PEOPLE v. MORRISON

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene MORRISON, Defendant and Appellant.

Cr. 41336.

Decided: January 26, 1983

George Deukmejian, Atty. Gen., Robert H. Philibosian, S. Clark Moore, Asst. Attys. Gen., Carol Wendelin Pollack, Carol Slater Frederick, Deputy Attys. Gen., for plaintiff and respondent. Quin Denver, State Public Defender, Ralph H. Goldsen, Deputy State Public Defender, for defendant and appellant.

Defendant-appellant Eugene Morrison (Morrison) was convicted of three counts of rape by force and threat and five counts of forcible oral copulation, occurring on three separate occasions against three unrelated victims.   He was sentenced to an aggregate unstayed term of 22 years.

His appeal is based on four contentions:

“1. The prosecutor with the approval of the trial court committed reversible error in making repeated reference to appellant's failure to testify in his defense;

“2. Appellant could not be convicted and punished for two separate offenses of oral copulation where the acts underlying the offenses were divided only by a change in appellant's attitude of repose.

“3. Appellant was deprived of the effective assistance of counsel by his attorney's waiver of the reading of CALJIC 17.01.

“4. The trial judge erroneously required inclusion of information in a stipulation which could only be understood to reflect his negative evaluation of appellant's defense and likelihood of acquittal.”

FACTS

Morrison's witnesses testified only as to his character and his involvement in the music business.   The testimony of the People's witnesses, undisputed as to the facts of each transaction, disclosed the following:

As to Counts I and II

Victim Velsie met Morrison at the Fox Hills Mall parking lot, when he detained her as she was about to go into a store.   He told her he was recently from New York and did not know many people or places to go locally.   He then told her he was in the music business, gave her his business card, and declared an interest in featuring her on his next record album cover.   Some time later, Velsie called Morrison, as she was interested in the music business.   After several phone conversations, she agreed to meet him outside of Los Angeles City College.   They were to lunch together and then to go to a recording studio where she was to watch him perform with his group.

After lunch and a short stop at a shopping center, Morrison told Velsie they were en route to the studio.   However, he stopped at a motel, ostensibly so that he could pick up a few of his things.   She waited in the car.   He returned to the car, indicating that he had a few phone calls to make, and suggesting that she get out of the car.   She did so, jokingly telling him, “You know, it is so bizarre․   You know, I don't go walking up to motel rooms with any old person.   And if you try anything, I have your license number,” although she did not in fact have his license number.   At the phone booth, he asked her to hold the phone for him while he returned to the car for a moment.   The door to his motel room was next to the phone booth.   He opened the door with a key;  and when she hesitated, he grabbed her arm and pulled her into the room.

Morrison seemed to change;  going from a “nice man” of whom she had no fear, to a man with a strong, loud tone of voice.   He ordered her to change into a black body suit and threatened to beat her up, saying he could break her face with one blow.   She was very frightened.   She changed into the body suit in the bathroom, which was windowless.   Upon exiting, she saw Morrison standing in his shorts and T-shirt.   She cried and he became angry, grabbed her, and hit her in the side and stomach, causing her pain.

He pulled her down onto him and ordered her to kiss him, and then to orally copulate him, which she did.   He then completed an act of sexual intercourse.   He finally removed his hands from her neck and got off.

Morrison was now acting nice and said that she knew he would not really hurt her.   After taking some pictures of her, he drove her back to the college and dropped her off.

She noted his license number, drove home and called the police.

Facts as to Counts III, IV and V

Sophie met Morrison through her cousin, whose son attended the school where Morrison worked as a teacher's aide.   She and Morrison got together several times, listening to tapes and records and listening to his eight-piece band perform.   At no time did he touch or kiss her or give any indication that he was interested in a sexual relationship.   She believed that he was interested in having her become part of his band.   She even rehearsed with him on one occasion.

Then, one day, he picked her up and told her he had a big surprise for her.   He began talking about album covers and said that she might be good on the cover.   They discussed music and the album cover.   He then pulled up to the Baldwin Hills Motel and stopped.   He left her in the car for a few minutes, returned with a body suit and told her to come on.   He took her to a room and had her put on the body suit.   She thought he was going to photograph her in the suit.   Although he had no camera, she was posed in several positions, and he indicated they were poses suitable for the cover.   His behavior was not out of place.   When she walked toward the bathroom to change clothing, Morrison grabbed her and tried to kiss her.   She pushed him back and said, “No.”  After persuasion failed, he pushed her on the bed, and they began to struggle.   He told her to take off her underwear or he would tear it off.   He held her hands behind her forcibly.   In fear of him, she removed her underwear, noting that he changed from being a nice guy to someone “crazy, different, vicious, and like a devil.”   She began to cry.   He removed his clothing.   He said that he would kill her and asked her if she had ever been close to death before.   He picked up a pillow, put it close to her head, and told her he would suffocate her.   He held her arms above her head, hurting her.

