THE PEOPLE, Plaintiff and Respondent,
v.
BRYAN JOSEPH MINCEY,
Defendant and Appellant.
Docket No. S004692.
Crim. No. 24634.
Supreme Court of California.
April 6, 1992.
Defendant was Sandra B.'s boyfriend. Defendant and Sandra were jointly charged with the murder of Sandra's five-year-old son, James; the special circumstance allegation of torture murder, however, was against only defendant. Defendant and Sandra were also charged with five felony counts of endangering a child. Three of those counts related to the victim; the remaining two counts involved the victim's four-year-old sister, Wendy. The trial court granted Sandra's pretrial motion for severance, and the case proceeded to trial against only defendant.
On the morning of June 20, 1981, San Bernardino County Deputy Sheriff Dana Williams went to an apartment in Fontana, where defendant lived with Sandra B. and her two young children, James and Wendy. Defendant, who was holding a table leg, was arguing with Sandra in the front yard. James had a bloody nose and cuts around his mouth, and Wendy's two lower front teeth were missing. Defendant told the deputy that he and Sandra had been fighting because she did not want him disciplining the children. He denied having hit or kicked James, but admitted hitting Sandra after she hit him in the head with a brick. Defendant's head was red and swollen, and he had scratches on his chest. Defendant also admitted throwing a container of 500 capsules of "speed" into a nearby field. According to defendant, the capsules belonged to Sandra.
427*427 Nearly two years later, on April 14, 1983, Deputy Williams again responded to a call about a fight between defendant and Sandra B. Defendant had a cut over his eye. James had bruises over his body, and large bumps and black and blue marks on his head. Sandra's upper lip and the inside of her mouth were cut, and the left side of her head was swollen. Defendant told Deputy Williams that he and Sandra had been fighting over the disciplining of James.
2. The Murder of James
a. Discovery of the killing
At 4 a.m. on December 23, 1983, the fire department responded to a call from Sandra B.'s neighbor. The neighbor had been awakened by Sandra, who was crying, screaming, and knocking on the neighbor's apartment door.
After entering Sandra B.'s apartment, Firefighter Gary Becks saw Sandra lying on a bed next to five-year-old James. The child was wet and wrapped in a blanket; he was dead.
Sergeant Patrick McCurry testified that after defendant had been placed in the back of a police car, defendant said: "I don't know what the big deal is. The kid croaked. That's all I know."
Defendant's blood test (taken at 6:15 that same morning) indicated .12 micrograms per milliliter of amphetamines.
b. Physical evidence
Both inside and outside the apartment, the police found a substantial amount of physical evidence relating to the murder of James. Outside the apartment was a board with blood and fecal material. The blood was consistent with James's blood. In the living room was a leather belt with metal grommets and feces. There was also feces on a plastic cup near the television. Two small pillows in a trash can in the kitchen had bloodstains that were consistent with the blood types of the victim and his mother, Sandra B. In the bedroom were a pile of wet, bloodstained children's clothes and a fan belt with human blood on it.
Additional items of evidence found in the bedroom consisted of clumps of brown hair, consistent with the hair of the two children; a fan belt; adult-size jeans with a light bloodstain; a leather cartridge belt; and an adult-size plaid shirt with a bloodstain consistent with defendant's blood type. Throughout the bedroom were blood smears and water-diluted blood; curtains in the linen closet had blood that was consistent with James's blood type.
428*428 c. Medical evidence
Dr. Irving Root performed the autopsy on James's body. He concluded that massive blunt-force injuries were the cause of death. The shock of repetitive injuries and the tearing of tissues led to chemical imbalances that resulted in the stoppage of the intestinal tract and swelling of the brain. James's body had hundreds of injuries, virtually all of which could have been inflicted within 24 to 48 hours of death.
There were numerous abrasions and bruises on James's face and head. His back had a number of abrasions, including four straight lines on the left side of his neck and shoulders. The backs of his hands were bruised, and there was a band of bruises across his waist. James's hips, thighs, knees, legs, and feet also had a number of bruises and cuts.
The penis and the right side of the scrotum were bruised. The mucous membrane of the anus was torn, and there was a tear inside the rectum two to three inches from the opening of the anus. Inside the buttocks, a pocket of tissue was torn where it had been sheared across itself. Dr. Root testified: "Injuries of that sort [shearing and tearing injuries producing a pocket of tissue under the skin] are the kinds of things I see in the automobile accidents. Shearing of tissue against tissue, of tearing. It takes a substantial amount of force to cause that kind of injury."
