People v. Varnum

427 P.2d 772, 66 Cal. 2d 808, 59 Cal. Rptr. 108, 1967 Cal. LEXIS 344

• Court: California Supreme Court
• Decided: May 31, 1967
• Docket: Crim. 10190
• Status: Published

Opinions

TRAYNOR, C. J.

A jury found defendant guilty of assault with intent to commit robbery, first degree robbery, kidnaping with bodily harm for the purpose of robbery, and first degree murder. It fixed the penalty for kidnaping at life imprisonment without possibility of parole and the penalty for murder at death. A motion for new trial was denied. The appeal is automatic. (Pen. Code, § 1239, subd. (b).)

At a previous trial the jury fixed the penalty at death for the kidnaping and murder. We reversed the judgment only as to penalty because of errors condemned in People v. Morse (1964) 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33], (People v. Varnum (1964) 61 Cal.2d 425 [38 Cal.Rptr. 881, 392 P.2d 961].) Before retrial, however, we issued a writ of habeas corpus and reversed the judgment in its entirety on the ground that confessions introduced in evidence had been obtained in violation of Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758]. The judgment was not final when Escobedo was decided. (In re Varnum (1965) 63 Cal.2d 629 [47 Cal.Rptr. 769, 408 P.2d 97].) On this appeal defendant does not challenge his conviction of assault with intent to rob James Fields. He challenges only his conviction of the robberv, kidnaping, and murder of Norman Merrill.

On the evening of August 16, 1962, Merrill, a service station attendant, was on duty alone. A witness saw him leave in the company of three male Negroes, one of whom was driving a customer’s automobile that was regularly parked at the station. Summoned to the service station, the owner discovered that about $50 was missing from the cash register. Early the next day Merrill’s wallet containing no money was found in the street about 10 miles from the station. That afternoon his body was discovered face down in a maintenance yard near the place where his wallet had been found. He had been shot twice in the back.

The transcript testimony of John Ashton Victoria, who testified at the first trial but could not be located for the second, was the most damaging evidence against defendant. At the time of the crime Victoria, a schoolboy, fry cook, and busboy, was living with Edward Jackson who was convicted with defendant at the first trial. Victoria recounted an evening meeting in Jackson’s apartment where defendant and his accomplices planned the robbery. They had one gun, and a neighbor, Thomas Hanks, lent them another, a Colt, which defendant carried in the waistband of his trousers when they left the apartment. They returned about midnight. Victoria testified that defendant gave the Colt to Hanks and that the trio discussed their having killed the victim. Defendant divided the money among the three conspirators, and each gave some to Hanks for the use of his gun.

Defendant’s fingerprints were found at the service station on the cardboard box in which credit receipts were kept and on the horn ring and the inside of the left front window of the car used to kidnap the victim. A ballistics expert testified that the lethal bullets had been fired by a Colt such as the one Victoria testified defendant had taken with him.

The foregoing evidence is sufficient to support the verdicts. Defendant contends, however, that the trial court erred in admitting the alleged murder weapon into evidence, on the ground that it was located as a result of interrogations conducted without the preliminary protections required by Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], and People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].

Police offiers conducted a fruitless search for the gun throughout the building where the Jacksons lived. They then prevailed upon Jackson, who was in jail and had confessed, to telephone his wife, who was in the women’s jail, and ask her to reveal the hiding place of the gun. Mrs. Jackson said it was in the fuse box in the hallway of the apartment building, where an officer later found it. The officers thus learned of the hiding place of the gun from both Jackson and his wife who had not been advised of their constitutional rights. The inquiry had focused on both of them, and they were not in custody merely as potential witnesses but had been handcuffed while being transported to jail and had been booked for the murder. Although Mrs. Jackson was not prosecuted for the offense, she was entitled to be advised of her rights before being subjected to police inspired and supervised questioning by her husband while she was in custody charged with murder. The information elicited from Victoria that implicated defendant also implicated Jackson as a direct participant and indicated that his wife might have encouraged commission of the robbery.

