Majority
Opinion
Trudie Palmer appeals from a conviction of second degree murder, following a jury trial. We affirm the judgment.
Police Officer Leo Plinski was dispatched by radio to appellant’s apartment. He had been dispatched in response to appellant’s telephone call reporting that someone had been shot.
Appellant’s husband, Michael Palmer, was lying across the left side of the bed; he appeared dead, and Officer Plinski could see a small wound in the left side of his skull behind the ear. Appellant, distraught and crying, repeatedly stated that her husband could not be dead.
Asking appellant what had happened, she replied only that her husband had been shot. When Officer Plinski asked if there were any guns in the house, appellant told him that there was a “shotgun” under the bed. Another officer on the scene reached under the bed and found an apparently new and unused .22 caliber rifle in a box. In the nightstand on appellant’s side of the bed the officer also found a .22 caliber revolver partially wrapped in plastic. The revolver contained four live rounds and two empty shell casings which bore the same manufacturer’s markings as the five cartridges. Although the pistol was tested for fingerprints, only unidentifiable smudges were found. Investigating officers found no evidence of forced entry into or a struggle inside the apartment.
Dr. Chan Lee, a forensic pathologist and the coroner, testified that the cause of death was a .22 caliber bullet which had entered the left-rear of Michael’s head. Burned or partially burned powder particles (stippling) made a circle approximately four inches in diameter around the wound. Based upon his examination of the fatal wound, Dr. Lee was of the opinion that it could not have been self-inflicted.
Wilkaan Fong, a criminalist, test fired the pistol found at the scene, using the ammunition that had been found in it. From these tests, he
I
Mr. Fong had been a criminalist in the Santa Clara County Laboratoiy of Criminalistics since 1967. Prior to that time, he had worked in the Minnesota Bureau of Criminalistics Laboratory (10 years), Pittsburgh and Allegheny Crime Laboratory (1½ years), and the Wisconsin State Crime Laboratory (3½ years). In the course of his Santa Clara County employment he routinely used such scientific instruments as spectrometers, gas chromatographs, and microscopes. But in conjunction with this case he made his first use of the scanning electron microscope. The scanning electron microscope is somewhat similar to a light microscope. What little knowledge is necessary to run the device can be acquired in a short period of time.
One of the particles found on appellant’s right hand showed the presence of lead, copper, zinc, barium, calcium, and silica. These same elements were present in the ammunition found in the weapon at the scene. Hence, the elemental composition of this particle was entirely consistent with the ammunition used to fire the fatal shot. Mr. Fong could not think of anything other than a gunshot which would account for such a particle.
Appellant first contends that the trial court committed prejudicial error in failing to instruct sua sponte that evidence of a defendant’s nontape-recorded admissions must be viewed with caution. (CALJIC No. 2.70.) The rule is firmly established that such an instruction, when called for by the evidence, must be given, even without a request therefor. (People v. Ford (1964) 60 Cal.2d 772 , 799 [ 36 Cal.Rptr. 620 , 388 P.2d 892 ]; People v. Bemis (1949) 33 Cal.2d 395 , 398-400 [ 202 P.2d 82 ]; see People v. Hines (1964) 61 Cal.2d 164 , 173 [ 37 Cal.Rptr. 622 , 390 P.2d 398 ].) An admission is “any statement by an accused relative to the offense charged.” (People v. Atchley (1959) 53 Cal.2d 160 , 170 [ 346 P.2d 764 ], quoted in People v. Ford, supra, 60 Cal.2d at p. 799.)
The only evidence relating to express oral admissions of appellant arose during the testimony of two defense psychiatrists. General instructions relating to oral admissions are inapplicable to statements given in a diagnostic context to a psychiatrist. Instead, the jury should be instructed on the limited nature of the testimony. The same rule applies where the psychiatrist has been appointed or retained at the request of the defendant,[1] and where the statements are disclosed during cross-examination. “In either situation the defense can have no cause for complaint when the incriminating statements are brought to light as one of the bases of the expressed opinion, provided of course that the proper limiting instruction has been given.” (People v. Morse (1969) 70 Cal.2d 711 , 726 [ 76 Cal.Rptr. 391 , 452 P.2d 607 ].)
