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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Gerald OTWELL, Defendant and Appellant.

Cr. 3558.

Decided: August 15, 1967

Miles Snyder, Sacramento, Court-appointed counsel, for appellant. Thomas C. Lynch, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and Raymond M. Momboisse and Daniel J. Kremer, Deputy Attys. Gen., Sacramento, for respondent.

The appeal of defendant Otwell confronts us for the third time.   Our first decision dated March 12, 1965 (sub. nom. People v. Butts, 232 A.C.A. 979, 43 Cal.Rptr. 172) reversed Otwell's conviction of conspiracy but affirmed his conviction of second degree murder and of two counts of assault with intent to commit murder.   About six weeks later the federal Supreme Court decided Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, declaring unconstitutional the California law which had permitted the prosecution to comment and the court to instruct the jury on permissible inferences to be drawn from an accused's failure to take the stand.   Such comment and instruction had characterized Otwell's trial.   On June 3, 1965, the California Supreme Court granted Otwell's petition for hearing and returned his case to this court for further consideration in the light of Griffin.

We filed our second decision (sub. nom. People v. Butts, 236 Cal.App.2d 817, 46 Cal.Rptr. 362) on August 25, 1965.   In deciding whether the constitutional error at his trial was harmless or prejudicial, we applied the standard imposed by California law and enunciated in People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.   That standard entails appellate review of the entire record to ascertain whether there is a reasonable probability that the jury would have reached a more favorable verdict absent the error.   We held that the Griffin-type error in Otwell's trial required reversal as to the two counts of assault with intent to commit murder but was harmless relative to the second degree murder count.   The California Supreme Court then rejected Otwell's petition for hearing and he sought certiorari in the federal Supreme Court.

About 18 months after our affirmance of Otwell's murder conviction, the federal Supreme Court decided Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.   Chapman holds that before federal constitutional error (specifically, Griffin-type error) can be held harmless, the reviewing court must be able to declare a belief that it was harmless beyond a reasonable doubt.   On March 13, 1967, the federal Supreme Court granted Otwell a writ of certiorari and remanded his case to this court for reconsideration in the light of Chapman.   We then recalled the remittitur, reinstating his appeal.   Having twice decided Otwell's appeal in conformity with then prevailing legal standards, we now approach a third decision, guided by the presently prevailing legal standard.

The facts are recounted in detail in People v. Butts, supra, 236 Cal.App.2d 817, 46 Cal.Rptr. 362, and need be restated only in condensed form.   Suffice it to say that Otwell and his codefendant Butts had become involved in a fistfight after being challenged by a group of youths.   While engaged in fisticuffs with a youth named Barnard, Otwell stabbed him repeatedly and mortally with a knife.   He then inflicted knife wounds on two of the youth's companions as they attempted a rescue.   As the rescuers interceded, Otwell was heard to say, “You damn right I've got a knife, and I'm going to use it.”

There was no significant conflict in the witnesses' description of the fight and stabbing, no question of identity or claim of alibi.   Seven witnesses described the fight;  the condition of the wounded boys was described by others.   Butts, the codefendant, took the stand in his own defense, testifying that he had been drunk;  that he vaguely recalled being kicked and beaten by some strangers;  that he knew nothing of Otwell's resort to a knife.   Otwell did not testify.   In Otwell's defense his brother testified to a childhood skull fracture which left the defendant with a vulnerable skull condition so that a blow on the head might kill him.   A medical witness testified to the existence of a skull depression.   In jury argument Otwell's attorney argued that his client's skull condition created a fear that a blow on the head might cause death or blindness.

In his jury argument the prosecutor summarized the evidence, commenting on Butts' lack of memory and Otwell's failure to testify.1  Immediately following the comment, the prosecutor urged that Otwell's use of the knife had been deliberate.2  The court gave the jury the instruction then permitted by California law and later proscribed by the Griffin decision, telling the jury that a defendant's failure to testify could be taken into consideration as tending to indicate the truth of evidence which he could reasonably be expected to explain or deny and “as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.”   The court also gave the standard instruction (CALJIC 305–AA) which tells the jury to resolve any reasonable doubt between murder and manslaughter in favor of the latter.

After a period of deliberation, the jurors returned to court at their own request and asked that the testimony of Otwell's brother be re-read.

