PEOPLE v. MAE POLK







Filed 12/13/10




CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. SUSAN MAE POLK, Defendant and Appellant.

A117633 (Contra Costa County Super. Ct. No. 031668-7)

Defendant was convicted of the second degree murder of her husband following a trial at which she acted as her own attorney. The husband’s body had been found in a cottage at their home, stabbed repeatedly. Defendant admitted the stabbing but testified she acted in self-defense.
Defendant argues the trial court should have dismissed the jury panel after the prosecution was unable to explain its peremptory challenge of a female juror, erred in failing to give an instruction on heat of passion voluntary manslaughter, and should not have admitted her statements to police, which were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). In addition, defendant contends the court, prosecutor, and jury committed prejudicial misconduct in the course of the trial. Finding no prejudicial error, we affirm the conviction.
During the proceedings, defendant executed a promissory note, secured by a lien against the family home, agreeing to reimburse the County of Contra Costa (County) for costs incurred in her defense. Following the trial, the County sought an order compelling defendant to reimburse those costs from the proceeds of the sale of her interest in the home. Although the trial court held a hearing with respect to the amount of reimbursable costs incurred by the County, it refused to consider whether defendant had the “present ability” to pay those costs, as required by Penal Code section 987.8, subdivision (b), concluding the presence of the lien made such a finding unnecessary. We conclude the County’s lien did not obviate the need for the trial court to determine whether defendant had the financial ability to reimburse the County’s expenses, and we remand for the necessary hearing.
I. BACKGROUND
Defendant was charged in a single-count indictment, filed August 27, 2003, with the murder of her husband. (Pen. Code, § 187.) The indictment further alleged defendant personally used a deadly and dangerous weapon. (Pen. Code, § 12022, subd. (b)(1).) During defendant’s initial trial, she was represented by counsel, but the court declared a mistrial when her attorney suffered a family tragedy. Following a second trial in which defendant represented herself, a jury convicted her of second degree murder, with a finding she used a deadly and dangerous weapon. The trial court imposed a sentence of 16 years to life.
Defendant and her husband, Felix Polk, had been married for 21 years at the time of the killing and had three teen-aged sons.[1] At 71, Felix was 26 years older than defendant. They first met nine years before their marriage when Felix, a psychologist, began treating defendant, then a high school student.
In October 2002, when the killing occurred, the couple was enmeshed in divorce proceedings. When Felix first retained divorce counsel in 2001, he told his attorney defendant “could be violent” and was “unpredictable and . . . possibly dangerous.” As the proceedings progressed, Felix became more concerned about defendant. By August 2002, Felix was “in fear for his life.” According to the couple’s youngest son, Gabriel, defendant said on several occasions she intended to kill Felix and discussed the manner in which she would do so. As a result of the frequency and intensity of these threats, a week before the murder Gabriel told his father he “was scared for his [father’s] life.”
On October 2, 2002, while defendant was away in Montana, Felix obtained a court order granting him custody of Gabriel and exclusive use of the family home in Orinda. When defendant learned of the court order soon after, she and Felix had a “heated” telephone call, during which she threatened to kill him. Felix took the threat seriously enough to report it to the police.
Defendant returned to Orinda on October 9. While Felix was at work the next day, she persuaded Gabriel to help her move Felix’s bed and other possessions into a cottage on the property. After Felix arrived home, they had another angry argument, during which defendant again threatened to kill Felix. The police were called, and Felix and Gabriel moved briefly into a hotel. Three days later, a Sunday, Felix and Gabriel awoke early to drive the family’s oldest son, Adam, to school at UCLA, returning to the Orinda home late at night. Gabriel went to sleep in the house, while Felix retired to the cottage.
The next day, Felix did not return home from work at the expected time and could not be located by telephone. When Gabriel asked defendant if she knew where Felix was, she said she did not know. Gabriel eventually became suspicious and, later in the evening, checked the cottage, finding the front door locked. When Gabriel returned to the house and again asked defendant about Felix, she said, “Aren’t you happy he’s gone‌ I am,” and, later, “I guess I didn’t use a shotgun, did I‌” Unnerved by these enigmatic comments, an hour later Gabriel returned to the cottage, found a second door unlocked, and entered. Inside, he glimpsed his father lying motionless on his back, covered in blood. Gabriel returned to the house, grabbed a telephone, and hiding from his mother outside, called the police.
