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

PEOPLE of the State of California, Plaintiff and Respondent, v. William Elliott RUCKER, Defendant and Appellant.

Cr. 16435.

Decided: July 05, 1978

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, B. E. Bergesen, III and Linda Feldman, Deputy State Public Defenders, San Francisco, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Dane R. Gillette, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Appellant William E. Rucker was convicted of first degree murder (Pen.Code, s 187) and first degree robbery (Pen.Code, s 211), and it was found that he had used a firearm in the commission of the crimes. On July 31, 1976, appellant robbed and killed Bonnie Baumann, who was a clerk in the See's Candy Store in Redwood City. The evidence that appellant had committed the robbery and homicide was overwhelming. Appellant admitted the robbery and shooting in the presence of several of his friends. As appellant stated, “I blew it. I did what I did for a hundred and twenty six dollars.”

Appellant's defense was that of diminished capacity resulting from his consumption of drugs and alcohol. The entire thrust of the defense was that at the time of the robbery and homicide he did not act with premeditation, deliberation or malice, or have the requisite specific intent to commit the crimes charged, and further, that he was in fact unconscious at the time of the commission of the acts.

Appellant's contentions of error can be discussed without a detailed recitation of the facts.

Appellant contends that the trial court erred in admitting as rebuttal evidence his statements made to a police officer and statements made to a probation officer, without determining whether appellant had been properly advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and had waived them at the time the statements were made. The statements were admitted into evidence to rebut appellant's diminished capacity defense, with the limiting instruction that they were to be considered only for the thought process, the clarity of voice, and the intonation of appellant.

The jury first heard a twenty-minute tape recording of questioning by the booking officer. While listening to the tape each juror had a typed transcript of the recording. At the commencement of the questioning, appellant was informed of his Miranda rights and stated that he wanted to talk to his lawyer. The questioning continued, however, on the subjects of appellant's family, military experience and past employment. During the questioning appellant volunteered that he started using heroin while in service in Southeast Asia and indicated that he was still using drugs. When asked the last time he had used drugs appellant stated, “This morning.” Then there was a series of five questions and answers which were deleted, except for a statement by appellant in the middle of such deletions that “So now I'm on this beef. This beef I can beat easy.” There were no statements made or questions asked concerning the offenses.

The probation officer, who had known appellant for sometime, was called by the police to talk to appellant several hours after his arrest and testified that appellant appeared to be rational and relaxed. He further testified to statements volunteered by appellant that he had not killed anybody and was not involved in any crime.

The question here is whether the prosecution's particular use of the statement is prohibited by Miranda. We think not.

In People v. Disbrow (1976), 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 368, 545 P.2d 272, 280, the court prohibited “use by the prosecution of any extrajudicial statement by the defendant, whether inculpatory or exculpatory, either as affirmative evidence or for purposes of impeachment, obtained during custodial interrogation in violation of the standards declared in Miranda and its California progeny.” In so holding, the Supreme Court overruled its opinion in People v. Nudd (1974), 12 Cal.3d 204, 115 Cal.Rptr. 372, 524 P.2d 844, and declined to follow the United States Supreme Court in Harris v. New York (1971), 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. However, we are not dealing here with inculpatory or exculpatory statements. Had the statements been either, they would be clearly inadmissible since appellant had invoked his right to speak to counsel. (People v. Enriquez (1977) 19 Cal.3d 221, 237-238, 137 Cal.Rptr. 171, 561 P.2d 261.) The statements here were admitted to assist the jury in considering appellant's thought processes, clarity of voice and intonation. The evidence is, of course, relevant as it bears upon appellant's mental capacity. In discussing its rationale the Disbrow court stated (16 Cal.3d at p. 112, 127 Cal.Rptr. at p. 367, 545 P.2d at p. 279), “our principal objection to the Harris-Nudd rule lies in the considerable potential that a jury, even with the benefit of a limiting instruction, will view prior inculpatory statements as substantive evidence of guilt rather than as merely reflecting on the declarant's veracity.” Here there was no issue of who committed the homicide and robbery; therefore, even if the jury ignored the limiting instruction given by the judge, no prejudice would result to appellant. It is more probable, however, that the jury did in fact view the statements in accordance with the limiting instruction because neither whether appellant committed the acts nor his veracity (defendant did not testify) were issues of concern to the jury. As a practical matter, in fact, the jury could consider the statements only to evaluate appellant's thought process, clarity of voice and intonation.

