles R. B. Kirk, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

RACANELLI, Presiding Justice.

Defendant was convicted of second degree murder following a trial by jury and sentenced to state prison. He appeals, claiming error in the introduction of his confessions and admissions, failure of the prosecution to preserve available evidence for testing, in submitting an instruction on flight and other evidentiary rulings. We conclude after examination of the entire record that only one of these claims, the instruction on flight, has merit but was not prejudicial. For the reasons discussed herein, we affirm the judgment of conviction.

Statement of Facts

At approximately 1:18 p. m. on Sunday, September 14, 1975, the body of a young woman, Nancy Huber, was discovered lying underneath a boxcar on a railroad siding in an industrial area of Berkeley. An officer who responded to the scene found the victim naked except for a pink sweater pulled up around her neck; her pants and panties were six feet away. Items of personal jewelry were strewn around the body. The ground adjacent to the body was covered with small rocks and sand; there were scuff marks on the ground. Bloodstains were found beneath the victim's head.

The cause of death was traumatic asphyxia resulting from a combination of strangulation and a damaged larynx. There were numerous abrasions and contusions on the victim's face, head and neck indicating that she had been repeatedly struck before she died. Her skull was fractured on the right side of her face. There were bruises on one breast consistent with a blow from a clenched fist. The victim's genitalia had been horribly mutilated with a sharp instrument before she died. There was also a laceration in her groin area inflicted postmortem. Large tears radiated from the victim's anus consistent with a forceful entry of a large object. A number of curvilinear abrasions, appearing to be human bite marks, were found on the victim's body, around her lips, chin, the nipples of her breasts, and one in the pubic area probably inflicted after death. The autopsy examination revealed the victim's blood alcohol level was .26. The medical examiner was unable to determine whether sexual intercourse had occurred.

The victim's roommate, Janis S., testified that she and the victim had attended a party the night before in a warehouse near the siding where the body was discovered. The victim was still at the party when Janis left between 1 and 1:30 a. m.

Allen R., who attended the same party, testified he met the defendant there and talked to him several times during the evening. Defendant, who was dancing and enjoying himself, appeared to act normally and spoke coherently. The witness observed the victim and defendant (who was wearing distinctive clothing and a hat) leave the party together sometime after 2 a. m. Shortly afterwards the witness observed them sitting at a curb but paid no further attention to them. Janis reported the victim missing the following (Sunday) morning.

As a result of interviewing several persons who had attended the party, the investigating officers were able to develop a composite description of defendant. The following Monday afternoon the defendant was observed by Berkeley police officers standing on a street corner. In response to questioning, defendant falsely gave his name as Bernard DeLawrence stating he had just arrived from Oregon and had no identification or permanent address. One of the officers, Inspector Wolke, told defendant he matched the description of a suspect under investigation 1 and requested defendant to accompany them to the station. Upon defendant's refusal, he was immediately arrested and transported to the station. After being placed in a holding cell, defendant requested to speak to Inspector Wolke; when Wolke entered the cell, defendant grabbed him and demanded to know the nature of the investigation. Upon being informed it concerned an assault and rape of a woman, defendant stated that he hadn't killed any woman or raped her. Following a commotion by defendant, he was removed to a large interview room where Wolke advised defendant of his Miranda rights. Defendant stated he understood his rights and would talk to Wolke because he had nothing to hide. After identifying himself by his correct name, defendant gave a statement 2 recounting the circumstances of his arrival in Berkeley and of meeting the victim at the party.

Afterwards, defendant was permitted to use the restroom. Ignoring the officers' instruction, he shut and locked the door to the toilet stall, removed his undershorts and unsuccessfully attempted to dispose of them in the toilet; the undershorts were bloodstained. His clothing was then removed and a blanket provided; he was returned to the interview room where a pair of jail coveralls was furnished. The interrogation continued in the presence of other officers and a deputy district attorney. Defendant then gave two (taped) statements confessing the murder. 3

Defendant testified in his defense that he was unable to recall any of the events after he arrived at the party because of his ingestion of large amounts of wine and drugs (LSD). His defense was supported by the testimony of two experts called by defendant.

