People v. Roberts

403 P.2d 411, 63 Cal. 2d 84, 45 Cal. Rptr. 155

• Court: California Supreme Court
• Decided: June 29, 1965
• Docket: Crim. 7466
• Status: Published

Opinions

TRAYNOR, C. J.

A jury found the defendants guilty of first degree murder and fixed the penalty at death for Daniel Allen Roberts and life imprisonment for Mae Blanche Coleman. The trial court denied Roberts’ motion for new trial but granted Mrs. Coleman’s motion on the ground that involuntary statements were admitted in evidence against her. The People’s appeal from the order granting Mrs. Coleman a new trial has been consolidated with Roberts' automatic appeal. (Pen. Code, § 1239, subd. (b).)

Mr. and Mrs. Luther Popejoy managed the apartment house in which they lived in San Francisco. At approximately 10 p.m. on June 20, 1962, Popejoy left the building to go to his job at a steel plant. When he returned the next morning he found his wife dead under a bed in their bedroom. She had been strangled, possibly with an electrical extension cord, after having suffered a blow on the nose. The time of death was sometime between 10:30 p.m. on June 20, when she was last seen alive, and 2:30 the following morning. There was testimony that it would have required considerable strength for one person to place the body under the bed. A man’s watch, the victim’s purse, a pair of red shoes with small steel heels, the rental agreements between the Popejoys and their tenants, and a rent receipt book were missing. There was no evidence that the apartment had been entered forcibly.

Defendants had lived in the apartment house as man and wife for several months. Popejoy testified that on his way to work on the night of the killing he saw them sitting on the front steps of the building. Another tenant testified that he met defendant Roberts in the cellar of the building at approximately 10:30 p.m. that night. Roberts offered him several dozen books of matches, which he was throwing away because he was “cleaning up.” Roberts and the witness walked out of the cellar together and separated in front of the victim’s door when Roberts said he intended to pay his rent. As the witness walked upstairs Roberts knocked on the door. The victim called, “What do you want at this time of night?” and Roberts said that he wished to pay the rent. The witness saw the victim open her door and Roberts enter the apartment.

The police found Roberts’ palmprint on the arm of a chair in the Popejoy apartment and his fingerprint near the bottom of the door between the living room and bedroom. In the defendants’ apartment the police found a radio, two pairs of men’s pants, and a note addressed to Roberts signed by Mrs. Coleman stating that she planned to leave him to go to Santa Barbara because he was being unfaithful to her. The card on the defendants' mailbox near the front door of the building with Roberts’ name on it was missing.

Charles Roberts, defendant Roberts’ brother, was the chief prosecution witness. He testified that he visited the defendants on June 20 at approximately 6 p.m. Defendant Roberts said that he planned to hold up a garment factory at 10 p.m. that evening. Charles agreed to take some of defendants’ clothing to his home, and he left with the clothes by a side door at Roberts’ direction to avoid being seen by the Pope-joys. Charles next saw the defendants when they arrived at his home at approximately 2:30 a.m. on June 21. Roberts then told Charles, “I think I hit her too hard,” and in response to Charles’ question, “hit who too hard?” Roberts answered, “my landlady.” Roberts said that his landlady was under or by the bed. Mrs. Coleman was not present during this conversation. Charles agreed to drive the defendants to Sacramento. On the way Mrs. Coleman said that she had searched the Popejoy apartment and indicated that she had been present when Roberts killed the victim. Mrs. Coleman said she thought it would be best if the victim were dead so that they could not be identified. When they arrived in Sacramento Roberts had Charles pawn a watch that was identified at the trial as the one taken from the Popejoy apartment. They then went to the American River and threw in an electrical cord and a blue purse, which Roberts indicated had come from the Popejoy apartment. Mrs. Coleman told Charles that she had left a note in their apartment designed to mislead the police.