When police arrived, they found the floor of the cottage living room covered in dried blood. Tracked across the floor were bloody shoeprints matching defendant’s shoe size, along with her bloody footprint. Felix’s body, hands still clutching a clump of defendant’s hair, was found, according to the prosecution’s pathologist, to have at least five deep stab wounds, individually penetrating his right lung, stomach, pericardium, diaphragm, and the fat near his kidneys. He also had a large number of superficial stab wounds and defensive cuts to his hands, forearms, feet, and lower legs and a blunt force injury behind his right ear.
When told of Felix’s death by police, defendant showed no emotion, saying, “Oh well, we were going to get a divorce anyhow.” In a subsequent police interview, she professed ignorance of Felix’s death, evenly recounting her marital grievances with Felix and claiming to have last seen him early on the prior morning, before he and Gabriel drove Adam to Los Angeles. Police examined defendant for fresh wounds and found none.
At trial, defendant acknowledged killing Felix, characterizing her acts as self-defense. Defendant described at length her troubled marriage, characterized by Felix’s psychological and physical abuse of her. On the night of the killing, she testified, she went to the cottage to talk to Felix between 10:30 and 10:45, taking pepper spray as a precaution. For a time, they discussed financial matters and their children. Felix became angry, and at some point he walked over and struck defendant in the face. Defendant sprayed him, but he was undeterred, hitting her again. After further struggle, he grabbed a knife and stabbed at her leg, piercing her pants. Afraid for her life, defendant kicked Felix in the groin, grabbed the knife from him, and began stabbing him. She then took steps to cover up the killing and denied involvement to the police because she believed she would be “railroaded” by the criminal justice system.
The couple’s middle son, Eli, testified in support of defendant. Eli, who was residing at a boys ranch at the time of the killing, confirmed Felix was violent and controlling. Contrary to the testimony of his brothers, Eli denied defendant was ever violent with Felix or had ever threatened him.
Defendant also offered Dr. John Cooper, an expert on forensic pathology, to opine on the cause of Felix’s death. According to Cooper, Felix died of “acute coronary insufficiency due to severe coronary artery disease,” to which the multiple stab wounds “were a contributing factor.” Cooper reasoned Felix’s wounds, although serious, were not immediately life-threatening. Felix had, however, serious coronary disease, including severe blockage of two main arteries, that was the primary cause of his death. As a result, Cooper believed Felix’s death to have been “natural,” rather than the result of a homicide. Cooper also explained the pattern of Felix’s wounds was consistent with defendant’s claim of self-defense. In addition to Cooper, several other witnesses, including experts, testified for defendant.
II. DISCUSSION
Defendant raises a number of challenges to her conviction. We consider each in turn.
A. Batson/Wheeler Violation
Defendant first contends the trial court erred in failing to dismiss the jury panel in response to an objection under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), disapproved in part by Johnson v. California (2005) 545 U.S. 162, 173.
1. Procedural Background
Near the close of jury selection, defendant made a motion under Batson and Wheeler, contending the prosecution had selectively dismissed women jurors.[2] At the time of the motion, the jury consisted of six women and five men, but 19 of the prosecution’s 22 peremptory challenges had been directed at female jurors. In presenting her argument, defendant discussed 14 of the 19 dismissed women jurors, contending there was no legitimate basis for their challenge.[3]
Without expressly finding a prima facie showing of discrimination, the trial court asked the prosecutor to explain the reasons for the dismissals of these jurors. The prosecutor explained 13 of the 14 challenges. Although the prosecutor had notes about the 14th juror, he was unable to recall his reasons for dismissing her.[4] During subsequent argument, at least three additional jurors were addressed. The court found a legitimate, gender-neutral reason had been offered for each challenge, other than the forgotten one. Although the trial court made no express finding of discrimination as to that juror, it was concerned by the prosecution’s inability to explain the dismissal. The trial court granted the defense one additional peremptory challenge as a remedy, noting it was unwilling to dismiss the entire panel on this ground. As the court explained, “I think that we have spent a great deal of time with what I thought was a good jury pool in order to select this jury, but I think there has to be a remedy fashioned for that one challenge, which there is no—there doesn’t appear to be an articulatable [sic] reason for it. [¶] So what I am going to do, because I don’t think that starting from scratch is necessary in this case and having to call a brand new panel up for that one challenge, is to grant the defense one additional peremptory challenge as a remedy for that one challenge where there is no reason articulated.” Defendant asked a question to clarify the scope of the court’s relief, and, receiving a reply, responded, “Thank you.” She did not object to the court’s remedy, and jury selection resumed. Defendant later exercised an additional challenge.
