PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Henry BROMMEL, Defendant and Appellant.*
Defendant was charged with the crime of murder. He was tried before a jury, convicted of murder in the second degree, and sentenced to prison for the term prescribed by law. He appeals from the judgment of conviction and from the order denying his motion for a new trial.
Debra Jean Brommel, aged twenty-three months at death, is the alleged victim. She was born January 17, 1956, and died December 28, 1957. Defendant and his wife, Joyce Murphy Brommel, were the father and mother of Debra. The parents did not marry until August 31, 1957, some eighteen months after Debra's birth, but there is no dispute respecting parenthood. For about fifteen months prior to the marriage, Debra had been cared for exclusively by the Murphy family (Mrs. Brommel's mother, father, brothers and sisters), but principally by Mrs. Brommel's mother, Ramona Murphy. Shortly after marriage defendant and his wife assumed physical custody of Debra, although she continued to visit and be cared for at intervals by one or more of the Murphys. She died as the result of massive subdural hemorrhage brought on by some severe blow or blows which fractured her skull. Immediately prior to the discovery of this injury she was in the immediate and exclusive physical care of defendant. No one except defendant saw any blow or other application of force to the child's head which could have produced such an injury.
Proof of Corpus Delicti Re Admissions or Confessions
Defendant contends that the evidence was insufficient, aliunde defendant's admissions, to prove the corpus delicti sufficiently to allow the use of defendant's admissions made after the death.
In discussing the suffficiency of evidence on appeal, it must be borne in mind that the evidence most favorable to the prosecution must be regarded as true, and contradictory evidence must be disregarded. Speaking of this subject, our Supreme Court, in People v. Merkouris, 52 Cal.2d 672, 678, 344 P.2d 1, 4, states:
‘Therefore, the rule set forth in People v. Newland, 15 Cal.2d 678, 680 , 104 P.2d 778, is applicable, that is: In a criminal prosecution the weight of the evidence is for the jury to determine, and if the circumstances reasonably justify a verdict of guilty by the jury, an opinion of the reviewing court that those circumstances might also be reasonably reconciled with the innocence of the defendant does not warrant a reversal of a verdict of guilty by the jury.’
Stated with this rule in mind, and disregarding the conflicts, the evidence of corpus delicti, in general substance, is as follows: During the fifteen months that Debra was under the care of her grandmother, Ramona Murphy, which was immediately prior to the time that defendant and his wife assumed Debra's physical care, the child lived a normal active life with the usual incidents, but no bruise marks appeared on her body or face. She apparently did not bruise easily. After physical custody was assumed early in September, 1957, by defendant and his wife, repeatedly when Debra was in the immediate and exclusive care of defendant, she was badly bruised or burned.
A specific occasion was related as of October 24 when Debra was in the exclusive, personal care of defendant. A neighbor was to care for Debra during the two hours between the time defendant was to go to work and defendant's wife was to return home from her work. The neighbor knocked at defendant's door. Defendant did not answer for about five minutes. When he did he opened the door a small crack and said, ‘Wait a minute’. The neighbor then waited about ten minutes before he appeared. When caring for the child previously she had not taken the child in her arms. On this occasion Debra was clothed in coveralls. Defendant had her in his arms. He handed her to the neighbor without comment. The neighbor later discovered the child was in pain, examined her and found eight burns, two being on the buttocks and three on the inner aspect of each leg, the one on each leg being opposite to the one on the other leg. Later the child was taken to a doctor who also found burns on the genetalia, four red stripes showing burns on the right ankle and bruises on her face. Defendant later, and prior to Debra's death, stated the burns occurred because the child was standing on the floor furnace with her feet in her father's shoes. The doctor testified that the burns could not have occurred in the manner described by defendant. The burns were sufficiently severe that the doctor treated them fourteen times over a period of more than a month. Mrs. Murphy cared for Debra from October 24 to November 10. After the Brommels then resumed care of Debra, other bruises appeared, specific instances being related by both medical and lay testimony of observations on December 12, 17 and 23. Defendant lost his job about the middle of November and thereafter had more care of Debra than before.
On December 26, Debra was taken to the Murphy household, and appeared tired, whined a little. When picked up the movements of her body seemed ‘flighty’ meaning she ‘flinched’, she had black and blue marks on her face and she put her hand to the left side of her head. Next day, December 27, 1957, defendant came into Mrs. Murphy's home carrying Debra. Debra was unconscious. Defendant stated she had fallen out of a chair, backwards. She was taken to the hospital, where her head was operated on. She died the next morning due to massive subdural hemorrhage. An autopsy revealed that she had injuries to her head and face which resulted from a minimum of five separate and distinct applications of force. She had a bruise over the back of the right ear which must have resulted from a force which caught the ear and bent it forward. There was also a bruise on the upper cheek bone just below the outer angle of the right eye. There were four to six other bruises on the right cheek and the front of the right ear which were a week or more old, and a third bruise on the angle of the right jaw which must have resulted from substantial force. Four or five bruises were on the left cheek bone and lower on the left cheek, and still another bruise on the angle of the left jaw. There were abrasions on the tip of the nose, the forehead and the lip, which were more recent, and a laceration halfway through the inner lip. The doctors were of the opinion that this laceration must have been caused by some force pulling the lip directly up and away from the gum, or a fall catching the lip on an overhanging object. There were contusions and abrasions on the left chest, a swelling over the right eye and a healed trauma below the naval over the intestines. Her right arm had bruises which resulted from a minimum of two applications of force. There were several bruises near the right shoulder and marks on the mid-upper right arm which had the appearance of teeth marks from a hard bite. Spot burn scars as hereinbefore noted were apparent, and an ulceration or sore on the fourth toe of the left foot. The doctor described this as the kind and shape of burn that would have been caused by the end of a burning cigarette. Her skull was fractured and there was a massive subdural hemorrhage. In the opinion of three surgeons, it probably would not have been caused by simple fall such at that described by defendant.
