People v. Wojahn

• Decision Date: 26 March 1959
• Docket Number: Cr. 3559
• Citation: 337 P.2d 192,169 Cal.App.2d 135
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Albert H. WOJAHN, Defendant and Appellant.

Page 192

337 P.2d 192

169 Cal.App.2d 135

PEOPLE of the State of California, Plaintiff and Respondent, v. Albert H. WOJAHN, Defendant and Appellant.

Cr. 3559.

District Court of Appeal, First District, Division 1, California.

March 26, 1959.

Hearing Denied May 20, 1959.

Rosendale, Thomas & Muller, Salinas, for appellant.

Stanley Mosk, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

BRAY, Justice.

Defendant appeals from a judgment on a jury verdict finding him guilty of the crime of rape by use of drugs in violation of section 261, Penal Code, and from the order denying new trial.

Questions Presented.

1. Sufficiency of evidence.

2. Alleged error in permitting prosecutrix to refresh her memory.

3. Was the recorded conversation between defendant and the prosecutrix obtained illegally?

4. Was the recording inadmissible (a) because defective; (b) because of the best evidence rule?

5. Was it error to distribute transcripts to the jury?

6. Testimony of similar attempt with another woman.

7. Instruction concerning that testimony.

8. Alleged misconduct of district attorney.

1. Evidence.

Bonnie, aged 21, a married housewife and mother, being bothered by chest pains and fearing tuberculosis, went to defendant, a physician and surgeon, for an X-ray. She had visited him twice before, once for a tetanus shot for herself and once for treatment of her son. Defendant was alone in his office. After explaining her symptoms to him, defendant had her disrobe and put on an examination robe. Bonnie testified that he gave her a shot which he said was to cut the mucous in her throat and a capsule to quiet her nerves. Thereafter she was unable in standing against a wall with her eyes closed to touch her nose with her fingers. She felt light and relaxed, her feet felt glued to the floor, and she felt as though her body were swaying. She detailed his actions, which culminated in one or more acts of sexual intercourse with her. She became frightened and dizzy and almost blacked out. He told her he 'did that' to bring up her blood pressure. As she was leaving he made an appointment for the following Monday, and attempted to kiss her, saying, 'What is the matter, honey? Didn't you like that?' Bonnie denied consenting to defendant's actions. Leaving his office Bonnie unsuccessfully attempted to find her husband, and then went to her neighbor, Mrs. Trail, who testified she complained of being raped by defendant, was nervous, upset, her eyes were red, her lipstick smeared and her hair mussed. Her legs were shaking. Mrs. Trail accompanied Bonnie to the police station where she related what had happened. The police captain testified that Bonnie's hair was disheveled, she was red-eyed, crying, hysterical, and appeared to be drugged. Later she was taken to the County Hospital where she was examined by a doctor. She seemed nervous and excited, a condition consistent with the possibility of a sexual assault. The doctor saw no bruises, tears or evidence that any brute force was exerted on the external genitalia or thighs, nor was any spermatozoa revealed as a result of a vaginal smear.

Pursuant to arrangements with the police, Bonnie returned to defendant's office. Defendant had invited her to return on Monday. She telephoned defendant cancelling that appointment and asking for another date. She carried a concealed minaphone which recorded her conversation with defendant. The police instructed her what to say. The wire recording of this conversation concerned itself with the events of Bonnie's prior visit to defendant and contained admissions by him of his relations with her.

A medical doctor testified that, in his opinion, a woman with symptoms similar to Bonnie's on the date of the alleged offense would be under the influence of drugs.

To show plan, design or scheme of defendant, a Mrs. Donati detailed an attempted rape of her by defendant under similar circumstances about a year earlier.

Defendant denied in substance most of plaintiff's testimony, stating that his conduct towards Bonnie was of a professional nature and the extent of the examination was guided by his professional opinion. While examining her neck Bonnie kissed him. He said he gave her a shot of penicillin and a capsule containing a tranquilizing drug called compazine, to calm her prior to examination. He took the capsule from a package of 12, giving her the other 11 to take home. (Bonnie stated that he gave her two packages of 6 capsules each to take home to calm her nerves. The capsules were similar to the one she took at his office.) As to the recorded conversation defendant stated that he agreed and went along with her leading questions concerning the events of her prior visit because (1) she was talking so loudly, and (2) 'there was no point in trying to argue with her' because she was apparently undergoing an emotional disturbance.