Appellant introduced a substantial amount of evidence, both lay and expert, concerning his drug and alcohol dependency and its effect on his mind. The People also introduced evidence, including psychiatric testimony that appellant could deliberate and form the requisite specific intent. The psychiatrist concluded that appellant's behavior was purposeful and goal oriented, and despite being under the influence of alcohol appellant carried out a plan and realized the significance of what he had done. There was evidence that appellant had been seen shortly before the crimes by two girls. They were looking for Spruce Street in Redwood City. They saw appellant standing in a gas station, where they asked him directions. He told one of the girls that he did not know where Spruce Street was. Immediately after the crimes, appellant admitted the robbery and shooting in the presence of his girl friend and two other friends. Shortly thereafter, a police officer saw appellant walking. The officer asked appellant to stop, remove his hands from his pocket and identify himself. He did so, gave his name and asked what was going on. When told that the Redwood City police would like to talk to him, appellant took four or five steps toward the officer and then ran off in the opposite direction. He crossed the street and entered a dirt field, where he pulled quantities of money from his pocket and threw them on the ground. The officer, who had to run at full speed to catch appellant, finally tackled him and turned him over to the Redwood City police. This evidence supports the conclusion that appellant's mental capacity was not diminished as the result of drug and narcotic ingestion at the time of the crimes.

In support of his diminished capacity defense, appellant himself introduced a tape recording of his conversation with a doctor, made within a few hours after the murder. What appellant said was used to assist the jury to determine whether, at the time of the commission of the offenses, appellant had diminished capacity. Similarly, the taped statements of appellant made to the police officer, and the observations of the probation officer from his conversation with appellant are evidence by which the jury could evaluate appellant's thought processes, his voice intonations and clarity for purposes of determining whether he possessed the capacity to harbor the requisite intent to commit the crimes charged. Appellant's statements were in fact cumulative to the vast amount of evidence already before the court, which negated appellant's contention that he was suffering from a diminished capacity.

It cannot be contended that testimony of witnesses as to their observations of appellant's clarity of voice, thought processes and intonation was inadmissible. The evidence is relevant, and Miranda and its progeny do not preclude its admissibility. For the jury to listen to the actual voice is certainly better evidence. They can make the evaluation themselves and not have to depend in part on the subjective evaluation of a third party. Here, where the voice could be heard and at the same time not prejudice appellant by interfering with his Miranda rights, as discussed in Disbrow, there was no reason to exclude the evidence. To the extent that one sentence of the taped statement could be characterized as inculpatory, that is, that appellant could easily “beat this beef,” and the statement volunteered to the probation officer as exculpatory, their admission was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.) The defense was one purely of diminished capacity, and not that appellant had not committed the acts.

We find no error.

We have examined the remaining contentions of appellant and conclude that there was no error. A discussion of those contentions does not merit publication. (Cal.Rules of Court, rule 976.) Preferably, there would be a partial publication rule available for these circumstances. Absent such a rule, the balance of the opinion will be placed in a footnote.1

Judgment is affirmed.


