People v. Wisely

• Decision Date: 28 September 1990
• Docket Number: No. G006382,G006382
• Citation: People v. Wisely, 224 Cal.App.3d 939, 274 Cal.Rptr. 291 (Cal. App. 1990)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Willie Ray WISELY, Defendant and Appellant.

Page 291

274 Cal.Rptr. 291

224 Cal.App.3d 939

The PEOPLE, Plaintiff and Respondent, v.Willie Ray WISELY, Defendant and Appellant.

No. G006382.

Court of Appeal, Fourth District, Division 3, California.

Sept. 28, 1990.

As Modified on Denial of

Rehearing Oct. 19, 1990.

Certified for Partial Publication ¹

Review Denied Jan. 4, 1991.

[224 Cal.App.3d 941] Larson & Weinberg, Doron Weinberg and Nina Wilder, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Robert M. Foster and Carl H. Horst, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

WALLIN, Acting Presiding Justice.

Willie Ray Wisely appeals his conviction for murder with the special circumstance of lying in wait.He urges reversal, contending: (1) the evidence was insufficient to support the murder conviction; (2) the evidence was insufficient to support a finding of lying in wait; (3)the prosecution wrongfully destroyed a critical piece of evidence; (4)the prosecutor was guilty of prejudicial misconduct during trial; (5)the prosecution knowingly allowed false evidence at the trial; (6)the prosecution withheld valuable information from the defense; (7) a reporter was improperly allowed to invoke the shield law; (8) the testimony of a witness was improperly compelled; (9) inadmissible prejudicial hearsay was admitted; (10)the trial court committed multiple prejudicial instructional error; (11) prejudicial juror misconduct occurred; (12) Wisely's Sixth Amendment and due process rights were violated regarding his motion for new trial; and (13) Wisely was inadequately advised of the dangers of self-representation and was unable to properly represent himself because of mistreatment at the jail.

In the published portion of the opinion, we reject Wisely's eighth and eleventh contentions.In the unpublished portion, we reject his remaining contentions and affirm.

* * *

Wisely's stepfather, Robert Bray, was killed in March 1981 when the cab of his truck fell on him while he was working on it.Although no one saw the entire incident, several witnesses pieced the event together.One witness saw a gray panel or pickup truck double parked next to Bray's rig.She saw a younger man in the panel or pickup truck give what appeared to be a tool box to a man fitting Bray's description.She did not see Wisely.Another witness saw a flash of light and a pair of legs and the soles of a man's shoes flying in the air.Yet another witness saw Bray's slumped body stuck underneath the cab of the truck.

The cause of death was asphyxiation due to pressure on the chest area.Except for impressions from the cab there were no significant bruises, abrasions, fractures, or other marks on Bray's body, including puncture marks.There were no drugs found in his system besides alcohol, caffeine and nicotine.

No evidence was found that the hydraulic cab-lift mechanism on Bray's rig had been tampered with.The device was designed to stop at irregular check points unless bypassed.Because of a fluid leak, the device did not work properly.Lowering the cab was a slow and intricate process, although by hitting the hydraulic jack, the cab would fall straight down without stopping.There was testimony that when lowered the cab made a noise which would alert anyone that the cab was descending on them.

Originally, the authorities concluded that the death had been an accident.A few weeks later, Philip Thompson, seeking to curry favor with the police and believing that Wisely had informed on him in another matter, told the Burlingame police that Wisely and James Dunagan had committed the murder.Wisely hated his stepfather and had been involved in a physical altercation with him.He had solicited others to kill Bray.

Dunagan testified that he and Wisely got together on the day of the crime planning to watch, but not to kill him.They drove to the location of Bray's truck in a gray panel truck which Wisely had borrowed.Wisely brought a handgun and a hypodermic needle for injecting poison.The two then argued as to who should inject Bray with poison while Bray worked on the truck.

Wisely decided to do the job himself.He went over to the truck, out of Dunagan's view, and then reappeared after Dunagan saw the cab moving.On Wisely's instructions, Dunagan drove by the truck; Wisely got out and reported that Bray was dead.Dunagan could only see Bray's legs.After the deed was done, Dunagan and Wisely drove to the house of a friend, where they stayed until Wisely's girlfriend arrived and told them Bray was dead.

Richard Kish and John Randolph testified that Wisely had admitted the murder to them.Although Philip Thompson denied at trial that Wisely had admitted the killing to him, his prior statements that Wisely had done so were admitted.

