People v. Brown (26 Cal. App. 3d 825, 1972)

Opinion

COLE, J.

Ben Lee Brown appeals his conviction of murder in the second degree arising out of the death of Jessie Houston. Defendant was previously convicted of this same offense in 1966, and the conviction was affirmed by division three of this court in 1967 in an unpublished opinion. The major contentions raised on this appeal were also raised then. Subsequently, the United States Court of Appeals for the Ninth Circuit entertained an appeal from, a denial by the United States District Court of Brown’s petition for a writ of habeas corpus. The federal Court of Appeals reversed the order of the United States District Court, first, ruling that at the original trial the requirements of Jackson v. Denno, 378 U.S. 368 [12 L.Ed.2d 908, 84 S.Ct. 1774, 1 A.L.R.3d 1205], concerning trial court resolution of the voluntariness of a “confession” did not appear on the record with the “unmistakable clarity” which is required. Secondly, the federal Court of Appeals was “gravely troubled” by what it termed the trial court’s failure to make an adequate inquiry into the cause of defendant’s expressed dissatisfaction with his counsel at the first trial, and his refusal to talk to or collaborate with his counsel. The federal proceedings are reported sub nom., Brown v. Craven, 424 F.2d 1166.

On this appeal, defendant raises four contentions:

“I. The trial court committed prejudicial error in refusing to instruct the jury on the Diminished Capacity evidence and the rebuttal of malice by evidence of intoxication.

“II. Appellant was deprived of effective assistance of counsel by failure to secure and present evidence of Diminished Capacity.

“III. The trial court erred in not conducting a hearing to determine what might be done to secure appellant’s cooperation with appointed counsel.

“IV. The admission of appellant related to the jury by the arresting officer was elicited under compulsion in violation of appellant’s constitutional rights.”

We set forth only so many of the facts as are necessary to delineate the limited points raised.

Facts

In the early morning hours of October 11, 1965, police were called, apparently by defendant and his 14-year-old son, to defendant’s one-room, plus kitchen, apartment where the body of Jessie Houston, clad in a nightgown, was found in bed. The body was removed by coroner personnel for further examination. Defendant was not taken into custody. The investigating officer, Fallon, noticed what appeared to be burns around the legs and thighs of decedent. On October 11, defendant stated that the previous night (about 24 hours earlier) he had gone to bed with the deceased and that she woke him up about an hour later saying she had been burned. The bed was on fire and he threw some water on her. The next day he purchased salve for her burns. There were tears in defendant’s eyes as he talked to the officer.

Before testifying to the foregoing effect, Officer Fallon had testified similarly before the court, out of the presence of the jury, adding to his testimony then that defendant said that the victim had been high on narcotics and he had brought her home and that about two hours or so before the officers were there, his son had awakened him and told him that Miss Houston was not breathing.

Another police officer, Hambley, testified that on October 12, 1965, at about 10 o’clock in the morning, he was advised by radio to proceed to the apartment to make a further investigation because the coroner’s report indicated that the deceased had suffered injuries of a traumatic nature. Officer Hambley testified, out of the presence of the jury, that he saw evidence of blood or a scuffle in the apartment; that he ascertained that defendant, defendant’s son and the deceased had been the only persons present, and that he knew these matters before he asked defendant how the decedent was injured.

Hambley testified that at this point he was not absolutely certain that the defendant was a primary suspect. When defendant told Hambley that he had slapped the victim the officer placed defendant under arrest and advised him of his constitutional rights.

The advice was concededly defective under Miranda standards. Therefore, no attempt was made to introduce into evidence any statement of defendant to the officer subsequent to the time of arrest. However, Hambley was permitted to testify in front of the jury that when he told defendant that the coroner’s office had advised that there were certain traumatic injuries on the deceased’s body and asked the defendant if he had any knowledge of how she received those injuries that the defendant stated: “Yes. I slapped her.”

At the time this statement was made by defendant the officer smelled an alcoholic odor and was of the opinion that defendant had been drinking but was not under the influence of alcohol. The trial court, after hearing this testimony, found the statement to be voluntary and further not to- be the product of custodial interrogation.

The coroner testified that the cause of death was due to blows to the head applied by a blunt force. He also described detailed deep puncture wounds around the deceased’s buttocks area which could have been caused by the spike heels on women’s shoes. As to the burning about the decedent’s legs and thighs, this, in the coroner’s opinion, had been suffered when the decedent was either dying or dead.

The only defense testimony presented was that of defendant’s son. His testimony was impeached in material respects. His testimony was that the victim on the night of her death appeared to be high; that she went into the kitchen and on coming out, fell, hitting her head on a coffee table; that the victim then lit a cigarette and went to bed, smoking; and that he, the witness, fell asleep. He testified that when he woke up the mattress appeared to be burnt; that he told his father, the defendant about it; that the latter put his ear to the decedent’s heart and said she was alive and that he, the witness, fell asleep again. When he woke up again he noticed that the victim had stopped breathing and told his father, who started crying. His father got dressed and he and his father went to call the police and an ambulance.

