People v. Newton

RATTIGAN, J.

Huey P. Newton appeals from a judgment convicting him of voluntary manslaughter.

Count One of an indictment issued by the Alameda County Grand Jury in November 1967, charged defendant with the murder of John Frey. . . .

* * *

At relevant times, John Frey and Herbert Heanes were officers of the Oakland Police Department. The criminal charges against defendant arose from a street altercation in which Frey was fatally wounded by gunfire, and Heanes and defendant were shot, on October 28, 1967. Through the testimony of Oakland police radio dispatcher Clarence Lord, and a tape recording of the radio transmissions mentioned therein, the People showed that the following events first occurred on the date in question:

Lord was on radio duty in the Oakland Police Administration Building. Officer Frey was also on duty, and alone in a police car, patrolling an assigned beat in Oakland. At about 4:51 a.m., he radioed Lord and requested a check on an automobile which was moving in his vicinity. . . . Less than a minute later, Lord told Frey that "we have got some. . . information coming out on that." Frey replied, "Check. It's a known Black Panther vehicle. . . . I am going to stop it at Seventh and Willow [Streets]. You might send a unit by." ("Check," in this context, meant that Frey had received Lord's message.) Officer Heanes, who was listening to this conversation in his police car on another beat, called in that he was "enroute" to Seventh and Willow Streets. This transmission terminated at about 4:52 a.m.

A few minutes later Frey asked Lord by radio, "you got any information on this guy yet?" Explaining this call, Lord testified that "when I gave him [Frey] the information there was PIN information he made the car stop on the strength of that, on the strength of the PIN information. He [now] wants to know what information I have that told him to stop the vehicle." Lord gave Frey the name "LaVerne Williams" and asked him "if there were a LaVerne Williams in the vehicle." Frey replied in the affirmative. Lord told him there were a "couple" of warrants issued to LaVerne Williams, for parking violations, on the identified vehicle.

Lord testified that under such circumstances "[we] check and see if the warrants are still outstanding, first of all, and if they are, and then they [the officers outside] can ascertain if they have that person stopped on the street, then they take action concerning the warrant." Pursuing this procedure in the radio conversation, he gave Frey an address for "LaVerne Williams" and said "Let me know if this is the same address or not." Frey asked Lord, "What's his description?" Lord replied ". . . I don't have the description. Do you have a birth date on him there? We're checking him out right now downstairs."

After another brief interval, and just before 5 a.m., this further exchange occurred by radio: "Frey: 1A, it's the same address. He has on his registration 1114 - 12th Street? Radio [Lord]: Check. What's his birth date? Frey: He gave me some phony. I guess he caught on. Radio: Okay, check. It's not necessary, anyway. We're checking him out downstairs there. We'll have the information back in a few minutes. Frey: Check. Thanks." The next relevant radio call, received at 5:03 a.m., was a "940B" ("an officer needs assistance immediately") from Officer Heanes at Seventh and Willow Streets.

Officer Heanes testified for the People as follows: He arrived at Seventh and Willow Streets "three to four minutes" after responding by radio to Officer Frey's "cover call." Officer Frey's police car was parked at the south curb of Seventh Street, east of Willow Street and facing east. A beige Volkswagen was parked directly in front of it, also facing east. Heanes parked his car behind Frey's, alighted and walked to the right rear of the Volkswagen. At this time, two men were seated in the Volkswagen, both in the front seat; Officer Frey was standing near the driver's door of the vehicle, writing a citation. (Heanes made an in-court identification of defendant as the man seated in the driver's seat of the Volkswagen.)

After a minute or so, Heanes followed Frey to the latter's vehicle, where he heard Frey talk to the police radio dispatcher about an address and a birth date. When Frey finished the radio call, he and Heanes had a conversation in which Frey indicated that defendant, when asked for identification, had produced the Volkswagen registration and given his name as "LaVerne Williams." While Frey remained in his car, Heanes walked forward to the Volkswagen, addressed defendant as "Mr. Williams," and asked if he had any further identification. Defendant, still seated in the vehicle, said "I am Huey Newton." Frey then approached the Volkswagen and conversed with Heanes, who asked defendant to get out of the car. Defendant asked "if there was any particular reason why he should." Heanes asked him "if there was any reason why he didn't want to." Frey then informed defendant that he was under arrest and ordered him out of the car.

Defendant got out of the Volkswagen and walked, "rather briskly" and in a westerly direction, to the rear of the police cars. Frey followed, three or four feet behind defendant and slightly to his (defendant's) right. Heanes followed them, but stopped at the front end of Frey's police car (the second car in line). Defendant walked to the "rear part" of Heanes's car (third in line), Frey still behind him, and turned around. He assumed a stance with his feet apart, knees flexed, both "arms down" at hip level in front of his body.

