People v. Williams
| Decision Date | 16 December 1971 |
| Docket Number | Cr. 19371 |
| Citation | 99 Cal.Rptr. 103,22 Cal.App.3d 34 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas James WILLIAMS, Defendant and Appellant. |
Joseph E. Gerbac, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Howard J. Schwab, Deputy Atty. Gen., for plaintiff and respondent.
In this case, wherein defendant double-parked his car in front of an eye clinic of which he had never been a patient, walked in, approached the reception window and with a carbine rifle shot and killed an optician with whom the evidence indicated the had no connection, and walked out and drove away, the only serious issue at trial was whether or not defendant was in the throws of a psychomotor epileptic attack as a result of which he lacked the consciousness to be aware of his actions or to deliberate upon the gravity of his act, premeditate, and harbor malice.
In a trifurcated trial the jury in the first phase found defendant guilty of murder in the first degree, in the second phase found that defendant was sane at the time of commission, and in the third phase set the penalty at life imprisonment. In light of our conclusions we deal only with the first phase.
Defendant's main contention is, in effect, that as a matter of law, the evidence established a reasonable doubt that defendant was conscious of his actions or had the capacity to attain the necessary mental state. Actually, however, as we see it, in this case there were not two separate concepts. Only the circumstance of psychomotor epileptic attack was posed. These perhaps theoretically distinct defenses could not possibly have been independent in the instant case to the extent that one could have been found to exist and the other not. Under the evidence produced in support of the defense, if defendant had a psychomotor epileptic seizure which rendered him unconscious of what acts he was performing, it also made it impossible for him to harbor at the time of commission the specific intents for murder or voluntary manslaughter. The type of unconsciousness stressed by the psychiatrists was a totally diminished, i.e., lack of, capacity in defendant to be aware of his actions or to engender the specific intent requisite to the offenses involved. 1 Hereafter, at times, we will refer to the alleged state of defendant as 'totally diminished capacity.'
We do not feel that it can be said that the evidence rests in the posture conceptualized by defendant. The testimony of Dr. Walters (which was detailed and thorough) and the conduct of defendant before and after the incident (particularly after) support the position of the prosecution that defendant was aware of and intended what he did. The contrary testimony of Dr. Abe and Dr. Marcus had certain weaknesses. The testimony of Dr. Thompson on that particular issue was not of the positive variety. His chief contribution was to present the analysis of the electroencephalogram (EEG) which he made. Also, he felt that it would be unwise for a psychiatrist to express an opinion on the likelihood of there having been a psychomotor attack without having the benefit of a neurological examination. Under the circumstances we are satisfied that that major issue was a jury question. (Cf. People v. Rittger, 54 Cal.2d 720, 730, 7 Cal.Rptr. 901, 355 P.2d 645; People v. Berry, 44 Cal.2d 426, 432, 282 P.2d 861 (overruled on another point in People v. St. Martin, 1 Cal.3d 524, 537), 83 Cal.Rptr. 166, 463 P.2d 390.)
