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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Robert Louis TOLBERT, Defendant and Appellant.

No. E015955.

Decided: September 12, 1996

Roberta K. Thyfault, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster and Garrett Beaumont, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Robert Louis Tolbert (defendant) was convicted of murder, robbery, and kidnapping for robbery, as well as of being a felon in possession of a firearm.   He was sentenced to, among other things, two consecutive life terms in prison.   In this appeal, he contends that the trial court erred by:

1. Ruling that defendant had waived the attorney-client privilege with respect to a note he had written to his attorney.

2. Excluding evidence that prosecution witness Jerome Bolton had been found in possession of ammunition for a shotgun of the same caliber as the murder weapon.

3. Excluding evidence that a defense investigator had tried but failed to locate Melvin Butts, whom defendant claimed to have visited on the night of the murder.

4. Imposing separate sentences for murder and for kidnapping for robbery, in violation of Penal Code section 654.

5. Imposing a consecutive sentence for kidnapping for robbery based on a dual use of the facts of the murder conviction and a firearm use enhancement.

On our own motion, we raised the additional issue of whether there was sufficient evidence that defendant knew the victim of the kidnapping was still alive during the asportation.   In the published portion of this opinion, we hold that there was not, so that defendant's kidnapping for robbery conviction must be reversed;  this renders his sentencing contentions moot.   In the unpublished portion of this opinion, we hold that exclusion of the evidence regarding Melvin Butts was erroneous, but harmless;  otherwise, we find no error.


FACTUAL BACKGROUNDA. The Murder of William Killingbeck.

Victim William Killingbeck and his wife Kim 1 ran a gift shop in Riverside.   In the past, Killingbeck had used methamphetamine;  more recently, however, he had not been using any drugs.

On November 12, 1993, between 11 p.m. and midnight, Jerome Bolton visited the Killingbecks.   Jerome and Killingbeck were good friends;  they had known each other since 1980.   Killingbeck had put up his house to bail Jerome out of jail.2  Killingbeck said he would come over soon to pick up a black leather jacket he had left at Jerome's house.   After a few minutes, Jerome left.

Between 1 and 1:15 a.m.,3 Killingbeck left to get the jacket.   He was driving his wife's new blue Mercury Tracer.

Jerome lived with a roommate, Christopher “Malone” Butler, on 29th Street, near Taos Drive, in Rubidoux.   Defendant's parents lived next door.

Some time before 2 a.m., defendant went to Myra Davis's house, just around the corner.4  Defendant asked if Jerome was there;  he said “there was a guy sitting in front of [Jerome's] house ․ waiting for him.”   He added, “It doesn't look good for a white guy sitting there in the neighborhood that time of night.”   Myra said to tell him he could come to her house and wait.   Defendant said, “Okay,” and left.

Between 2 and 3 a.m., Jerome, his 10–year–old son Jerald, and his roommate Malone all came to Myra's house.5  Myra told Jerome, “[Y]our friend's waiting for you around the corner.”   Jerome and Jerald left.   They saw Killingbeck's car pulling up to Jerome's house;  its headlights were off.   It stopped suddenly, accelerated backward, then went around a corner.

Jerome and Jerald gave chase.   After a series of cat-and-mouse maneuvers, Jerome began to think Killingbeck had been carjacked.   He went back to Myra's house and called Killingbeck's wife.   He then went out again, this time taking Malone with him, to look for either Killingbeck or his car.   They saw the car and followed it briefly, but they turned back to call Killingbeck's wife to make sure they were following the right car.6

At about 3:45 a.m., the resident of a house on Taos near 29th Street awoke to find Killingbeck's car in her front yard, on fire.   She called 911.7  Jerome and Malone saw smoke rising from near their house and drove to the scene.

After fire fighters put out the fire, they found Killingbeck's body in the trunk of the car.   He had been shot in the right eye, once.   The gun, a .410 caliber shotgun, had been fired from a distance of only 6 to 12 inches.   This wound rendered him unconscious immediately, and would have been fatal in any event.   However, he was still alive during the fire, as shown by soot and carbon monoxide in his lungs.   He also had a potentially lethal amount of methamphetamine in his system.

