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

The PEOPLE, Plaintiff and Respondent, v. Michael Joe WHITTON, Defendant and Appellant.

No. G004760.

Decided: September 30, 1988

Phillip I. Bronson, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steven White, Chief Asst. Atty. Gen., Frederick R. Millar, Jr., and Deborah D. Factor, Deputy Attys. Gen., for plaintiff and respondent.

Michael Joe Whitton was convicted by jury of second degree murder.   He contends the use of his pretrial statements impeaching a witness violated his Miranda rights.2  He further argues the jurors received erroneous instructions on implied malice.


Shortly after midnight Brea Police Officer Joseph Bradshaw saw a car driving without its headlights on.   The car failed to stop when Bradshaw signaled for it to pull over.   The ensuing high speed chase ended when the car spun out of control and crashed into a tree.   Whitton, the driver, got out of the car and ran away.   Bradshaw did not pursue Whitton because he saw the victim, Carlene Walker, tucked in a fetal position behind the driver's seat.   Covered with blood and clad only in a nightgown, she mouthed the words, “Help me.”   Paramedics took Walker to Anaheim Memorial Hospital where she expired from stab wounds.

Whitton ran to the house of Dana Carroll, his high school friend.   Carroll let him sleep in the family car after Whitton explained his father locked him out of the house.   In the morning Whitton told Carroll he got a knife from his kitchen after blacking out, went to a neighborhood house and stabbed a woman.   He then got her car keys, put her in the automobile's back seat and drove until chased by the police.   He did not think he had killed the woman.

Later that day Whitton spoke with Misty Martinez at their high school.   Whitton recounted the same events, explaining he was in a daze.   He admitted obtaining the knife from his kitchen and estimated he stabbed Walker 40 times.   Whitton said he did not know why he attacked her, but denied being on drugs.

Whitton made similar admissions to Nancy Monzert, another classmate.   He added that he knew the victim because she had hired him to mow her lawn.

Police found a large pool of blood in Walker's kitchen, bloodstains in the empty garage, and two knives on the kitchen counter.   Whitton's fingerprints were found in Walker's car.

A forensic pathologist, Dr. Richard Fukamoto, examined Walker's body and found approximately 80 stab wounds;  the deepest penetrated three to five inches.   Most of the wounds were in the chest area and abdominal wall, although there were defensive wounds on the hands.   Death resulted from massive bleeding.

Whitton presented a “diminished capacity” defense.   Several teachers recounted his bizarre behavior at school and his reputation for drug usage.   Whitton's brother, John, testified Michael used LSD and alcohol.   John also saw Michael open amphetamine pills and snort the powder either on the night of the murder or the evening before.


Whitton contends the trial court erred in ruling the prosecution could use, for impeachment purposes, his pretrial statements to the police.   He argues this erroneous ruling spawned improper impeachment of Whitton's father which, in turn, compelled Whitton to introduce his entire statement to the jury.   Furthermore, Whitton maintains the statement's admission prevented him from calling a defense psychiatrist.

After his arrest Whitton was interrogated by La Habra Police Officers Rees, Lanier, and Knuth.   He initially denied involvement, but acknowledged responsibility when confronted with his earlier statements describing the stabbing to his schoolmates.   Whitton then elaborated on his earlier admissions and described his mental state.   He claimed that on the night of the homicide he drank three to six beers, smoked two marijuana cigarettes, and snorted two “black beauties” (amphetamines).   Whitton felt pain in his side, then recalled a “dazed sort of feeling ․ like it was a dream.”   Armed with his pocketknife, Whitton knocked on several doors in his neighborhood before approaching Walker's home.   Whitton vaguely remembered stabbing her in the kitchen but could not recall how many times.   He did not offer a motive for the attack.

Before the trial started, Whitton moved to exclude his statement because of a Miranda violation.   Before the motion was heard, however, the prosecutor agreed he would not introduce Whitton's statement during his case-in-chief.

During the defense case Whitton advised the court he wished to call a psychiatrist to testify how his mental condition was influenced by his drug history, and asked for a ruling prohibiting the prosecution from using his Miranda statements for impeachment.

