PEOPLE v. COLEMAN

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Ralph Terry COLEMAN, Defendant and Appellant.

Cr. 10556.

Decided: June 17, 1981

T. W. Condit, Sacramento, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty., Arnold O. Overoye, Asst. Atty. Gen., for plaintiff and respondent.

For Opinion on Hearing, see 211 Cal.Rptr. 102, 695 P.2d 189.

Defendant fatally shot his wife, son, and niece after an argument with the wife about finances and other marital problems. He also shot at his daughter. He admitted the shootings and defended on the grounds of diminished capacity and insanity. A jury convicted him of two first degree murders as to the son and niece (Pen.Code, s 187), second degree murder as to the wife (Pen.Code, s 187), and assault with intent to commit murder as to the daughter (Pen.Code, s 217). It also found he used a firearm in each of the three murders (Pen.Code, s 12022.5) and committed multiple murders (Pen.Code, s 190.2, subd. (a)(3)). His defenses were rejected. The prosecution eschewed a death penalty request and defendant was sentenced to life imprisonment without possibility of parole for the murder of the son under special circumstances. Sentences on the other counts and the use findings were imposed concurrently and merged with the life sentence.

On appeal, defendant raises issues of error in jury selection and instruction, evidentiary rulings, and sentencing, through appellate counsel; he also separately and personally questions the jury selection, the conduct of both counsel, and the admission of specified psychiatric evidence.

I

Defendant's first contention is that the court erred in excusing two prospective jurors and an alternate for cause after they stated they could not vote for the death penalty.1 Since his opening brief was filed, defendant's assertion that “death qualified” jurors (see Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776), are unduly prone to convict and unrepresentative has twice been rejected by our Supreme Court (Hovey v. Superior Court (1980) 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301; People v. Harris (1980) 28 Cal.3d 935, 960, 171 Cal.Rptr. 679, 623 P.2d 240). The contention thus fails. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

Defendant's contention that his fair trial rights were violated by exclusion of resident noncitizens from the jury venire fails for the same reason. In Rubio v. Superior Court (1979) 24 Cal.3d 93, 154 Cal.Rptr. 734, 593 P.2d 595, the Supreme Court considered and rejected the claim, holding that resident aliens are not a cognizable group within the meaning of the representative cross-section rule (at p. 100, 154 Cal.Rptr. 734, 593 P.2d 595) and that the statutes excluding them (Code Civ.Proc., ss 198, 199) are constitutional (at p. 105, 154 Cal.Rptr. 734, 593 P.2d 595).

Defendant's personal contention of error in the jury selection is based on an assertion of prosecutorial racial discrimination. The record shows the prosecution exercised two peremptory challenges on prospective black jurors. In each case the prosecutor stated his reasons for the challenge, and in both cases the court found a sufficient basis for the challenge in the reasons stated. The challenges were based on one juror's marital difficulties and the other's contact with and attitudes toward psychiatrists. Defense counsel's objection, based on People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, was overruled on the specific finding that there was no systematic effort to exclude blacks from the jury. Wheeler disallows prosecutorial exclusion of prospective jurors on the sole ground of group bias (id., at pp. 276-277, 148 Cal.Rptr. 890, 583 P.2d 748); it does not immunize group members from peremptory challenges based on legitimate reasons, including prosecutorial fears of bias or partiality. Appellate courts rely on trial courts to identify true cases of group discrimination via peremptory challenges (Wheeler, supra, 22 Cal.3d at pp. 281-282, 148 Cal.Rptr. 890, 583 P.2d 748); in this case the trial court found the challenges justified by the reasons advanced. After reviewing the record, we agree.

Two black potential jurors were excused for cause. Since it was the trial judge, not the prosecutor, who initiated their removal, any claim of prosecutorial discrimination as to them is not viable.

