People v. Manson

*218 WOOD, P. J., Concurring and Dissenting.

I concur in the judgment which affirms the convictions of defendants Manson, Atkins, and Krenwinkel on the seven charges of murder and on the charge of conspiracy to commit murder; and as to modification of penalty, concur by reason of mandate of Supreme Court in People v. Anderson (1972) 6 Cal.3d 628, 657 [ 100 Cal.Rptr. 152 , 493 P.2d 880 ]. The convictions of all the defendants, including Van Houten, should be affirmed.

I dissent as to the reversal of the conviction of defendant Van Houten on the charges of murdering Mr. and Mrs. Leño La Bianca, and on the charge of conspiracy to commit murder. The verdicts of the jury finding Van Houten guilty on all those counts were supported by ample evidence. She was convicted áfter a long trial—about seven months of trial, with the jury sequestered. She did not testify.

The two other justices have reversed the conviction of Van Houten for an alleged reason that the attorney who was appointed to represent her (after her attorney disappeared and after all the evidence had been presented) could not argue the credibility of witnesses effectively because he (not being present) had not observed the demeanor or manner of the witnesses while they were testifying. 1

After all the evidence had been presented and all the parties had rested and the case was ready for arguments to the jury, the attorney (Mr. Hughes) for Van Houten disappeared under mysterious circumstances, and there was uncertainty as to whether he would return. Thereupon, the judge was confronted with making a decision as to whether, in view of the totality of the then existing circumstances, another attorney should be appointed as cocounsel for Van Houten and the trial be finished (by presenting the arguments), or whether the whole case as to Van Houten should be started over and tried again. The judge appointed Mr. Maxwell Keith as cocounsel for her, and continued the date for commencing arguments for 12 days in order to give the cocounsel time to prepare for the argument. Also, the continuance afforded an opportunity for an investigation to be made as to whether the missing attorney might return to court.

When cocounsel for Van Houten was appointed, he was asked if he would accept the appointment. He replied in the affirmative, but he did *219 not say that he could not argue the credibility of witnesses because he had not observed them while they were testifying. Thereafter, and before he made his argument, he said that he could not argue credibility of witnesses on the basis of witness-demeanor because he had not observed the witnesses. He did not ask to be relieved as counsel.

Appointed counsel argued on behalf of Van Houten for two days and ably covered the whole range of the record evidence involving her. With reference to credibility of Kasabian (a principal witness against Van Houten and the other defendants), he said that she was a sinister person who has never been above practicing fraud, deception, burglary, or theft to get what she wants; her characterization of herself as a little girl lost in the forest was a deliberate falsehood; if she was attempting by her demeanor on the witness stand to lend the impression that she was just a little girl lost in the woods trying to find her way out, that was a facade and she was committing a fraud on the jury; she was wily, opportunistic, and frightfully resilient, and she bounces back every time no matter what she does; when he speaks of her credibility, he speaks also of her testifying here; she testified in expectation of immunity which she received during the trial; expectation of immunity brings into play the strongest of human motives, that is, self-preservation which can turn people into liars; he believed that she had the strongest motives to deceive; the jurors would be instructed that if they found that a witness had testified falsely as to a material part of her testimony, they are entitled to disbelieve all of her testimony.

He argued further that, after analyzing Kasabian’s testimony, any interpretation pointing towards Van Houten’s guilt is unreasonable. After discussing Kasabian’s testimony about riding in an automobile with Manson, Van Houten and others to various places (to look for victims) and stopping near a church in Pasadena, he said that the jury should disregard her testimony on the basis of a reasonable doubt as to its truth; that there was a reasonable doubt regarding Kasabian’s testimony about Manson’s planning tg kill a person who was driving a white sports car; the jurors should remember that Kasabian prefaced her testimony, regarding conversation outside the La Bianca residence, with the words “I think” and “I’m not positive.”

Appointed counsel also said that Diane Lake (a witness who testified against Van Houten and other defendants) had been discussed at length by other counsel during their arguments; she was a 17-year-old drug addict, who was mentally disabled and had been committed to a mental *220 institution; that she lied when testifying before the grand jury; that her testimony should be viewed with caution; that in going over Lake’s testimony he would try to use the same analysis he used for Kasabian’s testimony; and that Lake’s statement that Van Houten said she stabbed someone who was dead and then wiped off fingerprints was not reasonable and must b¿ viewed with caution; that Hughes (attorney for Van Houten) had done an excellent job of cross-examining Lake; and that her testimony was frail.