A hearing under Evidence Code section 402 3 was held.   The evidence consisted of the taped interview of Whitton, a transcript of the interview, and Officer Lanier's police report.4  The report's relevant portion read as follows:  “Det. Knuth read Michael his rights from the form and then asked Michael if he understood his rights.   Michael responded to this question by saying ‘yes.’   Det. Knuth then asked Michael that having understood his rights, was he willing to talk to us at this time?   To this Michael responded, ‘Does that mean I can have an attorney?’   Det. Knuth told Michael that he could have an attorney present if he wanted one and he said that he did.   Det. Knuth then asked him to circle his response on the rights advisal form.   He had Michael read along with him, ‘Do you understand your rights as just explained to you.’ and Michael circled Yes.   He then read, ‘Having understood these rights as explained to you, are you willing to talk to us at this time?   Michael didn't answer and Det. Knuth told him that if he wanted an attorney present to circle the answer No.   Michael said that he wanted to talk to us and Det. Knuth told him that he could have his parents present if he wanted or he could have an attorney present before we talked to him.   Michael said that he didn't want his parents present and that he wanted to go ahead and talk to us.   He said that he didn't want an attorney because he didn't do anything.

“Det. Knuth then explained his rights to him again.   He told him that he didn't have to talk to us without an attorney and Michael said he understood and wanted to go ahead and talk to us without an attorney.   Det. Knuth told Michael that if there were any questions we asked that he did not want to answer that he didn't have to.   Michael then circled yes, that he was willing to talk to us.   Det. Knuth asked Michael if he knew what he was arrested for and Michael said yes.   Det. Knuth told Michael he was under arrest for suspicion of Murder and that it was a very serious charge.   Michael said he knew that.   Det. Knuth asked Michael if any threats or promises had been made to him by officers and Michael said no.

“During the last part of this conversation, Sgt. J. Rees had entered the room.   After being in the room for just a short time, Sgt. Rees advised Det. Knuth that the tape recorder was not recording and Det. Knuth checked it and found that the record button was not depressed.   Det. Knuth then started over with the rights and advisal and taped the following interview.  [Sic.]”  (Emphasis added.)

After Whitton made an offer of proof concerning the psychiatrist's testimony,5 the court ruled the statements could be used for impeachment.   Whitton decided not to call the doctor.

Later, the defense called Whitton's father, who testified their family did not have cutlery knives similar to the murder weapon.   In rebuttal, the prosecution called Officer Rees, who testified Whitton admitted during the taped interview he carried the knife with him when he left his home and approached Walker's door.   In response, Whitton played the entire taped interview for the jury.

The threshold question is whether there was a Miranda violation.   In Edwards v. Arizona (1981) 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, the United States Supreme Court held that a suspect who has “expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversation with the police.”  (Id., at pp. 484–485, 101 S.Ct. at pp. 1884–1885.)   Thus Edwards established a “bright-line rule” that “all questioning must cease after an accused requests counsel.”  (Smith v. Illinois (1984) 469 U.S. 91, 98, 105 S.Ct. 490, 494, 83 L.Ed.2d 488.)

Smith illustrates this constitutional principle well, and is analogous to our case.   Smith asserted his right to an attorney before police officers completed the entire Miranda advisal.   Nevertheless, the officers continued questioning Smith 6 about invoking his rights.

The Supreme Court held that all questioning must cease after a clear and unequivocal request for an attorney.   The court noted, “ ‘No authority, and no logic, permits the interrogator to proceed ․ on his own terms and as if the defendant had requested nothing, in the hope that the defendant might be induced to say something casting retrospective doubt on his initial statement that he wished to speak through an attorney․’  [Citation.]”  (Id., at p. 99, 105 S.Ct. at p. 494.)   Thus, “postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.”  (Id., at p. 100, 105 S.Ct. at p. 495.)

 According to Officer Lanier's police report, Whitton clearly requested an attorney.   Nothing more was required;  all police questioning should have ceased.   As in Smith, the police continued their questions even though Whitton asked for a lawyer.   But the written completion of a “rights advisal form” was unnecessary once Whitton clearly asserted his rights.   Moreover, it is contradictory to suggest a rights advisal form, designed to ensure a suspect understands his or her rights, can later be used to cast “retrospective doubt” on an earlier, unequivocal request for an attorney.

The Attorney General, attempting to distinguish Smith, argues the officers were merely “clarifying” Whitton's responses because “he appeared confused and did not understand his given rights.”

The record belies this contention.   There simply is no evidence supporting the suggestion Whitton “appeared confused” before asserting his right to an attorney.   Nor is there evidence Whitton did not understand his rights.   The officer told him he could have an attorney present if he wanted one;  Whitton said he did.   This simple and clear response hardly calls for a clarification.   Police can clarify a suspect's response only if there is some preceding ambiguity.  (People v. Carey (1986) 183 Cal.App.3d 99, 103, 227 Cal.Rptr. 813.)   There was none here.   Accordingly, Whitton's Miranda rights were violated.

