People v. Merkouris

344 P.2d 1, 52 Cal. 2d 672, 1959 Cal. LEXIS 238

Opinions

McCOMB, J.

Defendant was found guilty on two counts of first degree murder, and the jury fixed the penalty as death. His appeal is automatic, pursuant to section 1239, subdivision (b), of the Penal Code.¹

On November 15, 1954, two informations were filed against defendant by the district attorney of Los Angeles County, charging him with having murdered Despine Forbes and Robert P. Forbes on or about September 20, 1954. Defendant pleaded not guilty to the charge of having murdered Despine Forbes, and his counsel entered an additional plea, with respect to such charge, of not guilty by reason of insanity.

After a jury trial on the charge of having murdered Despine Forbes, defendant was convicted of first degree murder, and the death penalty was imposed.

Defendant personally withdrew his plea of not guilty by reason of insanity. After an automatic appeal, the judgment was reversed and remanded for a new trial. (People v. Merkouris, 46 Cal.2d 540 [297 P.2d 999].)

The plea of not guilty by reason of insanity was reinstated, and the trial court declared it had a doubt as to defendant’s present sanity. After trial before a jury, defendant was found presently insane, and on September 13, 1956, was committed to the state hospital at Atascadero.

In August 1957 a certificate was issued by the acting superintendent and medical director of the state hospital at Atascadero stating that defendant was sane, and he was ordered returned from the hospital to Los Angeles for retrial, the trial date being subsequently set as June 16, 1958. Defendant’s counsel on August 26, 1957, and again on June 16, 1958, requested the trial court to declare that it entertained a “doubt” as to defendant’s then sanity, pursuant to the provisions of section 1368 of the Penal Code.² On August 26, 1957, the court appointed two psychiatrists to examine defendant and, after taking considerable evidence, found on June 19, 1958, that it did not entertain a “doubt” within the meaning of the statute as to defendant’s then sanity. The court then ordered that the two informations be consolidated and the case proceed to trial. Both sides stipulated that defendant be deemed to have pleaded not guilty and not guilty by reason of insanity with respect to the charge of having murdered Robert P. Forbes. After trial, the jury returned two verdicts of guilty of first degree murder, and then fixed the penalty as death. •

A jury trial was waived on the plea of not guilty by reason of insanity. After a 10-day trial on this issue the court, on conflicting evidence, found that defendant was sane at the time of the commission of the two offenses. A defense motion to declare a doubt as to defendant’s then present sanity and motion for a new trial were denied, and defendant was sentenced to death, with the resulting present automatic appeal.

These questions are presented for determination:

First. Was there substantial- evidence to sustain the judgments of guilty ?

Yes. The evidence is fully summarized in the prior opinion (People v. Merkouris, supra, p. 543 et seq.). Since the evidence on the present trial, so far as the merits are concerned, is substantially the same as that previously produced, no useful purpose would be served by setting it forth herein.

From a résumé of the evidence set forth in the prior opinion, it appears that at the time the case was submitted to the jury reasonable inferences of defendant’s guilt or innocence could have been drawn therefrom. Therefore, the rule set forth in People v. Newland, 15 Cal.2d 678, 680 [1] [104 P.2d 778], is applicable, that is: In a criminal prosecution the weight of the evidence is for the jury to determine, and if the circumstances reasonably justify a verdict of guilty by the jury, an opinion of the reviewing court that those circumstances might also be reasonably reconciled with the innocence of the defendant does not warrant a reversal of a verdict of guilty by the jury. Likewise, defendant’s contention that the incriminating circumstantial evidence was insufficient to establish his guilt because such evidence might also be deemed compatible with innocence is not well taken. (People v. Newland, supra, p. 684 [2].)

Second. Did the trial court err in not holding as a matter of law that it entertained a “doubt” as to defendant’s present sanity at the time of the trial?

No. These rules are here applicable:

i. A defendant is sane, within the meaning of section 1368 of the Penal Code, if he is able to understand the nature and purpose of the proceedings taken against him and to conduct his own defense in a rational manner. (People v. Jensen, 43 Cal.2d 572, 576 [1] [275 P.2d 25]People v. Aparicio, 38 Cal.2d 565, 567 [1] [241 P.2d 221].)

ii. The “doubt” referred to in section 1368 of the Penal Code, requiring a determination of a defendant’s sanity if doubt arises during the pendency of the action or prior to judgment, is doubt in..the mind of .the trial judge, rather than in the mind of counsel for the defendant or any third person. (People v. Jensen, supra, p. 576 [2].)

iii. The determination of a .motion for a hearing upon the issue of a defendant’s sanity at the time of trial is one which rests within the sound discretion of the trial court. (People v. Lindley, 26 Cal.2d 780, 789 [3] [161 P.2d 227]; People v. Gomez, 41 Cal.2d 150, 159 [5], [6] [258 P.2d 825].) It is only where as a matter of law a “doubt” may be said to appear or where there has been an abuse of the discretion that is vested in the trial judge, in the determination of the question, that the conclusion of the latter may properly be disturbed on appeal, (People v. Jensen, supra, p. 576 [3].)

