PEOPLE v. BROWN (1992)

OPINION

Murder most foul, as in the best it is;

But this most foul, strange, and unnatural.

(Shakespeare, Hamlet, Act I, scene V, lines 27–28.)

I

The Bard of Avon wrote no darker tragedy than this:  family members plotting to kill their wife/sister/stepmother.   The avaricious husband tricks a love-struck teenage sister-in-law and his naive child by a former marriage to carry out the vile deed, then secretly marries the victim's sister and cashes in on more than $800,000 in life insurance while his daughter languishes under a lengthy sentence in the California Youth Authority.

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The Browns lived in Garden Grove as the 1970's came to a close.   Patti, then only a year or two past her tenth birthday, moved in with them when she had problems in her parents' home.   Brown, who had already inappropriately touched and fondled her before that time, stepped up his abuse of the child and was regularly having intercourse with her by the time she was 15.   Also living in the Brown household, in addition to defendant and Linda, were their daughter Krystal and his daughter by a previous marriage, Cinnamon.

Everyone agrees that on the evening of March 18, 1985, Cinnamon, with Patti's urging and assistance, shot Linda to death as she slept.   The issue the jury had to resolve was whether they committed this atrocity on their own, albeit with Brown's conceded prior knowledge, or at his behest.

The question was hardly a close one.   This is the evidence proving Brown's ineluctable guilt:  Both Patti and Cinnamon testified defendant spent several years convincing them that Linda and her brother, Allen, were plotting to kill him for his property and business.   Linda had to be murdered first.   Cinnamon could safely take the blame;  nothing would be done to her because of her age.   Unbeknownst to Cinnamon, Brown also promised to marry Patti, who was a teenager in love at that point, once Linda was out of the way.   He said he could not bring himself to kill Linda, but begged them to do it for him.

Meanwhile, neither of the young ladies knew Brown was in the process of insuring his 23–year–old homemaker wife to the hilt:  $100,000 double indemnity policy with National Life, same with New York Life, $200,000 plus a $150,000 accidental death benefit from Capital Life, and a pending application with Liberty Life for a $200,000 double indemnity policy.   Brown later squeezed $73,750 in settlement money out of Liberty, collecting a grand total of $842,793 for persuading his daughter and his wife's sister to kill her.

Brown's prediction that the system would do nothing to Cinnamon if she did the killing and took the blame was erroneous.   She drew a 27 years-to-life term in CYA.   When he continued to disappoint her by failing to obtain her release as promised or visit her as often as she expected and when she learned of the insurance payout from the parole board, Cinnamon contacted the district attorney.

Cinnamon decided it was unfair for her to take the blame when Patti and defendant were equally culpable.²  She was kept in the dark about the relationship between Patti and Brown, although she had her suspicions.   Defendant married Patti in 1986, but required her to keep their union a secret.   A year later a daughter was born to them, and they made up a name for the purported father.

Cinnamon was wired for sound by district attorney investigator Jay Newell for a visit with Brown on August 13, 1988.   Brown talked about the “mob” and Linda and her brother plotting to kill him.   He acknowledged mixing a drug cocktail for Cinnamon to drink before the murder.³  He told his daughter she could not tell the true story because everyone who knew beforehand would be imprisoned;  she should continue to claim lack of recollection.⁴  The ever duplicitous Brown promised he would persuade Patti to confess and take the blame so Cinnamon could be released.   But he could not go to jail because of his various health problems.   He could not survive incarceration.

The conversation frightened Brown.   He discussed it at length with Patti and directed her to promise Cinnamon she would confess and take the child's place.

On August 27, defendant and Patti met with Cinnamon, who was again wired.   Patti promised to trade places with her and told her various lies to make Cinnamon doubt her own sanity.   Brown reminded her to keep claiming lack of memory.

The Browns were arrested about three weeks later.   Defendant agreed to talk to the investigators, but denied any knowledge of the murder of his wife for the first two hours.   He claimed to be terrified of Patti because he thought she did the killing.   He denied talking to Patti or Cinnamon about the murder or giving his daughter drugs that night.   Brown also denied having a relationship with Patti.

Defendant's story changed when he was told of the recording of the conversations at CYA.   He admitted telling Cinnamon to take the blame originally because he was afraid of Patti and her family.   He claimed Cinnamon and Patti were convinced Linda and her brother were intent on killing him.   On the night of the murder, he did not believe they would really kill Linda.   But he mixed the drug cocktail to make Cinnamon sick to her stomach and create the impression of a suicide attempt.   He also admitted reviewing various drafts of suicide notes prepared by Cinnamon.