II

Defendant next challenges the admission into evidence of a tape recording of a jail conversation he had with a visitor, the contents of a letter written by his wife to her mother in 1976, a letter she wrote in 1977 “To Whoever Should Read This,” the records of an Ohio mental health center he visited in 1974 and 1975, and the testimony of a psychiatrist who observed him testify in court but never interviewed him.2

The tape recording of a jail conversation between defendant and a former co-worker was introduced by the prosecution on cross-examination to impeach the witness' testimony that defendant was nervous and upset after the murders. The existence of the tape recording was established by defense counsel on direct examination. The prosecutor also established that the witness knew at the time that the conversation was being recorded.

We reject on the merits defendant's contention that admission of the tape recording violated his rights to privacy.3 The nature and extent of privacy rights in jailhouse conversations is an issue currently pending before our Supreme Court.4 Meanwhile, existing authority treats jailhouse communications differently from those of persons in a free setting. (People v. Rodriguez (1980) 111 Cal.App.3d 961, 968, 168 Cal.Rptr. 920, hg. den. Feb. 5, 1981. A person detained in jail cannot reasonably expect to enjoy the privacy afforded a person in free society; this lack of privacy is a necessary adjunct to imprisonment. (Ibid.; North v. Superior Court (1972) 8 Cal.3d 301, 309, 104 Cal.Rptr. 833, 502 P.2d 1305.) Except in limited circumstances involving a special relationship, an incarcerated person has no reasonable expectation of privacy in ordinary jailhouse conversations. (See People v. Hill (1974) 12 Cal.3d 731, 764-765, 117 Cal.Rptr. 393, 528 P.2d 1, and North v. Superior Court, supra, 8 Cal.3d at pp. 308-309, 104 Cal.Rptr. 833, 502 P.2d 1305.) Reported appellate decisions since the passage of the California Constitutional privacy provision have assumed that privacy and Fourth Amendment search and seizure protections are coextensive. (See People v. Owens (1980) 112 Cal.App.3d 441, 448-449, 169 Cal.Rptr. 359 and cases there cited.) We decline defendant's invitation to reconsider the issue and find no error in the admission of the tape recording for the limited purpose of challenging the credibility of the defense witness.

Two letters written by defendant's wife describing their marital difficulties and defendant's previous threats to kill his family were read to the jury after the failure of defense efforts to exclude them before and during trial. Limited cross-examination of defendant was permitted on one of the letters he admitted he had recognized as his wife's and looked at at some point before the shootings, after a limiting instruction to the jury to disregard stricken answers and not speculate on unanswered questions. The court also permitted the prosecution to question a defense psychologist and psychiatrist who used the letters in forming opinions on defendant's mental states before, during, and after the shootings. Psychological testimony of both defense and prosecution experts who reviewed the letters in connection with their assessments of defendant was accompanied by limiting instructions to the jury to consider the contents of the letters only in weighing the expert testimony and not as proof of the truth of the statements made. The prosecutor referred to the letters in closing arguments to the jury in attempting to discredit expert testimony on defendant's mental state. Early in his argument the limiting instruction was again read to the jury after a defense objection to the reading of excerpts.

Defendant contends the letters were prejudicial and not probative, and it was an abuse of discretion to allow the jury to hear them or to admit them for any purpose. We disagree.

Defendant testified that he found an envelope on which his wife had written “To Whom it May Concern, Open in Case of my Death,” scanned the letter inside, never looked at it again, never asked his wife about it, and did not think about it any more. In light of his defense of diminished capacity and insanity by virtue of the “insidious development of a chronic and unshakable paranoid delusional system” and the contents of the letter (including an account of his wife's intimacies with other men, her attempts to remedy the couple's “situation” in California during the previous two years, defendant's “many” threats to kill her and the children, and her feelings that defendant was being prevented from obtaining good employment by the actions of others), his testimony was suspect. Since credibility is always an issue in any testimony, the prosecution was properly permitted to challenge defendant's by asking why he didn't read the letter. Objections to all specific references to the contents of the letter during cross-examination of defendant were sustained, and the jury was repeatedly admonished to disregard the questions. The trial court did not abuse its discretion by ruling that the probative value of the letter was not substantially outweighed by the probability of undue prejudice (Evid. Code, s 352) in this context.