Applying the foregoing rules to the facts of the present ease, it appears that on August 26, 1957, when defendant’s then counsel (Mr. P. Basil Lambros) requested the court to declare a doubt as to defendant’s sanity, the trial court had before it the following matters bearing on that question: Statements of Mr. Lambros describing defendant’s conduct when he visited defendant in the county jail after defendant’s return from Atascadero; statement of Mr. Lambros that defendant’s “contention has always been one of sanity, and in my opinion he merely convinced the doctors at Atascadero that he was sane by telling them he was sane, because I cheeked with Atascadero, and I found that never once, in one of the staff meetings, did he ever open his mouth. They never had one psychiatric conference with him. Now, the only basis for certifying him back as sane is the fact that he had talked with various ward doctors and with the inmates in his room”; Mr. Lambros’ stated opinion that defendant was not capable of consulting with an attorney to prepare and conduct his defense; defendant’s conduct in the courtroom; the report and certificate of Atascadero officials that defendant was presently sane and a letter to the district attorney from Atascadero officials stating the observations of the physician who had charge of the ward where defendant had been confined and the conclusions of the staff doctors; and the deputy district attorney’s stated opinion that defendant behaved as he did in the jail and the courtroom because “he just does not care to go to trial.”

With the foregoing matters before him, the trial judge was justified in concluding on August 26, 1957, as he did, that the Atascadero report was “more persuasive than any outward manifestation as indicated by the conduct of the defendant before the court, from which the court cannot conclude at this time that it entertains a doubt as to the present sanity.” An appellate court is in no position to appraise a defendant’s conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper. Conduct of the character indicated by the record here may, to the observant trial judge, be overwhelmingly suggestive of a calculated attempt at cunning deception rather than of mental weakness. It may well operate to preclude the rational entertainment of any doubt as to the actor-defendant’s sanity.

The trial court’s appointment (under section 1871 of the Code of Civil Procedure) of two psychiatrists to examine defendant and report to the court, and its continuance of the matter, do not indicate that the court had a doubt as to defendant’s sanity. The continuance was granted on motion of defense counsel, expressly not opposed by counsel for the People, because both counsel had lengthy litigation in another matter. The experts were appointed at the request of counsel for both parties, so that a later report on defendant’s condition would be available when counsel were free to go to trial in this case.

On June 16, 1958, after continuances for various reasons, defendant, represented by the public defender, appeared for trial. The deputy district attorney, rather than defense counsel, first raised the question of defendant’s sanity. The prosecutor said that Mr. Lambros, while he was still representing defendant, had informed the court (at an earlier appearance before another judge) that Dr. Frederick J. Hacker (who had been of the opinion in August 1956 that there was a question of defendant's ability to cooperate in his own defense) had thoroughly examined defendant and concluded that he was presently sane but that defendant “claimed he had petit mats and that would prevent him from being present [i.e., aware of the proceedings] at stages of the trial under the not guilty issue.” Therefore, the prosecutor said, “In order to arm the Court with any material that might be necessary to determine that issue during this trial as well as the defendant’s present status as to present sanity, I wish to submit to the Court copies of [a report of Dr. Marcus Crahan, medical doctor for the Los Angeles sheriffs’ facilities, a psychiatrist who had re-examined defendant on June 11, 1958],” and “some personal testimony from Dr. Crahan.”

Defense counsel stated that he was raising the question of defendant’s then existing sanity and presented reports of recent psychiatric examinations of defendant. The prosecutor said, “to fortify the record ... I want to crossexamine these doctors” and present other psychiatric evidence.