In addition, the autopsy revealed a tearing of the right lung at the lower portion of its attachment, and contusions or bruises on both sides of the front portions of the same lung, bruises on the spleen and tearing of the ligamentous attachment of the liver to the diaphragm. The medical evidence clearly indicates that these internal injuries could not normally be expected as a result of a fall from a chair.
The doctors estimated the injury causing the death to have occurred from a few to forty-eight hours prior to death. Many of the bruise marks appeared to be older. Their estimates differentiated the ages of these and ranged from one to five days or more. The internal injuries were estimated to have occurred forty-eight to seventy-two hours prior to death. In the opinion of the doctors the internal injuries were not the immediate cause of death, but rather, the cause of death was the massive subdural hemorrhage of the brain.
Rules relative to the quantum or degree of evidence to establish the corpus delicti for the purpose of permitting the use of extrajudicial statements made by defendant after the commission of the crime have been established and reestablished by innumerable authorities throughout the United States. While there have been a few opinions rendered which seem to establish requirements more rigid than those expressed in the general rule, the vast majority of cases clearly abide by the rule as repeatedly announced and used by the California Supreme Court. At the outset, it is well to have in mind, and to keep in mind while reading the enunciations of the various authorities, the reason for the rule. This reason is that through long and bitter experience in the history of the administration of justice, alleged confessions or admissions were, on some occasions, due to the mental turmoil and strain of the defendant under the excitement and fear induced by the fact of arrest and confinement under the charge, or by excessive insistence of over-zealous police officers, obtained to crimes that did not, in fact, exist. Smith v. United States, 348 U.S. 147, 152, 75 S.Ct. 194 197, 99 L.Ed. 192. The exclusionary rule and the distinction between statements made prior to the commission of the offense and admissions after the offense occurred is tersely and succinctly stated in Warszower v. United States, 312 U.S. 342, 347[4–6], 61 S.Ct. 603, 606[4–6], 85 L.Ed. 876, where the court said:
‘The rule requiring corroboration of confessions protects the administration of the criminal law against errors in convictions based upon untrue confessions alone. Where the inconsistent statement was made prior to the crime this danger does not exist. Therefore we are of the view that such admissions do not need to be corroborated. They contain none of the inherent weaknesses of confessions or admissions after the fact.’
Our Supreme Court, in dealing with the same subject, has consistently held that for such purpose prima facie proof of the corpus delicti is sufficient. This will be seen in two brief quotations from the many cases in which the subject has been dealt with by our Supreme Court:
“Proof of the corpus delicti of the conclusive and convincing character required to support a conviction of the crime charged was not a prerequisite to the reception in evidence of the extrajudicial statements of the defendant that he had killed the deceased. Prima facie proof of the corpus delicti was sufficient for that purpose; and it was not essential to the proof and purpose to show that the crime charged was committed by the defendant.” People v. Selby, 198 Cal. 426, 434, 245 P. 426, 430.
See also People v. McMonigle, 29 Cal.2d 730, 738, 177 P.2d 745; People v. Cullen, 37 Cal.2d 614, 624, 234 P.2d 1; People v. Rupp, 41 Cal.2d 371, 378, 260 P.2d 1; People v. Amaya, 40 Cal.2d 70, 76, 251 P.2d 324.
‘The rule is well settled that ‘the corpus delicti must be proved by evidence outside the extrajudicial declarations and statements of a defendant. (Citations.) But it is likewise well settled that to authorize their reception in evidence and consideration by the jury, the prosecution is not required to establish the corpus delicti by proof as clear and convincing as is necessary to establish the fact of guilt; rather slight or prima facie proof is sufficient for such purpose * * *.’' People v. Corrales, 34 Cal.2d 426, 429 [1–3], 210 P.2d 843, 845.
It is well established that proof of the corpus delicti may be had by circumstantial evidence. People v. Clark, 70 Cal.App. 531, 544, 233 P. 980; People v. Corrales, supra, 34 Cal.2d 429[1–3], 210 P.2d 845. As was said in People v. Gullen, supra, 37 Cal.2d 624, 234 P.2d 6:
‘It is not necessary in order to support the conviction that the bodies actually be found. In People v. Wilkins, 158 Cal. 530, 536, 111 P. 612, quoting from 3 Rice on Evidence, 465–466, it was said that to require direct and positive proof of the corpus delicti would be most unreasonable; that the worst crimes are naturally committed at chosen times, in darkness and secrecy; that human tribunals must act upon such indications as the circumstances admit; that more often than not the attendant and surrounding facts remove all mystery and supply that degree of certainty men are daily accustomed to regard as sufficient in the most important concerns of life.’
It is also well settled that while it is always desirable that the evidence of the corpus delicti be proved first in the chronology of trial, it not infrequently happens that to arbitrarily compel such chronology would be to unnecessarily lengthen the trial, discommode witnesses, or make the evidence confusing. For these reasons and others which may from time to time enter the case, it has frequently been held that in addition to the many other occasions when it is desirable that the order of proof be changed, that respecting proof of corpus delicti lies within the sound discretion of the trial court. People v. Clark, supra, 70 Cal.App. 546, 233 P. 986; People v. Rupp, supra, 41 Cal.2d 378, 260 P.2d 4.