No money was found with the body.   Killingbeck's wife learned later that $700 to $1,000 in cash was missing from the gift shop.

After Jerome told police the car belonged to his friend, they detained and interviewed him.   At the time, he did not smell of gasoline.   According to Malone,8 Jerome did not own a shotgun or other firearm.

On November 13, arson investigators inspected the burnt car.   They did not smell gasoline, and they found no evidence that an accelerant had been used.

B. Defendant's Statement to the Police.

On November 17, the police interviewed defendant.   He was not yet a suspect;  they wanted to speak to him only because, according to Myra Davis, he had seen Killingbeck shortly before his death.

Defendant stated that he lived with his girlfriend, April Louis, in a trailer on El Rio Street.   On the night of the murder, at about 8 p.m.,9 he was leaving his mother's house when he saw Killingbeck, in a car in front of Jerome's house.   Killingbeck knew defendant's mother and brother Blake.   He asked defendant where he could buy some rock cocaine.   Defendant took Killingbeck to get some, but first he stopped briefly at Myra's house;  she told defendant to have Killingbeck come in and wait, but defendant told her, “[W]e're going to go down and get some dope.”

Defendant got into Killingbeck's car and they drove to the home of defendant's cousin, Melvin Butts.   Melvin lived on El Rio, right next to defendant.   Killingbeck gave defendant $10;  defendant went into Melvin's house and bought a “dime rock” from him.   Defendant and Killingbeck smoked the cocaine together in Killingbeck's car.

Not later than 9 p.m., Killingbeck left and defendant went home.   His girlfriend April was there.   He then went back to Melvin's house and got another rock.   Either at his house or Melvin's house, he watched a movie on television called “I Come in Peace.”   He left around 9 or 10 p.m. and walked to Ziki Gunder's house.   There he found a party going on.   Defendant drank, and eventually fell asleep on the couch.

At 6 or 7 a.m. the next morning, according to defendant, Tim Butler came to Ziki's house.10  Defendant told police Tim smelled of gasoline.

C. Tim Butler's Statement to the Police.

On November 19, after defendant told the police Tim had smelled of gasoline, they reexamined the burnt car.   In it they found a large plastic container which smelled of gasoline.   When they ripped open the seats, “a very strong odor” of gasoline came out.   Another arson investigator inspected the car and concluded that gasoline had been used to set the fire.

On November 24, the police interviewed Tim.11 They told him “[defendant] is putting the finger on you,” and that defendant had said he smelled of gasoline.   Tim then gave a statement incriminating defendant.

According to Tim, on the night of the murder, he went with defendant's cousins Willena Banks and Melody Conyers, and Melody's boyfriend Roy Holloway, to buy rock cocaine at a house on Mennes Avenue.12  There, Tim saw a blue, “newer type car” resembling Killingbeck's in the driveway.   No one was in it, but the engine was running and the headlights were on.   Tim decided to “take it for a ride.”   He walked toward it, but defendant, who was also in the driveway, said, “Don't touch the car.   There's a dead body in it.”   Tim thought he was joking.

Later that night, Tim went to Ziki Gunder's house.   On the way, he saw flashing lights at 29th and Taos.   When he got to Ziki's house, defendant answered the door.   Tim asked what was going on;  defendant answered that a white boy had been shot.   Tim left.

Tim told police, and testified at trial, that about a month before the murder, he saw defendant outside a liquor store with a sawed-off .410 caliber shotgun.13  He told the police this before he knew the murder weapon was a .410 caliber shotgun.   Tim himself had never owned a shotgun.

D. Evidence Relevant to Tim's Statement.

Ola Ebony Jones,14 an inhabitant of the crack house on Mennes, confirmed that Tim, Willena and Melody came there on the night of the murder to buy rock cocaine.   Five to ten minutes after they left, defendant came in, also to buy rock cocaine.

Willena, Melody and Roy also agreed that Tim had gone with them to the house on Mennes to buy rock cocaine.   Willena told police both Tim and Melody had mentioned seeing defendant there.   At trial, however, she denied this.   Willena also told police, and testified at trial, that she had seen defendant within the previous year with a sawed-off rifle or shotgun.

