PEOPLE v. MORRALL

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Norman G. MORRALL, Defendant and Appellant.

Cr. 14598.

Decided: June 28, 1983

Hufstedler, Miller, Carlson & Beardsley, Robert S. Thompson, Warren L. Ettinger, P.C., and Dan Marmalesfky, Los Angeles, for defendant and appellant. John K. Van de Kamp, Atty. Gen., and Keith I. Motley, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

Norman Morrall shot and killed his wife.   He was convicted of second degree murder.   He appeals.   We affirm.

I.

Defendant married Jean Ford in 1960.   In 1979 Jean filed for divorce.   She was living in Apple Valley with their two sons, Norman, Jr., age 17 and Matthew, age 10.   Defendant returned to Beaufort, South Carolina, his childhood home.

The divorce proceedings were antagonistic.   Defendant was dissatisfied with his limited custody of Matthew and resented making support payments to Jean.   Jean had garnisheed his wages at Pan-Am where he was a co-pilot.   Defendant took a leave of absence from Pan-Am.

On January 8, 1981, Jean's parents, Mr. and Mrs. Ford, visited with defendant and Matthew in South Carolina.   Defendant asked them to talk to Jean about not going through with the divorce.   When they refused, he became angry and stated he would kill her before he gave her a dime of his money.   He said he could “hire a gun” for $1,000, and would “burn down the house ․ before she got any part of that.”

Defendant returned to California on January 12, for a court hearing on the divorce proceedings scheduled for January 15th.   The hearing was continued.

After meeting with his sons at an Apple Valley bowling alley on January 15th, defendant decided to go to his wife's home for the stated purpose of negotiating visitation rights.   After arriving at her home, defendant took his automatic pistol from his car.   He explained he carried the gun to make her listen.

Defendant claimed that Jean responded to his ringing the doorbell by cursing at him.   They argued.   The argument escalated.   He ended it by shooting her seven times.   At least one of the wounds, to the base of the neck, was a contact wound.   Jean died from loss of blood caused by the gunshot wounds.

Defendant presented a defense of diminished capacity.   A jury found him guilty of second degree murder, and found that he had used a firearm in the commission of the offense.

II.

Defendant first contends the trial court erred in refusing his request to instruct the jury on irresistible impulse as a sub-category of diminished capacity.

The term “irresistible impulse” means “an impulse to commit an unlawful or criminal act which cannot be resisted or overcome by the patient because insanity or mental disease has destroyed the freedom of his will and his power of self-control and of choice as to his actions.”  (Black's Law Dict. (4th ed. 1957) p. 963, col. 1.)   California courts have exhibited some uncertainty whether the concept relates to cognition or violation.  (Compare People v. Cantrell (1973) 8 Cal.3d 672, 686–688, 105 Cal.Rptr. 792, 504 P.2d 1256 (capacity to intend or reflect raised issue of irresistible impulse) (disapproved on other grounds in People v. Wetmore (1978) 22 Cal.3d 318, 149 Cal.Rptr. 265, 583 P.2d 1308 and People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1) with People v. Walter (1936) 7 Cal.2d 438, 440, 60 P.2d 990 (irresistible impulse defined in terms of volitional ability to control conduct) and People v. Jennings (1977) 66 Cal.App.3d 743, 745, 136 Cal.Rptr. 249 (same).)   More recently, the California Supreme Court has clarified the issue, stating that irresistible impulse is “a concept evolved to supply the violational element lacking in [the previous test for insanity, and] can be used to prove diminished capacity.”  (People v. Drew (1978) 22 Cal.3d 333, 344, 149 Cal.Rptr. 275, 583 P.2d 1318.)

It is basic that “ ‘[t]he court should instruct the jury on every theory of the case, but only to the extent each is supported by substantial evidence.’ ”  (People v. Flannel, supra, 25 Cal.3d 668, 685, 160 Cal.Rptr. 84, 603 P.2d 1.)   In this case, two psychiatrists testified in support of defendant's diminished capacity theory, in part as follows:

“THE COURT:  [W]ould [the] handling of the gun in some fashion indicate to you whether or not the defendant had an intent to harm the victim in this case?