Charles’ wife testified that the defendants’ clothes were in Charles’ automobile on the evening of June 20, that when the defendants arrived at her apartment after midnight that night Mrs. Coleman gave her a pair of black shoes with laces and large wedge heels, and that the defendants left with Charles. When Charles returned the following day he showed her a newspaper story about the killing. He also disposed of the shoes Mrs. Coleman had given her.

In early October 1962 an inspector from the San Francisco Police Department and a San Francisco Assistant District Attorney, armed with warrants for the defendants’ arrest for murder, went to Oregon where defendants were being held on another criminal charge. By that time the police had gathered most of the evidence recited above. The investigators questioned both defendants, and parts of tape recordings of the interrogations were played for the jury.

Roberts told the investigators that he and Mrs. Coleman left the Popejoy apartment house sometime around the middle of June at approximately midnight or 1 a.m. They did not tell Mr. or Mrs. Popejoy that they were leaving. They left because Roberts had no job and had only $17. They hitchhiked to Marysville and then to Oroville, where they caught a freight train to Oregon. Roberts stated that he had not seen Mrs. Popejoy on the day he left San Francisco but that he saw Mr. Popejoy at about 9 p.m. when he and Mrs. Coleman were sitting on the outside steps and Mr. Popejoy left to go to work. He had not been in the Popejoys’ apartment on that day and had not been in it since the last time he paid the rent, which he always paid in the daytime and never at night. He had never attempted to pay the rent at night and had never been anywhere near the Popejoy door after Mr. Popejoy had gone to work. He had only been inside the Popejoy apartment at the desk and had never at any time been in the bedroom.

In a separate interview, Mrs. Coleman first told the investigators that she had been living with Roberts for about three months at the Popejoy apartment house before they left San Francisco sometime after June 25. They left at about 3:30 or 4 a.m., hitchhiked to Marysville, and then took a freight train to Oregon. They left because Roberts had violated his parole and they had seen his parole officer in San Francisco. She had not been in the Popejoy apartment the evening before they left. After they saw Mr. Popejoy on his way to work, they went to their apartment where they remained until 2 or 3 a.m. when they left San Francisco.

When the investigators told Mrs. Coleman that they had talked to Roberts’ brother Charles and knew how she and Roberts left San Francisco, she admitted that she and Roberts had gone to Charles’ apartment at about 3 or 4 a.m. and asked him for a ride to Sacramento. In the morning Charles pawned a guitar and Roberts pawned his watch. She did not see Mrs. Popejoy the evening before and neither she nor Roberts attempted to pay the rent that night. She admitted writing the note left in the kitchen but claimed that she wrote it to make Roberts leave San Francisco. She wrote it about 2 a.m. when Roberts was in the Fillmore district for about two hours. When asked if she had ever seen a pair of Mrs. Popejoy’s shoes, she said that Mrs. Popejoy had given her a pair of black shoes but that she could not remember what she had done with them.

Neither defendant testified at the trial.

Because of the introduction into evidence of defendants’ statements and comment by the court and prosecutor on defendants’ failure to testify, we requested briefs directed to the question whether the recent decisions of the United States Supreme Court in Malloy v. Hogan, 378 U.S. 1 [84 S.Ct. 1489, 12 L.Ed.2d 653], and Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], were applicable to this ease. In the Escobedo case it was held that “where ... [a criminal] investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S., at 342 [372 U.S. 335 (83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733)], and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” (Escobedo v. Illinois, 378 U.S. 478, 490-491 [84 S.Ct. 1758, 12 L.Ed.2d 977].)

Conceding that the investigation into Mrs. Popejoy’s murder had focused on defendants, that they were in police custody, that the interrogations by the investigators lent themselves to eliciting incriminating statements, and that incriminating statements were elicited and used against them at the trial, the Attorney General contends that the Escobedo ease is not controlling because there was no objection to the introduction of the statements into evidence and there is no showing that defendants were not advised of their right to remain silent and no showing that either of them requested and was denied the assistance of counsel.