The time of the visit to the house on Mennes was crucial;  Tim was unable to pin it down.   Willena, Melody, and Roy all testified that when they picked Tim up, they were on the way to Pizza Plus. Willena testified that this was at 11:35 or 11:40 p.m.;   she added that she was hurrying because she thought Pizza Plus closed at midnight.  (Actually, it closed at 1 a.m.)   The group bought pizza and beer, then went directly to Mennes.15  Melody thought they got there between 10:30 and 11 p.m.   Willena thought they had already dropped Tim off again by 12:30 or 1 a.m.

E. Defendant's Grand Jury Testimony.

On January 5, 1994, defendant testified before the grand jury.   He told the grand jury much the same story as he had previously told police, with the following additions and exceptions.

Defendant was vaguer about when he first saw Killingbeck, stating that it was “8:00, 9:00, 10:00.   Somewhere in that area.”   He believed it was after 9 p.m., because he tried to get back into his mother's house, but could not.

When defendant was talking to Killingbeck, Willena drove up with Melody, and perhaps also with Roy.   Willena asked Killingbeck if she could borrow money from him.

When defendant got into Killingbeck's car, they went first to Myra's house to see if Jerome was there.   Defendant told Myra that Killingbeck was going to drop him off at his house, and come right back.

When defendant went home, he and April had an argument over the fact that he had come in late.   After 30 minutes or an hour, defendant left.   He denied going to Butts's house for a second rock of cocaine.   He claimed he went directly to Ziki's house.   When he got there, Ziki was asleep;  she got up and let him in.   As far as defendant could tell, there was no one else there.   He lay down on the couch and went to sleep.

Defendant was asked if he went to Deborah Warhop's house (i.e., the crack house on Mennes) that night.   He answered, “I don't remember.”   He was also asked if he smoked any other cocaine that night;  he answered that he had been told he bought cocaine from Ebony, and he vaguely remembered doing so.

Defendant denied having a gun with him that night, and he denied owning a .410 shotgun.

F. Evidence Relevant to Defendant's Statements.

Willena denied seeing defendant on the night of the murder;  she denied seeing Killingbeck or Killingbeck's car;  and she denied trying to borrow money from Killingbeck.

Killingbeck's wife had never known him to use rock cocaine.   According to Jerome, Killingbeck had used powder cocaine in the early 1980's, but not thereafter, and he had never used rock cocaine.

April Louis testified that she lived in an apartment (not a trailer) on El Rio.   Defendant's cousin Melvin Butts lived next door.   Defendant lived with Louis “off and on”;  he did not keep his clothes there, he did not have a key, and she sometimes refused to let him in.   They argued frequently about defendant coming in late.   She could not remember whether defendant was in her home, or whether they had an argument, on the night of the murder.   She had never seen defendant with a gun.

The movie “I Come in Peace” was on television at 6 p.m. on Sunday, November 14.   It did not air on November 12 or 13.

Ziki Gunder testified that on the night of the murder, she and her roommate Freda Jones arrived home around 1:30 a.m.   No party was going on, but some people did drop by later.   Defendant was one of them.   He went to sleep on the couch.   Between 2 and 2:30 a.m., Ziki went to sleep.   When she woke up, at 11 a.m., Tim was also there.   Neither defendant nor Tim smelled of gasoline.

Freda Jones testified that she and Ziki got home between 1 and 3 a.m.   There was no party;  “it was pretty quiet.”   They went right to bed;  half an hour later, defendant came over.   Ziki was already asleep;  Freda got up and let him in.   Defendant did not smell of gasoline.   Later that night, she woke up to go to the bathroom and found that Tim was also there.

G. Defense Evidence.

When called by the defense, Willena testified that it had actually been some 15 to 18 years since she had seen defendant with a rifle or shotgun.

Kris Holley testified that on the night of the murder, she was staying at the home of her niece, Sweet Burnett.   Kris was related to defendant by marriage.   Between 1:30 and 2 a.m., she went out to buy detergent and beer.   As she was leaving, she saw Tim getting out of a newer, blue car “exactly like” Killingbeck's.