Following selection of the jury, the parties proceeded to select alternates. When the prosecution exercised a peremptory challenge to a female alternate, defendant again objected on Batson/Wheeler grounds, saying, “I’m going to challenge the entire panel of the jury. I don’t believe that the remedy that the Court provided . . . is sufficient . . . .” After justifying his challenge to the woman alternate, the prosecutor argued the remedy fashioned by the court was adequate and it was inappropriate to discharge an entire jury when no systematic discrimination had been found. The court acknowledged it had made no finding of systematic bias, reaffirmed its conclusion a gender-neutral reason had been provided for all but one of the dismissals, including the most recent alternate, and denied any further relief.[5]
2. Applicable Law
“In Batson, the United States Supreme Court held that the exercise of a peremptory challenge for a discriminatory purpose offends equal protection under the Fourteenth Amendment. [Citation.] Years earlier, the California Supreme Court in Wheeler held that such conduct violated the State Constitution’s guarantee of a trial by a jury drawn from a venire representative of the community. [Citation.] A prosecutor is presumed to exercise peremptory challenges in a manner conforming to these constitutional requirements. [Citation.] Thus, a defendant seeking to challenge a prosecutor’s peremptory challenge on these constitutional grounds first must raise a timely objection and must show that the relevant circumstances give rise to an inference that the objectionable challenge was purposefully discriminatory. Second, if a defendant makes this prima facie showing, the burden shifts to the prosecutor to provide permissible race-neutral justifications for the peremptory challenge. Finally, the trial court must then determine whether the defendant has proved that the objectionable challenge was based on purposeful discrimination.” (People v. Calvin (2008) 159 Cal.App.4th 1377, 1383.)[6]
Batson did not require a particular remedy in the event purposeful discrimination is found in the exercise of peremptory challenges, expressly leaving implementation of the decision to the state and lower federal courts. (Batson, supra, 476 U.S. at p. 99, fn. 24.) Prior to Batson, however, Wheeler had instructed that, in the event an objection was sustained as to any peremptory challenge, the court “must dismiss the jurors thus far selected. So too it must quash any remaining venire . . . . Upon such dismissal a different venire shall be drawn and the jury selection process may begin anew.” (Wheeler, supra, 22 Cal.3d at p. 282, fn. omitted.)
In a subsequent decision, People v. Willis (2002) 27 Cal.4th 811 (Willis), our Supreme Court recognized the need for greater flexibility in remedying discrimination in the selection of the jury, affirming a trial court’s decision to retain an improperly challenged juror rather than dismiss the panel after concluding the unlawful challenge was made with the intention of provoking a mistrial. (Id. at p. 821.) Similarly, in People v. Overby (2004) 124 Cal.App.4th 1237 (Overby), the court approved the practice of reseating a challenged juror rather than dismissing the entire panel, holding that under Willis, remedies short of jury discharge are acceptable so long as they have the consent of the complaining party. (Overby, at pp. 1242–1243.)
3. Waiver
Although California decisions have approved the reseating of a challenged juror in limited circumstances, the trial court’s grant of an additional peremptory challenge went beyond the remedies approved to date in California.[7] We find it unnecessary to decide whether, under these circumstances, the remedy was appropriate because, as discussed below, defendant accepted the trial court’s grant of an additional peremptory challenge, thereby waiving any objection to the remedy.
There is no question Batson/Wheeler error may be waived. In People v. Fudge (1994) 7 Cal.4th 1075, defense counsel withdrew his Wheeler motion prior to its resolution by the trial court. (Fudge, at p. 1097.) When the defendant attempted to raise the issue on appeal, the court held any error waived. (Ibid.) Similarly, in Overby, the court held that the defendant’s acceptance of an alternative remedy waives any later claim based on the court’s failure to discharge the entire jury. (Overby, supra, 124 Cal.App.4th at pp. 1242–1244.) As the court held, the waiver need not be express if consent can be implied from the defendant’s conduct. (Id. at p. 1244.)
Defendant’s thanking the court and resuming jury selection without objecting to the court’s award of an alternate remedy constituted implied consent to that remedy and a waiver of any later request to discharge the jury on the basis of this claimed Batson/Wheeler violation. Although defendant contends her silence at this time should not be interpreted as consent, her decision to thank the court and resume jury selection at a time when an objection would have been expected if she was dissatisfied with the court’s proposed remedy is open to no other reasonable interpretation. Not only did her conduct manifest an unmistakable acceptance of the alternative remedy, she proceeded to exercise an additional peremptory challenge, thereby taking advantage of the remedy granted to her. She was not entitled later to withdraw that consent merely because of a change of heart.
B. Refusal of Voluntary Manslaughter Instruction
Defendant contends the trial court erred in concluding the evidence was insufficient to support giving a jury instruction on the lesser included offense of voluntary manslaughter as the result of a sudden quarrel or heat of passion.