While the evidence of the corpus delicti, necessary to enable the prosecution to introduce the extrajudicial admissions or confessions of defendant made after the alleged commission of the crime, must be proved independently of such admissions and confessions, nevertheless the mere fact that acts or statements of the defendant made prior to the alleged commission of the crime are mingled with the proof of corpus delicti, does not weaken or vitiate such proof. It is true that the necessity of proof of corpus delicti for the purposes here under discussion is independent of the question of defendant's connection therewith. However, as was said in People v. Mohr, 24 Cal.App.2d 580, 582, 75 P.2d 616, 618,
‘Frequently the corpus delicti of an offense is evident even though the culprit is never apprehended, or is unknown. This does not mean, however, that evidence of the acts of a defendant or of some other individual may not be taken into account for the purpose of establishing proof of the corpus delicti.’
We are satisfied from the foregoing recital of facts that the trial court was fully justified in ruling that a prima facie showing of death by unlawful means was made and that the corpus delicti was sufficiently proven to justify the receiving of evidence of extrajudicial statements and admissions by defendant made after the alleged crime was committed.
Receipt of Admissions or Confessions Not Error
Defendant contends the court erred in receiving in evidence the extrajudicial statements of defendant made after the death of Debra. He contends, in substance, that the statements were obtained by threats, coercion and unlawful trickery. He cites such statements from the officers, scattered through the interrogation, as:
‘* * * ‘when you make this confession you will be a better man; You will feel better in two minutes. * * * Go on and be a man. * * * It would probably relieve your mind—to have that awful truth told.’ (In the instant case the officer [in People's Ex. 26] told the defendant, ‘Confession is good for the soul’, that the Catholic Church, ‘Teach(es) you that there is no sin that you commit that if you confess it you cannot meet your God clear. * * * Now, the only thing that we're asking you to do is to follow—exactly follow your religion * * * then why don't you follow your teaching and start out and clear up the whole thing.’ ‘Now, why don't you tell me what happened last night? On losing your temper and what you did to the child? And get it off of your conscience, son, because that's gonna be there for the rest of your life. And you you're gonna answer for it one way or the other.’)'
These statements do not constitute any promise of reward, protection by the officers, or assurance of any advantage in this prosecution. The interrogation lasted a total of four or five hours but was not continuous. The court decided in the first instance that the evidence was sufficient to permit the jury to consider them, but it left their involuntary character as a question for the jury insofar as any of them might be construed as confession, and left the consideration of the evidentiary value, in all events, to the jury, giving proper instructions with reference thereto. Where two or more inferences can properly be drawn from the evidence, the voluntary or involuntary character of the confession is, in the first instance, a question for the trial court, and thereafter for the jury. Under such circumstances, the receipt or rejection 168 Cal.App.2d 452, 460[10–11], 336 P.2d the trial court. The weight to be accorded the material contained in either admissions or confessions is a question within the province of the jury. If a jury's conclusion is supported by any reasonable view of the evidence, its decision is binding upon the Appellate Court. People v. Rodriguez, 168 Cal.App.2d 452,460[10–11], 336 P.2d 266; People v. Hughes, 171 Cal.App.2d 362, 365 [1–2], 340 P.2d 679; People v. Baldwin, 42 Cal.2d 858, 866–867, 270 P.2d 1028.
Counsel During Interrogation
Defendant contends that he was denied the right to consult with counsel during interrogation and that this made the confession inadmissible under the due process clause of the United States Constitution. First, it should be noted that the evidence in this respect was in conflict. Defendant was given an opportunity to use the telephone before he was booked and he was told he could have an attorney at any time he asked for one. Defendant never at any time contended that he was physically mistreated. The record does not show any such continuous interrogation as has been noted in those cases in which statements were rejected for that reason. ‘The burden of showing unfairness and a miscarriage of justice by the denial of defendant's right to counsel in some stage in a proceeding against him rests upon the defendant.’ People v. Crooker, 47 Cal.2d 348, 353, 303 P.2d 753, 757. Furthermore, the right to counsel during interrogation is not absolute, it is simply one element for consideration in determining whether or not the defendant's statements were voluntary or involuntary. People v. Tipton, 48 Cal.2d 389, 393, 309 P.2d 813; Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Cicenia v. LaGay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523; Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265.
Under the facts of the case at bar, there is no denial of due process so as to make defendant's statements involuntary as a matter of law. His relatives all knew he was under arrest. He was given an opportunity before being booked to contact an attorney of his choice, and the officers also explained to him that he could have a public defender if he could not afford a private attorney. We find no prejudicial error.
Defendant contends that denial by the court of defendant's application for a pretrial inspection of the statements made by him at the time of his arrest constituted an abuse of discretion sufficiently prejudicial to require reversal. Defendant was questioned on December 28, 1957, from about 2:30 p. m. to about 6:30 p. m., and examined by a doctor psychiatrist from about 8:30 to 9:30 the same day. A portion of the discussion was in the presence of defendant's wife. Most of these interviews were recorded on tape. June 11, 1958, defendant moved for an order to permit defendant and his counsel to listen to the recordings and to be furnished a transcript of his statements. The motion was supported by affidavits in which defendant stated, inter alia, that he could not ‘recall exactly’ what he said. The trial commenced June 23, 1958. The record shows that defendant's counsel heard the two records of recordings of defendant's statements on Friday, July 11, 1958, during the trial period, and saw the transcript of these recordings. Previous to the trial he had been given certain pathological specimen and medical reports. July 16, defendant's counsel moved for production of three records and transcripts. The court ordered the production of the two recordings made by the police officers and defendant which were to be used in the prosecution's case in chief and required that defendant be allowed to inspect the transcripts before they were used. All material requested by defendant was made available to him prior to its use in court and continued to be available for use on cross-examination of the officers. Likewise, the statements involved were in the hands of defendant long before he took the witness stand.