On June 17, 1958, defendant and respective counsel again appeared. The court announced that “This proceeding is had at the suggestion of counsel for the defendant . . . as to whether or not this Court should entertain a doubt as to the present sanity.” Defendant at his request was allowed to make a statement, in which he insisted that he was not, and never had been, insane, did not wish to enter an insanity plea, and if such a plea had been entered, he wished it withdrawn. Defendant’s remarks concerning his sanity were in substance similar to those which he had made when he was allowed to withdraw his insanity plea at the original trial. It was for the trial court to evaluate defendant’s renewal of his insistence upon his sanity, in the different circumstances presented in 1958, as relating to the question whether the court had a doubt as to his existing sanity. In this connection the court was entitled to consider that defendant’s similar statement in 1955 was one of the factors which led to a reversal of the prior conviction and the ensuing delay in these proceedings. Although defendant reportedly had told physicians and his counsel that he wished a prompt disposition of the cause, the court may (and is to be presumed to) have determined that defendant, having once observed the effect of such a statement in delaying the ultimate decision of these proceedings, formed the opinion that repetition of his previously announced position might have a similar dilatory effect.

The trial judge, upon all the evidence as to defendant’s existing sanity, including the opinion of four psychiatrists who had testified that defendant was presently sane, several of them stating that they believed he was simulating insanity, epilepsy, or some neurological disease, could properly disbelieve completely the opinions that defendant was incapable of cooperating in his defense.

The foregoing demonstrates that the evidence on the subject of defendant’s sanity was highly conflicting and, together with the trial judge’s personal observation of defendant, was sufficient to support his conclusion that he did not have a doubt as to defendant’s sanity at that time.

Third. Did the trial court err in receiving in evidence, (a) over defendant’s objection, statements made by the deceased, Despine and Robert Forbes, through the testimony of Mr. and Mrs. Fairly and Officer Bonk, (b) over defendant’s objection, testimony of Inspector Wood relative to an indictment of defendant for sending threatening letters through the mail, and (c) without objection, the testimony of Officer Kline, a rebuttal witness for the People, relative to the belief of defendant’s brother, Reverend John Merkouris, who was not a witness, that if defendant was accused of hilling anyone, it would be Despine Forbes, defendant’s ex-wifef

No. (a) The testimony of Mr. and Mrs. Fairly and Officer Bonk, of which defendant complains, was to the effect that in August 1948 Despine and Robert Forbes expressed to Mr. and Mrs. Fairly their intent to stay with them awhile because defendant had threatened their lives, and that in 1949 or 1950 Robert Forbes expressed to Officer Bonk his intention to obtain a permit to carry a gun because defendant had been bothering the Forbeses again. This testimony was objected to on the ground that it was immaterial, hearsay, remote, and prejudicial. In overruling the objection, the judge admonished the jury that the evidence was being received for the limited purpose of showing the declaration of intent of the deceased persons and their state of mind and not as to the truth of the statements alleged to have been made.

Inspector Wood testified to his having received a complaint in the late summer of 1948 relative to a violation of postal regulations; to his having talked with Robert and Despine Forbes; and to his having procured, through Robert Forbes, letters of a malicious and threatening nature sent by defendant. He also testified to his having talked with Robert Forbes again in 1950 and Mr. Forbes’ complaining about defendant. An objection on the ground that the evidence was remote, immaterial, and hearsay was overruled.

The trial court’s rulings were correct. The victims’ assertions of intent to avoid and protect themselves from defendant were admissible under the mental state exception to the hearsay rule as evidence that in fact they had such intent. The existence of that intent evidences the declarants’ fear of defendant.

The declarations that defendant had threatened the victims were admissible, not to prove the truth of that fact directly, but to prove the victims’ fear.

Where, as here, the identification of defendant as the killer is in issue, the fact that the victims feared defendant is relevant because it is some evidence that they had reason to fear him, that is, that there is a probability that the fear had been aroused by the victims’ knowledge of the conduct of "defendant indicating his intent to harm them rather than, e.g., that the victims’ fear was paranoid. (Karnes v. Commonwealth, 125 Va. 758 [99 S.E. 562, 564 [4] et seq., 4 A.L.R. 1509]; Lowery v. State, 87 Okla. Crim. 313 [197 [14, 15] ]; State v. Bauers, 25 Wn.2d 825 [172 P.2d 279, 286-287 [8]-[9]].)

(b) Inspector Wood testified, over objection, to what was encompassed by the indictment against defendant for sending threatening letters through the mail. He testified that under the federal statute, as he knew it, the language of the indictment which he secured from the federal grand jury encompassed not only obscenity in the letters but also, in effect, threats, although it did not mention threats specifically. Defendant contends that this evidence was inadmissible.

It is an admitted fact that defendant pleaded guilty to the indictment charging him with sending obscene matter through the mails, was fined $150, and placed on probation for two years. (People v. Merkouris, supra, p. 544.) Also, the record discloses that there was before the jury proper evidence that the letters sent by defendant did in fact contain threats as well as obscenity.