Defendant initially resisted any instruction on voluntary manslaughter, but when the court informed the parties it intended to instruct the jury on voluntary manslaughter as a result of imperfect self-defense, defendant asked that a sudden quarrel or heat of passion instruction be given as well. The court declined, finding insufficient evidence in the record to support the instruction.
The trial court has a sua sponte duty to instruct on all principles of law relevant to the issues raised by the evidence, including every lesser included offense of the charged offenses supported by the evidence, regardless of whether the parties request an instruction. (People v. Blair (2005) 36 Cal.4th 686, 744; People v. Breverman (1998) 19 Cal.4th 142, 154.) Accordingly, a trial court in a murder prosecution is required to deliver an instruction on voluntary manslaughter as a result of a sudden quarrel or heat of passion if there is substantial evidence to support a conviction on that theory. (Blair, at p. 745.) In this context, “substantial evidence” is “evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist.” (Ibid.)
“ ‘The Penal Code defines manslaughter as “the unlawful killing of a human being without malice.” [Citation.] The offense is voluntary manslaughter when the killing is “upon a sudden quarrel or heat of passion.” ’ ” (People v. Manriquez (2005) 37 Cal.4th 547, 583 (Manriquez).) “Heat of passion” is present when “ ‘the killer’s reason was actually obscured as the result of a strong passion aroused by a “provocation.” ’ ” (People v. Lasko (2000) 23 Cal.4th 101, 108 (Lasko).)
“The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. . . . ‘[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances.’ ” (People v. Steele (2002) 27 Cal.4th 1230, 1252.) The passion aroused need not be anger or rage, but can be any violent, intense, high-wrought or enthusiastic emotion, other than revenge. (Lasko, supra, 23 Cal.4th at p. 108.) In addition, the defendant’s passion must be a response to provocation by the victim or by “conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.” (People v. Lee (1999) 20 Cal.4th 47, 59.)[8]
We review de novo the trial court’s determination not to instruct on a particular lesser included offense and make an independent determination whether the instruction should have been given. (Manriquez, supra, 37 Cal.4th at p. 584.)
Defendant focuses most of her attention on the legal adequacy of Felix’s provocation. As suggested above, the victim’s provocation must be substantial to qualify as legally sufficient to justify a heat of passion manslaughter. (See, e.g., People v. Moye (2009) 47 Cal.4th 537, 551 (Moye) [fight the night before and kicking tires of vehicle insufficient provocation]; Manriquez, supra, 37 Cal.4th at pp. 585–586 [insults and taunting insufficient provocation]; People v. Oropeza (2007) 151 Cal.App.4th 73, 83 [cutting off vehicle in traffic insufficient provocation].)
We decline to decide the issue of provocation, however, because even if Felix’s conduct was legally sufficient to qualify as provocation, this alone would not demonstrate error in the trial court’s refusal to give the voluntary manslaughter instruction. To justify the instruction, defendant was also required to show that substantial evidence supported the “subjective” element of passion: that, in actual fact, her reason was overcome by extreme emotion at the time she killed Felix. (People v. Steele, supra, 27 Cal.4th at pp. 1252–1253.) We find insufficient evidence of this element to support the heat of passion instruction.
The only direct evidence of defendant’s emotional state at the time she killed Felix was her own testimony. According to this testimony, the “subjective” element of heat of passion was wholly absent. Defendant testified that, although fearful for her life, she kept her wits about her when reacting to Felix’s conduct. She was neither angry nor otherwise overcome by emotion. Defendant confirmed this during argument over the admission of certain evidence late in the trial, when she denied she “snapped” at the time of the killing. On the contrary, as defendant characterized her testimony, “There was no passion. There was fear on my part, but not passion. I was not angry. I was not enraged. It was the other way around.”
Defendant now contends, notwithstanding this direct evidence, the jury could have inferred she acted from passion from the severity of the injuries she inflicted on Felix, which defendant contends “suggest[] that [she] may have inflicted the wounds indiscriminately while under the influence of extreme emotion rather than in an efficient effort to kill him.” While there is no doubt Felix’s injuries were extreme, they do not necessarily indicate a killing in the heat of passion. In addition to a person overcome by passion, the many wounds are equally consistent with killing by a person striking out in frantic self-defense, as defendant testified, or a coolly determined killer, thoroughly intent on accomplishing her purpose. Given their inherent ambiguity, any attempt to infer the degree of arousal of the killer’s emotions from the nature of the wounds would have been sheer speculation. The evidence of Felix’s injuries alone was not sufficient for a reasonable jury to conclude defendant acted from passion. (See People v. Benavides (2005) 35 Cal.4th 69, 102 [fact that nature of the victim’s injuries suggests they were inflicted by person in a rage is not substantial evidence to support a voluntary manslaughter instruction].)
