People v. Wickersham

• Decision Date: 02 September 1982
• Docket Number: Cr. 22406
• Citation: 650 P.2d 311,32 Cal.3d 307,185 Cal.Rptr. 436
• Court: California Supreme Court
• Parties: , 650 P.2d 311 The PEOPLE, Plaintiff and Respondent, v. Dorothy Suzanne WICKERSHAM, Defendant and Appellant.

Page 436

185 Cal.Rptr. 436

32 Cal.3d 307, 650 P.2d 311

The PEOPLE, Plaintiff and Respondent, v. Dorothy Suzanne WICKERSHAM, Defendant and Appellant.

Cr. 22406.

Supreme Court of California,

In Bank.

Sept. 2, 1982.

Rehearing Denied October 21, 1982.

Dennis P. Riordan, James Larson and Larson & Weinberg, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein and Edward P. O'Brien, Asst. Attys. Gen., Herbert F. Wilkinson, W. Eric Collins and Dane R. Gillette, Deputy Attys. Gen., for plaintiff and respondent.

BIRD, Chief Justice.

This case raises several questions concerning a trial court's duty to give instructions sua sponte in criminal cases. What standard should the trial court apply in determining whether to give instructions on necessarily included offenses? Did the evidence in the present case require instructions on voluntary manslaughter and second degree murder? Should the doctrine of "invited error" be invoked where the defense counsel has not articulated a deliberate tactical objection to required instructions?

I.

Appellant was convicted of first degree murder in the shooting death of her husband, Curt, who died on September 8, 1979. (Pen.Code, §§ 187, 189.) ¹ The jury also found that appellant had used a firearm within the meaning of section 12022.5. ²

Shortly after 1:30 p. m. on September 8th, appellant telephoned the Marin County Communications Center to request emergency relief because of "a terrible accident." She then called her priest, Monsignor Keane, and asked him to come to the house. The Novato Police Department was contacted and informed that an accident had occurred at her home.

Police Sergeant Gary Barner was the first officer to arrive at the scene. He found a group of about 20 to 30 people standing in the street in front of appellant's home. Appellant, "who appeared ... to be hysterical," approached him. "She was yelling hysterically .... [S]he said that her husband was in the house and had been shot." In response to the officer's question, appellant stated that she had done the shooting. She also told him that her husband was in the bedroom and the gun was at a neighbor's house.

Officer Michael Funk arrived and stayed with appellant while Sergeant Barner began to search the house. As he started up the stairs to the second floor, he saw appellant's husband's body near the wrought iron railing on the landing above. Barner determined that Curt was dead.

Two paramedics arrived soon after Officer Funk. Robert Weber, one of the paramedics, testified that the body was lying face down and the head and arms were protruding through the railing. When the body was turned over and the shirt collar removed, Weber noticed a bullet hole above the right breast.

Officer Lance McHenry arrived at the same time as the paramedics. McHenry had met appellant two months earlier when she sought police protection because of alleged threats made by Curt.

Officer McHenry testified that on September 8th, appellant "ran up to me in a hysterical-type condition" and made several statements. Some of the comments were unintelligible because of her condition. She did state that her husband had been depressed, that the shooting was an accident, and that things had been going well for them. She asked several times how her husband was. At one point she told McHenry, "He went crazy, you know. I've told you before. He pulled the hammer back. We were in the bedroom. He was so depressed. He had been with the kids all day." At that point, appellant became hysterical again.

McHenry asked if anyone knew the location of the gun. Appellant pointed to a neighbor's house and said, "It's in there." She walked over to the neighbor's garage, pointed toward the back, and said, "I put it up there away from the kids." McHenry could see the gun on top of a hot-water heater.

Upon returning to the street in front of her house, appellant stated, "He was depressed. He went crazy and started towards me. His hand went into his pocket. And I know he carries a gun there. And then he pulled the hammer back." She became hysterical again and then stated, "It was an accident. I didn't have any malice."

Appellant asked McHenry if he thought she needed an attorney. He stated that she could call one if she wished. Sergeant Barner, returning from the house, advised McHenry that it would be best to take appellant to the police station. McHenry asked appellant if she wanted to go to the station with him. She agreed.