Introduction of the contents of the two letters in cross-examination of expert witnesses on defendant's mental state was also proper. Evidence Code section 721 provides, inter alia, for full cross-examination of experts on the matter upon which their opinions are based. The letters were considered by the experts in arriving at their conclusions. The reference to previous threats by defendant to kill his family was obviously a factor in the determination of the issue of premeditation and deliberation, a critical facet of the expert opinions. The prosecution was within its rights to cross-examine on the subject, and the court's ruling was not error notwithstanding the unfavorable effect on the defense.

Records from an Ohio mental health center where defendant was treated in 1974 and 1975 were admitted for all purposes under the Evidence Code section 1271 business records exception to the hearsay rule, over defendant's objection to parts of the custodian's testimony as irrelevant and unqualified and his objections to admission of the records in their entirety “based on 1271 of the Evidence Code” and hearsay. He now contends, and the People concede, that the psychiatric diagnoses contained in the reports were inadmissible. (People v. Reyes (1974) 12 Cal.3d 486, 502-503, 116 Cal.Rptr. 217, 526 P.2d 225.) The People argue however that defendant's failure to advance a specific objection on the ground that psychiatric diagnoses do not fall within the definition of “act, condition, or event” in Evidence Code section 1271 constitutes a waiver that precludes our review of this contention. (Evid. Code, s 353.) We agree the error was waived and further find it harmless in any event.

Evidence that an Ohio psychiatrist diagnosed defendant's 1974-1975 mental problems as an “adult situational reaction due to his marital problems” was already before the jury for the limited purpose of Evidence Code section 721. Limiting instructions were given to the jury at least three times as to this evidence. The prosecutor gave his own limiting instruction in arguing the point to the jury, cautioning it to use the diagnosis only to evaluate the testimony of other psychiatrists. Any error in the admission of the records was thus harmless.

As an alternative to the admissibility contention, defendant claims he was denied his constitutional right to confrontation because the Ohio psychiatrist did not testify at the trial. The claim is meritless; defendant declined offers by both the prosecutor and the court to arrange for the psychiatrist to appear and thus waived any right of examination of him.

Defendant's personal evidentiary argument is that it was error to allow a psychiatrist who observed him testify but never interviewed him to give an opinion on his mental state during the shootings. There was no error. The lack of a personal interview affected the weight the jury might give to the opinion; it did not preclude its admission. (See generally, Evid. Code, s 801, subd. (b).)

III

Defendant alleges error in three of the jury instructions given by the court. He first challenges a modified version of CALJIC No. 4.21. The instruction given was:

“In the crimes of which the defendant is accused in the information, a necessary element is the existence in the mind of the defendant of the mental states and the specific intent to (sic) which the court will explain.

“If the evidence shows that the defendant was intoxicated at the time of the alleged offenses, the jury should consider his state of intoxication in determining if defendant had such mental states and/or specific intent.

“If from all the evidence you have a reasonable doubt whether defendant was capable of forming such mental states and/or specific intent, you must give the defendant the benefit of that doubt and find that he did not have such mental states and/or specific intent.”

Defendant's objection is to the use of the words “should consider” in the second sentence; he contends it was error not to instruct the jury it “must consider” his state of intoxication. (The evidence showed defendant had consumed three or four beers in the course of the evening.) The argument lacks merit. Any conceivable ambiguity in the language of CALJIC No. 4.21 was cured when the court delivered CALJIC No. 3.35, which instructs the jury that it “must take all the evidence into consideration” in determining whether defendant was capable of forming a specific intent and in giving the defendant the benefit of any doubt. (People v. Tanner (1979) 95 Cal.App.3d 948, 959, 157 Cal.Rptr. 465.)

During discussions on jury instructions, the court denied defendant's request to modify CALJIC Nos. 8.41 and 8.48 by adding the words “or other cause” to the enumerated causes of diminished capacity (mental illness, mental defect or intoxication). Defendant relies on People v. Conley (1966) 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911, for the proposition that diminished capacity can be caused by a combination of the factors listed in the instructions. We do not dispute this, but we perceive nothing in the unmodified instructions to preclude the jury's consideration of combinations, nor do we see how the proposed modification would have been of any appreciable help in this regard. We thus find no error in the court's refusal to modify.