Wisely testified that on the day of Bray's death, he left his girlfriend's house to visit Dunagan at Bat Masterson's house.They stayed there for about an hour and then spent the remainder of the afternoon trying to sell some jewelry at various locations.They returned to Masterson's house and freebased cocaine.At about dusk, Wisely's girlfriend arrived and told him that his stepfather was dead.Wisely testified he was shocked by the death and that he had nothing to do with it.

I-VII ^*

VIII

Wisely asserts the trial court erred by granting witness Philip Thompson use immunity.He argues that in California only transactional immunity can be granted.(People v. Campbell(1982)137 Cal.App.3d 867, 874-876, 187 Cal.Rptr. 340.)Two procedural issues are fatal to his argument.

First, he failed to object to the grant of immunity in the trial court and may not raise it here.(People v. Harris, 28 Cal.3d 935, 962, 171 Cal.Rptr. 679, 623 P.2d 240.)Second, he lacks standing to challenge Thompson's immunity.Federal law and cases in other states consistently hold that a defendant"has no standing to argue that the testimony of ... [an] immunized witness [is] the product of improper grants of immunity."(Commonwealth v. Simpson(1976)370 Mass. 119, 345 N.E.2d 899, 902;United States v. Ellis(3d Cir.1979)595 F.2d 154, 163;United States v. Hathaway(1st Cir.1975)534 F.2d 386, 402;United States v. Foster(7th Cir.1973)478 F.2d 1001, 1003-1004;United States v. Braasch(D.C.Cir.1974)505 F.2d 139, 146;State v. Melvin(Me.1978)390 A.2d 1024, 1029;State v. Kingbird(Minn.1987)412 N.W.2d 350, 354;State v. Phillips(1979)297 N.C. 600, 256 S.E.2d 212, 216;State v. Ahmadjian(R.I.1981)438 A.2d 1070, 1078-1079;State v. Morgison(1971)5 Wash.App. 248, 486 P.2d 1115, 1116-1117.)

We adopt that general rule.The privilege against self-incrimination is personal to the person who invokes it and immunity affects only that person.Unless the immunity amounts to an improper coercion of the witness's testimony or demonstrably affects the nature of that testimony, the defendant has no interest in complaining.(SeePeople v. Medina(1974)41 Cal.App.3d 438, 450, 116 Cal.Rptr. 133[immunity conditioned on particular testimony];accordPeople v. Allen(1986)42 Cal.3d 1222, 1251, fn. 5, 232 Cal.Rptr. 849, 729 P.2d 115.)

Here, there is no claim or showing that the grant of immunity adversely affected the veracity of Thompson's testimony "against" Wisely.He denied any recollection of having made inculpatory statements against Wisely and said he was lying to the police in his prior statements.There is no reason to give Wisely the opportunity to contest the grant of immunity.

IX-X ^**

XI

Wisely asserts juror misconduct and reception of unauthorized evidence at a jury view of the death scene merits reversal.He predicates his claim on three alleged instances: (1) the jurors observed demonstrations of the cab lift mechanism; (2)they had their questions answered by the prosecutor and witnesses about the operation of the mechanism; and (3)they performed experiments to determine whether Bray could have accidentally reached the selector switch.The trial court did not abuse its discretion in finding no misconduct occurred on the first two grounds and that Wisely acquiesced in what transpired at the scene.As to the last ground, Wisely failed to raise the issue in a timely manner and to make an adequate preliminary showing to merit relief.

During the trial, Wisely requested a jury view of the death scene with a truck like Bray's and a panel truck similar to the one about which Dunagan testified placed according to the testimony.Wisely wanted to show that Dunagan was lying because he could not possibly have seen what he said he did from his vantage point.Although he initially talked about having demonstrations done with the truck cab, Wisely stated later he was only interested in Dunagan's vantage point and the foot traffic in the area, and because the lift system had been altered, he was not interested in a demonstration or taking of testimony.He never specifically objected to any such demonstration.

Before the jury view, the court admonished the jury that they were not to ask questions or talk at the scene.After the view, Wisely complained that the truck which was used was significantly different from Bray's and asked for another view using Bray's.The court agreed, and before the second view, told the jury to follow instructions at the scene and not to discuss the case among themselves or with anyone else.

Although the proceedings at the second jury view were not reported, the trial court issued a settled statement of certain facts as part of Wisely's initial motion for new trial.¹⁷At that time, the focus of Wisely's misconduct claim was on the cab tilt demonstrations.The statement established: "Based upon the evidence adduced at the hearings conducted on October 28, 1982, November 2, 1982, and November 17, 1982, the Court makes its findings and statement of evidence relating to the proceedings of February 2, 1982, as follows: [p] 1.The jury, accompanied...