“DR. KILGORE:  My understanding is as I have said earlier, that Mr. Morrall most likely carried the weapon in there with him to back up his position, to use as a threat, if need be, in his determination to secure additional visitation from his son, that in the course of the experience he lost control of himself and with some of these angry, hurt, frustrated, self-reducing kind of self-reduced kind of feelings, expressed this hurt and anger at that point in a, just, an overwhelming kind of fashion.”  (Emphasis added.)

“Q: With respect to Mr. Morrall, what impression did you draw from him when you met him [the month before the homicide]?

“DR. KILGORE:  I feel that he was ․ markedly frustrated in external and internal pressures that he was having difficulty handling, to a point where ․ he seemed to be bereft appreciably of much capacity to have say-so about himself at that time, and didn't have much in the way of strengths or capacities to call upon to struggle with his state of being, his state of feeling ․”

“Q: And in those initial consultations that you had [December 10th through the day before the homicide], how did Mr. Morrall seem to be handling the stresses ․?

“DR. KILGORE:  In his state of being at that time, which is markedly reduced from his usual state of reality ․ he was more or less helpless․   You see, he had some severe reality stresses, and he had been markedly reduced within himself in his capacity to deal with them.”

“Q: What do you think was going through Mr. Morrall's mind at the time, the first time he pulled the trigger with her standing just that short distance away from him?

“DR. OSHRIN:  I think that he became very upset.   I presume that she did yell and scream and curse at him, as he said, and particularly with her high alcohol level I can imagine this happening, and I think that it just so—the words fell at him in such a way that he lost control.”  (Emphasis added.)

“Q: Now as I understand your testimony, you feel that he just—he lost control at that instant, that he acted impulsively?

“DR. OSHRIN:  Right.”

 While the psychiatrists did not use the phrase “irresistible impulse,” their testimony, taken as a whole, was probably sufficient to warrant an instruction on that concept.   Assuming it was, however, there was no prejudicial error.   The jury was instructed in the terms of CALJIC 8.77, which provides:

“If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, mental defect, intoxication, or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder and voluntary manslaughter.

“Thus, if you find that the defendant's mental capacity was diminished to the extent that you have a reasonable doubt whether he did, maturely and meaningfully, premeditate, deliberate, and reflect upon the gravity of his contemplated act, or form an intent to kill, you cannot find him guilty of a wilful, deliberate and premeditated murder of the first degree.

“Also, if you find that the defendant's mental capacity was diminished to the extent that you have a reasonable doubt whether he was able to form the mental states constituting either express or implied malice aforethought, you cannot find him guilty of murder of either the first or second degree.

“[If you have a reasonable doubt (1) whether he was able to form an intention unlawfully to kill a human being, or (2) whether he was aware of the duty imposed on him not to commit acts which involve the risk of grave injury or death, or (3) whether he did act despite that awareness, you cannot find that he harbored express malice.]

“[Furthermore, if you find that as a result of mental illness, mental defect, or intoxication, his mental capacity was diminished to the extent that he neither harbored malice aforethought nor had an intent to kill at the time the alleged crime was committed, you cannot find him guilty of either murder or voluntary manslaughter.]”  (Emphasis added.) 1

The defendant requested that the following instruction be given:

“In determining if defendant had diminished mental capacity, if there was evidence that defendant's act was the product of an irresistible impulse, you must consider whether or not such irresistible impulse, if any, was due to mental illness, mental disease or mental defect so as to render defendant incapable of forming the mental states essential to murder or voluntary manslaughter.”  (CALJIC No. 8.78.)

The requested instruction adds nothing of substance to the instruction on diminished capacity that was given.   If the focus of the irresistible impulse variant of the diminished capacity defense is taken to be cognition (as defendant asserts, relying on People v. Cantrell, supra ), then the sense of the requested instruction is entirely subsumed by the underlined portions of the first paragraph of CALJIC 8.77, as quoted above, and as amplified in the succeeding paragraphs.   If the focus is taken to be volition, then the requested instruction simply does not address the issue, while the third clause of the fourth paragraph of the instruction which was given does.   The only element of the requested instruction not present in the instruction actually given is the phrase “irresistible impulse” itself.   There is nothing sacrosanct about this phrase, and failure to give the requested instruction did not prejudice the defendant in any way.