Brown told his daughter he did not want to be home if she was going to kill Linda.   But if she did it, she should leave the suicide note in an obvious place after disposing of the other drafts.

Patti testified against Brown at the preliminary hearing.   Because she cooperated with the prosecution and was only 17 at the time of the killing, she was eventually allowed to proceed in the juvenile court.   There she admitted to first degree murder.

The ensuing act unfolded, without an intermission, at the Orange County jail.   There Brown hatched his next schemes.   He solicited another inmate, Richard Steinhart, to help him escape.   Defendant was taken by sheriff's deputies to his dentist periodically.   Steinhart, due to be released, was to surprise and restrain them there so Brown could decamp.

Brown also wanted Patti killed, as well as Newell and deputy district attorney Jeoffrey Robinson.   If Newell and Robinson could be eliminated, defendant reasoned, new people would have to be assigned to the case.   He would insist on his right to a speedy trial and thus place them at a disadvantage.   Steinhart was offered in excess of half a million dollars for his assistance, but he went to the prosecution when he learned that another prisoner had done so.

Defendant walked right into another prosecution snare, again incriminating himself in a series of jailhouse tapes.   He also authorized his attorney to pay his brother installments of $1,700, $10,000, and $11,000.   The money went to Steinhart.   Eventually, Brown was falsely informed that Newell and Robinson had both been shot to death.   Brown replied, “Alright.”   Steinhart received the $11,000 payment within the hour.

Eventually Brown's attorney declared a conflict of interest and was replaced.   His new counsel elected to abandon a pending motion to recuse the district attorney in exchange for an agreement not to pursue the death penalty.

II

 Brown claims the exchange of the recusal motion ⁵ (and several other defense concessions) for dropping a potential death penalty (and several other prosecution concessions) was improper because he did not personally waive the deputy district attorney's alleged conflict of interest.⁶  He also suggests the court had a sua sponte obligation to remove the prosecutor.

The issue was waived by Brown's counsel, however.   We agree with the Attorney General:  The decision to pursue a recusal motion is a trial tactic of the sort attorneys are authorized to make.  (See, e.g., People v. McCoy (1974) 40 Cal.App.3d 854, 859, 115 Cal.Rptr. 559.)   Neither the superior court, nor this court, is required to second-guess defendant's attorneys.⁷

III

 Brown claims the Steinhart tapes were obtained in violation of the Sixth Amendment in that they were taken in derogation of his right to counsel.   Not so.   Steinhart made no effort to obtain admissions from Brown concerning the murder of Linda, and there were none.   Police may investigate new criminal activity by a defendant under indictment and represented by counsel.  (Maine v. Moulton (1985) 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481;  People v. Cribas (1991) 231 Cal.App.3d 596, 605–606, 282 Cal.Rptr. 538.)   That is what occurred here.

IV

 Even if the Steinhart evidence was lawfully obtained, it should not have been admitted in this trial, Brown contends.   Certainly that would be true if the tapes were larded with admissions concerning Linda's murder.  (See Maine v. Moulton, supra, 474 U.S. at p. 180, fn. 16, 106 S.Ct. at p. 489, fn. 16;  People v. Cribas, supra, 231 Cal.App.3d at p. 606, 282 Cal.Rptr. 538.)

But Brown also argues the evidence should have been excluded under Evidence Code section 352 because its probative value was outweighed by its prejudicial effect.   In addition, he complains the prosecutor used it improperly as character evidence, although the court ruled, “it's not there for character, it is there for a purpose of consciousness of guilt only.”

There was no abuse of discretion in allowing the evidence.  (See People v. Stewart (1985) 171 Cal.App.3d 59, 65, 215 Cal.Rptr. 716.)   It was highly probative to prove consciousness of guilt.   An innocent defendant would have no need to kill a prosecution witness, the prosecutor, and the lead investigator.