In her reply brief, defendant contends the jury could have concluded Felix’s attack, which “stunned” her and stimulated her adrenaline, caused her in fact to have acted from passion. Any such inference, however, was precluded by defendant’s own testimony. She told the jury that while she acted from fear, her emotions were not overcome; she did not “snap.” In light of this testimony, the only evidentiary basis for an inference that the circumstances caused defendant to act from passion, contrary to her testimony, was the nature of the wounds. As noted above, the nature of the wounds was insufficient to support the instruction.
The situation is indistinguishable from that of Moye, supra, 47 Cal.4th 537, in which the defendant beat the victim to death with a bat. The only direct evidence of the fatal encounter was the testimony of the defendant, who claimed he acted in self-defense. According to the defendant, the victim attacked him with the bat, but, after a few blows, he was able to wrest control from the victim. When the victim continued to charge, the defendant swung the bat in self-defense. Although the defendant said he was not in his right mind at the time of the fight, his testimony made clear this altered state constituted fear and alertness caused by the threat to his life. As he said, “he was worried about getting hit by [the victim] because he did not want to ‘get beat down and possibly be killed.’ ” (Id. at p. 552.) Under these circumstances, the Supreme Court held, the trial court was correct in refusing to give an instruction on sudden quarrel or heat of passion. As the court noted, “[i]n the face of defendant’s own testimony, no reasonable juror could conclude defendant acted ‘ “ ‘rashly or without due deliberation and reflection, and from this passion rather than from judgment . . . .’ ” [citations]’ [citation] . . . . Although defendant did testify he was not in a ‘right state of mind’ when [the victim] thereafter turned and attacked him . . . , he immediately explained he was referring to his thought processes being caught up in the effort to defend himself from [the victim].” (Id. at pp. 553–554.)
Defendant’s situation was the same. The only direct evidence of defendant’s mental state was her own testimony, during which she claimed to have reacted to Felix’s anger and attack in calculated self-defense, not passionate anger. As in Moye, there was no substantial evidence to support any other inference. The trial court therefore did not err in refusing to deliver a heat of passion instruction.
C. Miranda Violation
Defendant contends the trial court erred in admitting evidence of statements she made to police during an interrogation following the discovery of Felix’s killing because she was not given proper warnings under Miranda, supra, 384 U.S. 436. The Attorney General effectively concedes the warnings did not comply fully with Miranda’s requirements, a failing that would have justified exclusion of the statements in the prosecution’s case-in-chief. The Attorney General argues, however, that defendant forfeited any claim of error by failing to raise this issue at trial and that any error from admission of the statements was harmless.
1. Background
Defendant was interviewed by police soon after Felix’s body was discovered. The interviewing officer began by telling defendant she was not free to leave and, as a result, was entitled to be informed of her legal rights. He then told her she had “the right to remain silent,” to have an attorney present during questioning, and to an appointed attorney if she could not afford one. When the officer then asked defendant if she wanted to discuss “what happened,” she said she did, although she complained she was “very, very tired.” Noting he was tired as well, the officer began to question her. Defendant’s subsequent statements were introduced as evidence during the prosecution’s case.
There is no question the officer’s warning did not comply with Miranda, which requires a criminal suspect to be informed not only that he or she has the right not to answer questions—to remain silent—but also that if he or she elects to waive that right, any resulting statements can be used against the suspect in court. (Miranda, supra, 384 U.S. at p. 469.) If an interviewing officer fails to give either of these warnings or the other two warnings mentioned by the officer relating to counsel, Miranda precludes introduction of the statements in the prosecution’s case-in-chief. (See People v. Bradford (2008) 169 Cal.App.4th 843, 854 (Bradford).) Because the officer did not warn defendant her statements could be used against her in court, admission of the statements during the prosecution case was objectionable.
Despite the unambiguous nature of the officer’s error, defendant never raised this issue below. Prior to the first trial, defendant’s retained counsel did move to suppress her statements to police, but he did not challenge the adequacy of the Miranda warnings given to defendant, despite making the motion to suppress under the purported authority of Miranda. Instead, counsel argued the statements were “coerced” because police pressured defendant by taking Gabriel into custody at the same time she was detained. Counsel also challenged the admissibility of statements defendant made to police prior to being given any Miranda warnings.


To be continue as part II……


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