It never made much sense to me that Mary Brunner was granted immunity against Bobby, testified against him, then changed her story and STILL was given immunity. She should have done time for everything, though only did time for the Hawthorne Robbery. Did you know at one point she actually pretended Charlie might not be the father of her son Michael?
This is from an appeals court ruling denying Charlie's appeal on the Hinman/Shea killings--
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a. Were the foundational requirements satisfied?
Manson fires a general barrage at the admissibility of the testimony of Brunner particularly the receipt of Brunner's testimony in the case of People v. Beausoleil, supra, as prior inconsistent statements. The prosecution called Brunner as a witness and propounded to her many of the same questions propounded to her in Beausoleil. However, in the case at bar, contrary to her testimony in Beausoleil, Brunner denied going to Hinman's house in July 1969. She specifically denied going to Hinman's house in the latter part of July 1969, with Bruce Davis, Robert Beausoleil, or Susan Atkins. She admitted knowing in the latter part of July 1969, that Hinman was dead, but denied that she was in any way responsible for his death. She denied seeing Atkins hold a gun on Hinman. She denied seeing Beausoleil strike Hinman with a gun or seeing injuries to Hinman's head. She denied bandaging Manson's finger and denied seeing Atkins bandage Hinman's head. When confronted with a transcript of her testimony in Beausoleil and given an opportunity to explain it, Brunner admitted testifying at the trial of Beausoleil, but testified in the case at bar that her testimony in the prior trial of Beausoleil was a lie, and that she lied in order to obtain immunity, to avoid a revocation of her probation, and to keep out of jail and retain possession of her child which had been fathered by Manson. She was given every opportunity to explain the reasons for the conflict between her testimony in the case at bar and her testimony in Beausoleil. fn. 13 {Page 71 Cal.App.3d 31}
At the outset of the direct testimony of Brunner, the prosecutor undertook to examine her about a grant of immunity from the district attorney's office but Manson's lawyer and Manson personally objected. Because of his interference with the trial Manson then had to be removed from the courtroom and was held in an adjacent detention cell. Manson nevertheless continued to disrupt the proceedings by shouting through the open door of the detention cell and the court was compelled to close the door. fn. 14
On his own motion, the trial judge undertook an in camera investigation of the circumstances under which Brunner had been granted immunity in People v. Beausoleil, supra, and the terms of such grant of immunity, but counsel for Manson objected vigorously and repeatedly to any such inquiry by the court. The court appointed a lawyer (from the same law firm which previously represented Brunner) to advise Brunner regarding her rights. The lawyer did so and informed the court that Brunner had been fully advised her of her rights. The court impliedly found that the prior testimony of Brunner in Beausoleil had been free and voluntary. (Evid. Code, § 402, subd. (c).)
[8a] Prior inconsistent statements of a witness are admissible as substantive evidence if the requirements of Evidence Code section 770 are complied with. (Evid. Code, § 1235; California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930]; People v. Green (1971) 3 Cal.3d 981 [92 Cal.Rptr. 494, 479 P.2d 998]; People v. Romo (1975) 14 Cal.3d 189, 194 [121 Cal.Rptr. 111, 534 P.2d 1015]; People v. Collins (1975) 44 Cal.App.3d 617 [118 Cal.Rptr. 864]; People v. Allen (1974) 41 Cal.App.3d {Page 71 Cal.App.3d 32} 196 [115 Cal.Rptr. 839]; People v. Marcus (1974) 36 Cal.App.3d 676, 679 [111 Cal.Rptr. 772, 58 A.L.R.3d 594]; People v. Jenkins (1973) 34 Cal.App.3d 893 [110 Cal.Rptr. 465]; People v. Freeman (1971) 20 Cal.App.3d 488 [97 Cal.Rptr. 717].)
[9a] Manson now contends that the prosecutor was guilty of suppressing evidence regarding the terms and extent of the grant of immunity given to Brunner. It is painfully evident that the failure, if any, of complete candor and disclosure regarding the grant of immunity was caused by the objections, filibustering and obstructionist tactics of Manson's counsel and to a lesser degree by Manson personally. At trial Manson successfully objected to the prosecutor doing precisely what he now argues the prosecutor should have done.
Manson also claims that the prosecution withheld from the jury evidence that Brunner was uncertain whether or not Manson was the father of her child. Brunner was asked a direct question and gave a direct answer that Manson was the father of her child. If she had doubts regarding paternity it was incumbent upon her to express them either on direct or cross-examination. fn. 15 The prosecutor is not the witness.
The prosecutor and Manson's lawyer went over the transcript of Brunner's testimony in the Beausoleil trial. Manson's lawyer was allowed to offer any additional part of such testimony which he desired. Manson contends that none of the prior testimony of Brunner should have been received in evidence because the prosecution failed to offer portions of such prior testimony in connection with seven allegedly important facts. The claim is obviously an afterthought raised for the first time on appeal. No such claim was made in the trial court. As noted, Manson was allowed to offer any portion of such prior testimony which he desired.
