People v. Atchley

A jury found defendant guilty of murder in the first degree and fixed the penalty at death. The trial court denied his motion for a new trial and sentenced him to death. This appeal is automatic. (Pen. Code, § 1239, subd. (b).)

Defendant was born in 1917 and was reared in a mountainous community in eastern Tennessee. He attended school only through the third grade and cannot read or write anything except his name. Some time between 1943 and 1946 he moved to California and worked in various localities as an agricultural laborer and a welder. He first met the deceased, Marcella Katherine (Farris) Atchley, when he was working near Fresno in 1953. He saw her a number of times before he left the Fresno area, and she bore a child that he claims is his. Defendant eventually entered the used car business in Palermo, California. He bought several lots, built houses on them, and lived

During the last few days of July, 1958, Mrs. Atchley and her children moved out of defendant’s home to a house in Gridley, California. Although defendant assisted in making the move, a quarrel ensued and Mrs. Atchley complained to the police. Defendant then informed welfare personnel of her marriage to him. She in turn informed the authorities that defendant had been selling used cars without a license.

On the night of August 2, 1958, Mrs. Atchley went to a dance at Robinson’s Corners with her oldest daughter and a young married couple. About 12:15 a. m. she drove her daughter home and then drove the young couple to their home in Oroville.

Defendant spent that evening drinking beer with several friends, but there is no evidence that he became drunk. Some time after midnight he drove to his wife’s house in Gridley and discovered that she was not there. He drove back to Palermo, looking for her at Robinson’s Corners and at several taverns along the way. He then returned to Gridley and drove by her house again. Noticing that her car was still absent, he parked his car about a block away and took from a glove compartment a 22-caliber pistol loaded with six or seven bullets. He placed the pistol inside the belt of his trousers and approached the house on foot through a back alley. He then waited in the alley and in the back yard, where he could see the headlights of his wife’s ear when she drove in.

About 2:25 a. m. Mrs. Atchley drove up to the carport attached to one side of her house. While she was parldng, defendant moved along the opposite side of the house and stood by the front corner. Mrs. Atchley walked around to the front gate and up the walk. As she neared the door, defendant stepped out towards her. In the ensuing few minutes she was shot once in the head, once in the left breast, three times under the right arm, and, according to the prosecution’s experts, once

Following the shooting defendant drove back to Palermo. He buried the gun in his back yard and hid the holster in an ash can. He then went to bed, where the police found him about 4 a. m.

At the trial defendant conceded most of the foregoing facts but maintained that he had been told that his wife was going out with another man, that he had taken the gun only to scare them, and that he had no intention of killing or injuring his wife. He stated that when he saw her returning alone, he stepped out to greet her; that his shirttails were tucked in so that the gun inside his belt was clearly visible; that she seized the gun and he struggled to recover it; that the gun went off several times during the struggle; and that after he recovered it, he fired it several more times. The defense introduced much testimony that Mrs. Atchley had said she wished to kill defendant, that she had threatened him with a gun on several occasions, and that she was a violent and combative person.

Two neighbors testified for the prosecution that they were awakened by the voice of a woman crying hysterically, “Oh, don’t, don’t,” followed by a series of shots. Looking out their bedroom window they saw defendant in a stooping position, shooting towards the ground. Because an intervening fence obscured the body, they assumed that he was shooting at the tires on Mrs. Atchley’s car. They and another neighbor, who saw defendant arrive and walk into the back alley, testified that his shirttails were out. Defendant admitted at the trial that the gun inside his belt would not have been visible had his shirttails been out. To rebut defendant’s story of a struggle for the gun, the prosecution introduced evidence that all of the shots were fired from such a distance that the deceased could not have been holding the gun at the time, that Mrs. Atchley was found with her keys still clutched in her right hand, and that five empty cartridge casings were found so close to each other as to indicate that the shots had been fired with the gun in approximately the same position. Other evidence indicated that defendant had threatened his wife, that she was afraid of him, and that most of the threats and all of the acts of violence attributed to her occurred during the period of her conflict with Jewel Spoon.