We turn now to defendant’s contentions.

Instructions About Intoxication

Defendant’s argument that the trial court committed error in refusing to give; various instructions dealing with appellant’s intoxication and mental condition as it affected his capacity to harbor malice is without merit. This is for the simple reason that there was no evidence that defendant was intoxicated. It is, of course, error to instruct the jury on matters or issues not before it. Conversely, the. court must give any correct instructions on defendant’s theory of the case which the evidence justifies no matter how weak or unconvincing that evidence may be. (People v. Bynum, 4 Cal.3d 589, 604 [94 Cal.Rptr. 241, 483 P.2d 1193].)

Here, it is true that at the conference with the trial court, out of the presence of the jury, and at a very early stage in the trial, counsel for defendant stated that he had definite information that diminished capacity would be part of the defense and that there was drinking on the part of defendant. He stated that he intended to follow this up to the best of his ability, and “I will have to see what evidence I will be able to bring in, whether or not it will be brought in by my client or not.” Again, out of the presence of the jury, and in connection with a hearing on the question of the voluntariness of his statement to the officers, defendant testified that he had been drinking. (The transcript is considerably confused as to whether this testimony relates to the evening immediately preceding the death of decedent or the evening before that.) The transcript does support the inference from defendant’s testimony that he had a hangover from drinking when Officer Hambley arrived on October 12. However, as indicated, defendant’s testimony was presented only to the court and not to> the jury. Defendant did not take the stand before the jury.

The only evidence at all relating to defendant’s drinking which was heard by the jury is the testimony of Officer Hambley that on October 12, 1965, defendant’s breath had a stale, alcoholic odor and that defendant stated that the preceding night (in other words, the evening of October 11, more than 12 hours after decedent’s body had been delivered to the coroner) he “had had a few or imbibed or something of that nature.” The latter evidence might have raised a question for the jury as to defendant’s sobriety on the morning of October 12. But there is no evidence to affect his sobriety or put in issue his mental condition the day decedent met her death.

Even if we are to assume that there was evidence that the. defendant had been drinking, such conduct prior to the commission of a crime does not by itself establish intoxication or require the giving of a requested instruction on the subject of intoxication. (People v. Turville, 51 Cal.2d 620, 633 [335 P.2d 678]; People v. Cram, 12 Cal.App.3d 37, 44 [90 Cal.Rptr. 393].)

Contentions Concerning Defendant’s Trial Counsel

Because they have some relationship to each other it is convenient to consider together, and in reverse order from that presented in defendant’s brief, the contentions that the trial court erred in not having a hearing to determine what might be done to secure defendant’s cooperation with appointed counsel and that such counsel failed to give effective assistance to defendant since he did not secure and present evidence of diminished capacity.

In reversing the judgment denying the writ of habeas corpus, the United States Court of Appeals ruled that at the first trial the superior court did not make “adequate inquiry into the cause of Brown’s dissatisfaction with his counsel or [take] any other steps which might possibly lead to the appointment of substitute counsel in whom Brown could repose his confidence. The result was that Brown was forced into a trial with the assistance of a particular lawyer with whom he was dissatisfied, with whom he would not cooperate, and with whom he would not, in any manner whatsoever, communicate. ... Of course, a court is riot required to provide an indigent accused with any particular attorney whom he may. desire, and we think that the state court might very properly have required Brown to accept the assistance of some other of the great number of competent attorneys associated with the Public Defender’s office of Los Angeles County. The problem arises because the state court did not, in our opinion, take the necessary time and conduct such necessary inquiry as might have eased Brown’s dissatisfaction, distrust and concern. And, we think it not unreasonable to believe that had Brown been represented by counsel in whom he had confidence he would have been convicted, if at all, of no more than the offense of manslaughter.” (Brown v. Craven, 424 F.2d 1166, 1169-1170.)

We recognize as the law applicable in this situation, a statement of our Supreme Court in People v. Marsden, 2 Cal.3d 118, 123 [84 Cal.Rptr. 156, 465 P.2d 44], quoting from People v. Mitchell, 185 Cal.App.2d 507, 512 [8 Cal.Rptr. 319]: ‘“A defendant’s right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused. ... “The right of a defendant in a criminal case to have the assistance of counsel for his defense . . . may include the right to have counsel appointed by the court . . . discharged or other counsel substituted, if it is shown . . . that failure to do so would substantially impair or deny the right . . . , but the right to such discharge or substitution is not absolute, in the sense that the court is bound to accede to its assertion without a sufficient showing . . . that the right to. the assistance of counsel would be substantially impaired ... in case the request is not granted, and within these limits there is a field of discretion for the court.” [Citations.]’ ”

The Supreme Court continued (2 Cal.3d at. pp. 123-124): “Defendant properly contends that the trial court cannot thoughtfully exercise its discretion in this matter without listening to his reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendant’s request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. Indeed, ‘[w]hen inadequate representation is alleged, the critical factual inquiry ordinarily relates to