A medical doctor called by defendant testified that in his opinion the administration of the tranquilizer in combination with a narcotic drug could not have created the condition described by Bonnie, namely, that her will, but not intellect and capacity to remember, was affected.

Defendant concedes that Bonnie's testimony that she felt defendant have intercourse with her may be sufficient evidence to prove the element of intercourse, although he contends that it is somewhat improbable because she never observed his penis nor saw his clothes disarranged. In view of her testimony that she was lying down at the end of the examining table with her feet in stirrups, a position in which she could not see below defendant's waist, that defendant had her close her eyes and that when she opened them he would sit down on a stool at the side of the table, and the other circumstances, her story is not inherently improbable.

Defendant's main attack is on the sufficiency of evidence of drugging. Rape by drugs may be proved by circumstances and surroundings. See People v. Crosby, 1911, 17 Cal.App. 518, 120 P. 441, 443, where the drug administered made the prosecutrix 'weak and dizzy.' Here there was sufficient evidence on this subject. (1) Admittedly defendant administered a shot and a capsule. He testified to a familiarity with and administration of anesthetics, involving combinations of drugs. (2) Bonnie felt 'groggy.' She felt calm, very relaxed, and her body seemed swaying while her feet would not move. The police captain testified that she appeared to be drugged. (3) The People's expert testified that her symptoms as related would indicate that she was under the influence of drugs. True, defendant's expert testified to the contrary but that was a matter to be, and it was, resolved by the jury. The fact that Bonnie was not given any tests for drugs on the day of the attack, while regrettable, is not fatal to the prosecution's case. Generally, from the very nature of the offense there can be no direct evidence of the administration of a drug. While the prosecution's case here may not be altogether satisfactory, it does support the theory of the prosecution and its weight was a matter for the jury and is sufficient to sustain the verdict. See People v. Crosby, supra, 17 Cal.App. at page 524, 120 P. at page 443.

2. Refreshing Memory.

Plaintiff asked Bonnie if she recalled the conversation with defendant on her return to his office. She replied, 'No, not completely.' The court asked if she had a sufficient present recollection. She replied 'No.' Over objection she was permitted to read notes made by a police secretary at Bonnie's direction after listening to repeated playings of a tape recording made from the original wire recording of the conversation. Bonnie testified that when the notes were made she had an independent recollection of the conversation, and that the notes were a correct version of the conversation. The notes were not offered in evidence. (They would have been inadmissible. Hawkins v. Sanguinetti, 1950, 98 Cal.App.2d 278, 284, 220, P.2d 58.) Section 2047, Code of Civil Procedure, provides: 'A witness is allowed to refresh his memory respecting a fact, by anything written * * * under his direction, at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing. * * *' All of the requirements of this section were met and the witness was entitled to refresh her memory, even though, as contended by defendant, it was not clearly shown that Bonnie did not have a present recollection. Although Bonnie was specific about the events of her first visit to defendant, and it would seem that she might have had a similar recollection about a conversation a few days later, it is not always as easy to remember accurately a conversation as it is to remember a series of events. Here it was important for the prosecution to bring out the entire conversation in order to show defendant's incriminating statements.

3. Recorded Conversation.

Defendant contends that the wire recording obtained by the use of the microphone carried by Bonnie was illegally obtained and hence under the ruling in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, inadmissible. However, defendant has cited no pertinent authority to support his contention. The authorities cited by him such as People v. Tarantino, 45 Cal.2d 590, 290 P.2d 505, and Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561, dealt with entirely different situations than the situation here. In those cases entry was made into a defendant's premises without his permission, constituting a trespass, and microphones installed and conversations which the defendant had no way of knowing could be repeated on the outside were recorded. Here, Bonnie was invited to return to defendant's office, and defendant knew that whatever he said to Bonnie could be repeated by her to others. ...