[8b] On direct examination in the case at bar, Brunner at her court-appointed lawyer's urging, ultimately invoked the Fifth Amendment against 3 of the 72 questions propounded by the prosecutor. But, she nevertheless thereafter testified fully on cross-examination. She did not refuse to answer a single question on cross-examination. Manson's counsel indicated he had no further questions and subsequently {Page 71 Cal.App.3d 33} admitted that he had cross-examined as fully as desired. Brunner was not excused as a witness but remained available under court order for recall if desired. We note parenthetically that Manson called Brunner as his witness during the penalty phase of the trial after the jury had returned guilty verdicts on all three counts. At the time of her testimony during the penalty phase of the trial, Brunner had been charged with the murder of Hinman (allegedly because she had violated the terms of the grant of immunity; see People v. Brunner, supra) and she was also charged with perjury. At that time (during the penalty phase of the instant trial) Brunner did consistently invoke her Fifth Amendment rights. This fact does not alter our conclusion that she was fully examined during the trial in chief. In our view what happened at the penalty phase of the trial was nonprejudicial in view of the fact that the jury did not impose the death penalty.
Manson's lawyer objected to the offer of the testimony of Brunner as given in the Beausoleil case as a prior inconsistent statement on the additional ground that the requirements of Evidence Code sections 770 and 1235 had not been satisfied since Brunner was not "available" for cross-examination in view of the fact that she had invoked the Fifth Amendment. The court ruled that by testifying as fully as she did Brunner had waived the privilege against self-incrimination. (Rogers v. United States (1951) 340 U.S. 367 [95 L.Ed. 344, 71 S.Ct. 438]; People v. Freshour (1880) 55 Cal. 375.)
We conclude that Brunner was legally available for cross-examination; that in fact she was fully cross-examined by Manson during the guilt phase of the trial to the extent that he then desired; that the requirements of Evidence Code sections 770 and 1235 were fully satisfied; and that Brunner's testimony was not inadmissible because she was not available for cross-examination. [9b] Such prior testimony was not inadmissible because it was given under a grant of immunity. The facts regarding such grant of immunity were fully disclosed to the jury in order that it could evaluate such testimony in the light of the fact that it was given under bias and prejudice, if any, generated by a grant of immunity.
Manson also argues that the grant of immunity was unlawful because it was not approved by the court and that therefore Brunner's prior testimony was inadmissible as a matter of law. [10] The words of the court in People v. Brunner, supra, are apropos: "Yet while these factors bear heavily on the weight [italics in original] to be given the witness' testimony, they do not impinge upon the validity of the bargain itself." (P. 915.) The propriety of the grant of immunity has been judicially {Page 71 Cal.App.3d 34} approved and upheld by a final judgment of this court. (People v. Brunner, supra.)
Since we conclude that Brunner's testimony was properly admitted into evidence and that preliminary foundation requirements under Evidence Code section 770, were satisfied, the weight to be accorded such prior testimony as an inconsistent statement was a question for determination by the jury.
b. Was Brunner an accomplice and if so, was her testimony sufficiently corroborated?
Manson argues that the Brunner testimony in People v. Beausoleil, supra, should not have been admitted because Brunner was an accomplice as a matter of law and her testimony was not corroborated. The argument is devoid of merit for two reasons: (1) Brunner was not an accomplice as a matter of law, and (2) the testimony of Brunner (as given in the case of People v. Beausoleil, supra) was sufficiently corroborated.
[11] Brunner was not an accomplice as a matter of law because there was a conflict in her testimony as to whether or not she was even at Hinman's house in July 1969. Brunner's testimony (as given in Beausoleil) was corroborated by evidence of the physical facts surrounding the death of Hinman, by the testimony of Bailey (see infra, pp. 36-37), and others, by the fact that Beausoleil's fingerprint was found in the Hinman residence, and by the several admissions of Manson personally. The corroboration was more than substantial. (People v. Smith (1970) 4 Cal.App.3d 41, 45 [84 Cal.Rptr. 229]; People v. Henderson (1949) 34 Cal.2d 340, 343 [209 P.2d 785]; People v. Scofield (1971) 17 Cal.App.3d 1018 [95 Cal.Rptr. 405]; People v. Williams (1954) 128 Cal.App.2d 458, 462 [275 P.2d 513].)