III.

Defendant next contends that his conviction should be reversed because the trial court failed to instruct sua sponte on the defense of unconsciousness.   The commission of an act “without being conscious thereof” is a complete defense to criminal liability.  (Pen.Code, § 26.)

“The duty to instruct sua sponte on general principles [of law] closely and openly connected with the facts of a case includes an obligation to instruct on the defense of involuntary unconsciousness but only where it appears that the defendant is relying on that defense, ‘or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.’  [Citation.] ”  (People v. Ray (1975) 14 Cal.3d 20, 25, 120 Cal.Rptr. 377, 533 P.2d 1017.)

In this case the only evidence which might have given rise to a duty to instruct on unconsciousness was the defendant's own testimony that he did not recall reaching for the gun in his pocket and shooting his wife.

As has been recently noted, “[t]here is a division of authorities as to what evidentiary foundation justifies instructions on unconsciousness.”  (People v. Kozel (1982) 133 Cal.App.3d 507, 526, 184 Cal.Rptr. 208.)   Defendant places great reliance on People v. Bridgehouse (1956) 47 Cal.2d 406, 303 P.2d 1018 and People v. Wilson (1967) 66 Cal.2d 749, 59 Cal.Rptr. 156, 427 P.2d 820 as establishing a rule that a defendant's claim that he does not remember committing the act with which he is charged will, without more, mandate an instruction on unconsciousness.2

However, Bridgehouse and Wilson do not represent the current state of California law on the subject of unconsciousness.   The Supreme Court has more recently stated:  “An unconscious act within the contemplation of the Penal Code is one committed by a person who because of somnambulism, a blow on the head, or similar cause is not conscious of acting and whose act therefore cannot be deemed volitional.  [Citation.]”  (People v. Sedeno (1974) 10 Cal.3d 703, 717, 112 Cal.Rptr. 1, 518 P.2d 913, emphasis added, disapproved on other grounds in People v. Flannel, supra, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1.)   This statement was quoted as being the appropriate test in People v. Ray, supra, 14 Cal.3d at p. 25, 120 Cal.Rptr. 377, 533 P.2d 1017.

 Here, defendant makes no claim that his lack of ability to recall was produced by somnambulism, a blow on the head, “or similar cause.”   Accordingly, we would be justified in rejecting his argument without further discussion.   A review of the evidence, however, demonstrates that even if defendant were correct in his view of the law, he would still not be entitled to a reversal.

“In the absence of such a request [for an instruction on unconsciousness] and in the face of defendant's own testimony that he recalled at least 95 percent of the events surrounding the shooting, only the most tenuous of reasoning might lead the trial court to suspect that the defendant might have been unconscious or that he was relying on unconsciousness as a defense.”  (People v. Sedeno, supra, 10 Cal.3d at pp. 717–718, 112 Cal.Rptr. 1, 518 P.2d 913.)   Here, defendant recalled the events leading up to the shooting in clear detail.   He testified that he went to his wife's house for the purpose of negotiating child visitation.   He remembered taking the handgun from underneath the front seat of his car.   He testified as to his reason for doing so:  to make her listen.   He recalled ringing the doorbell.   He recalled the verbal exchange with his wife.   And he testified that after he had shot his wife, he picked her up from the floor and took her to his car, and ultimately to a hospital.

Two psychiatrists testified on defendant's behalf.   Neither gave any indication that defendant lacked an awareness of his actions, either at the time of the shooting or at any other time.3

“Neither Wilson nor Bridgehouse announces an ineluctable rule of law ․ divorced from reality.”  (People v. Heffington (1973) 32 Cal.App.3d 1, 10, 107 Cal.Rptr. 859.)   Even under the superseded cases defendant relies on, there was insufficient evidence to warrant a sua sponte instruction on unconsciousness.4

IV.