He forced her to orally copulate him, placing his hand on her head and forcing her into a squatting position.   He then had her lie flat on her back and again inserted his penis into her mouth for another act of oral copulation.   He then had sexual intercourse with her.   She was crying all the time.

They dressed and he drove her home.   When she got out of the car, Morrison said to her, “If you had a pistol, you [sic] shoot me, wouldn't you?”

The next day, she told her cousin what happened.   She was afraid to call the police because Morrison knew where she lived and worked.   She felt he was sick and vicious and she was frightened of what he might do to her or her cousin.   She later told police, when she heard that they were at the school investigating him with respect to other rapes.

Facts as to Counts VI, VII and VIII

Laritha met Morrison when her niece and nephew gave her phone number to him.   He was a teacher's aide at the elementary school they attended, and had told them he needed a singer and model.   After talking to her on the phone, he asked to come to her home and bring her some music and lyrics to learn.   Because she was interested in singing and modeling, she agreed.   When he visited four or five months before the date of the charged offenses, he spoke to Laritha and her mother, mainly about music, and he showed them some receipts, giving the impression that he was a legitimate businessman.

They spoke on the phone again on another occasion.   Then Morrison called and asked Laritha to bring a leotard so that he could take pictures for the album cover.   He also said that they would be rehearsing with the band.   After visiting with Laritha's family for a few minutes, they left.   Laritha testified that she had no reason to doubt appellant.   He seemed businesslike, and he knew the children well from school.   After playing tapes of his group on the car stereo, he showed her some pictures of a girl posing in an orange leotard.

After a brief stop at a store, he drove into a motel, where Morrison said he had to leave and would be back in a few minutes.   He returned to the car, left again, then came back with a camera, saying, “Come on, you know, we will take the pictures, you know.”

Entering the motel room, Morrison asked Laritha to change into the leotard, which she did.   He took pictures of her in several poses, none of them suggestive in nature.   He then got on top of her on the bed.   His attitude changed and he seemed to be forcing himself on her, telling her that she had to do this (sex) to get into the entertainment business.   She began to cry, and he became angry.   They struggled and she began to scream.   He responded by choking her, putting his hands around her neck and pressing his thumbs against the front of her throat, while he straddled her.   At one point, she started to scream again, and he began to suffocate her with the covers, saying, “So you are one of those screamers.”   He also covered her nose and mouth with the pillow.

He pulled her leotard all the way off, and took off his clothes.   Laritha thought about escape and about hitting him with something, but was afraid.

He ordered her to kiss him all over, and then to orally copulate him.   She did so for about ten minutes while he held on to her head.   She stopped when he changed positions.

He changed to more of a sitting position and made her copulate him again while he took pictures.   After about ten minutes of this, he changed positions again.

Straddling her face, he again ordered her to perform an act of oral copulation upon him for another ten minutes.

He then engaged in sexual intercourse with her for about ten or 15 minutes.   He ordered her to wash the blood off her leg.   He then drove her home, after telling her he wanted her to rehearse with his band on Sunday.   Laritha went into the house crying, and police were called.

Morrison was arrested on June 13, 1979.   He had a trial date of October 2, 1980.   On August 5, 1980, bail was reduced.   He made bail and failed to appear for trial.   Bail was forfeited and a bench warrant issued.   Subsequently, he was found in Savannah, Georgia, and was extradited and returned on July 27, 1981.   Following a jury trial, Morrison was convicted of all charges.

DISCUSSION

Morrison's contentions on appeal will be considered ad seriatim.   He argues that:

 1. “The prosecutor with the approval of the trial court committed reversible error in making repeated reference to appellant's failure to testify in his defense.”

Morrison cites as improper comment the following statements made by the District Attorney in final argument:

“So we come down to the third and last possible defense in such a case.   And that is consent.

“But once again, you have not heard any evidence to that effect either.   Not a single witness has taken the stand to testify to consent․

“And once again you are going to be instructed that it is a defense to a charge of forcible rape that the defendant entertained any reasonable and good faith belief that the female person voluntarily consented to engage in sexual intercourse.   No testimony regarding the defendant entertaining such a belief.   So, I would submit to you most specifically, ladies and gentlemen of the jury, that none of the three possible defenses have been offered in this case․

“I made a note before Mr. Heaney commenced his argument and my note says, ‘Will the defense answer these questions?’   And there are three.