There is no contention by defendant that the lack of the statements injured him in the matter of obtaining the presence of all necessary witnesses, nor does he point to any item of defense evidence, nor to any crippling of his examination or cross-examination of any witness by reason of his lack of these statements. The record affirmatively shows that they were available to him at all times when they could have possibly been used for better understanding of a witness' testimony or for cross-examination purposes.
‘The basis for requiring pre-trial production of material in the hands of the prosecution is the fundamental principle that an accused is entitled to a fair trial * * *. In granting relief, however, this court pointed out that to deny production on the ground that an imbalance would be created between the advantages of prosecution and defense would be to lose sight of the purpose of a trial, which is the ascertainment of the truth; that nondisclosure partakes of the nature of a game; and that the state is so solicitous of according a defendant a fair trial that it will not hinder him in the preparation of his defense by depriving him of competent material and relevant evidence.’ Cash v. Superior Court, 53 Cal.2d 72, 75[1–2], 346 P.2d 407, 408.
An examination of the authorities cited by defendant shows that in each case where it was found necessary to reverse the judgment, actual prejudice was shown and the documents were either denied altogether or denied until such time that they could not be used for impeachment or cross-examination, or to refresh the defendant's memory of his own statements for purposes of his own testimony. In People v. Chapman, 52 Cal.2d 95, 338 P.2d 428, the victim's statement was refused and defendant never permitted to use it for cross-examination. In People v. Riser, 47 Cal.2d 566, 305 P.2d 1, a statement made by a witness was refused, but was held not to be prejudicial. Powell v. Superior Court, 48 Cal.2d 704, 312 P.2d 698; Funk v. Superior Court, 52 Cal.2d 423, 340 P.2d 593; Vance v. Superior Court, 51 Cal.2d 92, 330 P.2d 773; Tupper v. Superior Court, 51 Cal.2d 263, 331 P.2d 977; McCarthy v. Superior Court, 162 Cal.App.2d 755, 328 P.2d 819; Cordry v. Superior Court, 161 Cal.App.2d 267, 326 P.2d 222; Walker v. Superior Court, 155 Cal.App.2d 134, 317 P.2d 130; and Cash v. Superior Court, supra, are all cases in which writs were sought on preliminary procedure in re pretrial inspection. In People v. Cooper, 50 Cal.2d 755, 3 Cal.Rptr. 148, the denial of inspection was neither error nor prejudicial, and judgment was affirmed.
The ruling of the court was error. However, defendant has not pointed out, nor have we been able to discover from the examination of the entire record, any fact not fully presented to the jury nor any circumstances which would indicate that defendant suffered prejudice. Defendant's generalized claim of prejudice is not borne out by the record. We find no prejudice.
Evidence of Prior Offenses
Over defendant's objection, the court admitted evidence relating to numerous burns allegedlly caused by defendant, evidence of striking Debra with a hot spatula, evidence that he once pushed her face into her own fecal matter and scrubbed her face with a bath brush so severely that her face was bruised black and blue, and evidence that he intentionally struck her several times with his fist, as hard as he could.
It is true that evidence of other misconduct is not generally admissible. However, such evidence is admissible to show matters directly connected with the offense involved whose proof is a necessary element of discovering what happened in the case of the offense charged. Such admissible proof of other misconduct involves such matters as motive, intent, absence of accident, scheme and plan.
‘The general test of relevancy is whether the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the people or to overcome any material matter sought to be proved by the defense. If it does, then the evidence is admissible whether or not it embraces the commission of another offense and whether the other crime be similar or dissimilar.’ People v. Dabb, 32 Cal.2d 491, 500, 197 P.2d 1, 6.
See also People v. Peete, 28 Cal.2d 306, 319[5–6], 169 P.2d 924; People v. McMonigle, supra, 29 Cal.2d 740, 177 P.2d 751; People v. Sykes, 44 Cal.2d 166, 170[3–4–6], 280 P.2d 769.
Defendant was charged with the murder of his daughter. Intent, motive and absence of accident were all in issue and the evidence received of defendant's prior conduct was all logically relevant on these subjects. People v. Albertson, 23 Cal.2d 550, 145 P.2d 7, cited by defendant, involved a suspicious prior occurrence which afforded no substantial proof connecting defendant therewith. Considering the general continuity of events testified to in the case at bar, we see no such remoteness as to make them inadmissible. We find no error in the admission of the evidence challenged.
The district attorney brought into court twenty-seven autopsy photographs of the body of the victim, for use by the doctors in explaining their testimony. Defendant objected to these autopsy photographs on the ground that they were gruesome, shocking and unnecessarily inflammatory. The court refused to permit the use of any that the doctors did not find necessary for the purpose of explaining and demonstrating their testimony. However, the doctors testified that eighteen out of the twenty-seven were necessary to properly explain their testimony. Each of these eighteen was used at some point in the testimony of a doctor for such explanatory purposes.