When allegedly gruesome photographs are presented, the trial court in the exercise of its judicial discretion must decide whether their probative value outweighs their possible prejudicial effect. (People v. Brubaker, ante, pp. 37, 48 [ 346 P.2d 8 ] ; People v. Carter, 48 Cal.2d 737 , 751 [ 312 P.2d 665 ] ; People v. Cheary, 48 Cal.2d 301 , 312 [ 309 P.2d 431 ].) In the present case some of the challenged photographs show the deceased as she was found in her front yard, with bullet holes and bloodstains on her dress and blood on her face. They were used to illustrate testimony about her wounds and to show the relative positions in which the body and various items of evidence were discovered. Other photographs show the deceased lying on a table at the mortuary, naked above the waist, with blood smeared on her face. These pictures were used to show the location and nature of her wounds and to explain the basis for expert opinions as to the position of the gun when the shots were fired. Although many of these photographs are decidedly unpleasant to view, they are not comparable to those held inadmissible in People v. Redston, 139 Cal.App.2d 485 , 490-491 [ 293 P.2d 880 ], or People v. Burns, 109 Cal.App.2d 524 , 541-542 [ 241 P.2d 308 , 242 P.2d 9 ], where the deceased was shown with a shaved head and disfigured by an autopsy. In view of their probative value, the trial court did not abuse its discretion by admitting them. It was also within the discretion of the trial court to permit all the pictures taken by the same photographer to be identified at the same time, even though many of them were not to be used until later in the trial.

Defendant also contends that the trial court erred in permitting the introduction of a tape recording of a conversation between defendant and his insurance broker, Bay J. Travers. The conversation took place in the interrogation room of the county jail two days after defendant had been arrested and before he had obtained a lawyer. Defendant was unaware that his words were being recorded and did not know that Travers had formerly been a police officer or that he had agreed to question defendant so that the recording could be

Involuntary confessions are excluded because they are untrustworthy, because it offends “the community’s sense of fair play and decency” to convict a defendant by evidence extorted from him, and because exclusion serves to discourage the use of physical brutality and other undue pressures in questioning those suspected of crime. (People v. Berve, 51 Cal.2d 286 , 290, 293 [ 332 P.2d 97 ] ; see Watts v. Indiana, 338 U.S. 49 , 54 [ 69 S.Ct. 1347 , 1357, 93 L.Ed. 1801 ]; Lyons v. Oklahoma, 322 U.S. 596 , 605 [ 64 S.Ct. 1208 , 88 L.Ed. 1481 ].) All these reasons for excluding involuntary confessions apply to involuntary admissions as well. (See Opper v. United States, 348 U.S. 84 , 90-92 [ 75 S.Ct. 158 , 99 L.Ed. 101 ] ; Falknor, The Hearsay Rule and Its Exceptions, 2 U.C.L.A. L. Rev. 43, 68.) Accordingly, any statement by an accused relative to the offense charged is inadmissible against him if made involuntarily.

The People contend, however, that the voluntary nature of defendant’s statements was adequately shown before the recording was admitted into evidence. Travers testified that no threats were made, that no inducements were offered, and that in an earlier conversation defendant had volunteered

Defendant also contends that the recording was obtained by such fraud that its use as evidence was inconsistent with due process. He relies primarily on Leyra v. Denno, 347 U.S. 556 [ 74 S.Ct. 716 , 98 L.Ed 948 ]. In that case the police, having promised a suspect medical treatment for an acutely painful attack of sinus, introduced as the “doctor” a highly skilled psychiatrist with a considerable knowledge of hypnosis. The psychiatrist used threats, promises of leniency, and expressions of sympathy to reduce the physically exhausted suspect to almost trance-like submission. Use of his resulting confessions violated due process, largely because they were the product of “mental coercion.” Although there was a similar deception in the present case, there was no comparable mental coercion. The deception itself does not render defendant’s statements inadmissible, for it was not of a type reasonably likely to procure an untrue statement. (People v. Connelly, 195 Cal. 584 , 597 [ 234 P. 374 ]; People v. Castello, 194 Cal. 595 , 602 [229 P.855].)