With reference to credibility of Hoyt (witness against Van Houten and other defendants), appointed counsel referred to her testimony that when a man came to the house where Hoyt and Van Houten were, Van Houten hid under a sheet and told Hoyt not to let the man see her, because he had just given her a ride from Griffith Park. Then counsel said he did not concede that that incident happened, but if it be assumed that it happened, a reasonable inference therefrom would be that Van Houten feared for her own safety.

He argued further that the jurors are the judges of the facts; and since he did not know what they were going to believe, he could not take a chance and he had to meet these issues head on. He also said that as to conspiracy, Van Houten did not agree to do anything; and she did not aid or abet in the homicides. After referring to “Helter Skelter,” he said there are a lot of other things which he thought the jurors ought to consider, and that these matters had been gone into amply by his brother counsel; the jurors must view Kasabian’s testimony with distrust; if the jurors decide, after deliberation on her credibility, to believe Kasabian as to any participation by Van Houten, then the jurors have to believe Lake; if they believe Lake, then they have to decide whether her testimony corroborates Kasabian’s testimony; and he did not see how the jurors can convict Van Houten when they have to go through all of this analysis.

It is clear that Mr. Keith, counsel for Van Houten, argued ably, at length, and with emphasis that the testimony of Kasabian and Lake was completely lacking in credibility, and that they should not be believed. He used language that was very much derogatory of them and their credibility.

The fact that counsel for Van Houten could not argue credibility of witnesses, based on their demeanor, does not mean that credibility of witnesses based on demeanor was not argued. The attorneys for the three *221 other defendants observed the witnesses. They argued the issue of credibility of prosecution witnesses, and referred particularly to witnesses Kasabian, Lake, and Hoyt, and denounced them in derogatory language as being thoroughly unreliable and unbelievable.

In order to indicate the “witness-demeanor,” particularly of Kasabian, Lake, and Hoyt, which was observed and argued by the other defense attorneys, it will be necessary to refer to some of the statements in their arguments.

Some of the statements by Mr. Fitzgerald, attorney for Krenwinkel, were: As he sat in court and watched Kasabian for a long period of time, his initial reaction was that she was well-mannered, sincere, straightforward, gentle, and soft-spoken. She was always a model of decorum, always quiet, contained, and reserved. Her recollection was bad. Her memory for specifics was horrible. She was a peculiar lady to be involved in a case like this, but in a sense one cannot really judge a book by its cover—the (her) facade was good, it stood up, and it was well done. We have to draw on our own experience and see if she is really telling the truth.

He argued further: She was granted immunity from prosecution. She was an accomplice, and the testimony of an accomplice must be treated with distrust. An accomplice usually testifies in expectation of leniency. If the jurors find that she lied as to a material point, they may disregard her entire testimony. Do not trust the testimony of a liar. In determining the credibility of a witness, the jurors may consider her demeanor and manner while testifying; and they may consider whether the use of drugs has influenced her ability to perceive or recollect.

In his further argument, in referring to many parts of Kasabian’s testimony relative to various occurrences, he said many times, “Do you believe that?” He argued further: She testified that it was only after she was charged with these offenses that she decided to tell the truth. She cried on three occasions while testifying, but the jurors should be very suspicious of her tears. In the context of this case her tears do not mean a thing. It is an attempt to make her look pure. Her credibility is an issue in the case, and the jurors have to determine carefully whether she was telling the truth.

Some of the statements in the argument of Mr. Shinn, attorney for Atkins, were: Mr. Fitzgerald, attorney for Krenwinkel, covered Kasa *222 bian’s testimony adequately and very well in his argument. While Kasabian was testifying she cried when pictures were shown to her, but the jurors should not let that fact make them feel that she was telling the truth. She said she took LSD in order to seek God, and he (Shinn) guessed that she used the word “God” to get more sympathy for herself.

Some of the statements in the argument of Mr. Kanarek, attorney for Manson, were: Witness Kasabian was a great percentage of the prosecution’s case. She had been told by. the prosecution that if she testified to everything she knew about the seven murders she might be granted immunity from prosecution. Was it humanly possible for her to tell the truth, knowing that such offer had been made? She was conditioned to make dishonest statements. She defrauded Joe Sage of money he had paid. Her testimony should be viewed with caution. She was less than candid. She has told us the unbelievable regarding the written word “pig” (at the Tate house). She is not telling the truth. The question is whether she can be believed. She cannot be relied upon. His (Mr. Kanarek’s) purpose was to see whether her testimony can be used to sustain the prosecution’s view of the case. The same purpose goes for Lake. Witness Hoyt (who told about Van Houten’s hiding under a sheet after the La Bianca murders) cannot be believed. Hoyt stated the most incredible of events when she said she went to Kansas to look for someone whose name she did not know. Clearly, Kasabian is not telling the truth when she said she did not know about the death of the La Biancas until she read about it in Miami. What she has taken as drugs into her body is a factor to be considered in determining her credibility.