Nevertheless, the decision was a close one. Three psychiatrists testified, in effect, that it was probable that defendant was in a psychomotor epileptic fugue: Dr. Abe 2 and Dr. Marcus quite positively; Dr. Thompson somewhat guardedly because he had not made a psychiatric examination himself as had the other two and was responding only from the information put in a hypothetical question and results of his EEG. Dr. Walters conceded to defense counsel that it was possible. 3 Male and female friends of defendant gave testimony of current conduct symptomatic of a person having the type of epilepsy which would produce psychomotor seizures. Defendant's mother and sister, although subject to juror suspicion of consanguinal bias, testified concerning babyhood convulsive episodes. The EEG demonstrated abnormality in the areas wherein the pertinent brain activity is located. 4 Seemingly, the prosecution's investigative arm had been unable to develop any direct or strong circumstantial evidence to present in the trial bearing upon motive. Apparent absence of motive plus the commission of the offense under circumstances conducive to identification and apprehension were factors running contra to a first degree murder, but supportive of a fugue, mental state. This was a circumstance difficult to discount both by medical and lay reasoning. The jury deliberated from 10 a.m. to 4 p.m. on Friday, August 28, 1970, and from 9 a.m. to 3 p.m. on Saturday, August 29, when it was locked up for the weekend. On Monday, August 31, it deliberated from (apparently) 9 a.m. until 2:05 p.m., when it returned to the courtroom to have certain testimony read to it. Earlier that day it had sent a note to the trial court requesting that the testimony of Dr. Thompson and Mr. Mykietyn (the one time brother-in-law and coworker of the deceased) be read to it. While this item was being considered by court and counsel about 11:30 a.m., along with certain problems concerning the daily transcript, the jury sent another note to the trial court advising that it was unable to reach a verdict. The trial court, realizing that the jurors had not had the benefit of rehearing the testimony that they had requested to have read to them, sent a note back to the jurors asking if the reading of that testimony would make any difference in their determination as to whether or not they could arrive at a verdict. Apparently, at just about noon, the jurors sent back a note saying they wished to hear the testimony of Dr. Thompson since it would help them in reaching a verdict. As indicated, commencing at 2:05 p.m. the reporter commenced reading the desired testimony. This was concluded at 3:40 p.m. when the jurors again retired. At 4:50 p.m. the jurors returned to court and presented their verdict finding defendant guilty of murder in the first degree.
This probable difficulty in decision is mentioned because there are errors and near improprieties in the case which taken together spell prejudice. Any one of the defects, as a sole irregularity in the face of a strong prosecution case, would probably not be considered prejudicial, but the totality of all the matters to be discussed, in combination, in light of the demonstrably close case herein, does reach, we feel the level of harmful prejudice.
One of the problems is captioned by defendant: 'Comment by the Prosecutor Upon Appellant's Failure to Testify . . ..' This irregularity (the nature and extent of which we will explain) is compounded by an erroneous instruction. P The district attorney alluded to the circumstance of defendant not testify in two respects, both connected with the presence or absence of motive: (1) his failure to support the absence of motive; (2) his concealment of a motive. 5 Lack of motive, of course, was a strong factor in the medical opinions that defendant was in a psychomotor epileptic seizure. 6
We note, as to the first aspect, that the district attorney in his opening argument, after stating, in effect, that from the methodology employed by defendant (a killing 'carried out as an execution') it was to be inferred that he killed Kramos with malice and premeditation and that all the elements of first degree murder had thus been proved, and after stating that, although it was not an element of the crime, motive could be used to help prove guilt (in this instance be supportive of defendant's capacity for specific intent), said in part:
In light of a prominent feature in the case, the most obvious connotation of the asserted failure to bring evidence or 'to tell' is that such could have been done by defendant himself, making the remark come close to a comment on defendant's not testifying.
The reference likely was to the circumstance that defendant did not tell the jury what he had told the doctors--that he had blacked out, that, in effect, he had no motive, and that, to Dr. Marcus, he had had alcohol the night before and the morning of the event. 7 It is significant in light of the fact that the trial court, during the taking of evidence, had explained that the accounts of his (defendant's) personal experience which the psychiatrists testified had been given to them by defendant were not received in evidence for their truth but for the limited purpose of demonstrating upon what their opinions were based, and of the fact that the district attorney, in his argument, stressed that point and advised the jury that the trial court would formally instruct them to this effect, which it did. Thus, the district attorney's claim that defendant had not produced evidence showing lack of motive and his stress on the point that what defendant told the doctors could not be used for the truth of it subtly asked the jurors to infer from the fact that defendant had not testified on these matters that they were not true, any inference from other circumstances in the case notwithstanding. So persuading the jurors would have had the combined effect of showing consciousness of guilt and removing the foundation for the opinions of defendant's psychiatrists. 8
As to the second aspect of the district...
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