 Nor were Whitton's statements admissible to impeach his father's testimony.   In People v. May (1988) 44 Cal.3d 309, 243 Cal.Rptr. 369, 748 P.2d 307, the California Supreme Court held that Proposition 8 mandated the adoption of the federal rule of Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1.   The rule is summarized as follows:  “The Harris court held that statements made to police under circumstances rendering them inadmissible under Miranda on the prosecution's case in chief could be admitted for purposes of impeachment of a testifying defendant whose trial testimony was inconsistent with the earlier statements.”  (People v. May, supra, 44 Cal.3d 309, 315, 243 Cal.Rptr. 369, 748 P.2d 307, emphasis added.)

Here, Whitton never testified.   Thus, the prosecutor's use of his statements to impeach another witness was improper because the predicate of a “testifying defendant” was never established.

 The error, however, is harmless.   Whitton told three other witnesses he had the knife when he approached the victim's house;  Whitton's admission he had the knife was merely cumulative to other properly received evidence.

Whitton also complains the trial court's Miranda ruling prevented him from calling a defense psychiatrist.   The claim is meritless.   Whitton's inadequate offer of proof failed to preserve the issue for review.

 An offer of proof must be specific, establishing the substance, purpose, and relevance of the evidence.  (Evid.Code, § 354, subd. (a).)  General or vague offers are inadequate.  “The substance of evidence to be set forth in a valid offer of proof means the testimony of specific witnesses, writings, material objects, or other things presented to the senses, to be introduced to prove the existence or nonexistence of a fact in issue.”   (United Savings & Loan Assn. v. Reeder Dev. Corp. (1976) 57 Cal.App.3d 282, 294, 129 Cal.Rptr. 113.)

 Whitton did not call the psychiatrist to testify at the Evidence Code section 402 hearing.   He merely recited a vague, general outline of the proffered testimony.   Furthermore, the substance of the psychiatrist's testimony, including Whitton's statements in the psychiatric interview, were not presented.   There is no way to know whether the prosecutor could have used Whitton's Miranda statements to cross-examine the doctor.   Moreover, the exact nature of the psychiatric opinion, and how it could have helped Whitton, was left unclear.7  Accordingly, Whitton's defective offer of proof precludes appellate review.


 Whitton contends the jury was instructed erroneously on the definition of implied malice.   The contested instruction, CALJIC No. 8.11, in relevant part reads as follows:  “Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life or when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”  (CALJIC No. 8.11 (7th ed. 1938).)   The definition was repeated for the jury in CALJIC No. 8.31 as one type of second degree murder.

Whitton argues the language in the first prong of the definition allowed the jury to convict him without finding he subjectively appreciated the life-threatening nature of his acts.   We agree the instruction is confusing but find any error harmless beyond a reasonable doubt.

In People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, our Supreme Court clarified the requirement a defendant must actually understand the life-threatening quality of his act, stating, “We have said that second degree murder based on implied malice has been committed when a person does ‘ “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life’ ”․'  [Citation.]  Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.  [Citation.]”  (Id., at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.)

The drafters of CALJIC, however, substituted the disjunctive “or” for the Supreme Court's transition “[p]hrased in a different way,” thus making it unclear that the two tests were synonymous.   The resulting ambiguity was noted by our colleagues in Division 1 of this district:  “This unfortunate substitution leads to the implication that there are two different tests for implied malice, the first of which does not require [subjective awareness].   This interpretation is wrong, for as the Watson court stated:  ‘[A] finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.’  (Id., at pp. 296–297, [179 Cal.Rptr. 43, 637 P.2d 279], original italics.)  [¶] It is clear that at the very least CALJIC No. 8.11 is confusing on this point.”   (People v. James (1987) 196 Cal.App.3d 272, 290, 241 Cal.Rptr. 691.)

The origins of the confusion are linguistic.   Few of us would use an archaic phrase like “wanton disregard for human life” in daily speech.   If such language must be used to instruct lay people about the complex law of homicide, we should at least define the dustier terms.   Yet nowhere in CALJIC is “wanton” explained.   Even the dictionary is of little help;  “wanton” is variously defined as:  “1. Immoral or unchaste;  lewd.   2.a. Maliciously cruel;  merciless.   b. Characterized by malicious cruelty;  unjust.   3. Freely extravagant;  excessive:  wanton spending.   4. Luxuriant;  overabundant:  wanton tresses.   5. Frolicsome;  playful.   6. Obs. Rebellious;  refractory.”  (The American Heritage Dict. (2d college ed. 1982) p. 1362.)   Nowhere is “wanton” defined as “knowing.”   Furthermore, the word “disregard” conveys anything but conscious appreciation;  it means “to pay no attention to:  treat as unworthy of regard or notice.”  (Websters New Collegiate Dict. (1987) p. 366.)   How can jurors be expected to understand that “wanton disregard for human life” means “consciously appreciating and disregarding the danger to human life?”

