PEOPLE v. DIXON (1978)

Appellant and Rosalind Thomas were driving about Mountain View sometime in the early hours of February 5, 1977. They came upon a woman who was behaving in a most peculiar manner. Dressed in a housecoat, she was standing in water flowing from a broken hydrant. Appellant asked the woman whether she needed a ride; Rosalind suggested that appellant leave her alone. Rosalind left appellant in the car and proceeded on foot to inform a police officer that the woman might need help. It turned out the police officer was aware of the woman's behavior; the officer as well as a bystander recommended simply ignoring her.

After Rosalind returned to the car, appellant got into the back seat with the woman who said that she was the daughter of Spiro Agnew and kept aimlessly repeating the words “marijuana, marijuana.” She also said, “I need my Thorazine.” Appellant, for no apparent reason, slapped her.

They drove off to look for an address the woman had mentioned. Rosalind told appellant to leave the woman alone; he replied that it was his intention to perform an act of sodomy upon her. The car stopped. Rosalind, at appellant's request, moved to the passenger side, smoked a cigarette and fixed her gaze in front of the car. After a time, from the corner of her eye, Rosalind saw appellant, in the back seat, pulling up his pants. She inferred that a sexual act had occurred.

When they could not find the address the woman had been reciting, Rosalind drove to appellant's apartment. When the car stopped, appellant dragged the woman out and Rosalind drove off to pick up appellant's brother, Ernest.

Allison Murphy was in appellant's apartment when he entered with the woman and took her into the bedroom. She was screaming incoherently and Allison asked what she was doing there; appellant replied, “I am going to kick the bitch's ass.” Allison looked into the bedroom and saw the woman sitting in the corner on the floor, naked, with her hands behind her back and her eyes closed.

Appellant went into the kitchen, reappeared with a roll of tape and returned to the bedroom. The woman was talking loudly, she kept repeating the word “marijuana” and spelling the name “Clarence.” The incoherent talking soon ceased and Allison no longer heard a voice but only a muffled sound. Thirty or more minutes passed with appellant in the bedroom and Allison in the living room waiting, fearfully, for the return of Rosalind.

Rosalind did return. With her were appellant's brother, Ernest, and Debra Perry. Appellant emerged from the bedroom and told his brother “Man, let me show you something.” Ernest, Debra and Rosalind accompanied appellant to the bedroom door, looked in and saw the woman on the floor. Appellant announced “I am going to kick her ass.” Ernest said, “Ronnie, man, get that lady out of here. What's wrong with you!” “No,” said appellant, “I'm going to kick her ass.” He went to the bedroom, picked her up and brought her into the living room. She was nude, her hands were tied behind her back and her head was covered with a heavily blood-stained green cloth bag. Appellant lifted the bag off her head revealing a bloodied face and a mouth covered by tape. Rosalind and Allison burst into tears and retreated to the bedroom where Allison observed, “Looks like her head is going to bust.” Rosalind could hear thumping sounds emanating from the living room: “It sounded like, you know, when you hit someone on the back, a hollow sound.” And she heard one of the men in the living room say “She has to go.”

Meanwhile, Allison had returned to the living room to plead with appellant to leave the woman alone. Appellant said “shut up” and threatened to strike Allison, a threat which was not executed because of Ernest's intervention.

At Ernest's direction, Allison cut an electrical cord off a radio. The cord was tied around the women's throat and her ankles were bound with shoelace. Appellant demanded the keys to Allison's car so that he could move the body but she refused and Ernest and appellant carried the body from the apartment.

Viola Stevenson lived in the apartment directly above appellant's. She was awakened by thumping sounds and voices from below. She lay awake for about half-an-hour. There was a knock at her door but she was afraid to answer. Then a friend in the building called her on the telephone and told her that the person who had knocked at the door was a neighbor concerned for her safety. Her friend suggested that she come over for coffee. Ms. Stevenson accepted the invitation and, as she approached her friend's apartment, she saw two men carrying something. When they saw her they set whatever it was down and watched her as she entered the apartment. Once in the apartment, she and her friend called the police.