In Dr. Root's opinion, many of the bruises could have been caused by a hand hitting James. The shearing of the buttocks, however, could not have been done by hand. Of the physical objects recovered from the scene and shown to Dr. Root at trial, the board was the only object that could have caused the injury to James's buttocks. The tear in the outside of the anus and in the tissue of the buttocks could have been caused by the edge of the board being forced between the thighs and then pushed towards the anus. The amount of force required would have to have been substantial. The edge of the board could also have caused a number of the straight-line injuries on James's back. Repeated blows with the cartridge belt could have caused the bruising over the buttocks and thighs. The tear inside the rectum was consistent with an injury caused by a fingernail.
Dr. Root stated that James experienced prolonged pain before his death. The amount of time between the onset of the injuries and the loss of sensation or the ability to feel pain as a result of the physiological effects of the injuries was more than a few minutes, perhaps an hour or more. Although he could not be more specific, Dr. Root explained that the metabolic changes caused by the injuries and the onset of death would have taken hours to 429*429 develop, and that James's loss of sensation of pain would have occurred 15, 30, or possibly 60 minutes before death.
James's four-year-old sister, Wendy, was examined by Dr. Max Lebow on December 23, 1983, the date of James's murder. She showed these injuries: neck, face, and head bruises that were incurred in a period spanning two to three days to twelve hours before the examination. There were also bruises on her groin, thighs, and feet. The bruises on the thighs were less than 24 hours old. Injuries on Wendy's back were consistent with her having been hit with a belt with "eyelets," and the injuries to her left thigh could have been caused by a belt. Bruises on her waist could have been caused by a belt being pulled tightly around her waist; and injuries to her thigh, back of the legs, and buttocks could have been caused by a board. In Dr. Lebow's opinion, Wendy's injuries were too extensive to have been accidental. That was also the view of Dr. Herbert Geise, who examined Wendy five days after James's death.
d. Testimony of Wendy
Wendy, James's sister, was five years old when she testified at defendant's trial. She said that on one occasion defendant had kicked one of her teeth out, that she and James had been whipped with a belt the night James died because she had wet the bed, and that defendant did most of the whipping. Defendant had always been mean to her.
On December 23, 1983, at 12:20 p.m., approximately eight hours after the murder of James was discovered, Sergeant Baker and Detective Larry Brown talked to defendant. Defendant made these statements:
Defendant admitted having spanked James and Wendy during the day of the murder, but denied having whipped them that night. He had not used alcohol or drugs that night. Around 10:30 p.m., Sandra B. asked defendant to go to the store and buy some diapers. When defendant returned 15 minutes 430*430 later, the children and Sandra were in the bedroom. Defendant initially stated that he was in the front room playing with the children's Christmas toys when James started to choke and Sandra called him into the bedroom. He later stated, however, that he went into the bedroom to get his battery charger and at that time held James's legs down on the bed while Sandra whipped James with a belt. During the whipping, James defecated and defendant sent him to the bathroom to complete his bowel movement. Thereafter, Sandra again whipped James, who again defecated in his pants. When Sandra pulled James's pants down, the feces fell on the floor. Defendant made James pick up and taste the feces. Defendant left the bedroom. Sandra then called him, saying that James was choking. After attempting mouth-to-mouth resuscitation, Sandra and defendant put James in the shower and rolled him in a blanket. Defendant denied doing the beating that killed James; he also denied knowing anything about Wendy's injuries, blood on the walls, or the blood- and feces-covered board the police had found.
(2) Second interview
Five hours after the first interview, Officer Powell and Detective Larry Brown again talked to defendant. Defendant admitted that he had lied in the prior interview about not having hit James the day of the murder. He also admitted hitting Wendy that night. Defendant insisted that Sandra B. had done the beatings, and again denied any knowledge of the board.
(3) Third interview
On December 26, 1983, Officer Powell and Detective Larry Brown had a third interview with defendant. Defendant accused Sandra B. of administering the fatal beatings. He continued to deny any knowledge of the board.
According to defendant, Wendy and James had been sodomized by their 15-year-old cousin, and would use their own feces as a sexual lubricant. On the night of James's murder, defendant made James taste his own feces; this was to toilet train him. Defendant admitted having whipped James and Wendy three times on the morning preceding the murder, for wetting the bed.
B. Defense Evidence
Three of defendant's friends (Nicole Slapper, Michael David Brown, and Carla Brown) testified that they saw defendant use amphetamines, which caused defendant to be very angry and "wired."
The defense also presented psychological and psychiatric testimony. Dr. Craig Rath, a licensed clinical psychologist, testified that defendant had told him the following:
431*431 Defendant had used amphetamines the day before James's death. Defendant accused Sandra B. of doing most of the beatings. On the morning of James's death, defendant spanked the children after catching them in sexual activities. At Sandra's request, defendant went to the store to buy diapers. When he returned, James was rolled in a blanket. Defendant wanted to take James to the hospital but Sandra refused for fear of losing her welfare check. She threatened to blame defendant for James's injuries if he took James to the hospital. She and defendant then put James, who could not stand up, in the shower to revive him. That was the first time defendant saw the injuries to James's buttocks. When he asked, "how did his ass get that way," Sandra replied, "I beat him while you were gone." After placing amphetamines on James's tongue, Sandra went out and called for medical help.