The appropriate limiting instruction (CALJIC No. 2.10) was not given by the court. It was not requested by appellant and in the absence of a request, the court was under no duty to instruct the jury concerning the limited effect of incriminating statements disclosed by the psychiatrist’s testimony. (People v. Cantrell (1973) 8 Cal.3d 672 , 683 [ 105 Cal.Rptr. 792 , 504 P.2d 1256 ].)
Assuming arguendo that CALJIC No. 2.71 was applicable, its omission does not require reversal under the facts of this case. Failure of a court to give sua sponte the cautionary instruction regarding oral admissions does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached. (People v. Beagle
1 The record does not reflect whether the doctors were appointed pursuant to Penal Code section 1027, or were appointed to assist defense counsel.
II
Next, appellant complains that the court erroneously neglected to instruct sua sponte that the corpus delicti must be proved independently of admissions. (CALJIC No. 2.Í2.) Failure to give such an instruction sua sponte, where appropriate, is error. (People v. Beagle, supra, 6 Cal.3d at p. 455.) However, the omission does not constitute reversible error if, upon a reweighing of the evidence, it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of error.
In the instant case the corpus delicti—proof that death resulted from some criminal agency (People v. Cullen (1951) 37 Cal.2d 614 , 624 [ 234 P.2d 1 ])—was convincingly established independently of admissions. The victim, appellant’s husband, was found dead of a gunshot wound to the head, and there was no evidence that he himself had fired the fatal shot. Thus, any error in the omission of the instruction cannot be deemed reversible.
Ill
Appellant next contends that the trial court erred prejudicially in admitting testimony of criminalist Wilkaan Fong, based upon use of a scanning electron microscope. Fong testified that after examining minute particles obtained from the hands of the victim and appellant, he was able to identify, upon the sample obtained from appellant’s right hand, particles which are characteristic of gunshot residue (hereinafter GSR). No particles were found on appellant’s left hand or on either of the victim’s hands. When these GSR particles found on appellant’s right hand were compared with GSR particles removed from Mr. Fong’s hand after he had fired the murder weapon using cartridges found in the gun, the GSR particles from both sources appeared to be identical. In making
The SEM provides a method of identification of particles removed from the hand by an adhesive lift technique and upon an analysis of the chemical composition of the particle through X-ray spectrometry.[2]
As the Supreme Court observed in People v. Kelly (1976) 17 Cal.3d 24 , 30 [ 130 Cal.Rptr. 144 , 549 P.2d 1240 ]: “[Admissibility of expert testimony based upon the application of a new scientific technique traditionally involves a two-step process: (1) the reliability of the method must be established, usually by expert testimony, and (2) the witness furnishing such testimony must be properly qualified as an expert
2 The SEM operates in the following manner: “A beam of electrons is scanned over the surface of a specimen, causing secondary electrons to be emitted. The intensity of the secondary electron emission depends on the topography (hills & valleys) of the surface as well as its composition, and hence can be used to build up a point-by-point image of the surface, as the primary beam is scanned over the specimen. Because the primary electron beam can be very finely collimated, and because high-energy electrons have an equivalent wavelength much shorter than that of visible light, the electron microscope allows magnifications to be achieved that are much greater than that of the optical microscope. The usual working magnification of an optical microscope ranges up to 1000 times, with 2000 being an upper limit. Working magnifications in the scanning electron microscope are from ten to one hundred times greater, and special research instruments can do even better. Also, the SEM has an extraordinary depth of focus so that the tops of peaks and the bottoms of valleys in a surface can be seen in focus simultaneously, unlike the optical microscope which must be refocused for slight changes in elevation. “Another feature of the SEM, which has no analogy in the optical microscope, is that the primary electron beam causes x-rays to be emitted by the specimen. The energy of these x-rays is characteristic of the chemical elements that are present in the specimen. This makes it possible to obtain a chemical analysis of the area under observation.” When viewed through the SEM, GSR “consists of discrete, micrometer-sized particles, predominantly spheroidal, and often of characteristic appearance. The x-ray analyzer will identify all chemical elements heavier than sodium contained in each individual particle, and the only elements possible for gunshot residue are those that can be derived from the constitution of the bullet, a plating or jacket over the bullet, and ingredients of the primer. The morphology of the particles allows them to be readily found among the general debris (skin, salts, minerals, and adhesive) lifted from the hand, and the chemical composition identifies them. Some particles are uniquely identifiable as gunshot residue by virtue of their compositions alone. Other compositions are less unique but, when combined with morphological information, are still typical of gunshot residue.” (Aerospace Corporation, Final Report on Particle Analysis for Gunshot Residue Detection (ATR-77 (7915) pp. xvii-xviii).) (Hereinafter Aerospace Final Report.)