The police had shown Holley a picture of the car and asked if she had seen it;  she said she had not, because “in the hood you mind your own business.”   She told family members what she had seen, but they told her, “[H]ush and mind your own business.”   During the first trial, she told defendant's brother, Randy “Snake–Ums” Tolbert, about seeing Tim with the car.   At his request, she contacted the defense.

Sweet Burnett testified that at about 1:40 or 1:50 a.m., after Kris had gone to the store, Tim knocked on her door.   She refused to let him in “[b]ecause he didn't look hi[m]self.”

II–V ***



Sua (or nostra) sponte, we questioned whether there was sufficient evidence that defendant knew Killingbeck was still alive during the asportation to support the kidnapping for robbery conviction.   After considering supplemental briefing on this issue, we reluctantly conclude that there was not, and that defendant's kidnapping for robbery conviction must be reversed.

Preliminarily, we must determine whether evidence of such knowledge was required.   We have found no California case directly on point.   However, we believe People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337 is controlling.   There, the Supreme Court held that:  “If a defendant entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented to accompany him ․, it is apparent he does not possess the wrongful intent that is a prerequisite ․ to a conviction of ․ kidnaping ( [Pen.Code,] § 207)․”  (Id., at p. 155, 125 Cal.Rptr. 745, 542 P.2d 1337.)   The court explained:  “Penal Code section 207 provides, ‘Every person who forcibly ․ takes ․ any person in this state, and carries him into ․ another part of the same county, ․ is guilty of kidnaping.’  ․   There is, of course, no kidnaping “ ‘when one, ․ with knowledge of what is taking place ․, voluntarily ․ consents to accompany another ․’ ” [citation]․”  (Id., at pp. 153–154, 125 Cal.Rptr. 745, 542 P.2d 1337, quoting People v. Rhoden (1972) 6 Cal.3d 519, 526, 99 Cal.Rptr. 751, 492 P.2d 1143.)

 “Penal Code section 26 recites, generally, that one is incapable of committing a crime who commits an act under a mistake of fact disproving any criminal intent.  Penal Code section 20 provides, ‘In every crime ․ there must exist a union, or joint operation of act and intent, or criminal negligence.’   The word ‘intent’ in section 20 means ‘wrongful intent.’  [Citation.]  ‘So basic is this requirement [of a union of act and wrongful intent] that it is an invariable element of every crime unless excluded expressly or by necessary implication.’  [Citation.]”  (People v. Mayberry, supra, 15 Cal.3d at p. 154, 125 Cal.Rptr. 745, 542 P.2d 1337, quoting People v. Vogel (1956) 46 Cal.2d 798, 801, fn. 2, 299 P.2d 850.)   The kidnapping statute “neither expressly nor by necessary implication negate [s] the continuing requirement that there be a union of act and wrongful intent.   The severe penalties imposed for th[is] offense[ ] ․ and the serious loss of reputation following conviction make it extremely unlikely that the Legislature intended to exclude as to th[is] offense[ ] the element of wrongful intent.”  (Id., at p. 155, 125 Cal.Rptr. 745, 542 P.2d 1337.)

 Mistake of fact is an affirmative defense.   The defendant therefore has the burden of producing evidence that “he had a bona fide and reasonable belief that the [victim] consented to the movement․”  (People v. Mayberry, supra, 15 Cal.3d at p. 157, 125 Cal.Rptr. 745, 542 P.2d 1337.)   The Supreme Court has since held that this burden may be met with evidence supplied by the prosecution.  (People v. Williams (1992) 4 Cal.4th 354, 361, 14 Cal.Rptr.2d 441, 841 P.2d 961.)   However, because wrongful intent is an element of the crime, the ultimate burden of persuasion is on the People;  the defendant is “only required to raise a reasonable doubt as to whether he had such a belief.”  (People v. Mayberry, supra, 15 Cal.3d at p. 157, 125 Cal.Rptr. 745, 542 P.2d 1337;  cf.  People v. Curtis (1994) 30 Cal.App.4th 1337, 1353, 37 Cal.Rptr.2d 304 [burden of proving defenses of justification and excuse].)

