*1 Feb. No. 9205. Bank. 1966.] [Crim. PEOPLE, Respondent, THE Plaintiff and v. CLEVELAND Appellant. BROOKS,
LEE Defendant *2 Thissell, appointment by Charles W. under Supreme Appellant. Court, for Defendant and Lynch, Attorney General, Thomas C. Albert Harris, Jr., W. Attorney General, Assistant Robert Granucci, R. Paul N. Kraetzer, Deputy F. Attorneys
Halvonik General, John Respondent. for Plaintiff PETERS, J. jury trial, After a defendant Cleveland Lee guilty found Brooks was a violation Penal Code section (assault great likely produce bodily means force injury rape). appealed with intent to commit has from He judgment. ensuing jury also found codefendant Davis, represented by separate Frederick James who was *3 violating counsel, guilty of the lesser and included offense of (assault by likely Penal Code section produce means of to force great bodily harm). appealed. Davis has not appeal: (1) preju- Two issues are raised on whether it was dicial error for the trial court to admit into evidence the following by defendant statements made arrest, to the process (2) whether defendant was denied due and by law as a result of certain statements made his counsel argument jury. her final complaining may testimony of the witness be sum 7, 1963, on marized as At about 4:30 a.m. December follows: leaving apartment of a friend to return to her as she was apartment building, her in the same she heard name own apartment by in the house and defendant, called who lived known for about two months. Defendant and whom she had sitting know, Davis, whom did not were Davis’ automo she apartment parking project lot of the and were bile drinking “slightly Upon the whiskey. She was intoxicated.” men, the car and drank of one of the she entered invitation whiskey. defendant nor Davis was intoxicated. Neither some go the two men. agreed for a ride to the beach with to She beach, parking area above the she they arrived at a After out into the water. and waded to beach walked down to come out of the her had followed Davis, who her, urged clothed, attempted pull he, fully to refused, and She water. struggle During she fell into the the beach. onto her back water, wig. they were out Once her lost water and brought her back to the car. defendant, by aided Davis, now defendant state that they car she reached the heard Before they When with her. intercourse have sexual to intended from into the front seat pushed her car defendant reached the pulling in from the by her aided Davis passenger side. passenger side of to around and then came driver’s side again he was' legs. Defendant stated held her car and ’’ ‘‘egged on and was her with intercourse going have sexual hit struggling, defendant stop her effort to In an by Davis. Davis time the same her. choked face and about At her began refusal, defendant leg. her continued On her twisted the car dashboard lighter from the cigarette using the her, burn thigh her times, burned five or six once on each and three or four times on the neck. She screamed con while tinuing to Finally, resist. when she indicated that she was sick, prevailed upon about to become Davis defendant pushed release her. While defendant her out of the car he pulled wedding engagement ring her band and from her finger. leaving off, Davis then drove her guard Shortly thereafter, park roadside. a uniformed found nearby telephone and took her to a make house to call. cab, She police, returned home her husband called the Emergency and an took officer her to the San Francisco Hos pital where she arrived at a.m. about 10:45 Wiley Billingsley,
Dr. who examined the wit- emergency ness at hospital, testified that the most serious injuries cigarette sustained the burns from the her were *4 lighter, degree except which that all burns one were second degree, severity was third of the burns indicated that the lighter “applied straight with a fair the had on . . been . ’’ force, opinion, the burns could not that, amount and in his Billingsley also accidentally have been in Dr. a scuffle. caused on her testified that he found fresh contusions and abrasions bleeding from face, mouth, lips, forehead, and there was the witness lips, and at around 11 when he saw a.m. to opinion from one he was of the that her wounds were two hours old.