Normally we would decide whether it was error to give the contested instruction before reaching the issue of prejudice.8  Our Supreme Court, however, has recently used a different analytical approach in a similar context.   In People v. Brown (1988) 45 Cal.3d 1247, 1256, 248 Cal.Rptr. 817, 756 P.2d 204, the court stated:  “[t]he compelling implication ․ is that instructions such as those given here are not crucially erroneous, deficient, or misleading on their face, but may become so in particular circumstances.  [Citation.]   When the issue is not whether erroneous instructions have been cured by argument, but whether the interplay of argument with individually proper instructions produced a distorted meaning, it seems appropriate to evaluate the remarks of both counsel to determine whether the jury received adequate information.”

Here, the instruction did not omit an element of the offense, and the second prong is a clear and correct statement of the law.   Thus, the instruction is not “crucially erroneous” but, like the factor (k) instruction in Brown, is “potentially confusing.”  (Id., at p. 1255, 248 Cal.Rptr. 817, 756 P.2d 204.)

The difficulty with this approach, however, is illustrated when focusing on final arguments to determine whether the jury received a distorted meaning of implied malice.   Neither attorney made the contested instruction the centerpiece of his summation.   The prosecutor understandably pressed for premeditated murder;  his references to implied malice were limited to applying the first prong of CALJIC No. 8.11 to the facts.9  Defense counsel's argument focused mainly on the facts negating the elements of premeditation and deliberation.   His only discussion of CALJIC No. 8.11 was a short and unemphatic paraphrase of the instruction's first prong.   The final plea for a manslaughter verdict was based on Whitton's mental impairment.

 Thus, we cannot say the arguments distorted the meaning of implied malice.   But neither did they clarify what is certainly a confusing instruction.   The dilemma becomes apparent.   If the instruction is potentially confusing, and arguments do not clear up the ambiguity, was there a critical error in the trial?   Or was there no error at all because the instruction, although confusing, was not “crucially erroneous, deficient, or misleading?”   Perhaps the analytical framework recently suggested will become clearer in future cases.10  Here, we need not decide whether the trial court erred in giving the standard CALJIC instruction because any potential error was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)

It is not difficult to infer malice where the defendant seeks out and stabs a defenseless woman nearly 80 times and there is evidence of premeditation.   Whitton's statements to several witnesses described what he did and how he did it.   The evidence establishes Whitton understood that relentlessly stabbing the victim created a risk of death.   Moreover, Whitton's drug intoxication defense was weak and speculative.   There was no evidence establishing the effect of drugs on him;  indeed, it was unclear whether Whitton took any drugs on the night of the murder.   Finally, a special instruction 11 on the existence of malice enumerated factors indicating a subjective basis to the implied malice definition.   There was no reversible error.


Judgment affirmed.


2.   Miranda v. Arizona (1966) 384 U.S. 436, 485, 86 S.Ct. 1602, 1633, 16 L.Ed.2d 694.

3.   Section 402 provides for a hearing conducted out of the jury's presence to determine the admissibility of evidence.

4.   Both sides stipulated to the admission of the report.

5.   “We had a doctor who was prepared to testify that he had done an examination in the case, including an evaluation of witness' statements and conversation with Michael Whitton and review of reports to bring an opinion that there was a drug—bring an opinion of drug history with respect to Michael Whitton, and would be asked whether or not such a drug history would be expected to have a significant impact upon a person's mental condition and we would leave it at that.“My understanding is that thereafter the district attorney would be cross-examining the doctor, at least as far as he indicated to the court, with respect to not only the doctor's qualifications, but the doctor's foundation for reaching an opinion which the district attorney would direct toward Michael Whitton and that part of that cross-examination would be a detailed scrutiny of any and everything that Michael Whitton told the doctor about the offense.“I'd offer that the doctor's examination did not include the offense and that he had not asked questions regarding the offense and that if information arose in this case from the doctor which was in any way in conflict with the quote ‘confession’ closed quote of Michael Whitton that the district attorney would seek to impeach that information by bringing in factors within this confession.”