Assuming, without deciding, that the questioned evidence of Inspector Wood was inadmissible, we are satisfied from an examination of the entire record that such evidence was not sufficiently important to prejudice defendant in the eyes of the jury and result in a miscarriage of justice. Therefore, under article VI, section 4%, of the California Constitution, the alleged error does not warrant a reversal of the judgment.

(c) As a defense witness testifying through an interpreter, Reverend Michael Merkouris corroborated defendant’s alibi in a vital particular, to wit, that defendant contacted him in Galveston September 19, 1954. Reverend Michael denied meeting Officer Kline September 23, 1954, or talking with such an individual in the presence of Reverend John, or knowing whether John had a conversation with Kline, or whether John stated to Kline that neither John nor Reverend Michael had seen or heard of defendant after the latter left Galveston about a month prior to September 23, 1954. He also testified that his understanding of, and ability to speak, English was limited.

Officer Kline, called as a rebuttal witness, testified to the effect that he did have a meeting and did talk with Reverend Michael on September 23, 1954; that they spoke to one another in English; that Reverend Michael called Reverend John over, and the two of them stood right next to each other; that in the ensuing conversation Officer Kline told of defendant’s being wanted for murder in Los Angeles; and that Reverend John said defendant had left Galveston a month previously and neither he nor Reverend Michael had seen or heard from him since. He gave other testimony which tended to show that Reverend Michael knew what was being said, that is, that while Officer Kline was telling of defendant’s being wanted for murder, Reverend Michael said, “Oh, my God!” more than once, and one such instance was when Reverend John said, “My God, was it his ex-wife?” Defendant now objects to the court’s having received in evidence the portion of the testimony containing Reverend John’s query whether it was defendant’s ex-wife. Since no objection was made in the trial court to the receipt of this testimony, defendant may not now urge that it was error to receive it. (People v. Owens, 123 Cal. 482, 490 [56 P. 251]; People v. Lindsey, 90 Cal.App.2d 558, 567 [16] [203 P.2d 572]; People v. Sellas, 114 Cal.App. 367, 378 [300 P. 150].)

Fourth. Bid the deputy district attorney improperly argue to the jury when he injected his opinion that defendant was a liar, basing his opinion on a previous trial, with which the jury was not familiar?

No. The deputy district attorney in his argument to the jury said he wished he had the same opportunity to demonstrate in the case at bar the manner in which he had been able to impeach defendant at the former trial. There was an objection, which the court sustained on the ground that what was in the former trial was not evidence in the case at bar. The deputy district attorney then explained that he was referring only to evidence which had been read into the record and was evidence in the case at bar. Thereupon the court said that counsel had a right to refer to evidence in the case at bar. The deputy district attorney then explained that he had particular reference to that testimony from the former trial which was read into the record in the present case, and to stipulations in the present case pertaining to proceedings at the former trial, disclosing that defendant did not know, when he was being cross-examined at the former trial, of a recording of his conversation with Sergeant Jones in which defendant had said that he had not been in Los Angeles for seven or eight years. Counsel remarked, in this connection, that he wished he “had that same opportunity to do it that way today” and referred to defendant as having falsified.

The portions of defendant’s testimony from the former trial read into the record in the present case included an acknowledgment by defendant that he had been in Los Angeles between September 3 and September 8, 1954, followed by the playing of a recording, of which defendant had heen unaware and which disclosed his having told Sergeant Jones on September 27,1954, that he had not been in Los Angeles for seven or eight years.

In effect, the deputy district attorney was reminding the jurors of the evidence from the former trial read into the record in the present trial and reflecting that defendant had been impeached, in that he had made false statements. The remarks did not constitute a departure from the record. In addition, the court apprised the jurors that the statements of counsel were not evidence. Therefore, it will be assumed that the jurors properly regarded the remarks as a matter of argument. (Cf. People v. Chavez. 50 Cal.2d 778, 792 [20] et seq. [327 P.2d 907].)

Fifth. Is section 190.1 of the Penal Code unconstitutional?

No. Defendant contends that the provisions of section 190.1 of the Penal Code³ are ex post facto as to him, in that the crimes which he committed occurred prior to the effective date of this section. This contention has been held to be without merit. (See People v. Turville, 51 Cal.2d 620, 636 [22] et seq. [335 P.2d 678]; People v. Feldkamp, 51 Cal.2d 237, 241 [1] [331 P.2d 632]; People v. Ward, 50 Cal.2d 702, 710 [4] et seq. [328 P.2d 777].)