After the encounter with Viola Stevenson, Ernest refused to help appellant any further. Shortly thereafter, appellant returned to the apartment, said that he had put the body in the creek and cautioned the women that if they talked about what had occurred they would “get the same thing just like her.”

Rosemary MacDonald's body was discovered at about 10:00 a. m. that morning in a creek bed 100 yards from appellant's apartment. A duffle bag covered the top of her body and was secured around the neck by an electrical cord. She was nude from the waist down. Her mouth had been stuffed with a 12-inch dishcloth and then taped over. There was blood on her face, tape on her wrists, her feet were tied together and there were contusions and bruises on her face and body.

A pathological examination revealed that Rosemary MacDonald had died of asphyxiation, that the beating had been inflicted while she was alive and that her rectum was dilated and contained sperm.

Pursuant to warrant, appellant's apartment was searched. The radio from which the electrical cord had been cut was found. So were a roll of tape which matched the tape used on the victim's mouth and wrists and a shoe from which the lace had been removed for the purpose of tying together the victim's ankles.

There were drag marks on the ground leading from appellant's apartment to the creek bed, blood stains near a hole in the fence through which the body had been dragged and blood stains again at the spot in the creek bed where the body had been dumped.

Rosalind Thomas and Allison Murphy were granted immunity from prosecution and testified against appellant and his codefendants. Codefendant Debra Perry was acquitted. Codefendant Ernest Dixon was found guilty as an accessory. Appellant was found guilty of murder in the first degree and sodomy by force and violence.

In the court below, after the conclusion of the case for the defense, appellant moved to withdraw the charge of first degree murder from the jury's consideration. (See Pen.Code, s 1118.1.) The motion was denied. Appellant complains that the denial was error. There was, he says, no evidence of premeditation and deliberation. (See Pen.Code, s 189.) In fact the evidence of premeditation and deliberation is perspicuous. There was no error. (See People v. Feasby (1960) 178 Cal.App.2d 723, 731, 3 Cal.Rptr. 230.)

Appellant is black, Rosemary MacDonald was white. Reference to that state of affairs occurred during the trial. Consequently, says appellant, his trial was infected with racism.

The record contains not even a hint that racial considerations intruded into this trial or in any way influenced the verdict. The references to race were made as often by the defense as the prosecution, occurred in the natural flow of testimony, contained no slurs and arose generally in the context of identification.

Appellant also quarrels with a strategic decision of his trial counsel not to object to the use of certain photographs of the victim. In a discussion between court and counsel before trial, counsel stated that all pictures of the victim were gruesome and to some extent damaging, that he would object to certain ones as inordinately inflammatory but that as to most he did not think he had a valid objection. He also announced his intention to show prospective jurors these latter pictures himself in order to determine whether they would be unduly affected.

This does not demonstrate ineffective assistance of counsel but its opposite: a lawyer with a thorough understanding of the law (see, e. g., People v. Terry (1970) 2 Cal.3d 362, 403, 85 Cal.Rptr. 409, 466 P.2d 961) attempting to blunt a prosecutorial advantage.

There are two things about the testimony of Rosalind Thomas and Allison which appellant finds objectionable.

(1) They testified under grants of immunity and, as he points out, grants of immunity conditioned on the giving of testimony similar to that previously given (People v. Medina (1974) 41 Cal.App.3d 438, 116 Cal.Rptr. 133) or conditioned on the giving of testimony which contributes to a conviction (People v. Green (1951) 102 Cal.App.2d 831, 228 P.2d 867) distort the truth-finding process and deprive the accused of a fair trial. These are salutary rules of law but they have no application to this case where the grants of immunity were unconditioned and the jurors were fully informed about the benefits the witnesses were receiving for their testimony. (See People v. Manson (1976) 61 Cal.App.3d 102, 134-135, 132 Cal.Rptr. 265.)