“Will the defense explain in its argument why it was that the defendant fled the jurisdiction and went to Savannah, Georgia, and had to be extradited, hauled back into this jurisdiction to face these charges?”

Under Griffin v. California (1965) 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106, no comment may be made on the failure of a defendant to testify in his own defense.   It is also impermissible indirectly to call attention to that fact.   However, it is proper for a prosecutor to comment on the state of the evidence or the failure of the defense to call a witness when it would seem logical to do so.  (People v. Gray (1979) 91 Cal.App.3d 545, 553, 154 Cal.Rptr. 555.)

Morrison argues that the above language impermissibly draws attention to the lack of testimony by defendant.   That is not the case.   The People have a right to comment on the state of the evidence.   Evidence as to consent, including a good faith belief, if any, that may have existed in Morrison's mind, could have been received through witnesses other than defendant.   For instance, witnesses could have testified to the existence of a prior romantic relationship between the parties or to statements previously made by the victims as to their intent.

A similar argument to Morrison's was made in People v. Roberts (1975) 51 Cal.App.3d 125, 123 Cal.Rptr. 893, wherein it was argued that since the defendant was the only remaining eyewitness to the events, any reference to lack of conflicting witnesses was Griffin error.   The court in Roberts affirmed the conviction, stating at page 137, 123 Cal.Rptr. 893:

“The prosecutor is not relegated to dumb show in response to defense counsel's argument․   No direct personal reference to defendant was made.   If by some involuted process of reasoning the district attorney's remarks may nonetheless be viewed as a reference to defendant's silence, the reference is too tenuous and tangential to fall within the ambit of Griffin․”

Also in accord is People v. Goodall (1982) 131 Cal.App.3d 129, 145, 182 Cal.Rptr. 243, wherein the prosecutor, in a strongly-worded argument, made reference to the people's evidence being uncontradicted.

In any event, violations of the Griffin rule are not reversible per se, but fall within the standards of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.   In view of the unrefuted and detailed testimony of the three victims, heretofore summarized in this opinion, even if this had been Griffin error, it was harmless.

 2. Morrison further contends that he could not be convicted and punished for “two separate offenses of oral copulation where the acts underlying the offenses were divided only by a change in appellant's attitude of repose.”

This argument is made with respect to two victims, Sophie and Laritha.   Morrison argues that acts of oral copulation in close time sequence which were interrupted by his change of position were indivisible and did not constitute separate crimes.

We do not agree.

Section 288a of the California Penal Code states:  “Oral copulation is the act of copulating the mouth of one person with the sexual organ of another person.”   The offense of forcible oral copulation is complete when the mouth is forcibly placed upon the genital organ of another.  (People v. Minor (1980) 104 Cal.App.3d 194, 197, 163 Cal.Rptr. 501.)

Victims Sophie and Laritha each testified to consecutive acts of oral copulation which occurred when Morrison voluntarily chose, for his own sexual gratification, to stop the activity in order to force his victims to assume new positions and to begin again to orally copulate him.1  There would be no question that the acts would be separately chargeable and punishable if Morrison had chosen to alternate them with other sex acts.   In People v. Perez (1979) 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63, the California Supreme Court ruled it permissible to separately punish the following acts which took place in sequence during a 45-minute to one-hour span:  oral copulation, sodomy, oral copulation, intercourse, oral copulation, intercourse, and the forcible insertion of a metal tube into the woman's vagina and rectum, reasoning that all of the crimes were committed against one victim during a single course of conduct wherein none of the offenses were committed either as a means of committing any other or were incidental to the commission of any other.

People v. Hicks (1965) 63 Cal.2d 764, 766, 48 Cal.Rptr. 188, 408 P.2d 747, held it proper to punish separately for counts of oral copulation, sodomy, and oral copulation arising from the same criminal venture.   See also People v. Sanchez (1982) 131 Cal.App.3d 718, 728, 182 Cal.Rptr. 671;  and People v. Server, 125 Cal.App.3d 721, 725, 178 Cal.Rptr. 206;  People v. Boyce (1982) 128 Cal.App.3d 850, 860, 180 Cal.Rptr. 573.

Morrison argues that the rule should be different if, instead of a variety of acts, the same act is repeated in a short period of time.   This argument was advanced in the context of a rape case in People v. Clem (1980) 104 Cal.App.3d 337, 163 Cal.Rptr. 553, wherein it was urged that several vaginal penetrations constituted but one act of rape.   The defendant in that case urged that Perez, supra, was distinguishable because Perez involved sexual acts of diverse types, whereas his case involved sexual acts of one type—vaginal penetration.   He contended that the several vaginal penetrations constituted only one act of rape, his single objective and intent being sexual intercourse with the victim.  (Id. at 346, 163 Cal.Rptr. 553.)