Heanes heard a gunshot and saw Officer Frey move toward defendant. As he (Heanes) drew and raised his own gun in his right hand, a bullet struck his right forearm. He grabbed his arm "momentarily" and noticed, from the corner of his eye, a man standing on the curb between the Volkswagen and Officer Frey's police car. Heanes turned and aimed his gun at the man (whom he apparently identified at the time as defendant's passenger, although he had not seen the passenger get out of the Volkswagen). The man "raised his hands and stated to me he wasn't armed, and he had no intentions of harming me." To the best of Heanes' knowledge, the man's hands were empty.

Heanes returned his attention to Officer Frey and defendant, who were "on the trunk lid of my car. . . tussling." The two were in "actual physical contact" and "seemed to be wrestling all over the trunk area of my car." He next remembered being on his knees at the front door of Frey's (the second) car, approximately "30, 35 feet" from the other two men. Defendant was then facing him; Officer Frey was "facing from the side" of defendant, toward the curb, and appeared to be "hanging onto" him. Holding his gun in his left hand, Heanes aimed at defendant and fired "at his midsection." Defendant did not fall; Heanes saw no one fall at any time. He (Heanes) then heard "other gunshots . . . from the area of where Officer Frey and . . . [defendant] . . . were tussling on the rear part of my car." Heanes did not see a gun in defendant's hand at any time. He next remembered "laying" in Officer Frey's police car, and calling an "emergency 940B" on its radio. After that, and through the vehicle's rear window, he saw two men running in a westerly direction toward Seventh and Willow Streets.

Henry Grier, a bus driver . . ., gave this testimony for the People: Driving his empty bus . . . he saw the three vehicles parked at the south curb, "about bumper to bumper," west of Willow Street. "Red lights" were flashing on the police cars. He also saw two uniformed police officers and two "civilians" standing together in the street, to his left and next to the Volkswagen. . . .

Continuing east on Seventh Street, Grier again came upon the three parked vehicles. This was four to five minutes after he passed them while headed west. He saw the same flashing lights on the police cars, and three men in the street. Two of them, a police officer and a "civilian," were walking toward the bus. When Grier first saw them, they were 20-25 feet distant from him and a point between the Volkswagen and the first police car parked behind it. The officer was walking a "pace" behind the civilian, and was apparently holding him "sort of tugged under the arm." The third man in the street was another police officer, who was walking in the same direction about "ten paces" behind the first officer and the civilian. (Grier did not then, or again, see the other "civilian" he had noticed when driving west on Seventh Street.)

As the first pair drew closer to the bus, which was still "rolling," the civilian pulled a gun from inside his shirt and "spun around." The first police officer "grabbed him by the arm." The two struggled, and "the gun went off." The officer walking behind them "was hit and he fell"; after he was hit, he drew his gun and fired. Grier stopped the bus immediately and called "central dispatch" on its radio. At this point, the first officer and the civilian were struggling near the front door of the bus and within a few feet of Grier. He saw the civilian, standing "sort of in a crouched position," fire several shots into the first officer as the latter was falling forward. These shots were fired from, or within, a distance of "four or five feet" from the midsection of the officer's body; the last one was fired "in the direction of his back" as he lay, face down, on the ground. While these shots were being fired, Grier was saying on the bus radio, "Get help, a police officer is being shot. Shots are flying everywhere; get help. Help, quick." After firing the last shot at the fallen officer, the civilian "went diagonally across Seventh [Street]." At the trial, Grier positively identified defendant as the "civilian" mentioned in his account of the shootings.

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Defendant, testifying in his own behalf, denied killing Officer Frey, shooting Officer Heanes, or carrying a gun on the morning of the shootings. His account of the episode was as follows: He was driving with Gene McKinney on Willow Street, and had just turned into Seventh Street when he noticed a red light through the rear window of the Volkswagen. He pulled over to the curb and stopped. Officer Frey approached the Volkswagen and said "Well, well, well, what do we have? The great, great Huey P. Newton." Frey asked for defendant's driver's license and inquired as to the ownership of the Volkswagen. Defendant handed him his (defendant's) license, and the vehicle registration, and said that the car belonged to LaVerne Williams. Officer Frey returned the license and walked back to his patrol car with the registration.

A few minutes later Officer Heanes arrived, conversed with Frey, then walked up to the Volkswagen and asked, "Mr. Williams, do you have any further identification?" Defendant said, "What do you mean, Mr. Williams? My name is Huey P. Newton . . ." Heanes replied, "Yes, I know who you are." Officer Frey then ordered defendant out of the car. He got out, taking with him a criminal law book in his right hand. He asked if he was under arrest; Officer Frey said no, but ordered defendant to lean against the car. Frey then searched him, placing his hands inside defendant's trousers and touching his genitals. (Officer Heanes had testified that defendant was not searched at any time.) McKinney, who had also alighted from the Volkswagen, was then standing with Officer Heanes on the street side of the Volkswagen.