On the way to the station, appellant again asked if she needed an attorney. McHenry told her that she could call one. She then asked if she could stop by a church to pray. McHenry allowed her to do so.

Once at the station, appellant was brought into the employee lounge. When she asked to use the bathroom, McHenry told her that a female clerk would accompany her and that she could not wash her hands because a test would be performed on them. Appellant stated, "You know I fired the gun. I told you." Appellant also stated, "I didn't mean to hurt him." Again, appellant asked if she needed an attorney and was told that she could call one. Instead, she called to find out if her children were all right.

Janice Arnheiter, a friend of appellant, was then brought in to see her. Appellant told Arnheiter, "He was depressed. The gun was on the shelf and he went crazy when he saw it. He reached for it and I grabbed it. He pulled the hammer back and it went off. I was holding the gun. My finger was, you know, where it went off."

Appellant was then taken to an interview room by Officer McHenry and Lynne Wald, senior clerk at the police station. She was advised of her Miranda ³ rights. Appellant stated that she had kept the gun in the closet because it was the easiest place to get to if someone broke in. At one point, she stated that she did know how to use the gun, but later she stated that Curt had taught her how to shoot another weapon many years before. When informed that Curt had died, appellant asked to use the phone to break a tennis date for the following day.

Back at the house, the officers searched the premises for additional bullets, but did not find any. At the top of the stairs, near the bedroom, the officers found a blue shirt wadded up in the corner against the wall.

In a closet in the bedroom, two boxes were found, one for a revolver and one for ammunition. The boxes were barely visible behind hats and shoe boxes. Five bullets were missing from the box of ammunition.

Ervin Jindrich, the county coroner, performed the autopsy. The cause of death was determined to be a gunshot wound. Jindrich stated that the bullet entered the right chest at a point approximately five inches to the right of the midline of the body. The bullet traversed the right thoracic cavity, the space in which the lung is confined, on a generally horizontal plane. The bullet went slightly from right to left within the body. Jindrich was unable to determine the distance of the gun from the body because no powder residue was found on the skin. He further stated that Curt could have been bent over at the time of the shooting.

William Corazza, a criminalist with the California Department of Justice, examined the blue shirt and the weapon recovered from the neighbor's garage. The shirt contained bullet holes and smoke and powder residues, consistent with a bullet passing through the shirt at close range. According to the criminalist's best calculations, "the shirt was somewhat bunched above the weapon. It was not wrapped tightly around it ...."

Regarding the weapon, Corazza noted that the cylinder has a five-bullet capacity. Two circles of smoke residue around the opening of the chambers in the cylinder indicated that the weapon had been fired two times since its last cleaning. Corazza explained that the weapon could operate in both single and double action. In double action, it is necessary only to pull the trigger to fire the weapon. In single action, the hammer must be pulled back first, then the trigger pulled. The weapon was operable and could not accidently discharge by jarring.

Corazza stated that it would be possible to push the hammer back while facing the gun. With the gun operating in single action, only five pounds of pressure on the trigger was required to fire the weapon once the hammer was pulled back. Corazza also testified that the weapon contained two expended rounds and three live rounds, one of which was at the top of the cylinder underneath the hammer. In order to reach this configuration, it was his opinion that the weapon must have been fired twice; then, either the weapon was cocked and the hammer let down gently or it was partially cocked and the cylinder was rotated manually.

The prosecution claimed that the shooting was premeditated and deliberate murder. It alleged that appellant killed her husband because of jealousy and for financial gain.

Appellant and her husband lived in Novato and had five children. Curt worked as an investigator for the United States Customs Service. His work caused him to be away from the home quite often. Appellant had asked him to change jobs so that he could spend more time at home. When this did not happen, appellant asked Curt to move out of the house. He did so on February 12, 1979, and moved in with Frank Orrantia, another customs investigator.

Appellant filed a petition for dissolution of marriage on February 21, 1979. Soon thereafter, she contacted Attorney Richard Barry and asked him to draw up a marital settlement agreement to which she and Curt had agreed. Under the agreement, appellant received the house and its furnishings, one of their two cars, and the proceeds from the sale of the other car to pay certain debts. Curt was to receive the entire interest in federal Civil Service retirement benefits. In addition, the children would be named beneficiaries of his government life insurance policy. Curt...