THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL JACK BUCHANAN, Defendant and Appellant.
Crim. No. 9014
In Bank.
Jan. 25, 1966.
880
The court did not err in ordering that the attorneys have a lien on the estate assets to secure payment of their fees. Their contract with Aviles specifically gives them a lien on his claim to the estate or any “sum recovered by way of settlement.” No impropriety is shown. (See Gostin v. State Farm Ins. Co. (1964) 224 Cal.App.2d 319, 323-325 [2-10] [36 Cal.Rptr. 596]; Estate of Cazaurang (1946) supra, 75 Cal. App.2d 217, 219.)
The order appealed from is affirmed.
Traynor, C. J., McComb, J., Peters J., Tobriner, J., Peek, J., and Mosk, J., concurred.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and S. Clark Moore, Deputy Attorney General, for Plaintiff and Respondent.
PETERS, J. — Nathaniel Jack Buchanan, McKinley Williams and Steve Williams were charged with the murder of Leon Coleman. At a joint trial the jury found Buchanan and McKinley Williams guilty of murder in the second degree. (
The facts are as follows: On Saturday night, December 9, 1961, appellant and his two codefendants went to a dance given by a teenage social group at the Warehousemen‘s Union Hall in Los Angeles. They were accompanied by two girls, Ruth Locke and Jeri Lee Bradford. Leon Coleman was the night manager of the hall.
Coleman admitted the two girls to the dance free of charge. The dance was held on the second floor of the building. Shortly thereafter, when the girls came downstairs, Coleman invited them into his office, made improper advances, and implied that he would pay them for sexual favors. The girls rejected these suggestions. As Coleman and Jeri were leaving the office, he grabbed her around the waist. Appellant, who was standing with McKinley and Steve in the parking lot adjacent to the hall, saw this and knocked Coleman down with a slap. Someone else then hit Coleman on the head with a hammer. While Coleman was down, several boys jumped on him and began fighting.
Shortly after midnight, Officer Battles of the Los Angeles Police Department was called to the hall. He found Coleman unconscious with blood about the nose, ear, and chin area and a small hole surrounded by powder burns in the chest. There was no money in Coleman‘s pockets. A search of the area revealed no weapon, but a spent cartridge was found four feet from the body. Coleman died shortly thereafter. The cause of death was the gunshot wound in his chest.
The foregoing was the only evidence that was admitted against appellant, except for a statement he gave to the
In the statement in question appellant declared that on the night of the killing he was in the parking lot adjacent to the hall when he saw Steve Williams walk across the lot. He asked Steve what was happening. Steve replied, “Jerry‘s [sic] over there talking to some man. Then McKinley got out of the car and came over to where me and Steve were and said he had to make him some money to pay his car note. I told him, ‘Not here,’ and he said he was going to pull his car around the corner. He pulled his car around the corner and Steve walked back to the car lot. . . . I walked up to the back entrance by the bathroom ready to go back inside and the man was pulling on Jerry trying to get her to go into some room back there. And I slapped the man and he fell down. When he fell down Steve came from around the corner — somewhere back there — and hit him with a hammer. McKinley came up from somewhere and got to hollering, ‘Get the money.’ I reached in the man‘s pocket and took $16 out. Then the man was getting jumped on by 15 or 16 more little boys. I guess they were trying to help. I guess they thought the man was trying to mess with Jerry. Then I heard a shot and I jumped up and said, ‘Who shot him, what you shoot him for?’ McKinley said, ‘He pulled on the gun.’ I said, ‘You are a damn fool, you ride your own beef.’ I jumped up and ran around to the front of the building and McKinley pulled through the lot again and told me to come on and let‘s get out of here. And McKinley and Steve were in the car. We went to his house.”
Because McKinley was afraid of being caught with the gun, he gave it to appellant to keep. With respect to the $16 taken from Coleman, appellant said that he gave $11 to McKinley and kept $5.
At trial appellant objected to the admission of his statement into evidence on the ground that it was coerced. After hearing extensive and conflicting testimony on that issue, the trial court admitted the statement and gave the jurors proper
Although appellant‘s statement was not a confession, and so was not prejudicial per se (People v. Dorado, supra, 62 Cal.2d 338, 356), its introduction in this case, if erroneous, was clearly prejudicial either under the test announced in People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243], or the one announced in Fahy v. Connecticut (1963) 375 U.S. 85, 86-87 [84 S.Ct. 229, 11 L.Ed. 2d 171]. Its introduction, therefore, if erroneous, requires a reversal (People v. Hillery, 62 Cal.2d 692, 712 [44 Cal.Rptr. 30, 401 P.2d 382]).
The facts in reference to the statement are as follows: Appellant was arrested early on December 10th, the morning after the killing. Officer Griffin of the Los Angeles Police Department testified that he “interviewed” appellant on Monday at noon. Griffin said he indicated to appellant that the police knew something about the shooting and told appellant that he wanted to hear his side of the story. He also asked appellant whether he had the gun. Appellant refused
After the questioning on Tuesday evening, Griffin ordered appellant released because of lack of evidence. On Wednesday evening, after Griffin had spoken with McKinley and Jeri, appellant was rearrested. During an interrogation on Thursday morning, Griffin told appellant that the police knew what happened at the dance and that their investigation revealed that appellant was implicated more deeply in the crime than he had admitted. Within 10 to 20 minutes appellant gave the statement quoted above. This statement was tape recorded and also written out by a stenographer and signed by appellant. It was introduced into evidence.