In our second review of Otwell's conviction we found no reasonable probability that the error influenced the second degree murder verdict.   We found “evidence to spare, supplying extremely strong inferences of the implied malice and absence of justification which are ingredients of second degree murder.”   (236 Cal.App.2d at p. 833, 46 Cal.Rptr. at p. 372.)   We stated that in view of the evidence and the instructions “a verdict of acquittal or of guilt of a lesser offense would have been a veritable blunder.”  (236 Cal.App.2d at p. 834, 46 Cal.Rptr. at p. 372.)   This strong language—conceived in the light of the California test of reasonable probability—must not becloud our present duty to apply the federal test of belief beyond a reasonable doubt.   As construed in California, the Chapman test poses the question whether there is a reasonable possibility that the error affected the outcome of the trial, that is, the verdict reached by the jury.  (People v. Ross, 67 A.C. 58, 67–68, 60 Cal.Rptr. 254, 429 P.2d 606.)   The inquiry involves not only the question of guilt or innocence, but also—in a crime divided into degrees—the jury's choice of a higher rather than a lesser degree.   In returning a verdict finding Otwell guilty of second degree murder, the jury rejected the alternatives of voluntary and involuntary manslaughter offered to them by the trial court's instructions.

 If the jury found a premeditated malicious killing, Otwell's crime was murder in the first degree;  if a killing committed without premeditation but with malice, murder in the second degree.   The trial court appropriately instructed the jury that 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, § 188;  1 Witkin, Cal.Crimes (1963) §§ 298, 300, pp. 273–275;  25 Cal.Jur.2d, Homicide, §§ 109, 110, pp. 620–622.)   If the jury found a killing committed without malice but “upon a sudden quarrel or heat of passion” the crime was voluntary manslaughter;  or if without malice but negligently or in the commission of a nonfelonious, unlawful act, involuntary manslaughter.   (Pen.Code, § 192.)   The choice among these various levels of homicide necessarily drew the jury into an inquiry into Otwell's state of mind as well as the external events.   The latter were quite clear, and the relatively puny force of the unconstitutional comment and instruction could hardly have altered the jury's view of them.   Only the problem of Otwell's state of mind or intent involved the jury in uncertainties.   As we observed in our second decision:  “If the error influenced the jury in any measurable degree, it was at the points where intent was in issue.”  (236 Cal.App.2d at p. 833, 46 Cal.Rptr. at p. 372.)

So far as the error may have affected the degree of the crime, a process of elimination limits its possible impact to the jury's choice between second degree murder and voluntary manslaughter.   The verdict necessarily implied a finding of absence of premeditation, thus eliminating first degree murder.   Involuntary manslaughter had so little support in the record that the instruction on that crime might well have been omitted.   There was no evidence at all of any lapse of consciousness or absence of volition in Otwell's resort to the knife.  (Cf. People v. Modesto, 59 Cal.2d 722, 31 Cal.Rptr. 225, 382 P.2d 33.)   Far from permitting the alternative of a homicide committed negligently or in the performance of an unlawful act not amounting to a felony, the uncontradicted evidence demonstrated intentional use of a deadly weapon, a felonious means.   The jury's problem lay in a choice between second second degree murder and voluntary manslaughter.   We thus reach the heart of our inquiry, “ * * * whether there is a reasonable possibility that the [error] complained of might have contributed” to the jury's choice of second degree murder rather than voluntary manslaughter.  (Chapman v. State of California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 710, quoting from Fahy v. State of Connecticut, 375 U.S. 85, 86, 84 S.Ct. 229, 11 L.Ed.2d 171.)