Dr. Rath concluded that defendant had an IQ of 78, was functioning at the level of a 14-year-old, and was immature neurologically. In Dr. Rath's opinion, defendant was not psychotic, he had no significant organic damage, and he did not have a major mental illness. He diagnosed defendant as having a mixed personality disorder, which he described as an "intermittent explosive disorder." The disorder would cause accumulated psychological pressures to come to an "explosion," leading to loss of control. According to Dr. Rath, defendant's acts reflected a desire to punish rather than an intent to kill, and defendant probably did not know that his acts were killing James.
Dr. Lorna Forbes, a psychiatrist, testified to what defendant's mother had told her about defendant's childhood. Defendant's father was a brutal man who beat his children with a belt and a board, and sexually molested them. Like Dr. Rath, Dr. Forbes diagnosed defendant as having an intermittent explosive disorder. In the opinion of Dr. Forbes, defendant did not intend to torture James and did not intend to kill, but did intend to participate in punishing him. Defendant was not psychotic and was not suffering from amphetamine psychosis.
Dr. Anthony Oliver, a psychiatrist and neurologist, testified that he found no evidence of any disorder. He criticized the reports and conclusions of Drs. Rath and Forbes as inadequate. He found no evidence of organic brain damage or amphetamine psychosis. In his opinion, defendant would have been fully aware of the harm he was inflicting on James and intended to inflict the harm.
Dr. Julian Beaber, a child abuse expert, distinguished torture from punishment and child abuse on the basis that the abuser has the long-term goal of controlling behavior, while the ultimate purpose of the torturer is the infliction of pain for its own sake.
we now evaluate defendant's conviction for murder by torture in light of the evidence in this case, first in the context of the trial court's denial of defendant's motion for judgment of acquittal at the end of the prosecution's case-in-chief and then in the context of the jury's decision at the guilt phase as a whole. (See fn. 3, post.)
The prosecution presented evidence that the police had on two prior occasions responded to calls involving physical injuries to James. In this case, the physical evidence relating to the killing of five-year-old James included blood throughout the bedroom, belts and a board with blood and feces, and a large clump of brown hair consistent with James's hair. Dr. Irving Root, the physician who performed the autopsy, testified that James had incurred hundreds of injuries within 24 to 48 hours of death; that he had been beaten with hands, belts, and a board; that the beating lasted hours; that James might have lost the ability to feel any sensation of pain for as much as an hour before his death; that the shearing of the tissues in James's buttocks was caused by a substantial force being applied with a straight edge; that the tear two to three inches inside James's rectum was not caused by the application of force outside the rectum but was consistent with a tear caused by a fingernail; and that there were puncture marks behind both of James's knees.
(6) We conclude that the trial court properly denied the motion for judgment of acquittal. The evidence presented by the prosecution was sufficient to establish every element of the offense of murder by torture. The length of time over which the beatings occurred, the number of injuries inflicted, the variety of objects with which the injuries were inflicted, and the fact that the victim was made to eat his own feces established planning and a preconceived design to inflict cruel pain and suffering.
The evidence was also sufficient to support the jury's finding that defendant was guilty of murder by torture. In addition to the evidence that we discussed above, Dr. David Oliver testified that in his opinion defendant was aware of the harm he was inflicting on James and intended to inflict the harm. Although there was testimony by Dr. Craig Rath that defendant 436*436 suffered from an intermittent explosive disorder, he also expressed the opinion that the disorder's episodes of loss of control of aggressive impulses might be of brief duration, sometimes just seconds, often only a couple of minutes, and that, based on his review of police reports and interviews of defendant, defendant "lies all the time." As to the latter aspect, we note that defendant's version of the pertinent events leading to James's killing varied in the interviews he had with the police. (7)(See fn. 3.) From the circumstances surrounding James's death — including the number and nature of the wounds, and the length of time over which they were inflicted — and the expert testimony presented, the jury could have reasonably found beyond a reasonable doubt that defendant's acts were premeditated and deliberate, involved a high probability of death, and were committed with the intent to cause cruel pain and suffering for a sadistic purpose.[3] (See People v. Demond (1976) 59 Cal. App.3d 574, 585 [130 Cal. Rptr. 590].)
CONCLUSION
The misdemeanor convictions for endangering a child (counts 5 and 6) are reversed. In all other respects, the judgment is affirmed.