 We find ourselves unable to distinguish a mistake of fact about whether the kidnapping victim consents from a mistake of fact about whether the kidnapping victim is alive.   If the victim is dead, he or she is no longer a “person” who can be kidnapped, precisely because he or she can no longer give or withhold consent to the asportation.  (Cf. People v. Kelly (1992) 1 Cal.4th 495, 524, 3 Cal.Rptr.2d 677, 822 P.2d 385 [it is legally impossible to rape a dead body because “[a] dead body cannot consent to or protest a rape ․”];  People v. Thompson (1993) 12 Cal.App.4th 195, 201, 15 Cal.Rptr.2d 333 [“the crime of rape requires a live victim, because it requires nonconsensual sexual intercourse.”];  People v. Sellers (1988) 203 Cal.App.3d 1042, 1050, 250 Cal.Rptr. 345 [“Rape must be accomplished with a person, not a dead body.   It must be accomplished against a person's will.   A dead body cannot consent to or protest a rape ․”], fn. omitted.)   It does appear that under Mayberry, knowledge that the victim was alive is not an element of the crime of kidnapping which the prosecution must prove in all cases;  but if there is any evidence that the defendant honestly and reasonably believed the victim was dead, the People must prove beyond a reasonable doubt that the defendant lacked such a belief.21

 Here, there was ample evidence that defendant reasonably believed Killingbeck was dead before the asportation began.   Indeed, it seems amazing that Killingbeck stayed alive for any time at all.   He had been shot in the right eye by a shotgun held 6 to 12 inches away;  there was an exit wound behind his right ear.   Some of the pellets left through the exit wound, but “lots of them” remained inside.   The force was sufficient to leave his head “slightly deformed.”   He was rendered unconscious instantly;  the wound was inevitably fatal.   The pathologist testified that Killingbeck was able to live for a little while because the left side of his brain was uninjured, but this would hardly have been obvious to a layman.   The fact that defendant believed Killingbeck was dead is further evidenced by his comment to Tim that there was “a dead body” in the car, even though Killingbeck actually was still alive at the time.

Thus, it is inferable that defendant reasonably believed Killingbeck died immediately after he was shot.   On the other hand, there is no evidence that defendant did not reasonably believe Killingbeck died immediately.   Certainly one could imagine all sorts of scenarios in which defendant could have realized Killingbeck was still alive;  he might have noticed that Killingbeck was still breathing before he closed the trunk;  or he might have stopped the car at some point and opened the trunk to check on Killingbeck.  “But speculation is not evidence, less still substantial evidence.”  (People v. Berryman (1993) 6 Cal.4th 1048, 1081, 25 Cal.Rptr.2d 867, 864 P.2d 40.)

 The People therefore contend there was evidence that the asportation began before Killingbeck was shot.   First, they note that defendant first encountered Killingbeck outside Jerome's house.   They argue that it is unlikely that defendant shot him there;  certainly there was no evidence that anyone heard the sound of a shot.   They also note that, according to defendant, he got into Killingbeck's car and took him to buy rock cocaine.   The People conclude that defendant “forcibly commandeered Killingbeck's car” while Killingbeck was still alive.   We agree this is some evidence that Killingbeck went somewhere with defendant before he was shot.   However, there was no evidence that defendant forced Killingbeck to go with him.   It is equally possible that defendant lured Killingbeck into going voluntarily.   The People's scenario depends on speculation.

 Alternatively, the People suggest that even if Killingbeck went with defendant voluntarily at first, this movement would qualify as asportation as long as defendant subsequently restrained him using force or fear.   This is not the law.   The People cite People v. Davis (1995) 10 Cal.4th 463, 41 Cal.Rptr.2d 826, 896 P.2d 119.   There, the Supreme Court approved a jury instruction stating that:  “ ‘[A] kidnapping may occur where the victim initially voluntarily went somewhere with the defendant ․, but thereafter she was transported after being forcibly restrained from leaving.’ ”  (Id., at pp. 517–518, 41 Cal.Rptr.2d 826, 896 P.2d 119, original italics omitted, new italics added.)   Again, there was no evidence that after defendant first used force or fear, he knowingly transported a living Killingbeck anywhere.