Defendant contends that the doctors did not make use of the slides in the preliminary hearing and that they therefore should not be necessary for this explanation at the trial. However, the rules relating to quantum and convincing character of evidence for a preliminary examination are considerably different from those involved in the final trial. It is, of course, impossible for a normal adult to view the results of terrible injuries to an innocent child without being shocked and grieved. Whether or not a normal person would be more inclined to emotional disturbance from the sight of the dead body of a small child with numerous bruise marks and scars, or the grotesque image resultant from operative effects necessary to disclose the inner results of mistreatment, depends upon each individual mind. There is no way to predict the differences, if any. That the use of visual evidence has in some cases vast advantages over oral evidence in convincing quality and in ascertaining the exact truth, there can be no question. In the case here at bar, the trial court was called upon to make an exceedingly difficult decision. In each case the doctor testified that the picture was necessary to clarify his testimony. Weighing the advantage of clarity against the possibility of dangerous emotional disturbance on the part of the jury lies, in the first instance, within the sound discretion of the trial court. As was stated in People v. Cheary, 48 Cal.2d 301, 312[8–9], 309 P.2d 431, 436,
‘Although it is error to receive in evidence gruesome photographs of a homicide victim designed primarily to arouse the passions of the jury (Citations), such photographs are admissible when they are relevant to the issues before the court and their probative value is not outweighed by the danger of prejudice to the defendant. (Citation.) Whether the probative value of a particular photograph outweighs its possible prejudicial effect is a question to be resolved by the trial court in the exercise of its judicial discretion.’
Defendant cites People v. Burns, 109 Cal.App.2d 524, 241 P.2d 308, 242 P.2d 9, and People v. Redston, 139 Cal.App.2d 485, 293 P.2d 880, in which the details and demonstrations of the medical testimony relating to the exact character of the injuries was found unnecessary. He also cites People v. Brubaker, 53 Cal.2d 37, 48, 346 P.2d 8; People v. Atchley, 53 Cal.2d 160, 168, 346 P.2d 764; and People v. Love, 53 Cal.2d 843, 852, 3 Cal.Rptr. 665; but in each of those cases the Supreme Court ruled the photographs properly admissible due to their necessity in demonstrating or explaining the medical testimony, and each of them clearly follows and supports the rule of law quoted from People v. Cheary, supra.
From a reading of the entire testimony relative to the child's injuries and the necessity for pinpointing the character of the injuries in order to convince the hearers that their infliction was not due to accidental causes, we are satisfied that the trial court's decision was within its discretion.
Playing of Tape Recording After Transcript Read to Jury
Defendant complains that the court erred in permitting the tape recordings of defendant's interrogations to be played to the jury after the transcription thereof had been testified to by witnesses.
Code of Civil Procedure, § 2044, enjoins the trial court to exercise control of interrogations for the effective extraction of the truth, and further provides: ‘The Court, however, may stop the production of further evidence upon any particular point when the evidence upon it is already so full as to preclude reasonable doubt.’ The wording of said section 2044 clearly places upon the shoulders of the trial court the duty and right to use reasonable discretion in the matter of cumulative testimony. People v. Love, supra, 53 Cal.2d 852, 3 Cal.Rptr. 670; City of Los Angeles v. Frew, 139 Cal.App.2d 859, 870, 294 P.2d 1073; Robinson v. Kelly, 95 Cal.App.2d 320, 326, 212 P.2d 921. For similar procedure, see People v. Wojahn, 169 Cal.App.2d 135, 145, 337 P.2d 192.
Defense counsel, in the case here at bar, asserted that defendant's interrogation was unfair and that he had asked for and had been denied counsel. The use of the tape recording gave the jury the advantage of hearing the voices, the tones and volume of voice, and could have been of definite assistance to the jury in juding the voluntary character (or lack thereof) of the admissions, and various other contentions relative to this interrogation. We can find no error either in the cumulative character of testimony nor in the playing of the recordings.
Refreshing Memory From Typewritten Notes After Original Stenographic Notes Destroyed
A preliminary portion of the interrogation was taken down by stenographic machine, but not recorded on tape. The officers conducting the interrogation, who later testified from typewritten notes, read the statement the next day after it was given and from their fresh recollection verified that the transcription was correct. Unfortunately, the stenographer threw away the stenotype notes immediately after the transcription was made.
Defendant contends that no proper foundation was laid to permit the use of the statements under section 2047, Code of Civil Procedure. While it may be regrettable that the original notes were destroyed, the court did not err in permitting the use of the transcript of these notes. The officers could not have testified from the stenographic notes without their being transcribed. The foundation was proper under section 2047 as the statement was written under the direction of the police officer, as officer Bastrup was present at the interrogation and asked questions, and at a time when it was fresh in his memory he knew that the same was stated correctly in the writing. People v. Vera, 131 Cal.App.2d 669, 674–675, 281 P.2d 65; People v. Sica, 112 Cal.App.2d 574, 587, 247 P.2d 72; People v. Amaya, 44 Cal.App.2d 656, 658 , 112 P.2d 942. The rule is stated as follows, and is thoroughly amplified from other authorities, in People v. Gardner, 147 Cal.App.2d 530, 540, 305 P.2d 614, 620:
‘A witness who has no present recollection of the facts and is permitted to refresh his memory from a memorandum may, in testifying to the facts, read directly from the writing.’