The court in Clem rejected his argument, declaring that (p. 347, 163 Cal.Rptr. 553):

“Under Penal Code section 261 rape is an act of sexual intercourse.   Any sexual penetration, however slight, is sufficient to complete the crime.  (Pen.Code, § 263.)   The act is not defined by the sexual gratification of the rapist․   Nor should the punishment depend upon the implementation by the rapist of but one as opposed to a variety of forms of sexual intercourse.   As stated in Perez, at page 553 [153 Cal.Rptr. 40, 591 P.2d 63], ‘A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.’   This is equally applicable to several acts of one sexual type as it is to several acts of a variety of sexual types.   If this were not so there would be no way in which to make the punishment fit the crime․, and we would be in the absurd position of rewarding the rapist for his lack of sexual imagination.

“Each penetration of the victim in this case must be considered a separate act of rape, and the sentencing on counts one through five does not constitute multiple punishment as prohibited by Penal Code, section 654.”  (Emphasis is ours.)

The reasoning in Clem is exactly in point on the facts before us.   We see no reason to distinguish between the act of forcible rape and the act of forcible oral copulation.   Each is a reprehensible and thoroughly repulsive invasion of the body of the unwilling victim.   The victim is subjected not only to a most terrorizing physical intrusion, but also to immense psychological trauma for years to come, perhaps permanently.  Clem tells us that each vaginal penetration of the victim is a separate act of rape;  it follows that each time Morrison forcibly placed his victim's mouth upon his penis, in a changed position, he committed a separate crime.

3. Morrison charges that he “was deprived of the effective assistance of counsel by his attorney's waiver of the reading of CALJIC No. 17.01,” which states:

“The defendant is charged with the offense of _.  He may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts, but in order to find the defendant guilty, all the jurors must agree that he committed the same act or acts.   It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.”

Laritha testified to being forced to engage in three consecutive acts of oral copulation on the same occasion.   Morrison was charged with two counts of that crime as to Laritha.   Morrison contends that his counsel acted incompetently in waiving the reading of CALJIC No. 17.01 to the jury.

 His contention lacks merit.   The burden of proving a claim of inadequate assistance of counsel is on Morrison.   He must show his trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that his counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense.  (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)   When the record does not reflect trial counsel's reason for his decision, it will be presumed that there was sound tactical basis for it unless there is simply no satisfactory explanation.  (People v. Anderson (1979) 97 Cal.App.3d 419, 426, 158 Cal.Rptr. 727.)

 The waiver by counsel of CALJIC No. 17.01 did not deny Morrison a potentially meritorious defense.   Laritha testified, without impeachment or contradictory evidence, that all of the acts of oral copulation occurred within a 30-minute span on the same bed.   Even if CALJIC No. 17.01 had been given, there is no reasonable possibility the result would have been different.   It is entirely reasonable that that is why counsel decided to waive its being given.

 4. Lastly, Morrison complains that the trial judge injected matter which was prejudicial into a stipulation entered into between counsel.   The stipulation concerned the chronology of events relating to Morrison's fleeing the jurisdiction shortly before his trial and the extradition proceedings which returned him to California for trial.   Specifically, he objects to the inclusion of the information that the bail motion was heard and granted by another judge in the absence of the trial court.   Supposedly, the jury was able to glean from this fact that the trial court was expressing a negative opinion regarding Morrison.