 The prosecutor did proceed to use the evidence improperly, however.   We are cited to nine instances from opening statement and closing arguments in which the prosecutor misused the evidence to suggest that plotting to kill his sixth wife demonstrated that Brown had done the same with respect to his fifth, Linda.   The defense only objected to one of these comments, though, thereby waiving the issue as to the rest.  (People v. Green (1980) 27 Cal.3d 1, 34–35, 164 Cal.Rptr. 1, 609 P.2d 468.)   The court told Brown's counsel that objections to comments in that vein would have to be made when they occurred.   With respect to the one objection, the court deflected the prosecutor from the area (without specifically sustaining the objection), suggesting he was “a little far afield.”   Taken together, the judge's statements indicate he would have sustained appropriate objections or kept the prosecutor from arguing character from the other crimes evidence in some other way.

Meanwhile, the jury was repeatedly told the other crimes evidence could only be considered for consciousness of guilt.   This was done in voir dire, the prosecutor's opening statement, an admonition from the judge before the evidence was received, the closing arguments of both sides, and the court's instructions (CALJIC Nos. 2.09 and 2.50).   There is nothing to indicate the jury misunderstood or misapplied these instructions.

V

Brown raises numerous instances of alleged prosecutorial misconduct.   We examine them in chronological order.

A

 Defendant first claims the prosecutor committed “perjury” in opening statement, a peculiar charge.   We find nothing in the record to indicate the opening statement was given under oath;  but misconduct need not be, and rarely is, under oath.

The gist of Brown's complaint is that the prosecutor lied to the jury when he claimed Patti testified at the preliminary hearing with no guarantees.   No objection was made to this statement, although from the defense opening statement, it is quite clear no one was in the dark as to what occurred with respect to Patti's plea.   The issue was waived.  (People v. Green, supra, 27 Cal.3d at pp. 34–35, 164 Cal.Rptr. 1, 609 P.2d 468.)   That was a reasonable tactical choice under the circumstances since, given the evidence on the issue, it offered an opportunity to besmirch the credibility of the deputy district attorney.

The jury heard exactly what happened from Patti and her attorney in excruciating detail during the trial.   Opening statement is not evidence, as the jury was told.   No harm could have come from the prosecutor's remarks except to his own case, if the jury believed there was a quid pro quo for Patti's testimony.   That it might have done because it is unusual to refile in juvenile court to allow an adult to plead there after her case has already been transferred to superior court for adult prosecution, as was done here.

B

 The prosecutor repeatedly drew warnings from the court, some in front of the jury, for asking leading questions of Patti, her attorney, and Cinnamon.   The judge threatened contempt, as well as a mistrial if Robinson did not stop.⁸  The prosecutor persisted, sometimes asking the same question as many as four times in a row after sustained objections.   Several more dressings-down occurred, and the court was forced to explain the nature of leading questions to the jury and why the objections to them were being sustained.⁹

Even though the court repeatedly sustained the defense objections, Brown claims he was prejudiced because the prosecutor's placing of answers in the witnesses' mouths reached the jury, appealed to passion and prejudice, and made it appear that the defense had something to hide.

We find no denial of due process.   The court made the proper rulings, admonished the prosecutor before the jury, and even explained the nature of leading questions and why they were improper.   Robinson's behavior from our reading of the record was a net gain for the defense;  such conduct in close cases will surely cost him.   But our purpose is not to discipline prosecutors.  (See People v. Bolton (1979) 23 Cal.3d 208, 214, 152 Cal.Rptr. 141, 589 P.2d 396.)   It is to ferret out prejudicial error.

Here, there could have been no harm.   Patti and Cinnamon told of the key events in their own words.   Patti's attorney was able to take care of himself.   They were all fully cross-examined by the defense.   We find it improbable that Brown would have obtained a more favorable result had the prosecutor not repeatedly asked leading questions.   There was no error in denying the motion for mistrial.

C

 Next, we are told Brown was denied his right to due process because the prosecutor vouched for the veracity of Cinnamon and Patti.   He begins this argument during the examination of the girls.   Robinson asked whether they would be truthful, whether they expected to benefit from telling the truth, and whether they had lied before to investigators.¹⁰  None of this was improper, although an out-of-context comment of the trial judge might be understood to indicate he thought it was;  and the defense only objected to one of the seven questions in this category in any event.

D

Robinson heaped scorn on Brown in closing arguments, stating he had corrupted and twisted Cinnamon.   That was a fair comment on the evidence.   He also engaged in some gratuitous name calling:  “classical sociopathic personality,” “poor excuse for a human being,” etc.   This alleged misconduct was waived because no timely objection was made.  (People v. Green, supra, 27 Cal.3d at pp. 34–35, 164 Cal.Rptr. 1, 609 P.2d 468.