Refreshing Memory From Transcript of Tape Recording
Defendant complains that one of the officers was permitted to read to the jury the typewritten transcription of the tape recording of the interview between himself, another officer, and defendant. The witness testified that he had compared the transcription with the tape recording, that it was accurate, and that the tape was an accurate reproduction of the conversation, but that he could not recall the entire conversation clearly at the time his testimony was given. Under the circumstances present in the case at bar, we find no error in the procedure followed. People v. Gardner, supra; People v. Amaya, 44 Cal.App.2d 656, 658–659, 112 P.2d 942; People v. Goldberg, 152 Cal.App.2d 562, 574[19–20], 314 P.2d 151.
Misconduct of District Attorney
Defendant contends that the prosecuting attorney was guilty of prejudicial misconduct. He cites fifty-five instances of such claimed misconduct. A careful examination of these shows several minor instances of erroneous statements or questions by the district attorney. Defense objections to all of these were promptly sustained and the jury adequately and properly admonished. In a few instances, the alleged misconduct was a mere verbal exchange between counsel, in which neither appears to have had an advantage. Occasionally the court was forced to correct both counsel. This was a long and arduous trial, commencing June 23 and lasting until September 7. The occurrences last above referred to were actually less than might be expected where both counsel, as was true here, were alert and intensely contesting every point of the trial.
It was the apparent theory of the prosecution that defendant, having participated in the pregnancy of Joyce, was forced or coerced into marrying her, and that he resented the child and wilfully caused its death. This theory was supported by statements of defendant during interrogation. In an attempt to cumulatively clinch this theory, the district attorney did, contrary to the ruling of the trial court, ask questions designed to bring to the attention of her jury another pregnancy of the mother, Joyce, by this defendant, and of a stillbirth from that pregnancy purporting to have occurred April 10, 1957. Finally a witness, Father Petersen, being under cross-examination by the district attorney, was presented with a question relative to such pregnancy and stillbirth. The court, consistent with its previous ruling, at first refused to permit the question. Then, after argument out of the presence of the jury, the court allowed a general question, saying, ‘I will instruct him to ask the question quite generally, even to the use of dates and the periods of time. The district attorney asked the witness: ‘Father, if we assume that this girl, Joyce Murphy, had conceived another child besides Debra from this defendant, and that after conception there had not been a marriage, but that the pregnancy had lasted for a period of about 36 weeks, and that she had given birth to a stillborn child on April the 10th of this same year, you saw them in August, would that have had any effect * * *’ etc. The question should not have been asked in the form used. However, after a very lucid and convincing negative answer and explanation from the witness as to why such pregnancy and stillbirth would not be considered by him as evidence of coercion to marry, the court ordered all this material stricken and instructed the jury to disregard it. Moreover, the witness convincingly pointed out the complete immateriality of the matter and the exchange would appear to have resulted in more advantage to defendant that to the prosecution. Prejudice was minimal, if any.
Complaint is made that the district attorney used newspaper publicity to reach the jurors' consciousness in a two-fold manner: by releasing to the public press the contents of taped recordings before they had been admitted in evidence and at a time when defendant had not yet been permitted to hear the recordings or see the transcriptions. The court advised the jury not to read these newspaper articles, and repeatedly instructed them not to consider anything not received in open court as evidence. We do not here have a situation such as that confronting the court in People v. McKay, 37 Cal.2d 792, 236 P.2d 145. Orange County is a county of nearly a million inhabitants. Its centers of population are only a few miles distant from the metropolis of Los Angeles. It is reasonable to believe that among its widely varied news sources and services the same effect would not be expected as would be found in a very small community.
We cannot find in the record any indication that any juror was affected by such publicity. As far as we can tell from the record, all of the published material was actually received in evidence. We can find no prejudicial error. People v. Santo, 43 Cal.2d 319, 330 , 273 P.2d 249; People v. Gomez, 41 Cal.2d 150, 159 , 258 P.2d 825; Stroble v. State of California, 343 U.S. 181, 197, 72 S.Ct. 599, 96 L.Ed. 872.
No number was placed on any instruction. For convenience, therefore, number references hereinafter used will refer to the page of the clerk's transcript on which an instruction commences. Defendant complains of the use of the term ‘adequately convincing’ in instruction 123, where the court stated: ‘Two classes of evidence are recognized and admitted in courts of justice, upon either or both of which, if adequately convincing, juries may lawfully find an accused guilty of crime.’ Taking particular phraseology out of context causes a misconception of meaning, for all associated must properly be read together. The balance of instruction 123 gives correct definitions for direct evidence and circumstantial evidence. Instructions 124, 126, 127 and 128 immediately follow 123. They correctly define and apply direct and indirect evidence, presumption, inference, and propensity, instruct the jury to give the defendant the benefit of the doubt on two different reasonable interpretations of the evidence, direct that they are not permitted, when circumstantial evidence is substantially relied on in the People's case, to find the defendant guilty of the crime charged against him unless the proved circumstances not only are consistent with the hypothesis that the defendant is guilty of the crime, but are irreconcilable with any other rational conclusion. They were further directed that (128) when the prosecution's case rests entirely or chiefly on circumstantial evidence, ‘each fact which is essential to complete a chain or circumstances that will establish the defendant's guilt must be proved beyond a reasonable doubt.’ Elsewhere the jury were informed that the instructions must be considered as a whole.
Furthermore, in numerous other instructions, notably 156, 172, 174, 177 and 183, the jury was directed that the quantum or degree of proof must be beyond a reasonable doubt. We are satisfied that the jury must have understood the words ‘adequately convincing’ to mean ‘beyond a reasonable doubt’.