It thus appears that the issue of lack of credibility of prosecution witnesses, particularly witnesses Kasabian, Lake, and. Hoyt, was argued by the four defense attorneys. Also, it appears that even though counsel for Van Houten did not observe the witnesses while they were testifying, the three other attorneys (representing Krenwinkel, Atkins, and Manson), who were present when the witnesses testified, argued the matter of demeanor or manner of the witnesses. As just shown, in some of those arguments there were statements (by Mr. Fitzgerald, and by Mr. Shinn who approved Mr. Fitzgerald’s argument) that Kasabian was well-mannered, sincere, gentle, quiet, soft-spoken, and reserved; and that on three occasions she cried; and there was a statement (by Mr. Kanarek) that on one occasion she squinted. The arguments of these experienced attorneys (who observed the witnesses) show the meager factual background in this case for a defense argument on credibility of witnesses on the basis of demeanor of witnesses while they were testifying.

*223 Presumably, these specifications of witness-demeanor by the three other experienced defense attorneys were the only instances of witness-demeanor observed by them (as to Kasabian, Lake, and Hoyt—principal witnesses against Van Houten), or the specifications were the only instances of witness-demeanor which they deemed worthy of being mentioned.

In the reversal of the Van Houten conviction by the two other justices, for the asserted reason that her attorney had not observed the witnesses while they were testifying, there is an implication that if her attorney had observed the witnesses while they were testifying he might have observed witness-demeanor which was not observed by the three other defense attorneys, or if he observed only the same demeanor which the other attorneys observed he might have made a better argument on credibility than they made.

In any event, the reversal of the Van Houten conviction is based principally on the other justices’ application of the above-mentioned narrow legal point (about not arguing witness-demeanor) to a factual situation where it was practically certain that, in view of the arguments of the other attorneys, there was no significant witness-demeanor to be argued.

Furthermore, it is not always necessary, in order for a judgment to be valid, that an attorney who makes a summation argument shall be in a position to argue credibility of witnesses based upon his observations of the witnesses. In this respect, it is to be noted that there are several situations wherein the testimony given at a prior judicial proceeding may be received in evidence in a subsequent proceeding in the same case when the witness who gave the testimony is not available as a witness in a subsequent proceeding (Evid. Code, § 1291; Witkin, Cal. Evidence (2d ed.) pp. 566-570); and under such circumstances a judgment in the subsequent proceeding may not be set aside or reversed merely because an attorney in the subsequent proceeding could not argue credibility of the missing witness based upon observation of demeanor of the witness while testifying. An example of such a circumstance is the testimony of a witness at a preliminary examination which is received at the trial when the witness is not available. (People v. Contreras (1976), 57 Cal.App.3d 816 [ 129 Cal.Rptr. 397 ].) Another such example is the testimony of a witness at a former trial which is received in evidence at a retrial when the witness is not available. It is to be noted further that under such circumstances as indicated by those examples where the witness in the *224 former proceeding was unavailable, even the trier of the facts at the subsequent proceeding would not have observed the demeanor of that witness; and even under that situation (where no one at the subsequent trial had observed the witness) a judgment would not be set aside or reversed merely because the trier of the facts had not observed the demeanor of the witness. In the instant case the only one who did not observe the witnesses was Van Houten’s attorney. The jurors, however, who were to decide the factual issues, did observe the witnesses, and they were instructed by the judge, and were told by attorneys in their arguments, that in determining the credibility of witnesses they were entitled to consider the demeanor of the witnesses while they were testifying.

A comparison of the unavailable witness situation with the Van Houten situation shows that, with respect to observation of witnesses, Van Houten was in a much more favorable position in that the jurors who were to decide the facts did observe the witnesses, and were instructed to consider the witnesses’ demeanor in determining their credibility; whereas, in the situation where former testimony of the unavailable witness is received, it is clear, of course, that no one at the subsequent trial had observed, the witness testifying, and no argument could be made regarding demeanor of the witness, and no consideration could be given by the trier of the facts (judge or jurors) to the demeanor of the witness. Over a period of many years innumerable valid judgments have been rendered in cases where an important part of the evidence is former testimony of unavailable witnesses; and, of course, in such cases no argument could have been made on credibility of witnesses on the basis of their demeanor while testifying.