Under these circumstances information and physical evidence secured as a result of questioning the Jacksons without warning them of their rights could not be used against them. (People v. Stoner (1967) 65 Cal.2d 595, 600 [55 Cal.Rptr. 897, 422 P.2d 585] ; People v. Dorado, supra, 62 Cal.2d 338, 353-354; People v. Bilderbach (1965) 62 Cal.2d 757, 763-767 [44 Cal.Rptr. 313, 401 P.2d 921] ; People v. Ditson (1962) 57 Cal.2d 415, 439 [20 Cal.Rptr. 165, 369 P.2d 714].) The question remains, however, whether defendant has standing to challenge the violations of the Jacksons' rights.

In cases of searches and seizures conducted in violation of the Fourth Amendment we have held that the defendant has standing to object even when his own rights were not violated. (People v. Martin (1955) 45 Cal.2d 755, 760-761 [290 P.2d 855].) Otherwise the deterrent effect of the exclusionary rule would be seriously weakened. Defendant contends that we should apply the same rule to Escobedo-Dorado-Miranda violations effectively to deter unlawful police interrogations. Noneoercive questioning is not in itself unlawful, however, and the Fifth and Sixth Amendment rights protected by Escobedo, Dorado, and Miranda are violated only when evidence obtained without the required warnings and waiver is introduced against the person whose questioning produced the evidence. The basis for the warnings required by Miranda is the privilege against self-incrimination (Miranda v. Arizona (1966) 384 U.S. 436, 457-470 [16 L.Ed.2d 694, 713-721, 86 S.Ct. 1602, 10 A.L.R.3d 974]), and that privilege is not violated when the information elicited from an unwarned suspect is not used against him. (See Murphy v. Waterfront Com. of New York Harbor (1964) 378 U.S. 52, 78-79 [12 L.Ed.2d 678, 694-695, 84 S.Ct. 1594].) Similarly the right to counsel protected by Escobedo and Dorado is not infringed when the exclusion of any evidence obtained through the violation of the rules of those eases precludes any interference with the suspect’s right to effective representation. (See Massiah v. United States (1964) 377 U.S. 201, 206-207 [12 L.Ed.2d 246, 250-251, 84 S.Ct. 1199].) Unlike unreasonable searches and seizures, which always violate the Constitution, there is nothing unlawful in questioning an unwarned suspect so long as the police refrain from physically and psychologically coercive tactics condemned by due process and do not use against the suspect any evidence obtained.¹ Accordingly, in the absence of such coercive tactics, there is no basis for excluding physical or other nonhearsay evidence acquired as a result of questioning a suspect in disregard of his Fifth and Sixth Amendment rights when such evidence is offered at the trial of another person.

Defendant next contends that the trial court erred in impeaching Thomas Hanks, a witness called by the prosecution. Hanks had already been convicted and sentenced to prison for his part in the crimes, and the prosecution called him to testify that he lent the murder weapon to defendant for the purpose of the contemplated robbery. When Hanks took the stand he claimed his privilege against self-incrimination. Proceeding in the presence of the jury, the trial court brought out the fact that Hanks was no longer subject to prosecution because he had already been convicted. It therefore ordered him to answer the questions. Hanks then denied any personal involvement and any knowledge of defendant’s having taken part in the crimes.

The information elicited by the trial court did not establish for this jury the facts that were the basis for Hanks’ conviction. Its only effect was to impeach Hanks’ testimony by showing his prior conviction of a felony. No error was committed thereby even if the court’s purpose had been to impeach Hanks instead of to rule on his claim of privilege.² The risks of abuse that had been thought to justify the now discredited rule against a party’s impeaching his own witness (see Evid. Code, §§ 785, 788, operative January 1, 1967, repealing the rule against a party impeaching his own witness; 3 Wigmore, Evidence, § 896 et seq.) are absent when the impeachment is undertaken by the court. It is entirely proper for the court to elicit the fact that a witness has been convicted as an accomplice in the crime charged. (United States v. Crosby (2d Cir. 1961) 294 F.2d 928, 948; Wood v. United States (8th Cir. 1960) 279 F.2d 359, 363; Davenport v. United States (9th Cir. 1958) 260 F.2d 591, 596; Richards v. United States (10th Cir. 1951) 193 F.2d 554, 556; Nemec v. United States (9th Cir. 1949) 178 F.2d 656, 661; see also United States v. Jannsen (7th Cir. 1964) 339 F.2d 916, 919; United States v. Aronson (2d Cir. 1963) 319 F.2d 48, 51-52; United States v. Freeman (2d Cir. 1962) 302 F.2d 347, 350, cert. den. (1963) 375 U.S. 958 [11 L.Ed.2d 316, 84 S.Ct. 448].) Any impeachment in this case was incidental to the court’s inquiry into Hanks ’ Fifth Amendment privilege, but the court would have been well advised to make that inquiry outside the presence of the jury to avoid any possibility of inadvertent prejudice. Its failure to do so, however, resulted in no error for it merely brought out impeaching evidence the jury could properly hear.³