Sixth. Did the trial court err in the penalty proceedings in receiving the testimony of Drs. Grahan and McNiel?

No. In the penalty proceedings the defense presented a stipulation with respect to defendant’s having been found presently insane by a jury, within the meaning of section 1368 of the Penal Code, after a trial in August and September 1956, and his having been committed to Atascadero State Hospital for care and treatment pursuant to that section. After the defense rested, the People proceeded with rebuttal.

Dr. Grahan, a rebuttal witness, testified that on the basis of his examinations of defendant and the materials furnished him, he was of the opinion that defendant was presently sane during the aforementioned sanity trial; that defendant had been presently sane at all times under the doctor’s examination ; and that defendant had been malingering before the jury during the present sanity trial. Dr. McNiel testified similarly.

This testimony defendant contends was improper, on the theory that the jury having found defendant insane, the matter was res judicata. It was not res judicata, and the testimony was properly received, since an order of commitment to a state hospital for the insane does not conclusively establish that the person committed is insane; it merely creates a presumption that the person is insane and that the insanity continues. However, the presumption is rebuttable. (People v. Superior Court, 4 Cal.2d 136,145 [7] et seq. [47 P.2d 724] ; People v. Gilberg, 197 Cal. 306, 319 [8] et seq. [240 P. 1000] ; People v. Field, 108 Cal.App.2d 496, 500 [8] et seq. [238 P.2d 1052].)

The judgment is affirmed.

Schauer, J., Spence, J., and White, J., concurred.

1 Section 1239, subdivision (b), of the Penal Code reads: “When upon any plea a judgment of death is rendered, an appeal is automatically taken by the defendant without any action by him or his counsel.”

2 Section 1368 of the Penal Code reads: “If at any time during the pendency of an action and prior to judgment a doubt arises as to the sanity of the defendant, the court must order the question as to his sanity to be determined by a trial by the court without a jury, or with a jury, if a trial by jury is demanded; and, from the time of such order, all proceedings in the criminal prosecution shall be suspended until the question of the sanity of the defendant has been determined, and the trial jury in the criminal prosecution may be discharged, or retained, according to the discretion of the court until the determination of the issue of insanity.”

3 Section 190.1 of the Penal Code reads: “The guilt or innocence of every person charged with an offense for which the penalty is in the alternative death or imprisonment for life shall first he determined, without a finding as to penalty. If such person has been found guilty of an offense punishable by life imprisonment or death, there shall thereupon be further proceedings on the issue of penalty, and the trier of fact shall fix the penalty. Evidence may be presented at the further proceedings on the issue of penalty, of the circumstances surrounding the crime, of the defendant’s background and history, and of any facts in aggravation or mitigation of the penalty. The determination of the penalty of life imprisonment or death shall be in the discretion of the court or jury trying the issue of fact on the evidence presented, and the penalty fixed shall be expressly stated in the decision or verdict. The death penalty shall not be imposed, however, upon any person who was under the age of 18 years at the time of the commission of the crime. The burden of proof as to the age of said person shall be upon the defendant.

“If the defendant has pleaded not guilty by reason of insanity at the time of the commission of the offense, the trier of fact, after the determination of the penalty, shall thereupon determine whether or not defendant was sane at the time of commission of such offense. The provisions of this section shall prevail over any other provision of law with respect to the time of determining the sanity of defendant at the time of commission of the offense. However, if at any time during the trial of defendant, doubt arises as to the sanity of defendant at such time, the question of defendant’s sanity shall be determined as provided in Chapter 6 (commencing at Section 1367) of Title 10, Part 2 of this code.

“If the defendant was convicted by the court sitting without a jury, the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived. If the defendant was convicted by a jury, the trier of fact on the issue of penalty and the issue of sanity, if any, shall be the same jury unless, for good cause shown, the court discharges that jury in which ease a new jury shall be drawn to determine the issue of penalty, or the issue of sanity or both such issues, as the ease may be.

“On such further proceedings on the issue of penalty, any evidence concerning the commission of the crime admissible in the trial determining the guilt of the defendant may be admitted.

“In any case in which defendant has been found guilty by a jury, and the same or another jury, trying the issue of penalty, is unable to reach a unanimous verdict on the issue of penalty, the court shall dismiss the jury and either impose the punishment for life in lieu of ordering a new trial on the issue of penalty, or order a new jury impaneled to try the issue of penalty, and the issue of sanity, if any, but the issue of guilt shall not be retried by such jury.”