Defendant further contends that the trial court reversibly erred in instructing the jury, over his objection, on the crime of voluntary manslaughter in the “heat of passion.”   This contention is meritless.

“The trial court need not instruct sua sponte on voluntary manslaughter due to heat of passion unless there is evidence sufficient to ‘deserve consideration by the jury, i.e., “evidence from which a jury composed of reasonable men could have concluded” ’ that the accused acted intentionally but without malice.  [Citation.]   Once there is sufficient evidence to warrant this conclusion, the trial court is obligated to instruct on the theory.”  (People v. Wickersham (1982) 32 Cal.3d 307, 325, 185 Cal.Rptr. 436, 650 P.2d 311.)

 Here there was such evidence.   The marriage of defendant and his wife had been marked by acrimony and infidelity.   They were the parties to “messy” divorce proceedings, including a bitter dispute over child visitation.   The victim had garnisheed defendant's airline pilot wages.   The defendant went to the door of his wife's house expecting a confrontation, and carried a gun to maintain the upper hand.   The victim, who had a blood alcohol level of .22 at the time of her death, was shouting at defendant, repeatedly calling him a “son of a bitch,” a term he found highly offensive, and screaming that he would never see his youngest son again, when he opened fire.   There was substantial evidence of intense emotion—defense psychiatrist Oshrin explicitly indicated the killing was committed in the heat of passion—and there was substantial evidence of provocation, in the form of defendant's own testimony.   It would have been reversible error not to instruct on voluntary manslaughter in the heat of passion, absent a request not to do so.

 Defendant contends that the court should not have instructed on heat of passion because it was inconsistent with his chosen defense of diminished capacity.

Despite the claimed inconsistency, there is clear authority for the court's instruction.  “When the charged offense is one that is divided into degrees or encompasses lesser offenses, and there is evidence from which the jury could conclude that the lesser offense has been committed, the court must instruct on the alternate theory even if it is inconsistent with the defense elected by the defendant under the rule obliging the court to instruct on lesser included offenses ․”  (People v. Sedeno, supra, 10 Cal.3d at p. 717, fn. 7, 112 Cal.Rptr. 1, 518 P.2d 913.)  “The jury should not be constrained by the fact that the prosecution and defense have chosen to focus on certain theories.”  (People v. Wickersham, supra, 32 Cal.3d at p. 324, 185 Cal.Rptr. 436, 650 P.2d 311.)  “Voluntary manslaughter committed on sudden quarrel or heat of passion is a lesser included offense included within the crime of murder.”  (People v. Sedeno, supra, 10 Cal.3d at p. 719, 112 Cal.Rptr. 1, 518 P.2d 913.)

Defendant argues in spite of the above authority that the heat of passion instruction was prejudicial error because it “confused the jury,” who were directed to assess defendant's conduct by an objective “reasonable man” standard in relation to heat of passion, and by a subjective standard in reference to diminished capacity.5

Taken as a whole, however, the jury instructions are clear that heat of passion and diminished capacity are separate theories, either of which might operate to reduce defendant's crime from murder to manslaughter.   There is no indication in the record that the jury actually was confused about the tests to be applied.   Defendant's reliance on cases such as People v. Poddar (1974) 10 Cal.3d 750, 761, 111 Cal.Rptr. 910, 518 P.2d 342, and People v. Roe (1922) 189 Cal. 548, 558–559, 209 P. 560 is misplaced.   In these cases the confusion resulted from the giving of instructions which were patently inapplicable to the facts of the case, or from the failure to give instructions on issues which were clearly raised, and the giving of irrelevant instructions.

V.

It is next argued that the conviction must be reversed because of claimed ineffective assistance of counsel.   Again, we disagree.

 Defendant first argues that the failure of his trial counsel to present a defense of unconsciousness resulted in the withdrawal of a potentially meritorious defense.  (People v. Pope (1979) 23 Cal.3d 412, 425–426, 152 Cal.Rptr. 732, 590 P.2d 859.)   As we have seen above, however, despite extensive psychiatric testimony, there was no substantial evidence of unconsciousness, nor any indication that defendant's experts would have testified he was unconscious had they been asked.   The defense of unconsciousness was not potentially meritorious in this case.

