People v. Heckathorne

202 Cal. App. 3d 458, 248 Cal. Rptr. 399, 1988 Cal. App. LEXIS 952

• Court: California Court of Appeal
• Decided: June 23, 1988
• Docket: G004613
• Status: Published

Opinions

Opinion

CROSBY, J.

A jury convicted Spencer Heckathorne of second degree murder with use of a firearm. The trial court prejudicially erred in permitting the prosecutor to cross-examine the defendant concerning details of a prior felony conviction for assault with a deadly weapon, and we must reverse accordingly.

I

Heckathorne celebrated his birthday on October 15, 1985, by consuming cocaine and beer throughout the evening with his wife and friends. Just after two the following morning, during an argument with his spouse, Heckathorne’s shotgun discharged. The blast tore through the wall of the next door apartment, fatally wounding Robin Holding.

At the scene, Heckathorne told an officer, “It was an accident. I dropped it, and it went off".” Heckathorne’s blood alcohol level at the time of the shooting was estimated to be between .19 and .23 percent. He was formally interviewed the same morning and stated the gun discharged accidentally as he tried to unload it.

When examined, the shotgun held four rounds of ammunition in the magazine and one in the chamber. An expended casing was found near Heckathorne’s bed. The weapon was in excellent working condition, and tests failed to demonstrate a means by which it could have discharged other than pulling the trigger. A used cartridge could be expelled only by pumping the slide; this action also placed a fresh round in the chamber.

At trial the three surviving occupants of the next door apartment testified for the prosecution and described Heckathorne’s behavior in a visit to them on the evening before the shooting. He irritated the group with his braggadocio and statement to one of them, “I could kill you in a minute, just as easy as I could kill a cop.”¹ After Heckathorne returned to his own apartment, they heard shouting and swearing as he argued with his wife. Holding and another occupant were in the process of banging on the common wall for quiet when the victim was struck by the fatal blast.

Heckathorne and his wife denied the alleged ferocity of their argument. In addition, they claimed they could not clearly hear the shouts of their neighbors through the apartment wall. Their descriptions of Heckathorne’s evening gun loading ritual were also consistent. On the night of the shooting, Heckathorne chambered a cartridge before he left to perform an errand and visit the neighbors. Later, as the couple argued, he was sitting on his bed attempting to remove the shell from the chamber. His wife’s back was to him, and she could not see what he was doing. The round would not eject, Heckathorne claimed; and the gun simply discharged. He believed the casing fell on the floor when he pumped the slide to dislodge the live round.

Heckathorne testified he was feeling the effects of the alcohol and cocaine as he tried to unload the gun, and expert testimony confirmed his manual dexterity would be affected at that elevated blood alcohol level. The angle of the shot into the wall was consistent with the position on the bed Heckathorne described.

Heckathorne was impeached with evidence of a 1980 felony conviction for assault with a deadly weapon. The prosecutor’s cross-examination on the subject began as follows: “Q Mr. Heckathorne, if I could deviate for a moment? Back on September of 1980 in the County of Riverside were you convicted of a felony of assault with a deadly weapon by means of force likely to produce great bodily injury on a person? A Yes. An automobile. Q I’m sorry. What did you say? A Yes. An automobile. Q Did you try to assault somebody with this automobile? A It was a car accident. Q It was a car accident? A Yes.”

Defense counsel then objected on the grounds the prosecutor was improperly examining his client regarding the facts of the earlier offense. The court, after a sidebar argument, ruled Heckathorne had “opened the door” to such questioning and, although admittedly “going out on a limb,” allowed further inquiry: “Q I asked you if you had been convicted in 1980 of an assault with a deadly weapon and with force likely to produce great bodily injury. And you said yes. And then you said it was a car, and it was an accident. Do you remember telling us that? A I never told you that. You messed up where I say it was a car accident. I didn’t say it was a car and an accident. Q It was just a car accident? A Yes. Q Well, let me ask you this, Mr. Heckathorne. Were you willing to spend time in prison over a car accident? A I got in a fight with the man after. Q Mr. Heckathorne, isn’t it true that this man simply cut you off by your belief, and you literally started ramming his car as he is trying to evade you and that you eventually—he jumped out of his car and tried to run from you, and you assaulted him? A That is your belief, I guess. It didn’t happen that way. Q Well, did you plead guilty to those charges? A Yes, I did. Q And in your opinion that was just a car accident? A It began as a car accident, yes.” Defense counsel’s subsequent motion for mistrial was denied.

II

The scope of inquiry when a criminal defendant is impeached with evidence of a prior felony conviction does not extend to the facts of the underlying offense. (People v. McClellan (1969) 71 Cal.2d 793, 809 [80 Cal.Rptr. 31, 457 P.2d 871].) Citing a legal text, the Attorney General counters this well-settled rule does not apply where the defendant first seeks to mislead a jury or minimize the facts of the earlier conviction. (See 2 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 1982) § 28.8, p. 932.)