The Confessions and Admissions

Defendant generally challenges the admissibility of his confessions and incriminating statements on several grounds. These claims may be catalogued as follows: (1) failure to advise him of his constitutional right to remain silent; (2) improper continuance of the interrogation after his request for an attorney; (3) inability to freely and voluntarily waive his constitutional rights as a result of impaired mental faculties, being under the influence of alcohol and drugs, and the coercive atmosphere that pervaded the interrogation process. Defendant also claims that the delay in arraigning him before a magistrate invalidates his confessions and admissions. Each of these claims is determined to be without merit; the statements were properly admitted.

I. The first of these claims is based upon the testimony of Inspector Wolke during an earlier pretrial hearing reflecting the omission of a specific advisement of the right to remain silent. (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Dorado (1965) 62 Cal.2d 338, 353, 42 Cal.Rptr. 169, 398 P.2d 361, cert. den., 381 U.S. 937, 946, 85 S.Ct. 1765, 14 L.Ed.2d 702.) During a later examination by the trial judge, Inspector Wolke testified he did advise defendant of his right to remain silent. After hearing further testimony and listening to the recorded interrogations, the trial judge concluded that the initial omission was merely an oversight and that the right to silence admonition had been properly given before any questioning. In that connection the record reveals the following: "(The Court) . . . I've . . . observed all the witnesses involved, have heard the tapes played that are the matter of concern here in their entirety. . . . And I also have in mind the Defendant, the things he had to say and also his manner of expression, the tenor and timber [sic] of his voice and things of that type which were of interest and the comparison with those with what's on the tapes. And . . . it is my finding that he was advised of his rights by Inspector Wolke. I recognize there was some initial ambiguity in Inspector Wolke's testimony in that regard but I think looking at the rights the way he gave them and recited them on the other occasions, together with the entire observation of him as a witness and coupled also with the statements made by Mr. Watson himself when first questioned by Mr. Walthall (the deputy district attorney) I'm satisfied that he was given his rights on the initial occasion as well as on subsequent occasions. . . . "

It is settled that "[w]here . . . there is a conflict in the evidence, it is the duty of the reviewing court to determine if there is substantial evidence in the record to uphold the finding of the trial court, and the trial court's ruling will not be disturbed on appeal unless it is palpably erroneous." (People v. Duren (1973) 9 Cal.3d 218, 238, 107 Cal.Rptr. 157, 171, 507 P.2d 1365, 1379; see also People v. Gilliam (1974) 41 Cal.App.3d 181, 190, 116 Cal.Rptr. 317; People v. Brockman (1969) 2 Cal.App.3d 1002, 1008, 83 Cal.Rptr. 70.) The record discloses ample evidence to support the trial court's determination that defendant was timely informed of his right to remain silent.

II. Defendant next claims, relying on People v. Fioritto (1968) 68 Cal.2d 714, 718-719, 68 Cal.Rptr. 817, 441 P.2d 625, that interrogation improperly continued after he had invoked his right to have an attorney present. However, as the People correctly note, defendant's failure to raise such specific objection below precludes consideration on appeal. (People v. Peters (1972) 23 Cal.App.3d 522, 101 Cal.Rptr. 403, cert. den. 409 U.S. 1064, 93 S.Ct. 563, 34 L.Ed.2d 517; People v. Deutschman (1972) 23 Cal.App.3d 559, 565, 100 Cal.Rptr. 330.) Thus, where as here the defendant neglects to tender such issue by a timely objection during trial, " . . . the rule that the failure to object to Miranda error at the trial cannot be raised for the first time on appeal is equally applicable to Fioritto error." (People v. Peters, supra, 23 Cal.App.3d at p. 532, 101 Cal.Rptr. at p. 409.) Moreover, even if defendant had properly preserved the issue...

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