 Finally, the People at one point suggested that defendant inferably forced Killingbeck to climb into the trunk, and that this was a sufficient asportation.   At oral argument, however, they conceded that this would not satisfy the asportation element of kidnapping for robbery.   We agree.  (See People v. Rayford (1994) 9 Cal.4th 1, 12, 36 Cal.Rptr.2d 317, 884 P.2d 1369;  People v. Stanworth (1974) 11 Cal.3d 588, 597–598, 114 Cal.Rptr. 250, 522 P.2d 1058;  In re Crumpton (1973) 9 Cal.3d 463, 466, 106 Cal.Rptr. 770, 507 P.2d 74;  People v. Mutch (1971) 4 Cal.3d 389, 397–398, 93 Cal.Rptr. 721, 482 P.2d 633.)

The only sufficient asportation here consisted of the movement of the car around Rubidoux with Killingbeck in the trunk.   There was substantial evidence that at this point defendant honestly and reasonably believed Killingbeck was dead;  there was no substantial evidence to the contrary.   Accordingly, the kidnapping for robbery conviction must be reversed.   Retrial is barred by double jeopardy.  (Burks v. United States (1978) 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1;  People v. Green, supra, 27 Cal.3d at p. 62, 164 Cal.Rptr. 1, 609 P.2d 468.)



The kidnapping for robbery conviction is reversed, and the case is remanded for resentencing.   In all other respects, the judgment is affirmed.


1.   Because the last names of many of the people involved were either the same or confusingly similar, we will use first names for everyone except Killingbeck.

2.   Jerome had three prior felony convictions, all marijuana-related.   At trial, he was also facing charges of sale and transportation of methamphetamine, possession of stolen property, and possession of a .45 caliber handgun.

3.   Kim knew what time it was because she looked at the clock;  however, it was kept 10 to 15 minutes fast.

4.   Myra was sure of the time because Stephanie, her nephew's girlfriend, who got off work at 2 a.m., was not home yet.

5.   It was after 2 a.m., because Stephanie had come home from work.

6.   Jerome gave inconsistent statements about, among other things, Killingbeck's reason for coming to his house and his own movements between Killingbeck's house and Myra's house.There also were inconsistencies between Jerome's testimony and that of Myra and Malone.   For example, according to both Myra and Malone, when Jerome left the first time, Jerald did not go with him.   Also, while Malone confirmed that he went with Jerome the second time, he denied seeing or following Killingbeck's car.

7.   The 911 call came in at 3:47 a.m.

8.   Malone had two prior felony convictions, for possession of cocaine and for receiving stolen property.

9.   Defendant was sure of the time because, he said, his mother would not let him in her house after 9 p.m.

10.   Tim Butler was a cousin of Jerome's roommate, Malone.   He lived nearby, on 26th Street.   He had known defendant for years.

11.   In 1990, Tim had pleaded guilty to two counts of robbery.   When interviewed, he was in prison for a parole violation.   When he testified at trial, he was in prison again, serving a two-year term after pleading guilty to possession of cocaine for sale.

12.   The house on Mennes was a “crack house,” occupied by Ola Ebony Jones, Kris Holley, and Deborah Robertson (a/k/a Warhop), among others.

13.   When Tim testified before the grand jury, he said he did not remember seeing defendant with a shotgun.At the first trial, Tim initially testified that he made up the story about seeing defendant with a shotgun, because he was upset “[a]t [defendant] for pointing the finger at [him]․”  He then reversed field yet again, and testified that he had in fact seen defendant with the shotgun.

14.   At the time of trial, Jones had been convicted of a felony involving cocaine and was in jail for violation of her probation.

15.   Roy thought they went home and ate the pizza before going back out to Mennes.

FOOTNOTE.   See footnote *, ante.

21.   Although relevant cases from other jurisdictions are surprisingly thin on the ground, the one we have found is in accord.   (People v. Miles (1969) 23 N.Y.2d 527, 536–538, 245 N.E.2d 688, 297 N.Y.S.2d 913 [defendants could not be guilty of kidnapping if they believed their victim was dead];  see also Gribble v. State (Tex.Crim.App.1990) 808 S.W.2d 65, 72, fn. 16 [“moving [a dead body] from place to place does not under any circumstances constitute the offense of kidnapping”].)

RICHLI, Associate Justice.

HOLLENHORST, Acting P.J., and McDANIEL, J.†, concur.

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