The People of the State of California, Plaintiff and Respondent v. Charles Merie Butts and William Gerald Otwell, Defendants and Appellants

• Decision Date: 12 March 1965
• Docket Number: Cr. 3558
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Merie BUTTS and William Gerald Otwell, Defendants and Appellants.

Page 172

43 Cal.Rptr. 172

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Merie BUTTS and William Gerald Otwell, Defendants and Appellants.

Cr. 3558.

District Court of Appeal, Third District, California.

March 12, 1965.

Rehearing Denied April 6, 1965.

See 43 Cal.Rptr. 706.

Hearing Granted June 2, 1965.

Andrew J. Hollis, Oroville, for appellant Butts.

L. Miles Snyder, Sacramento, for appellant Otwell.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., by Doris Maier, Asst. Atty. Gen., and Raymond M. Momboisse and Daniel Kremer, Deputy Attys. Gen., Sacramento, for respondent.

FRIEDMAN, Justice.

Otwell and Butts were jointly indicted upon a count of conspiracy to commit assault, a count charging murder of Lonnie Barnard, a count of assault upon Joseph Abreu with intent to commit murder, and a count of assault with intent to commit murder upon David Brewton. A jury found Otwell guilty on all four counts, fixing the homicide as second degree murder. The jury returned verdicts finding Butts guilty of conspiracy to commit assault, involuntary manslaughter as an included lesser offense, and simple assault upon Abreu and Brewton as included lesser offenses. New trial motions were denied and judgments pronounced. Both defendants appeal.

Near 2 o'clock in the morning, Butts, 27, and Otwell, 22, were driving through Oroville on their way to get some breakfast. Otwell was driving Butts' aging Nash because Butts was intoxicated. Otwell pulled out suddenly after stopping at an arterial sign, spraying gravel on a new Chevrolet in which Jack Herd, 19, Larry Herd, 17, and Lonnie Barnard, 20, were riding. When Otwell turned into the lot of a cafe called Miner's Inn, the Chevrolet pulled alongside and Lonnie Barnard asked defendants if they wanted to 'race for five.' Otwell said that he did not want to race.

At that point Butts left his car and walked around to the right side of the Chevrolet where Lonnie Barnard was sitting. Butts told Lonnie that he wouldn't race him for five but would fight him for ten. When Lonnie declined to fight, Butts reached in through the car window and hit him in the face. Butts testified that he couldn't remember hitting anyone, but that while he was between the cars somebody grabbed his arm and he pulled it away. After this incident the boys drove away and defendants went into the Miner's Inn.

The Herd brothers and Lonnie then drove to the home of Tom Abreu, 17, and picked him up, telling him only that they were going back to the Miner's Inn. On the way back Lonnie told Abreu that he was going to fight 'some big guys' and that he wanted Abreu, a good fighter, to come along to keep the fight fair. Gerald David Brewton and Tom Abreu's younger brother, Joey, sensed that a fight was brewing and followed in Brewton's car to watch.

Meanwhile Butts and Otwell were having coffee at the Miner's Inn and at least one of them had ordered food. Butts testified that he felt like vomiting and had gone outside to find the men's room when the boys began calling him names. Other testimony was that the boys went to the side door of the cafe and saw both defendants seated at the counter, that they gestured to defendants indicating that defendants should come out and fight and that one of them answered '* * * after we get done eating, punk.' In any event, neither defendant waited to eat. Butts went outside and Otwell either accompanied him or followed about two minutes later. The boys testified that Butts and Otwell walked side by side and followed Lonnie Barnard and Tom Abreu to the lot behind the cafe. The boys said that Butts attacked Abreu; Butts claimed that he was attacked by several boys. Two separate skirmishes developed, Butts fighting Tom Abreu and Lonnie Barnard fighting Otwell some 45 to 100 feet away. According to the boys' testimony, the Herd brothers and Joey Abreu remained in one of the cars, while Gerald Brewton was near the side of the cafe but not engaged in the fight.

Butts was too intoxicated to land a punch and was struck repeatedly by Tom Abreu. (Later evidence established that Butts' blood-alcohol level was .206 per cent, indicating according to medical witness that he was 'moderately drunk.') Then Jack Herd came from the car and beat Butts while Abreu held him in a 'full nelson.' In the fight between Lonnie Barnard and Otwell, Lonnie staggered and doubled up after being struck several times by Otwell. When Brewton and Joey Abreu went to help him, each received a blow from Otwell. Brewton said that at first it seemed as though Otwell were hitting very hard and then he realized that he had been cut and was bleeding. Larry Herd ran to Lonnie Barnard and began to help him from the scene. Barnard told him that Otwell had a knife and to warn the others. About this time Otwell said 'You damn right I've got a knife, and I'm going to use it.'