While cross-examining Travers as to the voluntariness of defendant’s recorded statements, defense counsel attempted to ask whether defendant had complained to Travers of not being permitted by the police, despite numerous requests, to talk to a lawyer. The trial court sustained an objection to this question and explained to the jury that the answer would have no bearing on the question of voluntariness. Defendant correctly contends that this ruling was erroneous, but fails to show that it was prejudicial. Although a refusal to permit defendant to talk to counsel suggests an intent to coerce, it seems highly improbable that either the trial judge or the jury would have inferred, coercion from such a refusal alone in the light of the substantial and uncontradicted evidence that no coercion occurred.

Defendant contends that the trial court erred in permitting the People to introduce on rebuttal a letter pur

Defendant contends that the trial court committed prejudicial error in refusing to order the prosecution to produce certain rent receipts and in admonishing the jury to disregard defense counsel’s statement that he would prove the receipts to be forgeries. Defendant asserts that he should have been permitted to use the receipts to impeach the prosecution’s witness, Barbara Parris, who testified on cross-examination that she had never forged a rent receipt for the deceased and that she had seen the deceased pay rent to defendant and defendant give receipts for it. The question whether rent receipts had been forged to deceive the welfare authorities was clearly collateral to the issues being tried. The trial court had discretion to foreclose further inquiry along that line, even for purposes of impeachment. (See Wit-kin, California Evidence, § 673.) Moreover, in support of his request for the receipts, defense counsel offered to show merely that they were forged by Barbara “or someone else.” Such a showing with regard to the particular receipts in question might well have been consistent with Barbara’s testimony. Its value as impeachment, therefore, was questionable.

Defendant also contends that the trial court erroneously permitted the prosecution to cross-examine him improperly. The assistant district attorney asked him whether or not he had told the truth while testifying under oath in a

Defendant was also asked on cross-examination to demonstrate certain aspects of his alleged struggle with his wife. He argues that this demonstration violated his privilege against self-incrimination and that it was not proper cross-examination because not restricted to matters about which he was examined in chief. Defendant testified on direct examination that he had been carrying a loaded pistol inside his belt, that his shirttails were tucked in so that the gun was plainly visible, that he had scuffled with his wife for possession of the gun, and that it had gone off during the struggle. On cross-examination he was required to put on the shirt he had worn on the night of the killing, to show how he had carried the gun, and to demonstrate with an assistant district attorney his and his wife’s movements during the alleged struggle. These matters were clearly raised by his direct testimony. He was also asked how long his wife’s arms were, and replied that they were about the same length as his own. He was then asked to hold the gun at arm's length pointed towards himself with a finger touching the trigger. The distance from the muzzle to his body was measured and found to be 10 inches. This part of the demonstration, in combination with the testimony of the prosecution’s experts that the gun was fired from at least 24 inches away, was directly related to defendant’s statement on direct examination that the gun had gone off while he and his wife were struggling for it. The entire demonstration, therefore, was within the scope of permissible cross-examination (Pen. Code, § 1323; People v. Ortiz, 66 Cal.App. 154 , 156 [ 225 P. 462 ]), and defendant waived his privilege against self-incrimination as to the mat

Defendant contends that the prosecution was guilty of prejudicial misconduct in its closing argument. The assistant district attorney suggested to the jury that the deceased had been shot initially in the back as she turned to run away. Defendant complains that this suggestion was based on facts not in evidence. There was evidence that a wound in the deceased’s back marked the entrance of a bullet. From the position in which the body was found and other evidence, it clearly could be inferred that the deceased had turned to run. Although there was no evidence of the order in which she received the various wounds, the assistant district attorney’s suggestion was nonetheless based on a reasonable interpretation of the evidence, and was therefore within the scope of permissible argument. (People v. Cheary, 48 Cal.2d 301 , 317-318 [ 309 P.2d 431 ]; People v. Burwell, 44 Cal.2d 16 , 39-40 [ 279 P.2d 744 ].)

