People v. Hall

Opinion

Facts and Proceedings Below

Someone killed Adolph Clarke. The 88-year-old man was found lying on his stomach in his bedroom. His head was wrapped in a sheet. His hands were tied behind his back. A cloth was tied to one ankle. His larynx was broken. His back was broken. He did not commit suicide.

The defendant admitted to police that he and two other men, Dixon and Taylor, had forced their way into Clarke’s apartment to rob him. Dixon knocked Clarke down and began to tie his hands and beat him. At the same time defendant tied the old man’s feet. Defendant and the others then took money and other property belonging to Clarke and left.

Following a preliminary hearing, a three-count information was filed against defendant charging him with murder, robbery and burglary. The murder count alleged as a special circumstance that the killing occurred while defendant was engaged in the commission of a robbery and burglary. (Pen. Code, § 190.2, subd. (a)(17).)

Subsequently defendant was determined to be incompetent to stand trial and committed to Camarillo State Hospital until such time as he should regain mental competency. While at Camarillo defendant “walked away” from the grounds. He remained at large for about five months. His recapture was somewhat dramatic. Over defendant’s objection, the events were described to the jury. About 20 police officers surrounded the house where defendant was staying. Using a public address system, one of the officers ordered defendant to come out of the house. When defendant did not come out, tear gas canisters were shot into the house. When defendant still did not come out several officers entered the house. Eventually defendant was found hiding in the attic under some insulation. Largely because of this escape from custody the trial court required defendant to wear leg chains throughout the trial.

In addition to his admissions to the police, the jury heard testimony from two witnesses about statements defendant made to them regarding the

Defendant was convicted on all three counts and the special circumstance allegation was found true.

Issues

1. Did the trial court err in requiring defendant to wear leg chains throughout the trial?

2. Did the trial court err in allowing testimony describing defendant’s recapture following his escape from Camarillo?

3. Was Sarah Franklin an incompetent witness?

4. Did the trial court properly instruct the jury on the question of intent for purpose of the special circumstances allegation?

Discussion

A. The Trial Court Did Not Abuse Its Discretion by Requiring Defendant to Wear Chains During the Trial.

Our Supreme Court has held no person charged with an offense can be subject to physical restraints, including leg irons or chains, unless there is a showing of “manifest need” for such restraints. {People v. Duran (1976) 16 Cal.3d 282 , 290-291 [ 127 Cal.Rptr. 618 , 545 P.2d 1322 , 90 A.L.R.3d 1 ].) While we believe the showing of a need to restrain the defendant in this case was marginal, we do not find that the restraint constituted a “manifest abuse of discretion.” {Id. at p. 293, fn. 12.)

The considerations supporting the restraint were that defendant had escaped from Camarillo State Hospital while these charges were pending

The considerations opposing restraint were that defendant had not committed any act of violence in his escape from Camarillo—he had simply walked away (cf. Pitcock, supra, 134 Cal.App.3d at p. 800); he had not indicated any ambulant or violent propensities during pretrial proceedings (cf. People v. Kimball (1936) 5 Cal.2d 608 , 611 [ 55 P.2d 483 ]; People v. Jada (1978) 77 Cal.App.3d 878 , 884 [ 144 Cal.Rptr. 23 ]); it has been held that the mere fact the defendant is charged with a violent crime is insufficient reason to impose restraints, Duran, supra, 16 Cal.3d page 293; People v. Burnett (1980) 111 Cal.App.3d 661 , 668 [ 168 Cal.Rptr. 833 ] and there were less restrictive alternative available such as bringing in a second bailiff. {Duran, supra, 16 Cal.3d at p. 291, fn. 8.)

The record reflects some potential jurors saw the defendant in leg chains on one occasion, briefly, when he was brought into the courtroom at the beginning of voir dire. A comment by defense counsel indicates only one or two of the jurors finally selected for the panel saw the incident. Such brief observations have been generally held not prejudicial. {Duran, supra, p. 287, fn. 2.) Although the trial court denied the request to remove the leg chains the court acceded to the request that defendant be brought into the courtroom before the jury entered and allowed to leave after the jury had departed. Thereafter, the trial was conducted with defendant seated during the times in which the jury was present. Thus, the court employed the least visible restraints and there is nothing in the record to indicate jurors were aware, after the first encounter, that defendant was under restraint. (See Duran, supra, p. 291, fn. 9, 292; People v. Zatko (1978) 80 Cal.App.3d 534 , 551 [ 145 Cal.Rptr. 643 ].) Given these factors and the considerations supporting the restraint of the defendant, we find no abuse of discretion on th„e part of the trial court.

B. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of the Circumstances Surrounding Defendant’s Recapture After His Escape From Camarillo.

Defendant concedes evidence of his recapture is relevant to his consciousness of guilt. But, he contends, allowing testimony as to the details

We have found no California case directly on point. However, several cases have upheld the admission of evidence of the defendant’s conduct in avoiding arrest as relevant circumstantial evidence tending to show guilt. (People v. Wong (1973) 35 Cal.App.3d 812 , 831 [ 111 Cal.Rptr. 314 ]; People v. Cartwright (1980) 107 Cal.App.3d 402 , 418 [ 166 Cal.Rptr. 37 ] and see People v. Ellis (1922) 188 Cal. 682 , 693 [ 206 P. 753 ]; ‘“It was never doubted that the conduct of a suspected party when charged with a crime may be put in evidence against him when it is such as an innocent man would not be likely to resort to.’ ” quoting People v. Arnold (1880) 43 Mich. 303 [ 5 N.W. 385 , 387].)

We have found two sister state opinions in which the circumstances of the defendants’ capture were admitted to show guilty knowledge. (See Erickson v. State (Ind. 1982) 439 N.E.2d 579 , 581; People v. Hooker (1981) 96 Ill.App.3d 127 [ 421 N.E.2d 301 , 307].) In both cases, as in the case at bench, the defendant hid from the police in an attempt to avoid capture. Hooker is most similar to the case at bench because Hooker like the defendant here escaped from custody while the instant charges were pending against him. The Hooker court reasoned “it was necessary to explain the circumstances of defendant’s recapture to negate any inference that he may have turned himself in to the police . . . .” (421 N.E.2d at p. 307.)

While it is true the circumstances surrounding the capture of the defendants in Erickson and Hooker were not as dramatic as those in the case at bench, it is also true the prosecutor here handled this evidence in a low-key fashion. He did not play to the jury on this matter. There was no reference to a SWAT Team exercise or any other attempt to sensationalize the event. His reference to the incident in his closing argument was brief and matter-of-fact referring only to the link between escape, recapture and knowledge of guilt. The details of the capture were not mentioned.

We find the admission of this evidence not unfairly prejudicial to the defendant.

C. The Record Does Not Show Sarah Franklin Was an Incompetent Witness.

Defendant contends Sarah Franklin’s testimony should have been stricken because she was incompetent in the sense she did not understand the duty of a witness to tell the truth. (Evid. Code, § 701, subd. (b).)

Defendant’s first proposed instruction provided that in order to find the special circumstance of felony murder the jury must find “the defendant specifically intended to kill Adolph Clarke.” This instruction was properly refused because it misstates the law. As section 190.2, subdivision (b) and Carlos make clear, the special circumstance of felony murder “require[s] an intent to kill or to aid in a killing. ” (Carlos, supra, 35 Cal.3d at p. 135, italics added.) The defendant need not have had the specific intent to commit a killing. The intent requirement is satisfied if he knew Clarke’s killing was planned by one of the robbers and that in holding Clarke down while another beat him he was facilitating that killing. {People v. Tewksbury (1976) 15 Cal.3d 953 , 960 [ 127 Cal.Rptr. 135 , 544 P.2d 1335 ]; People v. Beeman, supra, 35 Cal.3d at p. 558.)

Defendant’s second rejected instruction stated, “In the case before you conduct which is designed merely to aid or abet the commission of a robbery or burglary, but not a killing, does not establish the truth of the special circumstances allegation.” (Italics added.) This instruction was properly refused because it would tend to confuse and mislead the jury and because the gist of the instruction was already covered by the defendant’s special instruction the court agreed to give. The jury was already being instructed that a finding of special circumstances requires proof of intent to aid and abet the killing of Adolph Clarke and that intent can be proved in certain ways. (CALJIC No. 3.34.) To suddenly inject the concept of “design” in place of intent would add an imprecise and irrelevant element into the special circumstances crucible. Moreover, the defendant’s special instruction accepted by the court made clear that intent to kill or aid in a killing, not merely a robbery or burglary, was required in order to find special circumstances.

The final instruction proposed by the defendant would have instructed the jury, “If you find that Charles Hall personally killed Adolph Clarke, before special circumstances may be found true, you must also be satisfied beyond a reasonable doubt that the killing was intentional.” While this instruction correctly states the law as found in Carlos, supra, 35 Cal.3d at page 135, failure to give this instruction did not prejudice the defendant.