People v. Scott , 180 Cal. Rptr. 891 ( 1982 )

Opinion

ASHBY, J.

Defendant was charged with murder in violation of Penal Code section 187. He pled not guilty and not guilty by reason of insanity. A jury found defendant guilty of murder in the second degree and found him sane. He was sentenced to state prison.

On the night of October 16-17, 1979, defendant, a dentist, picked up a hitchhiker and took her to his office for the purpose of having sex. There he bludgeoned her to death with approximately 16 blows to the head with a metal pipe which was a tool in his laboratory. Defendant disposed of the body in an industrial trash dumpster about a mile and a half from his office. He disposed of the pipe and the victim’s personal belongings in a different dumpster about three miles away. He attempted to clean up bloodstains at the office, then opened the office for employees at 9 a.m., explaining that other bloodstains were from a cut finger. When one of the employees found a two-inch piece of scalp on a table, defendant took it from her and walked out, saying she was crazy to call it a piece of scalp.

Defendant testified to a diminished capacity defense. He had been drinking both before he picked up the victim and with the victim at the office. When they undressed for sex, they had an argument about the victim’s personal cleanliness. She felt insulted and started yelling names at him and defendant picked up the pipe and kept hitting her. During his fury he heard in the back of his mind, “Just kill, kill!” He described how he then disposed of the body, the personal belongings and the weapon, and attempted to clean up the office.

Various witnesses testified to defendant’s history of excessive drinking, abusiveness toward women, and other psychological problems. Drs. Kivowitz and Trockman gave their opinions that defendant was legally sane but had diminished capacity. Drs. Malkin and Vicary also expressed opinions that defendant had diminished capacity.

In rebuttal Dr. Markman testified for the prosecution that in his opinion defendant was legally sane and had the capacity to commit second degree murder, although he lacked the capacity to commit first degree murder.

At the sanity phase of the trial it was stipulated that the jury could consider all the evidence during the guilt phase, and Dr. Davis testified for the defense that in his opinion defendant was legally insane.

Defendant’s contention that he should have been found insane on the basis of Dr. Davis’ “uncontroverted” testimony is without merit, because under the stipulation the jury in the sanity phase could also consider the opinions of Drs. Kivowitz and Trockman that defendant was sane. Substantial evidence supports the finding of sanity. (People v. Drew (1978) 22 Cal.3d 333, 349-351 [149 Cal.Rptr. 275, 583 P.2d 1318].)

Defendant similarly contends there is no substantial evidence to contradict his defense of diminished capacity. Dr. Markman’s testimony supports the judgment. The conflict between the testimony of the other doctors and the testimony of Dr. Markman, together with the other circumstances surrounding the crime, was solely for the jury to resolve. (People v. Cruz (1980) 26 Cal.3d 233, 251 [162 Cal.Rptr. 1, 605 P.2d 830]; People v. Foster (1980) 102 Cal.App.3d 882, 895 [162 Cal.Rptr. 623]; see People v. Poddar (1974) 10 Cal.3d 750, 759 [111 Cal.Rptr. 910, 518 P.2d 342]; People v. Johnson (1980) 26 Cal.3d 557, 576-578 [162 Cal.Rptr. 431, 606 P.2d 738].)¹

Defendant next contends the trial court erred in excluding evidence of a conversation defendant had (the time not being specified in the offer of proof) with a friend of his, another dentist, which purportedly “would have painted a clearer picture of the mental anguish that appellant was experiencing even before the killing.” Even assuming that the evidence had minimal probative value, it was properly excludable under Evidence Code section 352.²