1.  Appellant next contends that the trial court erred in asking prospective jurors during voir dire examination whether they had an opinion on the death penalty which would prevent them from fairly considering the evidence. Five jurors were excused upon the basis of their affirmative responses. Appellant was charged under former Penal Code sections 190-190.3, which provided for the death penalty in the event the jury made a finding of the existence of certain special circumstances, that is, a murder committed in the perpetration of a robbery. (Pen.Code, s 190.2, subd. (c)(3)(i).) During the trial, on December 7, 1976, the Supreme Court filed its opinion in Rockwell v. Superior Court, 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101, which invalidated the death penalty as provided for under former Penal Code sections 190-190.3. Appellant argues that the jury's role was merely to determine if special circumstances existed, but that the jury had no direct role in the sentencing process which would impose the death penalty; therefore, questioning the jurors as to their opinion of the death penalty was erroneous.In People v. Rhinehart (1973), 9 Cal.3d 139, 155, 107 Cal.Rptr. 34, 507 P.2d 642, the court held that it was proper for the trial court to question jurors regarding their views on the death penalty and to excuse for cause any juror who expressed a clear inability to impose the death penalty under any circumstances. Although the court in Rhinehart modified the judgment of death to life imprisonment, it approved the voir dire of the jurors concerning the death sentence. Appellant seeks to distinguish Rhinehart from the present case on the basis that Rhinehart did not involve a statute which specifically removed the issue of penalty from the jury. However, appellant's contention is premised upon the unwarranted assumption that absent the voir dire concerning the death penalty, the jury would have no awareness that special circumstances were charged in the information for the purpose of determining whether the death penalty would be imposed. There is no basis for an assumption that the jury would in fact be ignorant of the reason they were requested to make a determination of the existence of special circumstances.The exclusion of the five jurors ensured that if the existence of such special circumstances was proved at trial beyond a reasonable doubt, then no juror would refuse to make such a finding because of categorical opposition to the death penalty. Furthermore, Rhinehart makes clear that there is no evidence that a “death qualified” jury is a “guilt oriented” jury; hence, there is no basis to believe that appellant suffered prejudice as a result of the exclusion of certain jurors.During trial and after the filing of Rockwell v. Superior Court, appellant moved for a mistrial. Since exclusion of the five jurors during the initial voir dire was proper under the law as it then existed, and since a guilt prone jury was not selected, the court did not err in denying the motion for a mistrial.Appellant next contends that the court erred in its introductory remarks to the jury in that they were inconsistent with the provisions of Penal Code section 1138. Penal Code section 1138 provides:After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.In its introductory remarks the court discussed the jurors' obligation to listen to the evidence, and further stated, “There will be no replays of it. You'll hear it once and only once.” Then the court added, “it's up to you to remember it, even though there may be a transcript.” Appellant argues that these statements would restrict the right of the appellant to have testimony reread pursuant to Penal Code section 1138. Appellant made no objection, however, to these introductory remarks. There is no indication that the jury sought or wanted any portion of the testimony read back to them, although the jury did seek clarification of the instructions regarding murder. It appears that in instructing the jury that there would be no replays of the evidence, the court was doing no more than stating the obvious. In addition, the court's statement to the jury that they would hear the evidence once and only once is also true in that the jury would have no second chance to hear the witnesses testify.We view the introductory remarks of the judge as meaning only to encourage the jury to be attentive to the evidence, not that the jury would be precluded from having testimony reread to them if they so desired. Although it is the duty of the court, not the defendant, to protect the jury's rights under Penal Code section 1138 (People v. Litteral (1978) 79 Cal.App.3d 790, 797, 145 Cal.Rptr. 186), had either party objected, a clarifying statement could have been made by the court. We find no error.Appellant next contends that the trial court abused its discretion in admitting into evidence a mannequin representing the victim dressed in the uniform of the candy store and wearing a wig. The trial court has discretion in admitting demonstrative evidence to clarify the testimony of a witness. (People v. Reaves (1974) 42 Cal.App.3d 852, 858, 117 Cal.Rptr. 163.) The use of mannequins has been upheld despite “some prejudicial effect . . . as long as it ‘tends to prove a material issue or clarify the circumstances of the crime.’ ” (People v. Fitzgerald (1972) 29 Cal.App.3d 296, 316, 105 Cal.Rptr. 458, 470.)The mannequin had significant probative value in indicating the point of entry of the bullet into the victim's head. This fact was relevant for the purpose of showing premeditation of the killing. A medical report or medical testimony alone was not as effective a way to show the position of appellant at the time he fired the shot. The trial court took steps to minimize the prejudicial effect of the mannequin by ordering its removal from the court before the end of the trial. Appellant is correct in pointing out that the bullet did not actually exit the head, and therefore the pointer (representing the bullet) passing through the mannequin's head was not precisely accurate. However, the bullet did pass through the skull on the side opposite its point of entry, but disintegrated without actually penetrating the skin. The penetration of the pointer through the mannequin's head was necessary to show the angle at which the shot was fired, which would not be revealed by merely showing the point of entry. Furthermore, the jury was informed that the bullet did not actually exit the victim's skull, and therefore there was no confusion. The court did not err.Appellant next contends, relying on People v. Sears (1970) 2 Cal.3d 180, 84 Cal.Rptr. 711, 465 P.2d 847, that the trial court erred in refusing to give his requested instruction relating specific evidence to the question of reasonable doubt regarding premeditation and deliberation. In Sears the court stated that a defendant “has a right to an instruction that directs attention to evidence from a consideration of which a reasonable doubt of his guilt could be engendered” (at p. 189, 84 Cal.Rptr. at p. 717, 465 P.2d at p. 853). However, the defendant is not entitled to an instruction which “is argumentative and calls upon the jury to consider specific evidence concerning which there was a factual dispute” (People v. Hernandez (1971) 18 Cal.App.3d 651, 660, 96 Cal.Rptr. 76); nor is the defendant entitled to an instruction which “does not accurately state the evidence to which the jury's attention is sought to be directed” (People v. Holt (1972) 28 Cal.App.3d 343, 354, 104 Cal.Rptr. 572, 579).Appellant requested the following instruction:In determining whether in regard to premeditation and deliberation any reasonable doubt exists, as that term has been previously defined, you may consider any of the following evidence:1. The lack of motive of the defendant;2. The defendant's prior consumption of alcoholic beverages and, or use of drugs;3. The defendant's presence at the Dougall's residence the night before and the day of the incident in question;4. The lack of furtive (secret) conduct by the defendant immediately prior to, or after, the incident in question;5. The defendant's use of his proper identification to buy ammunition immediately prior to the incident in question in the immediate vicinity of the incident in question;6. Any other evidence tending to prove reasonable doubt.As to (1) of the requested instruction, Sears makes clear that lack of motive is a factor relevant to the determination of whether the defendant deliberated and premeditated the crime; however, in the present case it is not clear that appellant had no motive for the killing. He stated to a friend shortly after the killing that he had shot the victim because he believed that she had reached for a gun. In addition, there was testimony that appellant had no money on the day of the robbery and shooting and planned to take his girl friend to the county fair that evening. In light of this evidence, (1) of the requested instruction does not accurately refer to the evidence at trial and contains conclusions which could confuse the jury.(2) of the requested instruction is substantially identical to an instruction (CALJIC 8.77) given by the trial court at the request of appellant.The significance of (3) of the requested instruction is unclear. It apparently refers to drinking and drug use which occurred at the Dougall's home on the evening before the shooting and on the day of the shooting. To this extent its thrust is included within (2) of the requested instruction.(4) of the instruction is a misstatement of the evidence. It is clear that appellant attempted to flee from Officer Hall and discard the stolen money during his pursuit.(5) of the requested instruction correctly recites that appellant used proper identification in purchasing ammunition prior to the shooting; however, the evidentiary value of this fact is extremely slight. Although the use of proper identification is not evidence of premeditation or deliberation, it is also not evidence of lack of premeditation and deliberation. Sears requires only the inclusion in an instruction of “evidence from a consideration of which a reasonable doubt . . . could be engendered.” (People v. Sears, supra, 2 Cal.3d at p. 189, 84 Cal.Rptr. at 717, 465 P.2d at p. 853.)The purpose of (6) of the instruction was to indicate to the jury that it was not bound in its consideration of reasonable doubt to the evidence referred to in earlier parts of the requested instruction. Thus, since the first five portions of the instruction were inappropriate, the court was under no obligation to instruct the jury as to the sixth part.Appellant lastly contends that his intoxication and resulting unconsciousness were involuntary, being induced by chronic alcoholism which compelled him to begin drinking and made him unable to stop. The court refused appellant's instructions on involuntary intoxication. Appellant asserts that where intoxication and resulting unconsciousness stem from such a compulsion to drink and an inability to stop, criminal liability imposed on the alcoholic is without mens rea. The contentions are without merit. They were raised and rejected in People v. Wyatt (1972) 22 Cal.App.3d 671, 99 Cal.Rptr. 674.

SCOTT, Acting Presiding Justice.

FEINBERG and GOOD (Assigned by the Chairperson of the Judicial Council), JJ., concur.