The test for determining the reliability of a new scientific technique was described in Frye v. United States (D.C.Cir. 1923) 293 Fed. 1013 , 1014 [polygraph tests] as follows: “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Italics added.) The Frye “general acceptance” rule has been adopted in California. (People v. Kelly, supra, 11 Cal.3d at p. 32.) Whether a particular technique has gained general acceptance in the scientific community can be ascertained by reference both to legal and scientific publications or journals and to judicial decisions. (People v. Kelly, supra, at pp. 32-36; People v. Law (1974) 40 Cal.App.3d 69 , 73 [ 114 Cal.Rptr. 708 ].)
There are no reported cases dealing specifically with the admissibility of SEM for GSR particle analysis.[3] Scientific journals have uniformly embraced this application, lauding it as a “major improvement” (Nesbitt et al., Detection of Gunshot Residue by Use of the Scanning Electron Microscope (1976) 21 J.For.Sci. 595), and a promising technique (Matricardi & Kilty, Detection of Gunshot Residue Particles From the Hands of a Shooter (1977) 22 J.For.Sci. 725, 737.) One study found that this technique was “always ... successful in detecting GSR on hands immediately after shooting.” (Andrasko & Maehly, Detection of Gunshot Residues on Hands by Scanning Electron Microscopy (1977) 22 J.For.Sci. 279, 285.) The most recent study, and the most extensive, has been that of the Aerospace Corporation (Aerospace Report No. ATR-77 (7915)-3). (Aerospace Final Report, p. 8.) That report concluded that SEM particle analysis “has been fashioned into the most definitive method of identifying and the most successful method of
3 But, see People v. Marx (1975) 54 Cal.App.3d 100 , 111, footnote 16 [ 126 Cal.Rptr. 350 , 77 A.L.R.3d 1108 ] (one of the scientifically and professionally established techniques used for identification of perpetrator through analysis of bite marks was a “scanning electromicroscope”).
Appellant suggests that the prosecution failed to establish the reliability of the SEM for GSR particle analysis since no qualified expert
4 The Aerospace Corporation' Report No. ATR-75 (7915)-2 (Dec. 1974). The final report was specifically intended to respond to this problem. (Aerospace Final Report, p. 7.)
5 “[C]ontrol samples taken from the hands of persons who had not fired a gun . . . never resulted in a false positive indication.” (Aerospace Final Report, p. 6, accord, id., p. 55.)
6 The use of this technique differs from the use of the lie detector in that there is no question as to the accuracy of the chemical analysis. Furthermore, any expert, including defendant’s expert, can study the analysis and draw his own conclusions as to whether these chemicals constitute gunshot residue particles. In a lie detector case the conclusion reached is solely the opinion of the examiner and is not subject to verification by another expert.