Error committed in the penalty phase of the trial, however, requires reversal. (People v. Hines (1964) 61 Cal.2d 164, 170 [37 Cal.Rptr. 622, 390 P.2d 398].) The prosecution encouraged the jury to aggravate defendant’s punishment by evidence that he had committed other robberies shortly before those for which he was tried. This evidence consisted solely of the testimony of Thomas Hanks, who claimed to be defendant’s accomplice in the earlier escapades. Penal Code section 1111 provides that “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated. . . .” Although no “conviction” was involved at the trial on the issue of penalty, section 1111 cannot be construed to apply only to the trial on the issue of guilt, for it was enacted long before the adoption of separate trials of those issues.⁴

We have held that “evidence of the earlier crime must meet the rules of admissibility governing proof of that crime or be otherwise properly admissible in the penalty proceeding.” (People v. Purvis (1961) 56 Cal.2d 93, 97 [13 Cal.Rptr. 801, 362 P.2d 713]; People v. Hamilton (1963) 60 Cal.2d 105, 129-131 [32 Cal.Rptr. 4, 383 P.2d 412] ; People v. Bentley (1962) 58 Cal.2d 458, 460-461 [24 Cal.Rptr. 685, 374 P.2d 645].) Moreover, because evidence of other crimes “may have a particularly damaging impact on the jury’s determination whether the defendant should be executed ...” they must be proved beyond a reasonable doubt before the jury may consider them. (People v. Polk (1965) 63 Cal.2d 443, 450 [47 Cal.Rptr. 1, 406 P.2d 641]; see also People v. Terry (1964) 61 Cal.2d 137, 149 [37 Cal.Rptr. 605, 390 P.2d 381].) Accordingly, at the trial on the issue of penalty the corpus delicti of an earlier crime must be established before an uncorroborated extrajudicial confession can be admitted (People v. Hamilton, supra), and an earlier crime cannot be proved by hearsay (People v. Purvis, supra). For the same reasons Penal Code section 1111, prohibiting proof of an earlier crime by the uncorroborated testimony of an accomplice, also applies at the trial on the issue of penalty.

The error in admitting the accomplice testimony was substantial, and it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (Cal. Const., art. VI, § 13 ; People v. Hines, supra, 61 Cal.2d 164, 170; People v. Hamilton, supra, 60 Cal.2d 105, 137.)

The judgment is reversed insofar as it relates to penalty. In all other respects, it is affirmed.

Tobriner, J., Sullivan, J., and White, J.,

† concurred.

1 In Massiah v. United States, supra, the court was careful to point out the distinction between the legality of secret surveillance and questioning of an indicted defendant and the unconstitutionality of the use of evidence so obtained against him. “We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted. All that we hold is that the defendant’s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial. ’ ’ (377 U.S. at p. 207, 12 L.Ed.2d at p. 251.)

2 Even though the questioning by the trial court elicited facts that may have impeached the credibility of the witness, it did not intimate that the court doubted his credibility or convey any impression to the jury as to the attitude of the court on any issue in the case. (See People v. Szafcsur (1911) 161 Cal. 636, 640 [119 P. 1083] ; People v. Soeder (1906) 150 Cal. 12, 18-19 [87 P. 1016].)

3 Defendant contends that in its instructions on the law of accomplice responsibility the trial court in effect directed the jury to find him guilty. The court instructed that if anyone had committed the crimes charged, then Hanks, as a matter of law, was an accomplice. Because the jury already knew that Hanks had been convicted for his part in the crimes, defendant argues, the jury could only conclude that he was defendant’s accomplice. The instruction, however, like the revelation of Hanks’ conviction, in no way connected defendant with Hanks.

4 Pen. Code, § 1111, was enacted in 1872. The penalty trial procedure, provided by Pen. Code, § 190.1, was not established until 1957.

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