The cause before us does not fall within any such exception, however. In response to the prosecutor’s initial question on the subject, Heckathorne readily agreed he had been convicted of assault with a deadly weapon, adding only “an automobile.” As he was currently on trial for a shotgun killing, the supplementary response was merely a clarification. It did not of itself minimize or mislead. Automobiles, after all, are certainly the most dangerous commonly employed instrumentalities in our society, even when they are used for their intended purpose and not as weapons.

True, Heckathorne’s next response asserted the incident was only an accident. Had it been offered on direct examination, our analysis would be entirely different. But the answer was merely in reply to the deputy district attorney’s inappropriate invitation to discuss the facts of the old offense, i.e., “Did you try to assault somebody with this automobile?” The prosecutor should have been bound by the answer and defense counsel’s timely objection should have been sustained. Under such circumstances, the prosecution will not be heard to assert the defendant attempted to mislead or minimize the facts of a prior conviction in order to justify an attempt to impeach him by innuendo on an improper and collateral issue.

We find the error prejudicial. Circumstantial evidence supported, but did not compel, a murder conviction. Heckathorne was the only witness to the gun’s discharge, and his credibility was critical. Much depended on the jury’s impression of Heckathorne as an individual who would or would not deliberately shoot a gun into a common apartment wall in conscious disregard of a neighbor’s life. The prosecutor’s improper questioning elicited inadmissible evidence of a disposition to commit violent crimes without serious provocation or motive and gave him an opportunity to inappropriately describe and characterize the previous incident in the guise of a question: “[Y]ou literally started ramming his car and ... he tried to run from you, and you assaulted him?” In short, during the brief colloquy the prosecutor was able to portray Heckathorne as a violent hothead. The deputy district attorney repeatedly harped on this theme in closing argument, labeling the defendant a “bad dude,” “violent,” “abrasive,” and “macho.” It may be true that Heckathorne is all of those things. But our system has long since determined that individuals are to be tried for their actions, not their characters. The improper cross-examination on the prior conviction violated that principle.

Perhaps worse, the prosecutor’s questioning also suggested Heckathorne was a liar, who, despite having served a stint in state prison, nevertheless denied responsibility for the previous crime, now claiming it was an accident. This was particularly prejudicial because the entire defense to the current allegation was accident as well.

Moreover, the evidence by no means compelled the verdict returned by the jury. We simply cannot say there is no reasonable probability that a result more favorable to Heckathorne could not have been reached in the absence of the error.² (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

Judgment reversed.

Scoville, P. J., and Sonenshine, J., concurred.

1 For the benefit of the court on retrial, we find no merit in Heckathorne’s claim that this statement ought to be excluded. Even considered as hearsay, the statement is admissible as circumstantial evidence of present mental state. (See, e.g., Evid. Code, § 1250.) And it is relevant in that it reveals an inclination toward violence and a readiness to do evil shortly before the killing occurred. Moreover, its probative value clearly outweighs any prejudicial effect in light of the accident defense offered by Heckathorne. (Evid. Code, § 352.) Its usefulness, if any, to prove malice or intent is a matter for the jury.

2 Heckathorne also contends assault with a deadly weapon is not a crime of moral turpitude per se. (See People v. Castro (1985) 38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111].) Resolution of that question is not necessary to today’s decision (except as it might be useful for guidance on retrial), but we note a well-established line of authority holds to the contrary. (See, e.g., People v. Valdez (1986) 177 Cal.App.3d 680 [223 Cal.Rptr. 149]; People v. Means (1986) 177 Cal.App.3d 138 [222 Cal.Rptr. 735]; People v. Armendariz (1985) 174 Cal.App.3d 674 [220 Cal.Rptr. 229]; People v. Cavazos (1985) 172 Cal.App.3d 589 [218 Cal.Rptr. 269].) In a concurring opinion the author suggests those cases may have been incorrectly decided. The panel expresses no present opinion on the matter but does agree the prior should be “sanitized” at the defendant’s request upon retrial because of its similarity to the present offense. (People v. Massey (1987) 192 Cal.App.3d 819, 825 [237 Cal.Rptr. 734]; People v. Foreman (1985) 174 Cal.App.3d 175, 180-182 [219 Cal.Rptr. 759].)

Heckathorne has also raised several other issues we need not reach. He claims a police interrogation four hours after the homicide violated his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].) From our review of the record and the briefs, the point is an exceedingly close one. But the prosecution only used the statement to impeach in the first trial, and events have vindicated that strategy. (See People v. May (1988) 44 Cal.3d 309 [243 Cal.Rptr. 369, 748 P.2d 307] [holding statements violative of Miranda remain available for impeachment purposes].) We assume the prosecution’s cautious tactics will not change in this respect and consequently decline to engage in the useless exercise of deciding whether a Miranda violation in fact occurred.

Heckathorne urges Marsden error as well, claiming the court did not make adequate inquiry into his allegations of incompetence of counsel when he demanded a change of attorneys at the sentencing hearing. (See People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44].) That point is academic unless the superior court names trial counsel to continue his representation of the defendant. In view of Heckathorne’s attack on his performance, it is unlikely that would occur or that counsel would accept the appointment if it did. In any event, there is nothing to prevent Heckathorne from bringing a new Marsden attack in that instance before any retrial.