6.   “ ‘Q. Steve, I want to talk with you in reference to the armed robbery that took place at McDonald's restaurant on the morning of the 19th.   Are you familiar with this?  [¶] A.   Yeah.   My cousin Greg was.  [¶] Q.   Okay.   But before I do that I must advise you of your rights.   Okay?  You have a right to remain silent.   You do not have to talk to me unless you want to do so.   Do you understand that?  [¶] A.   Uh.   She told me to get my lawyer.   She said you guys would railroad me.  [¶] Q.  Do you understand that as I gave it to you, Steve?  [¶] A.   Yeah.  [¶] Q.   You have a right to consult with a lawyer and to have a lawyer present with you when you're being questioned.   Do you understand that?  [¶] A.  Uh, yeah.   I'd like to do that.  [¶] Q.   Okay.’  [Citation.]․  [¶] ‘Q.  ․ If you want a lawyer and you're unable to pay for one a lawyer will be appointed to represent you free of cost, do you understand that?  [¶] A.   Okay.  [¶] Q.   Do you wish to talk to me at this time without a lawyer being present?  [¶] A.   Yeah and no, uh, I don't know what's what, really.  [¶] Q.   Well.   You either have [to agree] to talk to me this time without a lawyer being present and if you do agree to talk with me without a lawyer being present you can stop at any time you want to.  [¶] Q.   All right.   I'll talk to you then.’  [Citation.]”  (Id., at pp. 92–93, 105 S.Ct. at pp. 491–492, fn. omitted.)

7.   It is possible the psychiatric testimony would have only helped reduce the crime to the verdict actually rendered:  second degree murder.

8.   In People v. Protopappas (1988) 201 Cal.App.3d 152, 246 Cal.Rptr. 915, we did not decide whether it was error to give CALJIC Nos. 8.11 and 8.31 because any potential error was harmless beyond a reasonable doubt.  (Id., at p. 163, 246 Cal.Rptr. 915.)

9.   The Attorney General contends the prosecutor equated the two prongs of CALJIC No. 8.11 and argued both required a finding of subjective awareness.   We disagree.   The prosecutor focused solely on the first prong.   And in order to rebut a defense claim of a drug-induced attack, he argued Whitton consciously performed an intentional act, and knew his actions were wrong:  “It's implied because he did an intentional act, stabbed her numerous times, creates a high probability death will result, done for a base antisocial purpose and for wanton disregard for human life.”  [Sic.]  Contrary to the Attorney General's claim, the prosecutor's statement did not equate the two prongs of CALJIC No. 8.11, nor did it convey the requirement of subjective awareness.

10.   Certainly questions remain:  Is there error only if arguments clearly establish a distorted meaning was given the jury?   Do we assume the jury employed the correct standard even though it is equally plausible an incorrect one was used?

11.   “In an evaluation of whether there is proof beyond a reasonable doubt whether there exists the mental state of malice aforethought—which is necessary to any degree and theory of murder, the jury may consider among other things:  [¶] 1.   The number of wounds inflicted, and their location and depth and other characteristics;  [¶] 2.   Evidence, if any, of forced or surreptitious entry into the house—or the lack thereof;  [¶] 3.   Motivation, or a lack thereof, to cause injury or death to the victim;  [¶] 4.   The level of maturity and awareness, or lack thereof, of defendant;  [¶] 5.   Physical observations of defendant after the incident;  [¶] 6.   Evidence of whether the defendant knew or believed that the victim was still alive after the infliction of injury.  [¶] 7.  Whether there is any evidence of a severe emotional disturbance affecting defendant.  [¶] 8.   Evidence, if any, of the use of drugs during the period surrounding the incident.  [¶] 9.   Whether defendant brought a deadly weapon with him to Carlene Walker's house.  [¶] 10.   Whether the defendant made forcible entry into Carlene Walker's house.  [¶] 11.   Whether defendant's attack on Carlene Walker was immediate, unprovoked, and without warning.  [¶] 12.   Whether the defendant knew that what he was doing was wrong.  [¶] 13.   Whether the defendant realized he was stabbing Carlene Walker numerous times.  [¶] 14.   Whether the defendant used a second knife to stab Carlene Walker after the first knife broke.  [¶] 15.   Whether the defendant did anything to help or aid Carlene Walker after the attack.  [¶] 16.   Whether the defendant attempted to avoid being apprehended by the police.  [¶] 17.   Whether the defendant tried to destroy evidence.  [¶] 18.   Whether the defendant lied in an attempt to avoid being prosecuted for Carlene Walker's death.”

SONENSHINE, Associate Justice.

SCOVILLE, P.J., and CROSBY, J., concur.