Lucas, C.J., Panelli, J., Arabian, J., Baxter, J., and George, J., concurred.
MOSK, J., Concurring and Dissenting.
I concur in the judgment as to guilt and death eligibility. After review, I have found no error requiring reversal or vacation on either issue.
I dissent from the judgment, however, as to the sentence of death. As I shall explain, there was prejudicial juror misconduct bearing on that question.
The facts are these. In his summation at the penalty phase, defense counsel urged the jury to spare defendant's life. "I ... have a personal 481*481 belief," argued counsel, "that the laws of God are very absolute, that the Sixth Commandment which says `Thou shalt not kill' is a very absolute rule. It reflects the values of western culture that tell us that human life is very sacred, and I don't know of any exemption granted to the State of California by the Sixth [Commandment] permitting the state to kill. The ... laws of God I believe are absolute...." (Internal quotation marks added.)
Soon, the jury commenced deliberations. After excusing the panel for the day, the trial judge, on the bailiff's mention, noticed that one of the jurors, Glenda Hoffman, was holding a book under her arm. He asked what it was, and she revealed it to be a Bible. He then asked whether she had had it in the jury room, and she said yes. On voir dire during jury selection, Hoffman had identified herself as a Baptist, and stated that she was affiliated with an organization called "Campus Crusade" — which was "not really a church," "more than just employment," "[i]t's kind of a way of life." Also on voir dire, at least seven of the other eleven jurors had identified themselves as Christians.
The next day, before the jury recommenced deliberations, the trial judge conducted an inquiry into the incident.
Summoning Juror Hoffman into chambers outside the presence of the other members of the panel, the trial judge questioned, "When... did you take the Bible into the jury room?" She replied, "During — after lunch...." He questioned, "And what use did you make of the Bible?" She replied, "We were all finished and we were all getting ready to go home and some people kept making references to the Bible, and I said, well, I have it right here. And I go, do you all want to — whoever wants to go can go, whoever wants to stay can stay. So everybody stayed and so we read a few verses from it."
On further questioning by the trial judge, Juror Hoffman stated that she had read for her colleagues Numbers 35:16: "But if he struck him down with an iron object, so that he died, he is a murderer; the murderer shall be put to death."
She stated that she had also read Numbers 35:21: "Or if he struck him down with his hand in enmity and as a result he died, the one who struck him down shall surely be put to death."
In addition to the foregoing, she stated that she had read Romans 13:1-5, as follows.
"Let every person be in subjection to the governing authorities. For there is not authority except from God, and those which exist are established by God.
482*482 "Therefore, he who resists authority has opposed the ordinance of God, and they who have opposed will receive condemnation upon themselves.
"For rulers are not a cause of fear for good behavior, but for evil. Do you want to have no fear of authority? Do what is good, and you will have praise from the same.
"For it is a minister to God to you for good. But if you do what is evil, be afraid; for it does not bear the sword for nothing; for it is a minister of God, an avenger who brings wrath upon the one who practices evil.
"Wherefore it is necessary to be in subjection, not only because of wrath, but also for conscience' sake."
Juror Hoffman added: "... [P]eople know clearly how I feel, and so reading the Numbers verse they knew definitely how I felt about reading it, so it was like they knew it was a hard thing for me to read it, but I just felt like I needed to clear up, that the Bible is not — there's different views that come from the Bible that people get, so that was — that was my point."
Summoning each of the other jurors into chambers outside the presence of the rest, the trial judge questioned whether the facts were as Juror Hoffman had represented. He received answers that were substantially affirmative. He also questioned whether Hoffman's reading of the Bible verses had had any influence. He received answers that were substantially negative. He did not question Hoffman herself about this matter, and hence received no answer.
Following his inquiry, the trial judge found that "what transpired in the jury room was that Ms. Hoffman read Romans 13 verses 1 through 5, Numbers 35 verses 16 and 21." He also found that "it occurred, ... it happened at the conclusion or after they had completed their deliberations for the day...." Lastly, he found that Hoffman's "fellow jurors' approach to their deliberations has not been affected by that reading. It may be deemed to disclose to us Ms. Hoffman's approach, but beyond that — and that is not anything which would justify discharging the jury. There is no motion for mistrial. I find no harm, no denial of any protection has occurred."
In open court, the trial judge stated to the jury: "The jurors had at the conclusion of their deliberations access to a Bible yesterday. I admonish you again, do not take anything into the jury room with you. No reference books of any kind, no verses, no poems, no newspapers, no anything. You are required by the law of the State of California to decide this case on the basis of the evidence adduced here in court and the law of the State of California. 483*483 What you have that you bring with you from your background, your heritage, your training, of course, you bring to bear. But do not take any other types of reference materials with you."
After further deliberations, the jury returned a verdict of death.