Otwell then ran toward the Butts fight. On hearing the warning of a knife, Tom Abreu and Jack Herd left Butts and ran away, circling around to help Larry Herd with Barnard, who had collapsed. Butts and Otwell then advanced on the boys. Unable to carry Barnard any further, Larry Herd and Tom Abreu laid him on the ground and began to throw rocks at the oncoming defendants. The two groups exchanged rocks with Jack Herd joining in. Suddenly Butts and Otwell ran to their car and drove away.

Lonnie Barnard was cut in five places and died of a stab wound which penetrated his heart. Brewton received a cut on the right shoulder and a second cut, approximately 3 1/2 inches long, extending from his left armpit toward his neck. Joey Abreu received a 3-inch cut on the left side of his chest and a small cut near the right collarbone. Otwell's trousers were blood-stained when defendants were arrested approximately an hour after the fight. When defendants' car was found, the front seat and the steering wheel were stained with blood. Otwell's weapon was never found. One witness testified to a metallic gleam during the fight. A pathologist testified that Barnard's cuts were probably inflicted by a small knife.

Appeal of Otwell

Before proceeding to more substantial issues, we dispose of two minor assignments of error forming the only grounds of attack on Otwell's second degree murder conviction.

Otwell's brother James was called as a character witness and testified that his brother's reputation for peace and quiet was good. In the course of his cross-examination by the deputy district attorney the following colloquy occurred:

'Q Was your, was your brother arrested and convicted of burglary during that year in Louisiana?

'A I don't remember what year.

'Q Did he do two years in the penitentiary there about that time?'

Otwell's trial counsel promptly objected and assigned the question as misconduct. Indeed it was improper. Although, as a means of testing the character witness' knowledge of reputation, the district attorney may ask the witness whether he has heard of specific acts of misconduct, he may not ask the witness whether he knows of specific acts of misconduct. (People v. Marsh, 58 Cal.2d 732, 745-746, 26 Cal.Rptr. 300, 376 P.2d 300.) The trial judge immediately sustained the defense objection, admonished the jury and instructed the prosecutor to defer that line of examination until court and counsel could confer. Later, outside the jury's presence, the trial judge instructed counsel on the appropriate method of cross-examination. From that point on the prosecution adhered to the approved mode of cross-examination.

The prosecution error appears to have been inadvertent. Whatever slight harm it caused was promptly obviated by the trial court. Viewed in relation to evidence over-whelmingly establishing Otwell's guilt of second degree murder, the court's admonition to the jury was adequate to cure the error. If misconduct at all, the prosecution questioning did not result in a miscarriage of justice. (Cal.Const., art. VI, sec. 4 1/2.)

A second claim of error is postulated on the denial of Otwell's new trial motion based upon newly discovered evidence. In support of the moton Otwell's trial counsel submitted the affidavit of one Hamby, who averred that at approximately 2:00 a. m. on the morning of the fight Lonnie Barnard came to his home and said: 'We've got some trouble going at Miner's Inn. Would you come and help us?' On appeal it is argued that Hamby's newly discovered testimony would assist Otwell's claim of self-defense by making it apparent that Barnard was collecting other boys in order to mount an overwhelming attack on defendants rather than getting just enough help to assure a fair fight. In actuality, Hamby's statement adds little to the trial testimony, for the other boys had testified to Barnard's pleas for reinforcements. A trial court has broad discretion in passing on a new trial motion based upon newly discovered evidence. (People v. Greenwood, 47 Cal.2d 819, 821, 306 P.2d 427.) The proferred evidence was merely cumulative and fell far short of the requirement that it possess enough strength to indicate the probability of a different result on retrial. (Witkin, Cal.Crim.Procedure, sec. 561, p. 570.) There was no abuse of discretion.

Otwell contends that the verdicts finding him guilty of assault with intent to commit murder are inconsistent with the second degree murder verdict. Conviction of second degree murder requires no proof of premeditation or even of actual intent to take life; rather, the malice (intent) necessary to constitute second degree murder may be implied from commission of an unlawful act without sufficient provocation 'or when the circumstances attending the killing show an abandoned and malignant heart.' (Pen.Code, sec. 188; 1 Witkin, Cal.Crimes, secs. 298-300, pp. 273-275; 25 Cal.Jur.2d, Homicide, secs. 109, 110, pp. 620-622.) The rule applicable to a killing resulting from assault with a deadly weapon is: "When it is proved that defendant assaulted decedent with a dangerous weapon in a manner...