(2) At the beginning of the trial, the court ordered counsel to inform their witnesses that they should not discuss their testimony with each other. Later, attention was called to the fact that from the testimony of Rosalind Thomas it appeared that she had discussed Allison Murphy's testimony with Allison. Consideration was given to the possibility of holding the district attorney in contempt since he had forgotten to admonish the witnesses. There were also motions for mistrial and judgment of acquittal. In denying the motions the court found that the district attorney had not acted in bad faith and that the testimony of the two witnesses was sufficiently inconsistent to negate the possibility that they had gotten together to concoct a story. The court noted that the witnesses had apparently confined their conversation to the peripheral matter of their own reactions to testifying.

The admonition to witnesses not to converse during trial, like an order excluding witnesses, is designed to prevent a witness from hearing what other witnesses have to say prior to giving his or her own testimony. Violation of an exclusion order does not render the witness incompetent to testify. (People v. Willingham (1969) 271 Cal.App.2d 562, 571-572, 76 Cal.Rptr. 760.) Whether it furnishes grounds to refuse permission to testify lies within the sound discretion of the trial judge. (People v. Ortega (1969) 2 Cal.App.3d 884, 83 Cal.Rptr. 260.)

That the court here did not abuse its discretion in denying the motion for mistrial was so manifest that appellant's attorney, after researching the law, withdrew his objection to the testimony.

Appellant's quiver of objections is not yet exhausted. He feels the court should have admonished the jurors more frequently about their duties but the court's admonitions were abundant and in excess of the stipulation between the parties regarding the frequency of admonitions. (See People v. Zurica (1964) 225 Cal.App.2d 25, 34, 37 Cal.Rptr. 118.) He insists that he was denied due process and equal protection of the law because his grand jury indictment was not followed by a preliminary hearing. (See Johnson v. Superior Court (1975) 15 Cal.3d 248, 255-270, 124 Cal.Rptr. 32, 539 P.2d 792 (concurring opinion of Mosk, J.).) But the objection was not made below and we are, in any event, bound by the holding in People v. Sirhan (1972) 7 Cal.3d 710, 746-747, 102 Cal.Rptr. 385, 497 P.2d 1121.

Appellant raises one other objection. After their deliberations had commenced, the jurors returned to the courtroom and inquired: “If we have unanimously agreed that the verdict is murder but cannot agree unanimously that it is first degree murder, do we have to have a unanimous second degree vote?”

The court replied, “the answer to the question Mrs. Funderburg (foreperson) is yes.”

The court's answer misstated the law. The jury did not “have to have a unanimous second degree vote”; if it could not agree unanimously to first degree murder but could agree unanimously to murder, a verdict of second degree would follow as a matter of law. (Stalcup v. Superior Court (1972) 24 Cal.App.3d 932, 101 Cal.Rptr. 467; Pen.Code s 1157. Cf. Andres v. United States (1947) 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055; People v. Green (1956) 47 Cal.2d 209, 302 P.2d 307.)

The error was not harmless. The inaccurate statement of law carried a potentially coercive impact. (People v. Gainer (1977) 19 Cal.3d 835, 842-843, 139 Cal.Rptr. 861, 566 P.2d 997.) A juror inclined to return a verdict of murder in the second degree would necessarily have concluded that the only alternatives were to vote first degree or hopelessly deadlock the jury. “(W) hen the statement is the central feature of instructions given to a deadlocked jury . . . the standard of reversible error presumably . . . (will) be met, as there . . . (will) be little to indicate that the heightened potential for prejudice . . . (has) not been realized.” (People v. Gainer, supra, 19 Cal.3d at p. 856, fn. 20, 139 Cal.Rptr. at p. 872, 566 P.2d at p. 1008.) There is nothing in this record to indicate that the heightened potential for prejudice was not realized.^*

The question thus becomes whether to reverse this conviction or affirm it and reduce the conviction to second degree murder. The People may find a conviction of second degree murder satisfactory but the evidence certainly would justify another attempt to obtain a verdict of first degree murder. We think our disposition should preserve that option. (See People v. Garcia (1972) 27 Cal.App.3d 639, 648, 104 Cal.Rptr. 69.)