IV

Defendant personally argues his counsel was ineffective in cross-examination of the pathologist who performed the autopsies on the victims, and in advising him to talk to psychiatrists not appointed by the court. We disagree.

No extensive cross-examination of the pathologist was necessary. Except for the location of one entry wound, there was no dispute as to his testimony (the pathologist testified defendant's wife was shot in the back of the neck at close range, defendant testified he shot her in the face). Intensive cross-examination on this point would not have shaken the pathologist's findings and would have highlighted the inconsistency between defendant's testimony and the objective evidence. Similarly, since the entire defense was predicated on diminished capacity and insanity, it was tactically wise for defendant to cooperate with psychiatrists of both sides.

Defendant's several contentions of prosecutorial misconduct are not supported by the record. The prosecution used the name “Chase” twice instead of defendant's name during cross-examination of a defense psychiatrist.5 The references were immediately corrected as slips of the tongue and cannot fairly be characterized as misconduct.

During the same cross-examination, the prosecutor questioned the psychiatrist extensively on the report he had submitted to defense counsel. This was not misconduct; defense counsel had supplied the reports to the prosecution voluntarily, as a matter of trial tactics, before trial and before the selection of defense witnesses. There was no illegal interception or use of protected materials.

Contrary to defendant's assertions, there was no misconduct involved in the prosecution's calling of a psychologist and a psychiatrist who testified to the lack of reliability of psychiatric diagnoses, predictions, and “postdictions,” and to the shortcomings of various diagnostic tests given to defendant. The psychologist (who was also an attorney) further testified that in his opinion psychiatry has not reached the level of a science because the field is “a mass of disputes” involving at least 16 theories of human personality and behavior which are applied by subjective, not scientific, methods.6 It was the prosecutor's duty as an advocate to lessen the chance that the jury would accept the defense version of defendant's mental capacities at the time of the shootings. Defendant was not thereby deprived of any defenses.

V

In a supplemental brief filed by leave of court, defendant argues that two of the jury's three findings of use of a firearm in the murders, and the corresponding concurrent and merged sentences therefor, were improper because the three murders were part of a single transaction. Citing In re Culbreth (1976) 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23 and People v. Chavez (1980) 26 Cal.3d 334, 161 Cal.Rptr. 762, 605 P.2d 401, the People essentially concede the point; modification of the judgment is thus in order.

VI

Defendant's final argument, that the cumulative effect of his claimed errors requires reversal of the judgment, fails in light of the absence of error in this lengthy and complex proceeding.

The judgment is modified to strike therefrom the use findings and sentences associated with counts one and three (the murders of the wife and niece). In all other respects, the judgment is affirmed.

I concur in the result.

FOOTNOTES

1.  Voir dire on this issue was conducted individually in chambers, apparently on defendant's motion.

2.  Without citation to authority, defendant also “notes that and (sic ) I.Q. test upon which the experts relied has been banned in federal court.” We assume he is referring to Larry P. v. Riles (1979) 495 F.Supp. 926, now on appeal before the 9th Circuit Court of Appeals. That case involves an injunction preventing the use of individual standardized intelligence tests designed for children to place black students in classes for the mentally retarded. It has no bearing on defendant's case.

3.  We are not unimpressed with the People's waiver contention, but we need not reach it.

4.  See DeLancie v. Superior Court, former citation 97 Cal.App.3d 519, 159 Cal.Rptr. 20.

5.  Both the prosecutor and the psychiatrist had been independently involved in a particularly gruesome murder case involving a defendant of that name.

6.  Having ourselves observed hundreds of instances of absurd conflicting psychiatric (and other expert) testimony, we applaud the comments. We add to them this quotation: “Psychiatry, I suppose, is the ultimate wizardry. My experience has shown that in no case is it more difficult to elicit productive and reliable expert testimony than in cases that call on the knowledge and practice of psychiatry Serious legal challenges have been needed to surface its (the psychiatric profession's) hidden agendas.” (Bazelon, Psychiatrist and the Adversary Process (1974) Vol. 230, Scientific American, No. 6, pp. 18, 22.)