Since this case was tried before the Escobedo decision, defendants’ failure to object to the admission of their statements into evidence does not preclude their raising the question on appeal. (People v. Hillery, 62 Cal.2d 692, 711 [44 Cal.Rptr. 30, 401 P.2d 382], and cases cited.) The right to counsel during interrogation does not turn on a request (People v. Dorado, 62 Cal.2d 338, 347 [42 Cal.Rptr. 169, 398 P.2d 361]), and a waiver of that right and of the right to remain silent cannot be presumed. The burden is therefore on the prosecution to show that a defendant was either informed of these rights or otherwise waived them.¹ (People v. Stewart, 62 Cal.2d 571, 580-581 [43 Cal.Rptr. 201, 400 P.2d 97]; People v. Hillery, 62 Cal.2d 692, 711-712 [44 Cal.Rptr. 30, 401 P.2d 382]; People v. Lilliock, 62 Cal.2d 618, 621 [43 Cal.Rptr. 699, 401 P.2d 4].) Accordingly, whether or not the trial court erred in holding that Mrs. Coleman’s statements were involuntary, it did not err in granting her motion for a new trial.

Since Roberts did not confess to the investigators but only made false exculpatory statements and since the jury was instructed that Mrs. Coleman’s statements should be considered only against her, it is contended that the error in admitting their statements into evidence was not prejudicial to Roberts. (See People v. Parham, 60 Cal.2d 378, 385-386 [33 Cal.Rptr. 497, 384 P.2d 1001]; cf. People v. Dorado, 62 Cal.2d 338, 356-357 [42 Cal.Rptr. 169, 398 P.2d 361].) This error cannot be considered alone, however, for the court and prosecutor also erred in commenting on defendants’ failure to testify. It is now settled that such comment violates the Fifth Amendment as made applicable to the states by the Fourteenth Amendment to the United States Constitution. (Griffin v. California, 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106]; see also Malloy v. Hogan, 378 U.S. 1 [84 S.Ct. 1758, 12 L.Ed.2d 653].)

Except for Charles’ testimony of defendants’ oral admissions to him, the evidence was almost wholly circumstantial. It was the defense theory that the circumstances were consistent with innocence, or at most second degree murder, and that as a possible participant in the crime, Charles was unworthy of belief. Charles was familiar with the Popejoy apartment house, said he was there on the evening of June 20, and knew that defendants were planning to leave town. He pawned Mr. Popejoy’s watch and threw the other things allegedly taken from the apartment into the river. He at first denied any knowledge of the crime, and only implicated defendants after the police learned that he had pawned the watch. Thus, Charles had an obvious interest in directing suspicion away from himself. Roberts’ entry into Mrs. Popejoy’s apartment in full view of another tenant was not consistent with a preexisting plan to rob or kill, and the jury might well have entertained at least a reasonable doubt whether Roberts was guilty of first degree murder had the prosecution not been allowed to prove that both he and Mrs. Coleman lied to the police and had the court and prosecutor not commented on their failure to testify.

In his argument to the jury the prosecutor repeatedly stressed defendants’ lies² as evidence of consciousness of guilt that destroyed any innocent interpretation that might be placed upon the other evidence, and he asserted that the lies were part of a prearranged plan of Roberts and Mrs. Coleman to mislead the police.