The assistant district attorney also argued to the jury that if the prosecution’s eyewitnesses were unable to see the killing from their bedroom window, as the defense had suggested, defense counsel would have requested that the jury view the premises. The basis for defendant’s objection to this argument is not clear. It is generally permissible to argue to the jury that an adverse inference should be drawn from the opposing party’s failure to produce the strongest available evidence. (Cf. Pen. Code, § 1323.) Morever, defense counsel had ample opportunity to respond to the argument or to point out that a countervailing inference could be drawn from the prosecution’s failure to request a view.

The assistant district attorney misstated the law, however, when he told the jury that the killing of a human being while in the commission of a felony, to wit, assault with a deadly weapon, is murder of the first degree. (See Pen. Code, § 189.) Shortly thereafter he corrected his error and apologized to the jury. The court gave accurate instructions on murder and its degrees, and repeated those instructions at the jury’s request shortly before the verdict was returned. It must be presumed that the jury followed the court’s instructions and that defendant was not prejudiced by the assistant district attorney’s earlier misstatement of the law.

The trial court instructed the jury that murder is in the first degree if perpetrated by lying in wait. (Pen. Code,

Defendant contends that the trial court erred in excluding certain medical testimony as to defendant’s mental condition at the time of the shooting. He relies on People v. Wells, 33 Cal.2d 330 [ 202 P.2d 53 ], which holds that medical testimony as to mental state is admissible to show lack of malice aforethought or lack of premeditation and deliberation. In his offer of proof, however, defense counsel stated that the proposed testimony would bear on defendant’s ability at the time of the trial to remember what had occurred. There was no suggestion that it would bear on malice aforethought, premeditation, or deliberation. (Cf. People v. Wells, supra, at 345.) The record does not show, therefore, that evidence relevant to these issues was excluded.

Defendant did offer to elicit the doctor’s opinion as to whether, in view of defendant’s state of mind at the time of the shooting and after his arrest, it would be “normal” for him not to remember the details of the shooting or his statements to the police. He also proposed to ask the doctor about the reflex action of the trigger finger of a person under stress. The trial court ruled that the jury could evaluate these matters without the help of an expert. Both the mental stress created by involvement in a killing and the effect of such stress on finger reflexes, however, were “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (People v. Cole, 47 Cal.2d 99 , 103 [ 301 P.2d 854 , 56 A.L.R.2d 1435 ]; George v. Bekins Van & Storage Co., 33 Cal.2d 834 , 844 [ 205 P.2d 1037 ].) As to both matters, therefore, the trial court’s ruling was erroneous.

The erroneously excluded evidence was significant because defendant relied primarily on the theory that the shooting was accidental or in self-defense. Since no other witness oh-

Upon examination of all the evidence, however, it does not appear that the erroneous exclusion of this medical testimony resulted in a miscarriage of justice. (See Cal. Const., art. VI, § 4½.) Although the testimony as to reflexes might have made defendant’s story of a struggle more credible, there was abundant evidence inconsistent with a struggle, including the distance from which the shots were apparently fired, the proximity in which the five empty cartridge casings were found, the fact that defendant had armed himself and waited for his wife, the cry heard by the neighbors, and the fact that virtually every bullet in defendant’s gun entered her body. Although the testimony as to defendant’s inability to remember might have met one line of attack on his credibility, other lines of attack were given far more emphasis by the prosecution. Defendant was shown to have lied repeatedly to the police after his arrest and to have lied under oath in a prior criminal proceeding. Moreover, his credibility was important primarily as it affected the jury’s belief in his story of a struggle for the gun. The evidence inconsistent with that story was abundant and convincing. There is therefore no reasonable probability that admission of the excluded medical testimony would have persuaded the jury to reach a different result. (See People v. Watson, 46 Cal.2d 818 , 836 [ 299 P.2d 243 ].)

The judgment and order denying a new trial are affirmed.

Gibson, C. J., Schauer, J., Spence, J., McComb, J., Peters, J., and White, J., concurred.

Appellant’s petition for a rehearing was denied December 30, 1959.