In Inspector an interview with John Mino of the sex crime Department detail the San Francisco Police on the same day on injuries, complaining which she sustained her witness identified and Davis as her assailants. The police immediately teletype commenced search and issued a for their teletype arrest. As a result of this defendant was in Investigation arrested Detroit Federal Bureau of placed and in custody Wayne County in Jail Michigan. Detroit, Inspector February 9, 1964, On Inspector George Mino and Murray, also of the San Francisco Department, Police arrived County Wayne bring at the Sheriff’s Office to defendant back police to the two California. While officers were at the sheriff 's they office took statements from defendant which were re corded and subsequently which were admitted into evidence played trial jury. and before the complaining these statements defendant asserted that the being witness came car to the without called either him or go suggesting go Davis and asked ride, they to for a beach, arriving that after the beach and she Davis went that, help, down to water, when he heard shout for Davis helped bring he went down to the water and Davis her back car, car, got to and that once all three in the front According statement, seat. to defendant’s recorded the com- plaining angry wig witness then became about the loss of her lighter attempted cigarette him and to burn with the hot and get lighter; he and Davis wrestled with her to after recov- ering get lighter, her car, Davis asked to out of the leaving he and Davis drove off her Defendant denied there. taking rings burning her from her or Defendant’s re- her. damaging when corded statement included the admission that looking for him San came at his mother’s house escaped through indi- he a rear window. He then Francisco juries always believe that he fled because he believed cated complaining rape and that he did not want witnesses cases go jail, and also because he knew that gun might boyfriend shoot him. witness’ had a number of testimony at trial differed Defendant’s police. respects At trial stated from his statements that, car, complaining witness over to the that he did call the water, they car from the beach, after returned to the at the seat, com got back, front and that not the Davis him and asked advances to plaining witness made sexual replied body was worth When he $10. if he think did body him she *5 $10 her was worth to he did not think that cigarette lighter. making gestures him with the hot began at cigarette lighter hot took the testified that he Defendant also attempting wrestling He denied ever with her. after from her stating an intention her or. ever relations with have sexual to beating her, she was burned with denied that denied so, do to seeing on her lighter presence, burns cigarette in his denied seeing hearing scream, blood on her and denied body, denied Defendant left her at beach. and Davis he her face when the that witness’ statements the contradicted also group voluntarily the reached the kiss before did not she of the car and forced her out and Davis and that he beach addition, In on the stand defend her home. drive refused was that lie he went to Detroit the reason that ant denied looking that for him and denied police the were that knew flight departure. Pie stated in his any element there was get “to sister Detroit was . . . went to [his] reason he that the . " for Christmas testimony of trial disparity between the is also some There gave which she and the information complaining witness 135 police day principal on to the events occurred. In her police defendant, she said that it was statement Davis, trial, accompanied as she testified who her into struggled there; the water and who with her denied she any liquor that she drank with defendant also and Davis. She park guard coming by pick that rather than a testified her up, persons two in an found her and took her to automobile gave telephone. respects story most other she police testimony. However, was consistent with her trial in testimony cross-examination, on she admitted that she had morning been to beach earlier on of December 7th with another man. She did not mention this on direct incident police. examination; nor did told the she reveal it to the She apartment friend that she had been at of a from midnight until the time she met defendants. story Davis, extrajudi- told codefendant both in his respects testimony, statement differed some
cial prosecuting from that of and of defendant. Since witness appealed testimony has not such is not here relevant. completed The trial was before the decision of the Supreme Illinois, United States Court Escobedo v. 1758, 977], reason, S.Ct. 12 L.Ed.2d For defend [84 raising from admissibility extraju ant is not barred of his object dicial declarations his failure trial. Nor does generally the fact that such exculpatory declarations were preclude raising him from admissibility. (People nature their Hillery, 692, 711, Cal.Rptr. 382].) P.2d investigation There can be no doubt here general inquiry not a into an crime, unsolved but had begun to focus on From defendant. the moment the com plaining witness him and identified a warrant issued for his arrest, process accusatory. became Stewart, Cal.Rptr. 62 Cal.2d 577-578 97].) 400 P.2d It equally purpose is clear Wayne interview in the *6 County Office, purpose Sheriff’s the recording and that interview, could have been to obtain information later against to be used the defendant at trial. An of the total situation in examination which the inter place rogation purpose took reveals that the questioning the incriminating in accusatory was to elicit statements an set Stewart, supra, p. ting. (People 579.) v. at Defendant had by positively witness;
been identified 's questioning place took in a sheriff office where defendant had following questioning custody arrest; been in con was by experienced police inspectors ducted two who had traveled long conducting recording purpose for distance and interrogation bringing and of defendant bach to Cali ; questioned alternatively by fornia defendant was each officer sought questions an admission of com their to obtain charged; from plicity finally, in the aside defendant crime person police officers, only other San Francisco the two Mayberry during interrogation a Detective present was Wayne County of the Sheriff’s Office. was informed not disclose that defendant The record does right any right remain silent at to or of his to of his counsel during Inspector Mino did questioning. prior to or
time
advised, nor does the tran
testify
so
that defendant was
not
script
recorded interview so
indicate.