Defendant next contends that the prosecutor committed misconduct in argument to the jury. There was no reversible error. When the prosecutor erroneously stated that the burden of proof was on the defendant to prove diminished capacity, defendant’s objection was sustained, the jury was admonished to disregard that statement, and the jury was correctly instructed on the burden of proof, curing any harm. The other assignment of misconduct involved a debate between defense counsel and the prosecutor in arguments to the jury about which side should have produced as a witness defendant’s girl friend Joyce, who was with defendant earlier in the evening and early the following morning. It was proper for the prosecutor to argue that Joyce was a logical witness to defendant’s intoxication who should have been produced by the defense. If the prosecutor went- too far by suggesting that Joyce had refused to talk to the police and that defense counsel had prevented the prosecutor from bringing out this fact on cross-examination of defendant, defense counsel made no objection to this line of argument nor did he request that the jury be admonished. A timely admonition could have cured any harm, and therefore the point is deemed waived (People v. Green (1980) 27 Cal.3d 1, 34 [164 Cal.Rptr. 1, 609 P.2d 468]), and in any event the argument on this point did not materially contribute to the verdict. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

Finally, defendant contends the trial court erred in denying his motion for new trial based on juror misconduct. His attempted showing on the motion for new trial was that one or more newspaper articles were in the jury room during deliberations. The articles did not concern evidence of the instant case but deliberations by the Legislature on the diminished capacity and insanity defenses. However, defendant produced no competent evidence that the newspaper articles were in the jury room or had been examined by the jurors. Defendant produced no affidavit from any juror that such event occurred. Instead he presented declarations from two defense investigators who had contacted the jurors after the trial, containing hearsay declarations that at least one such newspaper article was brought to the jury room by a juror and examined by some of the jurors.

None of the jurors, however, would give an affidavit to that eifect. Defendant’s suggestion that counsel was incompetent in failing to secure affidavits is not supported by the record. This was due not to lack of effort by counsel but the unwillingness of the jurors to give an affidavit. (People v. Pope (1979) 23 Cal.3d 412, 429 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) Defendant subpoenaed all 12 jurors to come to the hearing on the motion for new trial. Defendant contended that he had the right to subpoena the jurors and to compel them to testify on the issues relating to the motion. The trial court ruled to the contrary, and held that pursuant to the public policy of this state recognized in Linhart v. Nelson (1976) 18 Cal.3d 641, 644-645 [134 Cal.Rptr. 813, 557 P.2d 104], the jurors could not be subpoenaed and compelled to testify at the hearing.

Defendant contends that this ruling was erroneous, and that the policy declared in Linhart v. Nelson applies only to civil cases. We hold the trial court was correct.

In Linhart, a personal injury case, the defendant moved for new trial on the basis of jury misconduct and subpoenaed three jurors to testify at the hearing. The trial court refused to admit testimony and denied the motion. The Supreme Court affirmed, holding there was no right to subpoena jurors to testify in support of a motion for new trial. Although the Supreme Court referred to Code of Civil Procedure section 658, which states that the motion for new trial on certain grounds “must be made upon affidavits,” the Supreme Court also gave strong public policy reasons for its unanimous opinion. “[Permitting jurors or other witnesses to testify for one party would mean that opposing parties— unaware of the proposed testimony—would be obligated to subpoena all jurors and all other witnesses in preparation for hearing. [¶] Moreover, permitting counsel for the losing party to interrogate unwilling trial jurors touches the integrity of our venerable jury process. First, once aware that after sitting through a lengthy trial he himself may be placed on trial, only the most courageous prospective juror will not seek excuse from service. Secondly, if jury deliberations are subject to compulsory disclosure, independent thought and debate will surely be stifled.” (Linhart v. Nelson, supra, 18 Cal.3d at pp. 644-645.)

These policies are at least equally applicable to criminal proceedings. The trial court in this case noted that jurors are routinely informed after their verdict is rendered that it is entirely up to their own discretion whether they wish to discuss the case with the attorneys. Here the defense investigators even went to the homes of a number of jurors and, when the jurors either refused to discuss the matter or to give an affidavit, served them with subpoenas. To grant this kind of power to the losing attorney would open the door to harassment of jurors and, as the court feared in Linhart, ultimately damage the jury process and the administration of justice. Although Penal Code section 1181 differs in language from Code of Civil Procedure section 658, this difference is not legally significant. The public policy recognized in Linhart precludes subpoenaing jurors to compel their testimony on a motion for new trial in a criminal case.