[12] Manson argues that since Brunner was an accomplice as a matter of law the court should have instructed, sua sponte, that Brunner was an accomplice as a matter of law. As already indicated, the argument is based upon an improper assumption. If Brunner was an accomplice as a matter of law, the conclusion would be correct. (People v. Ferlin (1928) 203 Cal. 587 [265 P. 230]; People v. Jones (1964) 228 Cal.App.2d 74, 94-95 [39 Cal.Rptr. 302].) However, the rule applies only where there is no conflict in the evidence that the person is in fact an accomplice. (People v. Coffey (1911) 161 Cal. 433, 446 [119 P. 901]; People v. Jones, supra.) {Page 71 Cal.App.3d 35}
The jury instructions which the court gave defined accomplice (CALJIC No. 3.10), advised the jury that the testimony of an accomplice must be corroborated (CALJIC No. 3.11), defined the sufficiency of the evidence which was required to corroborate the testimony of an accomplice (CALJIC No. 3.12), cautioned the jury that the testimony of an accomplice should be viewed with distrust (CALJIC No. 3.18), defined the criminal intent requisite to be an accomplice (CALJIC No. 3.14), and that one accomplice may not provide the requisite corroboration for another accomplice (CALJIC No. 3.13). Manson's argument that the court should also have instructed, sua sponte, that Brunner was an accomplice as a matter of law, ignores the fact that there was a conflict in the evidence as to whether or not she was an accomplice at all. An instruction that Brunner was an accomplice as a matter of law would have clearly constituted prejudicial and reversible error, since such an instruction would have been tantamount to an instruction that her testimony in the case at bar was untrue and that her testimony in People v. Beausoleil, supra, was true. Such an instruction would have usurped the jury's function to determine which version of the facts was true. "... Where the facts are in dispute as to the knowledge and intent of the asserted accomplice, the witnesses' liability for prosecution is a question of fact for the jury." (People v. Gordon (1973) 10 Cal.3d 460, 467 [110 Cal.Rptr. 906, 516 P.2d 298].)
The court correctly instructed the jury on the law applicable to accomplices and the prosecution correctly argued to the jury that if Brunner told the truth in the case at bar, she was not an accomplice, but if she told the truth in her testimony in People v. Beausoleil, supra, she was an accomplice. (People v. Gordon, supra, pp. 472-473.)
When Manson argues that Brunner was an accomplice as a matter of law, he inferentially admits that she was telling the truth in Beausoleil and lying in the case at bar. Such an admission might have been significant if it had been made at the trial level. It does not change the rule when made in this court.
c. Was the prosecutor guilty of misconduct in arguing that Brunner's testimony was corroborated?
Manson argues that the prosecutor was guilty of misconduct and was permitted to mislead the jury by misstating the facts and the law in several respects. He argues that what the prosecution characterized as corroborating evidence of Brunner's testimony (in People v. Beausoleil, supra) was not legally corroborative evidence. Manson devotes 10 pages {Page 71 Cal.App.3d 36} of his opening brief on appeal to this argument. (Pp. 116-126.) Time and space do not permit a detailed analysis. In many respects the arguments are nonsensical. For example, Manson argues that evidence that Manson admitted slashing Hinman's ear was not corroborative of the testimony of Brunner because Manson's admissions did not specifically admit when he slashed Hinman's ear.
Manson argues in effect that evidence is not corroborative evidence unless each bit of evidence standing alone is sufficient to connect the defendant to the crime. Such is not the law. If the sum total of all of the evidence (other than the accomplice's testimony), connects the defendant to the commission of the offense the requirements of Penal Code section 1111 are satisfied. Here the defendant's admissions alone are sufficient to provide corroboration. [13] Direct evidence is not required but circumstantial evidence will be sufficient. (People v. Mardian (1975) 47 Cal.App.3d 16, 43 [121 Cal.Rptr. 269].) The requirements of Penal Code section 1111 are satisfied if the sum total of all of the evidence connects the defendant to the crime and is sufficient to convince the jury that the accomplice is telling the truth. (People v. Medina (1974) 41 Cal.App.3d 438, 466 [116 Cal.Rptr. 133].) Even slight circumstantial evidence may be sufficient. (People v. Thurman (1972) 28 Cal.App.3d 725 [104 Cal.Rptr. 804]; People v. Manson, supra, 61 Cal.App.3d 102.)
Consequently the prosecutor had a right to argue each bit and piece of the evidence even though each bit and piece standing alone would not have been sufficient to supply the requisite corroboration. Just as an artist creates a mosaic a piece at a time, so a prosecutor creates a picture of guilt by consideration of individual bits of evidence, otherwise insignificant, which in totality convince the seeker of truth. The prosecutor was not guilty of misconduct merely because he characterized bits and pieces of evidence as corroboration when standing alone such bits and pieces would not have been sufficient to sustain a conviction. If the sum total was sufficient, the argument was proper. The sum total was sufficient. (People v. Hathcock (1973) 8 Cal.3d 599 [105 Cal.Rptr. 540, 504 P.2d 476]; People v. Jenkins, supra, 34 Cal.App.3d 893; People v. Randono (1973) 32 Cal.App.3d 164 [108 Cal.Rptr. 326]; People v. McFarland (1971) 17 Cal.App.3d 807 [95 Cal.Rptr. 369].