The reversal of the Van Houten conviction because her counsel (not having observed the witnesses) could not argue credibility of witnesses, on the basis of witness-demeanor, is inconsistent with statutory and decisional law to the effect that judgment may be rendered, as above shown regarding unavailable witnesses, even though counsel cannot argue credibility of the witnesses based on witness-demeanor, and even though the trier of the facts has not observed the witnesses.

If the reason announced by the two other justices tor reversing the Van Houten conviction is proper, then a question arises as to validity of judgments that may be rendered in cases where testimony of unavailable witnesses is received and an attorney cannot argue credibility of witnesses on the basis of witness-demeanor.

*225 Furthermore, Mr. Keith, counsel for Van Houten, did not regard the matter of his appointment (including the question of arguing demeanor) as the strong point in his case, but he regarded it as cumulative. (At oral argument he made a statement to that effect.)

After the former counsel for Van Houten had disappeared, and after the evidence had been presented and all the parties had rested, the trial judge, in the exercise of his discretion and in view of the totality of the then existing circumstances, appointed counsel to represent Van Houten. It is apparent that at the time of appointing counsel, the trial judge, who had observed the demeanor of the witnesses, decided that the matter of counsel’s not being able to argue credibility of witnesses based on witness-demeanor was not of material significance. At the time of appointing Mr. Keith as counsel for Van Houten, the trial judge said, in part, that there were three counsel who have been through the entire trial and have had the opportunity of seeing all the witnesses, and that some of them were witnesses against Van Houten, and those who testified as to anything involving her were the same witnesses who testified as to matters involving the other defendants; and that any argument of counsel for the other defendants with respect to credibility of those witnesses would inure to the benefit of Van Houten, apart from any argument Mr. Keith might make.

Furthermore, in view of the order denying a new trial, it is apparent that the trial judge, after hearing the arguments of the four defense attorneys, decided that the inability of Van Houten’s counsel to argue credibility of witnesses based on witness-demeanor was not prejudicial.

In this case it is to be emphasized that the jurors observed the witnesses; that the judge instructed the jurors, and the attorneys told them, that in determining the credibility of the witnesses the jurors were to consider the demeanor of the witnesses while they were testifying; that, as above shown by reference to arguments of the three defense attorneys who saw the witnesses, there was a meager factual background for a defense argument on credibility of witnesses on the basis of witness-demeanor; that those three experienced attorneys argued credibility of prosecution witnesses on the basis of witness-demeanor, and in view of the few instances of demeanor referred to by those attorneys (such as Kasabian’s being well-mannered and soft-spoken, and having cried three times and squinted once) it seems clear that there was no significant witness-demeanor to be argued; and that all the defense attorneys argued ably and with emphasis the asserted lack of credibility *226 of prosecution witnesses, particularly witnesses Kasabian, Lake, and Hoyt (principal witnesses against Van Houten), whose testimony affected not only Van Houten but all the other defendants.

This is not a case where no argument was allowed. Mr. Keith argued very ably for two days without any limitation, except that he had not observed the witnesses while they were testifying; however, as above shown, the fact that he did not argue lack of credibility on the basis of witness-demeanor was practically of no significance, and certainly was not significantly prejudicial. In In re William F, 11 Cal.3d 249 [ 113 Cal.Rptr. 170 , 520 P.2d 986 ], it was said (p. 256 in fn. 6): “We do not imply that each infringement on, as distinguished from a denial of, the right to counsel is to be deemed .so fundamental that prejudice must be presumed without further inquiry.” The above detailed statements specifying references to witness-demeanor, which were made in arguments of defense attorneys who had observed the witnesses, show that in practical effect there was no prejudicial infringement or limitation on the right of Van Houten’s attorney to argue credibility on the basis of witness-demeanor.

It seems that principles of law referred to in the part of the opinion reversing the Van Houten conviction are to be understood as meaning that the right of counsel to argue credibility of witnesses on the basis of witness-demeanor is so fundamental that the absence of that right is a reason for reversal of the conviction. It is to be noted, however, that in a footnote it is said, in effect, that by the determination which the justices were making they were not pronouncing a universal rule that absence or loss of counsel in any stage of the proceedings necessarily compels a reversal; that each case will have to be decided on its own facts; and no per se rule can be stated. The facts in this Van Houten case show that repeated arguments as to witness-demeanor were made.

In the above opinion of the two other justices, there is a quotation from the dissenting opinion in United States v. Barrett (7th Cir.), 505 F.2d 1091 , wherein it is said it is tempting to acquiesce in a decision which may represent the just and inevitable conclusion of the matter; nevertheless, more enduring values are challenged when there is reason to doubt that a notorious trial has been conducted in a proper manner. In that case the county clerk of Cook County, Illinois, was convicted of mail fraud, bribery, and income tax evasion. It is to be noted that notwithstanding the asserted philosophy in the dissenting opinion about “enduring values,” the majority opinion affirmed the conviction.