Instructions given by the court on circumstantial evidence adequately define, elucidate and give the basis for its application. An analysis of defendant's refused instructions 233, 235, 237, and 239 clearly shows that the statements therein contained do not clarify the matter any better than those given by the court. The court is under no duty to give repetitious instructions. People v. Steccone, 36 Cal.2d 234, 240 , 223 P.2d 17; People v. Wein, 50 Cal.2d 383, 403–404 , P.2d 457.
Defendant next complains that the court refused to give four instructions offered by him on reasonable doubt, being 248, 256, 268 and 270. The last three of these instructions are generalized reasonable doubt instructions, the substance of which is adequately covered by the instructions given by the court. One of them (248) is palpably improper. It is a verdict directing instruction which, in effect, says that if the death resulted from a fall from a chair the verdict must be not guilty. In a so-called ‘formula’ or verdict directing instruction all of the essential elements must be covered. People v. Peak, 66 Cal.App.2d 894, 909, 153 P.2d 464; LaBranch v. Scott, 82 Cal.App.2d 1, 9 , 185 P.2d 823. This instruction failed completely to exclude a fall caused by intentional violence of the defendant. It is defective, and was properly refused in the form offered.
Complaint was made that the court erroneously refused to give an instruction (234) requiring each link in the chain of circumstances connecting defendant with the offense to be proven beyond a reasonable doubt. This proposition of law was adequately and correctly covered in instruction 128, quoted supra, given by the court. (See People v. Carter, 48 Cal.2d 737, 758 , 312 P.2d 665, cited by defendant.)
Defendant complains that the instruction defining confession and admission tended to show an opinion by the court that the alleged confession was voluntarily made. A fair reading of all of the instructions, particularly 114, 116, 118, 119, 129, 131, 132, 134, and 135, convinces us that no such inference is reasonably deducible from this instruction. The instructions adequately and correctly covered the subject. We find no error.
Complaint is made that the instruction relating to prior offenses by defendant against Debra was erroneous (138). The instruction clearly informs the jury of the uses and limitations of this type of evidence, carefully explaining that it is used to determine only whether or not it tends to show motive, intent, plan, continuing course of abuse, abandoned and malignant heart, and lack of provocation. The factual defects called attention to in People v. Albertson, 23 Cal.2d 550, 558, 145 P.2d 7, cited by defendant, are not present in the case at bar.
Complaint is made that adequate instruction was not given barring the use and consideration in evidence of confessions or admissions until the corpus delicti had been first proved by other evidence. With this we cannot agree. Instruction 134, given by the court, clearly and succinctly informed the jury that they must not take into consideration any evidence of a confession or an admission ‘unless and until you first shall have found, from evidence additional to an independent of any and all such alleged confessions and admissions, that the crime so charged to the defendant was in fact committed by someone.’
Instruction 277, offered by defendant, was correctly refused. It is erroenous in its statement that ‘no evidence tending to connect the defendant with the alleged offense can be considered by you in determining whether or not the corpus delicti has been established.’ That is not the law. People v. Mohr, supra. Acts connecting defendant with the alleged offense often serve the additional purpose of establishing the corpus delicti. There is no valid reason why it should be excluded from consideration unless it is a statement made after the offense was committed. (Warszower v. United States and other cases cited, supra.)
The other instruction offered and refused (213) was a mere repetition of the material covered by that actually given. The instruction referred to in People v. Frey, 165 Cal. 140, 131 P. 127, cited by defendant, completely failed to connect the terminology to the crime charged. That defect is not present in the case at bar.
Numerous other complaints are made about the instructions. As in the case of those hereinbefore particularly dealt with, we find no error. A careful reading of all the instructions convinces us that the jury was carefully, correctly and fairly instructed on all of the essential elements in the case.
Use of Alternate Juror
Complaint is made that some members of the jury were sufficiently exhausted or ill that alternate jurors should have been substituted. However, the jurors involved finally stated to the court their willingness to proceed to the conclusion of the case. The substitution of an alternate juror is peculiarly within the sound judgment and discretion of the trial court. Authority for substitution set forth in Penal Code, § 1089, is clearly worded in discretionary form. While the facts in the case at bar might perhaps have justified the trial court in substituting an alternate juror, we cannot find that the court's failure to do so was an abuse of discretion. People v. Abbott, 47 Cal.2d 362, 371 , 303 P.2d 730; People v. McManus, 180 Cal.App.2d 19, 31 [1b], 4 Cal.Rptr. 642.
Complaint is made that the jurors were separated after submission of the cause to them. The jury deliberations required several days. They were housed in hotel rooms during their rest periods. The women were in rooms segregated from the men. Bailiffs were on duty at all times in the corridors. There is no showing, nor even any basis for reasonable suggestion, that any of the jurors talked to anyone outside the jury members about the case, nor that any of them were guilty otherwise of improper conduct. Penal Code, § 1128, provides that upon retirement for the night when the jury has not reached a verdict, ‘* * * when the jury is composed of both men and women, in the event that it shall become necessary to retire for the night, the women must be kept in a room or rooms separate and apart from the men.’