People v. Pierce (1979) 24 Cal.3d 199, 206, footnote 3 [155 Cal.Rptr. 657, 595 P.2d 91], cited by defendant is not to the contrary.³ In Pierce, a juror, Seymour, was personally acquainted with one of the investigating policemen, Officer Case. Seymour approached Officer Case at his home and asked him various questions about the crime. After the verdict, one of Officer Case’s supervisors overheard him discussing his prior contact with Seymour, and the matter was investigated by the police department and the district attorney. A new trial motion was made, which the trial court decided on the basis of the investigators’ reports. In reviewing the trial court’s denial of the motion, the Supreme Court commented, in a footnote, that although incompetent testimony such as hearsay, if received without objection, takes on the attributes of competent proof, “we strongly disapprove of the substitution of unsworn police reports and summaries for affidavits or testimony of the percipient witnesses. A hearing in open court would have been particularly appropriate to ascertain the relevant facts in this matter, because both Seymour and Case were initially evasive about the scope and content of their conversation. (But cf. Linhart v. Nelson (1976) 18 Cal.3d 641 [134 Cal.Rptr. 813, 557 P.2d 104] [stating rule in civil cases].)” (People v. Pierce, supra, 24 Cal.3d at p. 206, fn. 3.)

The court’s reference to Linhart was not a holding that jurors may be compelled to testify at a motion for new trial in a criminal case. The facts in Pierce were such that the misconduct of the juror could be proved by the affidavit or testimony of a nonjuror. Similarly in the instant case, the trial court’s ruling did not prevent defendant from presenting competent evidence that the jury had the newspaper article in the jury room, but defendant had none to offer, except the hearsay reports of the investigators, to which there was a timely objection.⁴ The trial court properly denied the motion for new trial.

The judgment is affirmed.

Hastings, J., concurred.

1 Defendant seizes upon and exaggerates the importance of a statement by Dr. Mark-man that, “I think clearly this event would not have happened had Dr. Scott been sober.” This was in the context of Dr. Markman’s opinion that because of his alcohol consumption that night defendant lacked the capacity to premeditate in order to be guilty of first degree murder. This did not change Dr. Markman’s opinion that defendant had' the capacity to harbor malice, to form the specific intent to kill, and to be aware of his duty to act within the law. (People v. Poddar, supra, 10 Cal.3d at p. 758.)

2 The other dentist had himself been institutionalized from 1958 to 1961 for a nervous breakdown, and had written a book about his experience entitled, “All the Hairs on My Head Hurt.” The offer of proof was that he and defendant had a conversation in which defendant “recognized symptoms and moods in himself that were closely allied to the same problems that led to this witness’ confinement.” The problems defendant had experienced in the past were amply explored in other far more direct evidence from other doctors defendant had consulted. In fact, a Dr. Lunceford testified that defendant had told him a friend had written a book “All the Hair on My Head Hurts” and that the title best described the kind of pain defendant felt.

3 People v. Merrill (1951) 104 Cal.App.2d 257, 268 [231 P.2d 573], which was not cited by defendant, is discussed in the dissent, but is not relevant at all. The motion for new trial in Merrill was based on newly discovered evidence, not juror misconduct, and the witnesses in question were not jurors.

4 At the beginning of the hearing defense counsel commented that he thought one or two of the jurors were in the audience. Defendant argues on appeal that it should be inferred these jurors were willing to testify voluntarily, since the trial court stated that it had instructed the clerk to call all of the subpoenaed jurors and inform them that they were not required to honor the subpoena. If they were willing to testify voluntarily, counsel did not so inform the court. Counsel asked permission of the court to call those jurors who were present, but this was in the context of his argument that he had the right to compel their testimony.