This is far too speculative to be given serious consideration.   Furthermore, Morrison was not required to enter into a stipulation regarding these facts if he did not wish to do so.   In addition, even if the statement showed judicial bias, the evidence of guilt was overwhelming and uncontroverted.   If there was any error, it was harmless.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   The testimony of Sophie and Laritha as to the acts of oral copulation, only, is excerpted from the trial transcript:(1) As to Sophie:“Q What was the next thing that happened?“A Next thing that happened was he said, ‘We are going to do everything.’   And I was laying like straightway on the bed.“And he said, ‘We are going to do everything.’   He say, ‘Come on.’“He said, ‘Don't be afraid.   Let's get it on.’“Q Were you still crying?“A Yes, I was crying.“Q What happened next?“A What happened next was, I was—he made me get into a squat position like on my knees and he laid flat on his back.“․“Q BY MS. BATT:  How did he make you get into that position?“A He told me to get into that position.“Q And did you obey him?“A Yes, I did what he said to.“Q Why?“A Because I was scared.“Q Were you still crying?“A Yes, I was crying.“Q What was the next thing that happened?“A Next thing happened was he stuck his penis into my mouth.“Q Did he say anything when he did that?“A No.“Q How did he do that?“A He just laid flat and he just inserted, you know—had my head like this on his penis.   My head facing, you know, down, and where my mouth could—“Q You gestured with one of your hands.   Did he have a hand on your head, if you recall?“A Yes.“Q Are you able to estimate how long this took place, this act of oral copulation?“A I don't know.“Q How did it end?“A It was another position that he made me get into.   I laid flat on my back and he was like on his knees and he inserted his penis into my mouth.   It was two positions.“Q The first one, he is on his back;  is that what you said?“A Yes.   And I am on my knees in a squat position.“Secondly, I am on my back and he is on his knees in a squat position.“Q Can you explain.   Was he squatting over you in this second position?“A Uh-huh.“Q Is that a yes?“A Yes.   I am sorry.“Q And once again, are you telling us that he inserted his penis in your mouth on a second occasion also?“A Both.   Both positions.“․“Q Are you able to tell us how long the second act of oral copulation lasted, the one where he was on top of you?“A No.“Q How did it end?“A He reached a climax.“Q Was that in your mouth?“A Yes.“Q What did you do?“A I didn't do anything.   I was crying.”(2) As to Laritha:“Q Can you describe what position he was in on the bed?“A Yes, he was on his back, laying, and he was near the head—his head was near the head of the bed and he was like up near the wall.“Q Were you still crying?“A Yes, I was.“Q After you kissed his chest, then what happened?“A He moved my head down towards the lower part of his body.“Q Did he say anything to you at that time?“A Yes.“Q What did he say?“A He was—“THE COURT:  Take you time and try to maintain your composure.“THE WITNESS:  He told me to suck it.“Q BY MS. BATT:  Did you say anything at that time?“A I am not sure what I said, but I know I was protesting.“Q Did he make any threats at that time?“A Yes.“Q Tell us what you remember.“A He told me that if I didn't, he was going to tie me up and leave me for his friends to find me.“Q After he said that did you do what he wanted?“A Yes.“Q What did you do?“A I—I started—I started—started sucking it.“Q When you say it, are you referring to a part of his body?“A Yes.“Q What part of his body?“A His—his penis.“Q Was he still holding onto your head at that time?“A I don't know.   Yes, probably.“Q Just tell us what you remember.“Did he say anything to you while this was going on, while you were sucking his penis?“A No, he was saying, ‘Suck it good.’“Q Are you able to estimate how long a period of time this went on?“A About ten minutes.“Q How did it stop?“A He changed positions.“Q Tell us what happened next.“A Okay.   He was all the way—his back was up against the mirror.   And he had his legs open.“Q Was that the first position that he was in?“A No, the second.   Well, first, he was really kind of like laying on the bed mostly and his head was more or less up against the mirror, like.“Q And in the second position, he was more in the sitting up position;  is that correct?“A Yes.“Q What was the next thing that happened after he altered his position and sat up more on the bed?“A Made me do it again.“Q When you say do it again, what do you mean?“A Suck his penis.“Q At that time, did you see whether or not he had anything in his hand?“A Yes, he had a camera in his hand.   He was taking pictures.“Q Was that the same Instamatic camera you had seen earlier?“A Yes, it is.“Q Was he saying anything while he was taking pictures?“A Yes.“Q Tell us what you remember.“A He told me that—he said, ‘You wouldn't want your mother to see these pictures,’ like he was going to see me again.“Q Do you remember anything else that he said?“A He was telling me to suck it.“Q Were you doing that?“A Yes, I did.“Q As far as you were concerned, did you believe there was actually film in the camera and he was really taking pictures of what was happening?“A Yes.“Q On the second act of oral copulation, if you will, how long did that last, if you can tell us?“A It was about the same length of time.“Q How did it end?“A He changed positions again.“Q Can you describe the third position he got into.“A Yes.“Q Tell us.“A He was right above my head and he [sic] was laying on my back.“Q How did you get into that position?“A He told me to turn over.“Q Did you do that?“A Yes.“Q Why did you do that?“A I thought he was going to kill me.“Q After you were on your back what position did he get into?“A He was right above my head and he was like straddled, like over my face, like.“Q What happened then?“A Then he—he put it in my mouth.“Q Are you referring to his penis again?“A Yes.“Q Did he say anything to you while this was happening?“A He was just saying like, ‘Suck it,’ and like that.“Q Were you saying anything to him?“A No.“Q Were you crying?“A Yes.“Q How long, if you can tell us, did this act of oral copulation take?“A About ten minutes.”

L.M. STEVENS, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

KLEIN, P.J., and LUI, J., concur.