 Defendant further complains that his trial counsel failed to adequately develop his theory of diminished capacity.   Defendant stresses that the only direct questioning of the psychiatric witnesses as to whether defendant suffered from an irresistible impulse occurred on cross-examination.   However, as we have stated above, there is nothing about that phrase necessitating its use to effectively present the concept.   Defendant's argument that trial counsel failed to develop the concept of diminished capacity is bottomed on a selective reading of the record which ignores the substantial development of the defense which did in fact occur.6

Defendant notes that the most pointed questions directed to the psychiatric witnesses were asked by the prosecutor during his “expansive” cross-examination, and characterizes as ironic the fact that it was on cross-examination that defense psychiatrists Oshrin and Kilgore most clearly explained their views that defendant was not responsible for his acts.   This argument, of course, proves too much.   To the extent that defense counsel's examination of the witnesses was ineffective, any arguable ineffectiveness was rendered harmless by the additional development of the diminished capacity defense which occurred during cross-examination.

VI.

Defendant also alleges he was denied reasonably competent assistance of counsel because his trial counsel failed to present “important facts” to the jury.

The first “important fact” is that defendant's older son, Norman Morrall, Jr., had been entrusted by his mother with the responsibility of deciding whether his twelve-year-old brother would be permitted to stay with the defendant for two additional weeks, yet the older boy did not inform the defendant of this fact, thus allowing him to embark on a futile visit to his wife for the purpose of arranging visitation.   Defendant argues that since the jury did not hear this important information, it may have chosen to disbelieve his statement that he went to his wife's house to negotiate visitation.

A review of the transcript shows that trial counsel did in fact elicit this information from Norman Morrall, Jr.

 The second fact relates to the defendant's testimony that he had taken sleeping pills on nights previous to the shooting.   Defendant argues that the fact that no evidence was presented concerning whether this medication might have had an impact on his deliberative processes shows ineffective assistance of counsel, and gives the name of the medication from a source outside the record.

On the factual record which is before us, we are unable to state there could be no satisfactory explanation for counsel's failure to pursue this issue.  (People v. Pope, supra, 23 Cal.3d at p. 426, 152 Cal.Rptr. 732, 590 P.2d 859.)   The proper context in which to pursue the question is on petition for writ of habeas corpus.

VII.

Finally, defendant urges that his conviction must be reversed due to prosecutorial misconduct.

Defendant presented eleven witnesses who testified to his good character and reputation for peacefulness.   The prosecutor asked four of these witnesses whether they had heard of an incident in which defendant had given his wife two black eyes.   Defense counsel made no objection, but subsequent to the prosecutor's questions, defendant's son testified that the allegation was without substance.

People v. Eli (1967) 66 Cal.2d 63, 79, 56 Cal.Rptr. 916, 424 P.2d 356 states that the prevention of cross-examination based on “mere fantasy ․ may best be done by first ascertaining, outside the presence of the jury, ‘that the target of the question was an actual event, which would probably result in some comment among acquaintances if not injury to defendant's reputation.’  [Citation.]”   In this case, the prosecutor did not comply with this procedure.

 However, if there was misconduct, it was entirely non-prejudicial.   When the prosecutor's failure to clear the questioning with the court before asking it was challenged in post-trial motions, the prosecutor appended to his response a police report which revealed that the victim's mother had learned of the defendant's alleged conduct through a letter written by the victim.   Thus, there is evidence that the prosecutor acted “in good faith and with the belief that the acts or conduct specified actually took place.”  (People v. Wagner (1975) 13 Cal.3d 612, 619, 119 Cal.Rptr. 457, 532 P.2d 105.)   Although defense counsel made no objection when the question was asked, he later elicited testimony from defendant's son that the alleged incident did not occur as the victim had related it to her mother;  there were no black eyes.   This was certainly a reasonable choice of trial tactics.