In the
appellate
presume
court
record an
cannot
of a silent
face
rights
of his
to
police informed
defendant
remain
silent
Stewart, supra,
v.
581;
counsel.
and to
Cochran,
Carnley
S.Ct.
8 L.Ed.2d
see
compelled
assume, therefore,
are
to
70].) We
defendant
rights.
is, therefore,
This case
apprised of these
within
not
People Dorado,
But even
defendant had
to an
making
statements,
the recorded
it need not affect the admis
sibility
prose
The burden is
statements.
on the
cution to show that a defendant was either informed of his
rights
remain
to counsel and to
silent or otherwise waived
Roberts,
84,
Cal.Rptr.
them.
155,
v.
63 Cal.2d
90 [45
People
;
Stewart, supra,
571,
v.
403 P.2d
62 Cal.2d
411]
581; People Lilliock,
Cal.Rptr. 699,
618,
v.
[43
People Hillery, supra,
v.
;
712;
401 P.2d
62 Cal.2d
cf.
4]
Underwood,
People
Cal.Rptr.
v.
61 Cal.2d
People Modesto,
39 P.2d
We stated that is immaterial that defendant was attorney with his several hours earlier and was to consult talk to the if he wished. . . . Es advised that he could attorney cobedo had also discussed with his what he should interrogation, but in this case as do case of Esco case, that defendant bedo there is no evidence was advised as continuing or could do face to what interrogation should place. (Escobedo Illinois, that took ” (Id. p. 446.) 478, 485, .) fn. 5. .. going I I Mm I didn’t know what was didn’t all? A. told know on, notMng. I told him? all told him. “Q. ‘ ‘ That’s all A. That’s you ; Attorney] No further questions. District [Deputy ‘ ‘ him tell what had ? Court Why you : didn’t happened mean what had on that day? Witness: happened Well, “The You I down and asked me what had told happened,
X sat down—he sat nothing getting it., I know about and he didn’t burned, rings. bringing started conversation about up Anything further Court: of this witness? “The ’ ’ ‘ ‘ Honor. your : Attorney] No, District [Deputy *8 138 guiding deprived of the case, was defendant In the instant development of the stage in the a critical of counsel at
hand is show, nor record does against The case him. show, defendant that allegation which and evidence there an understandingly re intelligently and but counsel was offered (Carnley v. Anything is not waiver. less jected offer. the supra, Stewart, People supra, 506, 516; v. Cochran, 571, 581.) Cal.2d ex of defendant’s into evidence introduction First, clearly prejudicial. there was trajudicial statement was by prose presented sharp the evidence conflict between extraju from defendant’s defense. Aside cution principally prosecution relied on the statement, dicial testimony testimony, Much of her complaining witness. prosecution on the impeached. The also relied however, was testimony was also con testimony of the doctor. But this conceded that the defense with innocence since sistent complaining cigarette light had been burned with a witness suggesting it, er, had done instead but denied that defendant Moreover, responsible. was that her common-law husband or doctor that her wounds were one two statement support he 11 a.m. tended to hours old when examined prosecution’s against theory. short, defense case overwhelming. was means no guilt though defendant denied his state Secondly, even inculpatory statement was police, the ment to fleeing the state because he knew the admitted he that extent might otherwise be looking for and that police were flight supports an inference of Evidence jailed. guilt and constitutes an admission. implied consciousness ; People Davis, P.2d v. 48 Cal.2d v. [309 1] People ; Hoyt, P.2d Santo, 319, 327 249] 43 Cal.2d ; People Murguia, P.2d 6 Cal.2d 29] 115].) P.2d 192 [57 testimony Thirdly, at trial in his defendant contra police that De he fled to his earlier statement to dicted testimony escape arrest. Thus he went troit to impeached by subsequent was his sister Detroit see of the recorded statement he fled because he introduction looking argument, for In her him. final were knew attorney heavily emphasized discrepancy prosecuting this extrajudicial alleged the likelihood statement exculpatory testimony and the at trial was accurate a fabri incriminating trial testimony cation. Defendant’s less