Moreover, the inadmissible statements were not merely repetitions of similar admissible statements. Accordingly, it cannot be determined what impact their erroneous admission may have had on Roberts’ decision not to testify. The prosecutor took full advantage of that decision by forcefully commenting on it in his argument,³ as he then reasonably assumed he was entitled to do. (Cal. Const., art. I, §13; People v. Adamson, 27 Cal.2d 478 [165 P.2d 3] ; Adamson v. California, 332 U.S. 46 [67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R 1223].) With evidence before the jury that he had repeatedly lied to the police, Roberts and his trial counsel may have concluded that it would be futile for Roberts to attempt to exculpate himself by testifying to other exculpatory facts even if they were true. Had he not been deprived of his right to counsel during interrogation, he might have been advised to say nothing or to tell the truth if he was innocent or guilty of only second degree murder, even though the truth might have appeared to him as less exculpatory than false denials of any incriminating facts. He was induced at a critical stage in the proceedings to make choices that he could make intelligently only with the advice of counsel. (Escobedo v. Illinois, 378 U.S. 478, 486 [84 S.Ct. 1758, 12 L.Ed.2d 977]; see Hamilton v. Alabama, 368 U.S. 52, 55 [82 S.Ct. 157, 7 L.Ed.2d 114]; White v. Maryland, 373 U.S. 59, 60 [83 S.Ct. 1050, 10 L.Ed.2d 193]; Glasser v. United States, 315 U.S. 60, 75-76 [62 S.Ct. 457, 86 L.Ed. 680]; Williams v. Kaiser, 323 U.S. 471, 475-476 [65 S.Ct. 363, 89 L.Ed. 398] ; cf. People v. Gaines, 58 Cal.2d 630, 644 [25 Cal.Rptr. 448, 375 P.2d 296] [dissenting opinion].)

After reviewing the entire record in the light of all the foregoing considerations, we are of the opinion that it is reasonably probable that a result more favorable to Roberts would have been reached had defendants’ statements not been erroneously admitted into evidence and had the court and prosecutor not commented on their failure to testify. Accordingly, the judgment must be reversed. (See Cal. Const., art. VI, § 4½; People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243]; People v. Bostick, 62 Cal.2d 820, 823-826 [44 Cal.Rptr. 649, 402 P.2d 529].)

The reversal of Roberts’ conviction is compelled by the Griffin ease and by the Escobedo case regardless of whether a request for counsel during interrogation is controlling. Roberts repeatedly stated to the investigators that he wished to answer questions only in the presence of an attorney. Despite these protests, the investigators persisted in questioning him and succeeded in eliciting statements that were introduced into evidence against him. The prosecutor vigorously urged in argument that those statements and Roberts’ failure to testify destroyed his defense.

The trial court granted Mrs. Coleman’s motion for a new trial on the ground that her statements were involuntary and clearly prejudcial. Since her statements are also inadmissible under the rules set forth in the People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], People v. Stewart, 62 Cal.2d 571 [43 Cal.Rptr. 201, 400 P.2d 97], People v. Hillery, 62 Cal.2d 692 [44 Cal.Rptr. 30, 401 P.2d 382], and People v. Lilliock, 62 Cal.2d 618 [43 Cal.Rptr. 699, 401 P.2d 4], and since the court and prosecutor also erred in commenting on her failure to testify, we need not and have not determined whether the trial court correctly ruled that her statements were involuntary. The reasons and authorities set forth at length after the hearing and rehearing in People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], compelled this court, as they have other courts,⁴ in being faithful to the Constitution of the United States as interpreted by the United States Supreme Court, to hold that the rule of the Escobedo case does not depend upon a request for counsel.

The order granting defendant Coleman a new trial is affirmed. The judgment is reversed.

Peters, J., Tobriner, J., Peek, J., and Dooling, J.,

* concurred.

1 The record affirmatively shows that defendant ¡Roberts requested counsel and did not waive Ms rights. The tape recording of Ms interview with the investigators began before they introduced themselves to him and continued until the end of the questioning. At no time did they inform Roberts of his rights. Moreover, he repeatedly stated to the investigators that he wished to answer questions only in the presence of an attorney. ¡Despite these protests, the investigators persisted in questioning him and succeeded in eliciting statements that were used against him at the trial.

2 For example: “Well, we know that ultimately both of these defendants were captured in Oregon. We know that, don’t we? And at that time the frame of mind of Daniel Boberts, I suppose, should have been, ‘Well, I am caught. My parole has been violated. O.K. I give up now. That is it. ’

“And if you asked him then . . . ‘Well, how did you get away that night,’ he could have said easily, ‘Well, I went out to Charles and he drove me to Sacramento.’ Or he could have said, ‘Well, we went to Sacramento.’