 Finally, we are presented the “judges' dilemma” argument.   If the prosecutorial misconduct issues are waived for failure to object, defense counsel were ineffective.   That claim will not fly here.   It was a reasonable tactic to give the sometimes overzealous prosecutor enough rope to hang himself, while generally keeping him in bounds but on the bad side of the judge.   No combination of misconduct, ineffective assistance, or trial court rulings deprived Brown of a fair trial;  i.e., there was “no cumulative effect.”   His difficulty was the overwhelming case against him.

VI

 Incredibly, Brown attacks the sufficiency of the evidence to support the financial gain special circumstance allegation of Penal Code section 190.2, subdivision (a)(1).   He claims there were other motives, to marry Patti and fear of Linda and her brother.   Maybe so, but that was for the jury to sort out.

Brown picked up $842,000 in insurance proceeds from the murder.   Linda Brown must have been the only 23–year–old housewife in California with that much life insurance when she was killed.   Because he essentially duped Patti and Cinnamon into committing the crime for other reasons, he obviously could not reveal this potential motive to them.   It is true that the murder occurred after a previous life insurance policy had lapsed and before another could be approved, but that was for the jurors to digest.   We do not reweigh the evidence.

VII

 Brown next makes the novel argument that he is entitled to a new trial because the court did not hear all of Cinnamon's testimony and consequently could not properly rule on defense motions to strike the financial gain special circumstance on his Penal Code section 1118.1 and new trial motions.   The court did indicate it had missed portions of her testimony because her voice was too soft, but the jury and court reporter heard it.   From our review of the record, it would have been a gross abuse of discretion to have granted either motion.   Accordingly, Brown was not prejudiced.

VIII

Finally, Brown, candidly recognizing that California law is against him on the point, raises a claim purely to preserve it for federal review.   The argument is as follows:  It is error to give CALJIC No. 2.51 in a case with a financial gain special circumstance.   That instruction tells the jury that motive is not an element of the crime charged and need not be shown.   The federal courts will do what they will;  we, of course, are bound by Supreme Court holdings to the contrary.  (People v. Hamilton (1989) 48 Cal.3d 1142, 1178, fn. 23, 259 Cal.Rptr. 701, 774 P.2d 730;  People v. Edelbacher (1989) 47 Cal.3d 983, 1027, 254 Cal.Rptr. 586, 766 P.2d 1.)

Judgment affirmed.

FOOTNOTES

FN1. David Brown will be referred to as defendant or Brown, the others by their first names or other appropriate words, such as victim, wife, sister, etc..  FN1. David Brown will be referred to as defendant or Brown, the others by their first names or other appropriate words, such as victim, wife, sister, etc.

2.     But that I am forbidTo tell the secrets of my prison-house,I could a tale unfold whose lightest wordWould harrow up thy soul, freeze thy young blood(Shakespeare, Hamlet, Act I, scene V, lines 13–16.)

3.   It contained a potentially lethal dosage.   Fortunately, Cinnamon vomited up some of it.   Brown, it appears to us, was attempting a “perfect crime” by eliminating his own daughter as an apparent suicide after she killed his heavily insured wife, at least that is how Shakespeare would have written it.   For some reason the allegedly vengeful prosecutor did not charge Brown with the attempted murder of Cinnamon.

4.   At Brown's insistence, Cinnamon claimed almost from the beginning not to recall Linda's murder.

5.   It was stipulated that Robinson's name would not be revealed to the jury as the deputy district attorney targeted in the murder solicitation.

6.   The conflict is clinched, we are told, by “the enormity of the prosecutorial misconduct in Mr. Brown's case․”  More of that anon.

7.   If we were to do so, however, it is obvious Brown's counsel made a good bargain.   The district attorney's case was, as noted, open and shut.   No decent lawyer could have lost it for the prosecution;  no superstar was likely to have won it for the defense.   Avoidance of the death penalty was an excellent result under the circumstances.

8.   This prosecutor makes a habit of trying cases in this manner from our experience.   It is unfortunate that his superiors apparently condone this behavior.   We do not.

9.   The prosecutor also, in violation of the rules of professional conduct, called one of the defense attorneys “a slob” within earshot of the jury.  (Bus. & Prof.Code, § 6068, subd. (f).)

10.   Brown claims the prosecutor also vouched for his witnesses in closing argument.   He cites no examples, and we decline to search for them.

CROSBY, Associate Justice.

SILLS, P.J., and WALLIN, J., concur.