We are satisfied that the legislative direction does not contemplate the crowding of the jury, upon retirement an night, into some sort of barracks so that they can be all in one room, nor to arbitrarily compel that they be kept in the same room while at rest. We find nothing in the facts of People v. Adams, 143 Cal. 208, 76 P. 954, 66 L. R.A. 247, nor in In re Winchester, 53 Cal.2d 528, 2 Cal.Rptr. 296, to justify an analogy between those cases and the one at bar. As was said in In re Winchester, supra, 53 Cal.2d 534, 2 Cal.Rptr. 300: ‘Whether the separation of jurors without permission of the court after they have retired for deliberation in a criminal case constitutes prejudicial misconduct depends upon the circumstances of each individual case.’
We find no error in the court's handling of the problem.
Use of Dictionary
Complaint is made that one or more members of the jury, during the deliberations, made use of a dictionary to read the definitions of ‘likely’, ‘possibly’, ‘corporal punishment’, ‘abandon’, ‘malignant’, ‘circumstantial’. Apparently the jurors were of at least ordinary intelligence and education. It must be presumed that they understood the ordinary meanings of the words involved. The dictionary could only confirm such understanding. We do not mean to suggest that the use of instruction or reference books by the jury without the knowledge or consent of the court is proper or is a practice to be encouraged or permitted. However, we find it difficult to find any basis of prejudice under the facts here presented. Furthermore, this knowledge came to the court only by means of statements of jurors on the motion for a new trial. The general rule is that such statements of jurors may not be used to impeach a verdict. People v. Evans, 39 Cal.2d 242, 250 , 246 P.2d 636; Kollert v. Cundiff, 50 Cal.2d 768, 772 , 329 P.2d 897.
Private Discussion of Part of the Jury
Complaint is made that two jurors privately discussed the case between themselves at one point in the deliberative period. However, all of their discussion was made known to their fellow jurors before a verdict was reached. We have here, again, no ground for finding prejudice; and again the rule against using statements of jurors to impeach their own verdict arises, and is applicable as is set forth in the Kollert and Evans cases, supra.
Jurors Use of Documents Not Received in Evidence
Complaint is made that three documents marked for identification but not received in evidence, were sent into the jury room along with the other exhibits and were seen and read by at least a part of the jury. These consisted of two reports supporting the validity and veracity of the tape recordings of defendant's interrogation, and one containing extensive notes used by Dr. Geddes, a psychiatrist witness for the prosecution. Some material was contained in Dr. Geddes' notes which was never received in evidence. This material related to traffic violations and personal sex habits of defendant, but was comparatively innocuous and obviously immaterial in its relation to the crime here charged.
Penal Code, § 1181, subd. 2, provides as a ground for a new trial: ‘When the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property’. The receipt of this evidence by the jury was error, but we are unable to find in it anything of a seriously prejudicial nature.
Question of Prejudice Requiring Reversal
In reviewing the question of whether or not the errors which we have pointed out require a reversal, we must first have well in mind the rule laid down by section 4 1/212 of Article 6 of our California Constitution as it has been interpreted by our Supreme Court. That section requires that no judgment shall be set aside in any case for the errors here complained of unless ‘after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’
In People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243, 254, our Supreme Court has stated the meaning of this to be:
‘That a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'
The United States Supreme Court has laid down the rule respecting the application of the due process clause of the Fourteenth Amendment to the United States Constitution. To constitute deprivation of due process, the errors found must so fatally affect the regularity of his trial and conviction as to violate the fundamental aspects of fairness and result in a miscarriage of justice. Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166; Stroble v. State of California, supra.
While different language is used, the essential meaning of that used by the California Supreme Court and that used by the United States Supreme Court is the same. In the case at bar, a careful reading of the entire transcript shows very strong evidence of the guilt of defendant. As in every case, there are conflicts in the evidence, but it is difficult to conceive how the extensive injuries to the child could have been inflicted in the accidental manner claimed by defendant. A detailed comparison of the injuries with the story of defendant reveals unaccountable discrepancies. It is likewise difficult to conceive that so many different people who testified to the statements made by defendant could all have been willing to falsify. It is unbelievable that defendant, who admits making many of these statements, could ever have been persuaded to make them unless they were true.
No ordinarily reasonable adult could avoid understanding that a hard blow from the fist of a grown man of the body or head of a twenty months' old child would be likely to cause death. The question of whether or not the jurors' minds were inflamed by the photographs is somewhat answered by the second degree verdict. Under the evidence received, if the verdict was the result of the jury being emotionally inflamed, the jury, depending on whether they believed the circumstances showed a specific, premediated intent to kill, could well have returned a verdict of first degree. People v. Misquez, 152 Cal.App.2d 471, 313 P.2d 206. The second degree verdict, under the circumstances here involved, indicates an unemotional, careful weighing of the law and the evidence. Proof of a specific intent to kill was not necessary. People v. Ogg, 159 Cal.App.2d 38, 50, 323 P.2d 117; People v. Mears, 142 Cal.App.2d 198, 204 , 298 P.2d 40. The evidence was ample to support the verdict reached. People v. Ogg, supra.
Defendant was represented by alert, able, perspicacious counsel during the trial, as well as on this appeal. He appears to have left no stone unturned in his efforts to advantageously represent the cause from defendant's viewpoint. The court, throughout the trial, was careful, considerate and courteous to all persons participating in the trial. From a review of the entire evidence, the objections and rulings of the court and the instructions to the jury, we are unable to say that it is more reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error. We are satisfied that the errors noted did not disturb a fair consideration of the cause by the jury, that the trial viewed as a whole was a fair trial, and that there was no miscarriage of justice.
The judgment and the order denying the motion for a new trial are affirmed.
GRIFFIN, P. J., and COUGHLIN, J., concur.