“ ‘Did you go to see Mrs. Popejoy that night?’ He could have easily said, ‘Well, yes, I did. I did, yes.’

“ ‘Did you see Charles that night?’ He should have replied, ‘Well, yes, I saw Charles that night.’

“Instead, what did he say? Here is a man that tries to tell you that he has nothing to do with this murder, that the only reason that he fled was his violation of parole. In effect, he should be in a position of saying, ‘Well, there is nothing more to lie about now. I am caught. My parole has been violated. You have me now. There is no reason to lie.’ And yet he does. He lies about Ms prints. He lies about going to Marysville. He lies about seeing Charles that night. He lies about being near her apartment that night or going in her apartment that night. He lies about seeing her that night. And the question comes into your mind, ‘Why?’

“Here is a man who has nothing to run from any more. His parole is violated. He is captured. And he lies once, twice, three times, and lies some more. And the question comes up, ‘Well, what is this man lying for? Wliat for? What does he know? What is he trying to conceal?’ ”

3 For example: “So they ask you, ‘Disbelieve Charles,’ they say to you, ‘Disbelieve him.' They don't take the stand under oath and tell you he lied. These are the people who could tell you that he lied, if he did so. They do not do so. They ask you to disbelieve because he made some inconsistencies. . . .

“Shouldn’t you say, ‘At least, if X am asked as a logical person to reject his testimony, I should have liked to have heard the testimony of one of those two defendants or both; I should have liked to have at least have heard them say one thing, “I didn’t kill Mrs. Popejoy.” ’

“I should think you might want to hear perhaps a little more and say something about, ‘I didn’t throw a cord in the river.' But, no, you are not accorded that privilege, and the defendants need not take the stand. I don't mean to conclude, ladies and gentlemen of the jury, for one moment that they need to take the stand, or that they should, or that you should conclude just even for a moment that they are guilty by not taking the stand, because, thank God, in America no one need get up . . . there and hang himself, and I, for one, believe in this law. The prosecutor must prove his case to you beyond a reasonable doubt, and this is good law and this is what I am trying to do. I don’t think we should have to rely on their testimony to convict them, and the law promises this, and I agree to it.

“But they sit here with so much knowledge within their grasp and deny you that; you can conclude that, in fact, Charles Roberts and these other witnesses like McKinley Brown, in fact, did tell the truth. You can at least logically do this ....

“ . . . [Counsel for Roberts] says, after all, he says, my client, you know, has been convicted of a felony and if he took the stand, you wouldn’t believe him anyway, because he would stand impeached.

“What sort of an explanation is that? What sort of a substitution is that for offering you at least evidence, for having at least this much come from the mouth of the defendant . . . Daniel Roberts, under oath?

“One, the motive for Charles to lie; two, to tell you he didn't kill Mrs. Popejoy, under oath, ‘I didn’t kill Mrs. Popejoy.’ Three, ‘I was with Dora.' And who is Dora; and how can she be located? If he just said this, but he didn’t say anything like that. I want to bring it very clearly forward to you, ladies and gentlemen of the jury, that you are not to imply if a defendant, a man who doesn’t take the stand, he is guilty. But a man who doesn’t take the stand to testify, I suppose, to at least this extent, does not dispute the facts that have been presented by the prosecution. ...”

4 Clifton v. United States, 341 F.2d 649, 653; United States ex rel. Russo v. New Jersey, 351 F.2d 429; Galarza Cruz v. Delgado, 233 F.Supp. 944; United States ex rel. Rivers v. Myers, 240 F.Supp. 39, 43; State v. Dufour, -R.I. - [206 A.2d 82, 85]; State v. Neely, 239 Ore. 487 [398 P.2d 482].

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.