 Terror is one of the passions which may dethrone the judgment and mitigate a killing to the level of voluntary manslaughter.  (People v. Logan, 175 Cal. 45, 48–49, 164 P. 1121;  see Stevenson v. United States, 162 U.S. 313, 321–322, 16 S.Ct. 839, 40 L.Ed. 980;  Jackson v. Superior Court, 62 Cal.2d 521, 526, 42 Cal.Rptr. 838, 399 P.2d 374.)   However weak the evidence to support it, terror or intense fear was a vital element in Otwell's defense.   In challenging Otwell, Barnard, his opponent, had referred to him as the “little guy.”   As Otwell and Barnard fought, Otwell's companion, Butts, was being held in a “full nelson” by one youth and struck repeatedly by another.   Otwell's counsel presented what evidence he could of a depressed skull condition which made his client fearful of blows to the head.   His closing argument focused on Otwell's fear of “blindness or death if he were struck in this particular area of his head.”   After commencing deliberation the jury displayed its interest in that phase of the case by asking to rehear the testimony of Otwell's brother.   Far more than his brother, Otwell had knowledge of his own physical condition and motivations.   If the prosecution evidence supplied an inference of implied malice, he might reasonably be expected to explain it by describing an extreme state of fear.   Yet he had chosen silence.   The unconstitutional instruction from the court, describing unfavorable inferences which might be drawn from his silence, would tend to repel any faith in the tale of skull injury and fear.   Although the jury had been instructed that reasonable doubt between murder and manslaughter was to be resolved in favor of the latter, the unconstitutional comment and instruction would tend to submerge such doubt and incline the jury toward the harsher verdict.   That the harsher verdict was more justified, the softer verdict hardly justified, is irrelevant.   The point is that the error may have repressed a real doubt in the mind of a reasoning juror.  (People v. Modesto, 66 A.C. 725, 744, 59 Cal.Rptr. 124, 427 P.2d 788;  see also People v. Ross, supra, 67 A.C. at p. 73, 60 Cal.Rptr. 254, 429 P.2d 606, dissent of Traynor, C.J.)   There is a reasonable possibility that the error may have contributed to the jury's choice of second degree murder and its rejection of voluntary manslaughter.   The error was therefore prejudicial.

 There is no reasonable possibility that the error contributed to the jury's choice between conviction and acquittal.   The trial produced no significant conflict in the evidence of external events;  no claim of noninvolvement;  no assertion of unconsciousness or lack of volition.   Otwell's counsel did make a claim of self-defense and the court instructed the jury on that topic.3  Self-defense as a justification for homicide is not available to one who seeks a quarrel or engages in mutual combat unless he has first attempted to withdraw.  (Pen.Code, § 197, subd. 3;  People v. Holt, 25 Cal.2d 59, 65–66, 153 P.2d 21.)   As one authority puts it:  “Where both parties are in the wrong, neither is privileged to use deadly force without retreating.”  (Perkins on Criminal Law (1957) p. 896.)   The uncontradicted evidence portrayed Otwell as one who engaged in mutual combat and made no attempt to withdraw before stabbing his opponent.   Nor is self-defense available to one who resorts to excessive force.  (People v. Moody, 62 Cal.App.2d 18, 22, 143 P.2d 978;  Perkins, op. cit. p. 886.)  “A simple assault does not justify homicide.”  (People v. Anderson, 57 Cal.App. 721, 727, 208 P. 204, 207.)   The evidence demonstrated that Otwell had consented to a fistfight, then resorted to a deadly weapon.   Having received instructions reflecting these concepts, no reasoning juror could exonerate him as one who had committed a justifiable homicide.4  Otwell's claim of self-defense was ineffectual as a matter of law.   At this point there was no “live nerve” in the defense which might generate a doubt of guilt in the mind of a reasoning juror.  (People v. Ross, supra, 67 A.C. at p. 69, 60 Cal.Rptr. 254, 429 P.2d 606.)   In terms of reasonable possibilities, such a juror could select between inferences leading to a verdict of second degree murder or voluntary manslaughter, but not one leading to justification or acquittal.   Relative to its effect upon the finding of guilt, the error was inconsequential.

If, within 30 days after the filing of this decision, the People file their written consent thereto, the cause shall be remanded to the trial court with directions to arraign the defendant for judgment and to modify the judgment by reducing the degree of the crime to voluntary manslaughter;  in the absence of such consent the judgment is reversed and the cause remanded to the trial court for a retrial limited to the question whether defendant Otwell is guilty of second degree murder or voluntary manslaughter.   We adhere to our decision of August 25, 1965, People v. Butts, supra, 236 Cal.App.2d 817, 46 Cal.Rptr. 362, to the extent that it reverses Otwell's conviction of two counts of assault with intent to commit murder and reverses his conviction of conspiracy to commit assault with directions to dismiss the last-named charge.

FRIEDMAN, Associate Justice.

PIERCE, P.J., and REGAN, J., concur. Hearing granted;  MOSK, J., not participating.

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