Appellant argues that Mr. Fong was not qualified to interpret SEM data for GSR detection and analysis.[8] “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) Generally, the trial court is given considerable latitude in determining the qualifications of an expert, and its determination will not be disturbed on appeal absent a manifest abuse of discretion. (People v. Kelly, supra, 17 Cal.3d at p. 39.) “However, whether a person qualifies as an expert in a particular case depends upon the facts of that case and the witness’ qualifications. (People v. Davis (1965) 62 Cal.2d 791 , 801 ....) ‘The competency of an expert is relative to the topic and fields of knowledge about which the person is asked to make a statement. In considering whether a person qualifies as an expert, the field of expertise must be carefully distinguished and limited.’ (People v. King, supra, 266 Cal.App.2d at p. 445 [ 72 Cal.Rptr. 478 ].)” (People v. Kelly, supra, 17 Cal.3d at p. 39.)
7 Mr. Wong did not testify as to the reliability and general acceptance of GSR particle analysis by use of the SEM. Instead his testimony related to interpretation of the data from the SEM and the X-ray spectrometer.
8 Appellant also argues that Mr. Fong is not qualified to testify as to the reliability of the SEM method of GSR particle analysis. However, this argument is irrelevant as Mr. Fong did not testify as to the reliability and general acceptance of the SEM method; instead, he testified as to the interpretation of SEM data.
IV
Furthermore, Mr. Fong has a degree in criminalistics plus one and a half years of graduate work in the field. He has worked as a criminalist for 15 years. He routinely uses such scientific instruments as spectrometers, gas chromatographs, and microscopes.
On the basis of the foregoing evidence, the trial court was justified in concluding that Mr. Fong was qualified to interpret SEM data for the detection and identification of GSR particles. Mr. Fong’s comparative inexperience with the method simply goes to the weight of his testimony, rather than its admissibility.
Finally appellant contends that tapes of her two-hour interview with Sgt. Demkowski were inadmissible because the interview was conducted in violation of her Miranda rights. She now argues that admission of the tapes into evidence was prejudicial error.
Approximately 20 minutes after the police arrived on the scene, appellant was taken to the police station and placed in the custody of Sgt. Demkowski. Without advising appellant of her constitutional rights, Sgt. Demkowski proceeded to ask routine questions[9] for the purpose of completing personal data on a police form. During this portion of the interview, appellant continually interrupted Sgt. Demkowski, denying guilt and professing ignorance of the facts. Appellant contends that this portion of the tapes should have been excluded because she had not been given the Miranda warnings. This argument is without merit.
9 Sgt. Demkowski asked appellant for the following information: age, date of birth, telephone number, address, occupation, social security number, employment history, arrest record, husband’s name, age and occupation, parents’ names, address and telephone number.
Appellant suggests that, due to her emotional instability, her waiver of her right to remain silent was ineffective. We do not agree.
If the People can demonstrate that a suspect knowingly and intelligently waived his privilege against self-incrimination, and his right to retained or appointed counsel, Miranda imposes no constitutional bar to continued questioning. (People v. Randall (1970) 1 Cal.3d 948 , 955 [ 83 Cal.Rptr. 658 , 464 P.2d 114 ]; People v. Fioritto (1968) 68 Cal.2d 714 , 719 [ 68 Cal.Rptr. 817 , 441 P.2d 625 ].) “It is the duty of a reviewing court to examine the uncontradicted facts to determine independently whether the trial court’s conclusion of voluntariness was properly found. [Citations.] In determining whether the defendant’s confession is the product of a rational intellect and a free will, the totality of the circumstances surrounding the confession must be considered. [Citation.] Where the evidence is conflicting, an appellate court will accept the trial court’s finding if the evidence relied on by the trial court ‘is not so
The record contains substantial evidence in support of the trial court’s finding of knowing and voluntary waiver of the right to remain silent. After being advised of her rights, appellant specifically declined to invoke her right to remain silent, stating: “I’m not going to take the Fifth Amendment because I have nothing to lie about.” She gave an affirmative response when asked if she understood her rights and then proceeded to discuss her case fully with Sgt. Demkowski. This conduct evidences the requisite present willingness to discuss the case fully with police. (See People v. Johnson (1969) 70 Cal.2d 541 , 558 [ 75 Cal.Rptr. 401 , 450 P.2d 865 , 43 A.L.R.3d 366 ], disapproved on a different point in People v. DeVaughn (1977) 18 Cal.3d 889 , 899, fn. 8 [ 135 Cal.Rptr. 786 , 558 P.2d 872 ].)