Within 20 days of the filing of this opinion, the People may file a request for modification of judgment reducing the offense from first to second degree murder. Such a statement shall not affect any pending application for rehearing. Should such a statement be filed, the remittitur will direct said modification, affirm the judgment as so modified and instruct the trial court to resentence defendant after appropriate proceedings. Should such a statement not be filed, the remittitur will order reversal of judgment. (See, People v. Heffington (1973) 32 Cal.App.3d 1, 17, 107 Cal.Rptr. 859.)

I dissent. The majority correctly disposes of the various contentions of alleged error made by appellant, with the exception of the alleged error relating to jury instructions, on which the majority bases a reversal.

After commencement of deliberations, following a full and complete instruction on the law by the court, the jury returned to the courtroom and posed this hypothetical inquiry through its foreperson: “If we have unanimously agreed that the verdict is murder but cannot agree unanimously that it is first degree murder, do we have to have a unanimous second degree vote?” The court replied, “yes.”

The majority characterizes the court's answer as a misstatement of the law when in fact the answer is precisely correct. It is fundamental that for a jury to return a verdict in a criminal case the verdict must be unanimous, not only as to the substantive crime but as to the degree. It is only when the jury is in agreement as to the substantive crime but unable to agree as to the degree thereof that the provisions of Penal Code section 1157 come into play. That section merely provides that absent the ability of the jury to unanimously agree upon the degree of the crime, then the court must set the degree to be the lesser. The majority speculates that the court's answer that they would have to have a unanimous agreement on second degree murder somehow forced some of the jurors to agree to a first degree murder conviction or deadlock the jury.

Such a speculation is unwarranted, particularly in light of a further colloquy between the court and the jury. Approximately two hours after the first inquiry and answer above referred to, the jury was returned to the courtroom. In that discussion the court stated: “The previous communication to the Court was that, ‘The Jury has unanimously agreed upon a verdict of murder but cannot agree unanimously that it is in the first degree. Do we have to have a unanimous second degree vote,’ and the Court answered the question yes. The Court inquires at this time as to whether or not the disagreement of the trial jury is as to the degree of murder?” to which the foreperson answered “Yes.” The court then asked, “Is it your informed opinion that as to the degree of murder as to any defendant, that the Jury is hopelessly deadlocked as to the degree only?” to which the foreperson answered “No.” The court then stated, “It's your feeling, then, that if the Jury continues to deliberate, that the Jury then can reach a verdict as to all defendants as to all counts? Is that correct?” to which the foreperson answered “Yes.”

In light of this discussion between the court and the jurors, there can be little doubt that the only concern of the jurors was whether the verdict should be first degree or second degree murder, and there was no concern that they would be unable to arrive at one degree or the other.

Appellate courts have for years remonstrated trial judges' ad libbing of jury instructions in going beyond those approved in CALJIC. In the instant case the trial judge did precisely what trial judges are admonished to do, that is, give precise, short answers to questions put by the jurors. The majority would require in the instant case an elaboration of the court's answer to presumably include the provisions of Penal Code section 1157. I find no authority to support that proposition.

In the instant case appellant, in a gross act of depravity, abducted an unfortunate, mentally deranged woman. In the presence of equally depraved friends he sodomized her, raped her, beat her, choked her to death, dragged her body away from the scene of the crime and dumped it into a creek. No defense of diminished capacity was offered to the jury. No reasonable jury could come to any other conclusion than this was murder in the first degree. The inquiries they made of the court were obviously merely to give them a full and complete understanding of the totality of the court's instructions.

I would affirm the conviction.

FOOTNOTES

FOOTNOTE.  The dissent says we have engaged in speculation about the affect of the trial court's answer on the jurors. We have assumed that the court's instruction had a potential impact on the jury but that is the law's assumption, nor our speculation. Without such an assumption review of jury instructions would be pointless. It is true that two hours after the inquiry and response the jury indicated it was not hopelessly deadlocked as to degree but this can be pertinent only if we suppose that the potential for coercion cannot mature to fruition in less than two hours, a supposition we think unwarranted. No one who has read the facts will be surprised by Justice Scott's characterization of appellant as “depraved.” Appellant's right to trial by jury, however, is not a function of his character.

HALVONIK, Associate Justice.

WHITE, P. J., concurs.