In State v. Thompson, 148 W.Va. 263 [ 134 S.E.2d 730 ], cited in support of the reversal of the Van Houten conviction, a question on appeal was *227 whether there was “manifest necessity” for declaring a mistrial on the ground that certain evidence (unlawfully seized) had been received erroneously. On appeal therein, it was held that the erroneous ruling did not constitute “manifest necessity” for declaring a mistrial. After making that decision, the reviewing court proceeded, by way of dictum, to state examples of “manifest necessity,” and in so doing included an occurrence such as illness or death of counsel, which was not involved in that case. In the present case, however, the footnote above referred to seems to be contra to the dictum in the cited West Virginia case. The footnote states, in part, that each case will have to be decided on its own facts; and that no per se rule can be stated.

The verdicts finding Van Houten guilty of the. murders of Mr. and Mrs. La Bianca were amply supported by the evidence.

Van Houten had been a member of the Manson family longer than any of the girls. On the night after the five Tate murders, Manson told Van Houten and other members of the family that last night was too messy and he was going to show them how to do it. Then seven of the members including Manson and Van Houten left the ranch in an automobile and drove around for several hours. About 2 a.m. they stopped in the Griffith Park area in front of a house where Manson got out of the car, walked up the driveway and disappeared. Soon thereafter he returned to the car and said that a man and woman were tied up in the house. He told Van Houten, Krenwinkel, and Watson to get out of the car, not to stir up fear in those people, and not to let them know they were going to kill them. He told Van Houten and Watson to hitchhike back to the ranch and told Krenwinkel to go to the waterfall. Manson and the others went away in the car, leaving Van Houten, Krenwinkel, and Watson in front of the house. Later that morning the mutilated dead bodies of Mr. and Mrs. La Bianca were found in the house. His hands were tied. A knife was sticking in his throat; a fork was sticking in his stomach; and many stab wounds were on his body, and blood was smeared on many things. Her hands were tied and there were 41 stab wounds on her body. Words were written in blood on the walls, front door and refrigerator.

Diane Lake testified that Van Houten told her she had stabbed a woman who was already dead, and that the more she did it the more fun it was; after the killings they showered and ate food; she wiped fingerprints off everything they had touched; and the killings took place around Griffith Park. At the ranch Van Houten burned a blouse, some rope, and clothing she had been wéaring.

*228 Barbara Hoyt testified that later that morning four men came to the house, and Van Houten hid under a sheet, and told Hoyt she did not want one of the men to see her, because he had just given her a ride from the Griffith Park area.

When the attorney disappeared after several months of trial, the only unfinished part of the trial was the matter of argument and instructions. In my opinion the trial judge, in exercising his discretion and viewing the totality of circumstances, properly appointed counsel for Van Houten.

As above shown, there was a meager factual background for a defense argument on credibility based On demeanor of witnesses, particularly as to witnesses Kasabian, Lake, and Hoyt. In view of such a limited background for argument, it is reasonably certain there was no significant witness-demeanor to be argued. In any event, the credibility of witnesses, based on witness-demeanor, was argued by the three defense attorneys who had observed the witnesses. Also, as above noted, there are various circumstances where, under statutory and decisional law (relative to former testimony of unavailable witnesses), a valid judgment may be rendered even though a litigant cannot argue credibility on the basis of demeanor of witnesses—thus indicating that the matter of arguing such credibility is not a fundamental privilege that must always be accorded a litigant.

Under the circumstances of this case, there was no prejudice to Van Houten because her attorney could not argue on the subject of witness-demeanor. The denial of the motion for a new trial indicates that the trial judge, who of course observed the witnesses,. decided there was no prejudice to Van Houten.

Under the facts of this case, the asserted basis for reversal as to Van Houten is practically negligible. Under our system of justice, form is not to be exalted over substance.

The judgment of conviction of Van Houten should be affirmed.

Petitions for a rehearing were denied September 10, 1976, and the opinion was modified to read as printed above. Wood, P.J., was of the opinion that the petition of respondent People for a rehearing as to appellant Van Houten should be granted. The petitions of the respondent and of appellant Manson for a hearing by the Supreme Court were denied December 9, 1976. Mosk, J., Clark, J., and Richardson, J. were of the opinion that the respondent’s petition as to appellant Van Houten should be granted.

*229

*230

Another alleged reason, asserted by the other justices, for the reversal is that the continuity of the trial was interrupted by the disappearance of attorney Mr. Hughes. This is similar to the alleged point about argument.