Seizing defendant's left arm with his right hand, Officer Frey told him to go back to his patrol car. Defendant walked, with the officer "kind of pushing" him, past the first police car to the back door of the second one. Defendant opened his book [Footnote 4] and said, "You have no reasonable cause to arrest me." The officer said, "You can take that book and stick it up your ass, Nigger." He then struck defendant in the face, dazing him. Defendant stumbled backwards and fell to one knee. Officer Frey drew a revolver. Defendant felt a "sensation like . . . boiling hot soup had been spilled on my stomach," and heard an "explosion, " then a "volley of shots." He remembered "crawling . . . a moving sensation," but nothing else until he found himself at the entrance of Kaiser Hospital with no knowledge of how he arrived there. He expressly testified that he was "unconscious or semiconscious" during this interval, that he was "still only semiconscious" at the hospital entrance, and that -- after recalling some events at Kaiser Hospital -- he later "regained consciousness" at another hospital.

========== Footnote 4 ==========
A criminal lawbook, with defendant's name inscribed inside, was found in a pool of blood near Officer Frey.
========== End Footnote ==========

The defense called Bernard Diamond, M.D., who testified that defendant's recollections were "compatible" with the gunshot wound he had received; and that

"[a] gunshot wound which penetrates in a body cavity, the abdominal cavity or the thoracic cavity is very likely to produce a profound reflex shock reaction, that is quite different than a gunshot wound which penetrates only skin and muscle and it is not at all uncommon for a person shot in the abdomen to lose consciousness and go into this reflex shock condition for short periods of time up to half an hour or so."

The Instructions Upon Unconsciousness

Defendant asserts prejudicial error in the trial court's failure to instruct the jury on the subject of unconsciousness as a defense to a charge of criminal homicide. As the record shows -- and the Attorney General emphasizes -- that defendant's original request for instructions on this subject was "withdrawn," we first recount the sequence in which this occurred. During the trial, defense counsel submitted to the court a formal list requesting -- by number only -- specified CALJIC instructions pertaining, among other things, to self-defense, unconsciousness, diminished capacity and manslaughter. At the suggestion of all counsel, the court announced that ". . . [Argument] and discussion concerning the proposed instruction will be had in chambers and when we get through . . . we will come out and place on the record the rulings of the Court . . . [on the instructions proposed by both sides] . . ." The conference in chambers, which followed, was not reported (although it apparently lasted for several hours).

* * *

Although the evidence of the fatal affray is both conflicting and confused as to who shot whom and when, some of it supported the inference that defendant had been shot in the abdomen before he fired any shots himself. Given this sequence, defendant's testimony of his sensations when shot -- supplemented to a degree, as it was, by Dr. Diamond's opinion based upon the nature of the abdominal wound -- supported the further inference that defendant was in a state of unconsciousness when Officer Frey was shot.

Where not self-induced, as by voluntary intoxication or the equivalent, unconsciousness is a complete defense to a charge of criminal homicide. . . . "Unconsciousness," as the term is used in the rule just cited, need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist -- and the above-stated rule can apply -- where the subject physically acts in fact but is not, at the time, conscious of acting. The statute underlying the rule makes this clear, [Footnote 11] as does one of the unconsciousness instructions originally requested by defendant. [Footnote 12] . . . Thus, the rule has been invoked in many cases where the actor fired multiple gunshots while inferably in a state of such "unconsciousness" . . . including some in which the only evidence of "unconsciousness" was the actor's own testimony that he did not recall the shooting.

========== Footnotes ==========
Footnote 11. Penal Code section 26 provides in pertinent part that "All persons are capable of committing crimes except those belonging to the following classes: . . . Five-Persons who committed the act charged without being conscious thereof." (Italics added.)

Footnote 12. CALJIC 71-C, which read in pertinent part as follows: "Where a person commits an act without being conscious thereof, such act is not criminal even though, if committed by a person who was conscious, it would be a crime. . . ."
========== End Footnotes ==========

Where evidence of involuntary unconsciousness has been produced in a homicide prosecution, the refusal of a requested instruction on the subject, and its effect as a complete defense if found to have existed, is prejudicial error. . . . The fact, if it appears, that such evidence does not inspire belief does not authorize the failure to instruct: "However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true." . . . It follows that the evidence of defendant's unconsciousness in the present case was "deserving of consideration" upon a material issue. . . .

The judgment of conviction is reversed.