Even assuming that there was misconduct, it could have been cured by a timely objection and admonition.  (People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468.)   Accordingly, we need not, and may not, reach the question of whether the alleged error could have resulted in a miscarriage of justice on the record taken as a whole.  (Id.)

VIII.

The judgment is affirmed.

FOOTNOTES

1.   Since implied malice was not an issue, the fifth paragraph of CALJIC 8.77 was not given.

2.   Defendant relies on People v. Newton (1970) 8 Cal.App.3d 359, 87 Cal.Rptr. 394 for the same proposition.   Since, as our analysis makes clear, pre-1974 cases apply an obsolete test, it is unnecessary for us to separately discuss this case.Defendant also cites to People v. Kitt (1978) 83 Cal.App.3d 834, 148 Cal.Rptr. 447, holding that unconsciousness may be asserted by a defendant of unsound mind.   Since we resolve the issue on the threshold question of substantial evidence, we do not address whether the assertedly unsound mind of this defendant would preclude use of the unconsciousness defense.

3.   Dr. Kilgore did testify in part that “[defendant's] behavior of picking his wife up and taking her to the hospital has raised even more strongly in my mind the question as to whether or not he suffered [a] temporary psychotic lapse at that time.   I have no way of knowing that, but the more I have thought about it, his behavior in taking her to the hospital, makes me wonder if he really realized that he had inflicted upon her injuries that would almost certainly result in death, if they hadn't already.”This passage, however, does nothing more than suggest that defendant may not have been cognizant of the significance of his actions.   It does not indicate that he was unaware of the actions themselves.

4.   People v. Wilson and People v. Bridgehouse are also factually distinguishable from this case.   In both cases, the defendants requested instructions on unconsciousness, which were refused.   Here, no request was made.  People v. Sedeno clearly indicates that a greater quantum of evidence is necessary to trigger the court's duty to instruct sua sponte on unconsciousness than is required where the defense is explicitly relied on.  (10 Cal.3d at pp. 717–718, 112 Cal.Rptr. 1, 518 P.2d 913.)   Wilson and Bridgehouse are inapplicable to the present case in this regard as well.

5.   Defendant did in fact request that the jury be instructed on heat of passion, but without reference to the “reasonable man” standard.   The trial court refused this request, and it is not claimed that it was error to do so.  (See People v. Morse (1970) 70 Cal.2d 711, 734–735, 76 Cal.Rptr. 391, 452 P.2d 607.)

6.   Development of the diminished capacity theory by defense counsel included, for example, the following testimony elicited from Dr. Kilgore:  “A.   In his state of being at that time ․, he was more or less helpless.   He felt almost totally impotent with reference to ability to do anything about any of these stresses.   You see, he had some severe reality stresses, and he had been markedly reduced within himself in his capacity to deal with them.”  “A.  ․ I asked him to call me if he got out there and felt under too much pressure, or that there was a kind of a threat to his sense of self-control․   He called․”;  “Q.  ․ What concerns did you have about Mr. Morrall's ability to handle that additional stress if she said no [to his wishes regarding child visitation]?   A.   Well, I felt that it would be a marked threat to his sense of capacity to control his feelings․   I had no particular concept relative to what foreign behavior he might take if he got out there and in the hassle became so upset that his controls were threatened.”;   and the following testimony of Dr. Oshrin:  “Q.   Now, Doctor, at the time when he was pulling the trigger, do you have an opinion as to whether or not he was able to form a state of mind known as malice aforethought?   A.  Yes.   At the time that he was pulling the trigger I believe that he was in a very agitated and disturbed state of mind, which would have prevented him from developing a state of mind known in legal circles as malice.”;   and “Q.  [D]id you form any opinion concerning the likelihood of an absence of any further intent which would eliminate the element of intent to kill?   A.  Well, let me say, based on the totality of the situation, that is to say, Morrall's behavior before, during, and after the event, it does not appear to me that he formed an intent to kill.   May I also add that during the psychological few moments of the shooting where I postulate that he was in a confused and disorganized state of mind, he would not have been able, I think, to form that intent.   He was too confused and upset.”

MORRIS, Presiding Justice.

KAUFMAN and McDANIEL, JJ., concur.