We note that appellant understandably was upset, had been drinking and had a history of emotional instability. Nevertheless, she was able to respond to the questions asked of her coherently. At one point, appellant told Sgt. Demkowski, “Now you can go on questioning me.” Having reviewed the record we conclude that appellant knowingly and intelligently waived her right to remain silent. (Cf. People v. Barrow, supra, 60 Cal.App.3d 984 , 991; People v. Fisher (1975) 49 Cal.App.3d 174 , 179 [ 122 Cal.Rptr. 366 ].)
Appellant contends that she subsequently invoked her right to consult with counsel. Her request to see a lawyer is a sufficient indication of a present unwillingness to discuss the case fully and completely with the police. Police questioning should have ceased immediately at that point, and it therefore was error for the trial court to admit into evidence tapes of the subsequent interrogation.
Nevertheless, we are persuaded that under the facts of the instant case, admission of the tapes was not prejudicial error, because it was merely cumulative of earlier statements. Appellant continued to deny guilt and profess her innocence, and added nothing of any substance to her earlier remarks. For these reasons we conclude that there is no reasonable probability that the jury would have reached a different result in the absence of error. (People v. Jacobson (1965) 63 Cal.2d 319 , 330-331 [ 46
The judgment is affirmed.
Rattigan, J., and Christian, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied June 22, 1978.
Cases cited
- People v. Ford 60 Cal.2d 772 at 799 p. 248
- People v. Bemis 33 Cal.2d 395 at 398-400 p. 248
- People v. Hines 61 Cal.2d 164 at 173 p. 248
- People v. Atchley 53 Cal.2d 160 at 170 p. 248
- People v. Atwood 223 Cal.App.2d 316 at 333 p. 249
- People v. Morse 70 Cal.2d 711 at 726 p. 249
- People v. Cantrell 8 Cal.3d 672 at 683 p. 249
- People v. Beagle 6 Cal.3d 441 at 455 p. 250
- People v. Cullen 37 Cal.2d 614 at 624 p. 250
- People v. Kelly 17 Cal.3d 24 at 30 p. 251
- People v. Law 40 Cal.App.3d 69 at 73 p. 252
- People v. Marx 54 Cal.App.3d 100 p. 253
- People v. Davis 62 Cal.2d 791 at 801 p. 254
- Miranda v. Arizona 384 U.S. 436 at 479 p. 256
- People v. Stewart 62 Cal.2d 571 at 579 p. 256
- People v. Hernandez 263 Cal.App.2d 242 at 253 p. 256
- People v. Walters 252 Cal.App.2d 336 at 338 p. 256
- People v. Van Alstyne 46 Cal.App.3d 900 at 908 p. 256
- People v. Johnson 20 Cal.App.3d 168 at 175 p. 256
- People v. Randall 1 Cal.3d 948 at 955 p. 256
- People v. Fioritto 68 Cal.2d 714 at 719 p. 256
- People v. Hutchings 31 Cal.App.3d 16 at 20 p. 257
- People v. Barrow 60 Cal.App.3d 984 at 990-991, at 991 p. 257
- People v. Johnson 70 Cal.2d 541 at 558 p. 257
- People v. DeVaughn 18 Cal.3d 889 at 899 p. 257
- People v. Fisher 49 Cal.App.3d 174 at 179 p. 257
- People v. Jacobson 63 Cal.2d 319 at 330-331 p. 257
- In re Morse 70 Cal.2d 702 p. 258