Engert v. Superior Court

Opinion

CHRISTIAN, J.

Allen Leroy Engert seeks a writ restraining respondent superior court from proceeding on the special circumstance (torture) allegation (Pen. Code, § 190.2, subd. (a)(18)) in an information by which petitioner is charged with murder (Pen. Code, § 187). Restraint is also sought against trial of a second count of the information, charging penetration by a foreign object (Pen. Code, § 289).

The victim, Adria Manning, was killed May 16, 1979, near midnight. Postmortem examination revealed several areas of trauma: a band-like mark encircled her neck and showed evidence of an abrasion of the skin; the tissue at the front of the neck was bruised in the area of the larynx and the right horn of the hyoid bone was fractured.

The marks about the neck were consistent with some sort of strap or rope being placed around the neck. The hyoid bone injury is commonly seen in the case of manual strangulation. In the opinion of the medical examiner, death was caused by strangulation. The victim’s face was swollen and abraded, and the scalp showed fresh bruising.

The chest had small bruises, and the wrists had purplish lines around them, which were apparently caused by band-like ligatures.

The anus revealed an internal abrasion of the lining of the colonic mucosa extending three inches from the anus upward. Some of this bowel mucosa was discovered on the handle end of a hammer found at

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the foot of the bed where the body was found. The bowel injury would, in the examiner’s opinion, be consistent with the hammer handle having been inserted into the anus.

In regards to the sequence of the injuries to the neck and anus, there was medical opinion that the anal injury was inflicted just before or at the time of death and at about the same time as the neck injuries which caused the victim’s death.

The body was discovered by the victim’s boyfriend, Orville Wimberly, when he returned home from work at about 7 a.m.

The special circumstances specified in Penal Code section 190.2, subdivision (a)(18) are shown where “The murder was intentional and involved the infliction of torture. For the purpose of this section torture requires proof of the infliction of extreme physical pain no matter how long its duration.” Petitioner contends that if neither intent to inflict pain, an awareness of pain by the victim nor prolonged pain are required for a murder by torture, this special circumstance could be found in any first degree murder where more than one blow was struck. From this contention, petitioner reasons that “logic demands an interpretation which requires proof of awareness of pain,” and contends that the record shows no such awareness.