139 substantially less than it could have thus rendered effective if had been excluded. As we been the recorded statements People Underwood, supra, 113, 61 “A noted in v. although form,
prior statement, exculpating may prove highly incriminating because, upon showing at trial a falsity, its it can constitute evidence of consciousness of guilt. (See (3d Wigmore, 1940) 821, pp. 3 241- Evidence ed. § 242.)” (Id. p. 121.) (See People Roberts, supra, v. also 84, 91-92.) 63 Cal.2d extrajudicial admitting defendant’s state The error Watson, 818, People v. 46 Cal.2d prejudicial under ment was “reasonably probable” 243], for is that had P.2d it 836 [299 excluded, a result more police been to the
the statement Obviously, have been reached. would favorable to Fahy prejudicial under the rule of v. therefore, the error -was 229, 85, 11 S.Ct. L.Ed.2d Connecticut, 86-87 [84 a “whether there is rea 171], requires us to ask which complained might possibility that the evidence sonable (Italics added.) the conviction.” Since contributed to have appears to have the error resulted a standard under either justice (Cal. Const., VI, § 4½; People miscarriage of art. v. Cal.Rptr. 454, 402
Davis, 791, 796-797 P.2d 62 Cal.2d [44 be reversal of the conviction and a new 142]), there must trial. ground unnecessary it
A makes to discuss reversal on this length contention that he was defendant’s additional employed by process because of the tactics denied due argument jury. to the have read counsel in her final We arguments jury. record, including Certainly, not disclose that defendant was denied the effec record does it aid of counsel. discloses is that tive What counsel argued, awkwardly, probably even somewhat if her believed, stand, client was not to be and had lied on the had also not lied was to be witness believed. urging, was merit, despite Counsel with some the inade quacies defense, prosecution had not sustained its proof. burden of This did not reduce trial to a “farce or sham,” the test used to determine whether counsel’s representation (People Wein, v. ineffective. 50 Cal.2d 383, ; People 410 Robillard, P.2d 88, v. 55 Cal.2d [326 457] 96- Cal.Rptr. 167, 295, 98 358 P.2d 1086], 83 A.L.R.2d [10 cert. den. 365 1043, U.S. S.Ct. L.Ed.2d ; People [81 199] Hughes, Cal.Rptr. 57 Cal.2d 617, 367 ; P.2d 33] Cal.Rptr. 863, Ibarra, 460, 464 386 P.2d 60 Cal.2d
People v. in 74 A.L.R.2d generally, cases collected ; see 4 87] (1947) 115, 117.) Colum.L.Rev. on cases commented ; 1399 and trial, defendant’s counsel is best able to of a In the heat light jury’s apparent proper tactics determine appellate Except an proceedings. rare cases reaction to the second-guess (United attempt trial counsel. court should (1920) Stoecker, 52; People v. Martin 216 F.2d States *10 193].) N.W. 210 Mich. reversed. judgment Brooks is as to defendant The Peek, J., concurred. Tobriner, J., and Traynor, J.,C. MOSK, J. -I dissent. prosecutrix. discrepancies stories
There were of defendants. discrepancies in the several stories There were verdict, which is cacophony jury arrived at a of this Out of the truth as can be to ascertainment probably as close considering participants, all the conduct expected character. apparently of dubious in admission of defendant’s majority finds error The attempt extrajudicial I find have been an it to statement. majority “reason- exculpation, not a finds it confession. Watson, ably probable” 836 [299 a result more favorable to defendant 243]) that would P.2d statement, reasonably pos- absent the and have been reached that,the (Fahy evidence contributed to conviction sible Connecticut, 86-87 S.Ct. U.S. L.Ed.2d possible probable nor 171].) I find it neither that the result if have been different had been would statement excluded of all evidence. view adversary trial, foregoing Like the proceedings at majority conflicts between conclusions of the I those essentially being miscarriage reach are factual. There no justice, justification no exists for court this to substitute its concept of evidence for jury. the trial (Cal. VI, 4½.) Const., art. § judgment. I would affirm
McComb,J., Burke, J., concurred.