Although appellant did not take the stand as part of the defense on the merits, he testified on voir dire that he told Griffin that he wanted to see a lawyer during the Monday interview, at the interview on Tuesday afternoon, and on Wednesday evening as he was being led into the police station; that Griffin refused to let him contact a lawyer and became hostile whenever appellant broached the subject; and that at the Monday and Tuesday interviews and again at the Thursday interrogation, prior to making his statement, he told Griffin that he did not want to talk. He made the statement, so he claimed, because of threats.
It is clear that the accusatory stage had been reached when the statement was secured. As appellant was under arrest, he was “in custody” and the investigation had “begun to focus” on him. (People v. Stewart, 62 Cal.2d 571, 577 [43 Cal.Rptr. 201, 400 P.2d 97].) Looking at “the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances” (id. at p. 579), it is clear that the statement was the product of a “process of interrogations that lends itself to eliciting incriminating statements.” (Escobedo v. Illinois, supra, 378 U.S. 478 at p. 491.) Appellant had been taken to an interrogation room in the police
There is no evidence that these constitutional rights were waived. The testimony of both Griffin and appellant indicates that, during at least one of the interviews of Monday and Tuesday, appellant requested counsel (although he could not have known that he had a right to counsel at that time, before Escobedo was decided). Appellant testified that he also asked for counsel after his rearrest before he made his statement, and Griffin‘s testimony does not show the contrary. If, on retrial, appellant is believed on this matter, the case comes squarely within Escobedo, the only difference being that defendant here apparently did not have retained counsel at the time he made the request, whereas Escobedo did. We have held that this is not a meaningful distinction. (People v. Dorado, supra, 62 Cal.2d 338, 347.)
Even if it is not believed on retrial that appellant made a request for counsel after his rearrest, the record does not contain any other evidence on the waiver issue. As the United States Supreme Court has stated, “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” (Carnley v. Cochran, 369 U.S. 506, 516 [82 S.Ct. 884, 8 L.Ed.2d 70].) The fact that appellant had asked for counsel and chose not to make any statement during Monday and Tuesday sessions but may not have asserted these rights during the Thursday interrogation does not show that he knew his rights but decided to forgo them when he made his statement. Although during the earlier sessions he may have thought that he had a right to counsel (even though that right in state proceedings had not then been established), Officer Griffin‘s admitted refusals to permit him to obtain counsel might well have convinced defendant that he was wrong in this belief, or that continued assertions of his rights would prove futile. In these circumstances, to draw the conclusion that appellant (1) knew of his right to counsel and to
It is obvious that, since the gun was secured by the police as a result of the statement obtained in violation of the rule of People v. Dorado, supra, 62 Cal.2d 338, it too should have been excluded as the “poisonous fruit” of the illegal statement. (Cf. People v. Bilderbach, 62 Cal.2d 757, 767-768 [44 Cal.Rptr. 313, 401 P.2d 921]; People v. Ditson, 57 Cal.2d 415, 439 [20 Cal.Rptr. 165, 369 P.2d 714]; Wong Sun v. United States, 371 U.S. 471, 485 [83 S.Ct. 407, 9 L.Ed.2d 441]; Nardone v. United States, 308 U.S. 338, 340-341 [60 S.Ct. 266, 84 L.Ed. 307].) This conclusion inevitably follows from the rule established in Dorado.2
The trial court, in its instructions, and the district attorney, in his final argument, commented upon defendant‘s failure to take the stand. This was error. (Griffin v. California, 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106].) How-ever, because we reverse appellant‘s conviction under the
The judgment is reversed and the cause remanded for a new trial.
Traynor, C. J., Tobriner, J., and Peek, J., concurred.
MOSK, J.—I dissent.
It is abundantly demonstrated in the evidence that the defendant knew of his right to counsel and of his right to remain silent. He asked for an attorney on several occasions on December 11 and December 12, and he did in fact remain silent. No statement whatever was given to police officers during that period, and as a result the defendant was released. Thereafter, in accordance with technique approved by the courts, the police continued their independent investigation, seeking evidence against the defendant but no longer from the defendant.
Through their extensive inquiry into events from sources other than the defendant, the police were able to reconstruct the circumstances of the crime, and thus rearrested the defendant on December 14. Within a few minutes he gave a statement which the majority concedes “was not a confession, and so was not prejudicial per se.” Actually it was an attempt at exculpation.
The majority suggests the defendant might have feared that “continued assertions of his rights would prove futile.” The converse is true, for he not only knew his rights—he had successfully asserted them before to the extent of winning his release. There is nothing in the record to indicate a sudden fear of futility when he gave the statement to Officer Griffin on December 14. There was clearly a waiver of rights. As pointed out in Escobedo v. Illinois, 378 U.S. 478, at 490 [84 S.Ct. 1758, 12 L.Ed.2d 977]: “The accused may, of course, intelligently and knowingly waive his privilege against self-incrimination and his right to counsel either at a pre-trial stage or at the trial. See Johnson v. Zerbst, 304 U.S. 458 [58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357].” This court, in the majority opinion in People v. Dorado, 62 Cal.2d 338, 352 [42 Cal.Rptr. 169, 398 P.2d 361], said: “In the absence of evidence that defendant already knew that he had a right to
In this case we do not have an absence of evidence of previous knowledge, as in Dorado. Quite the contrary, there is unmistakable evidence of defendant‘s knowledge, not from appraising the subjective but from his objective conduct. It has been held that determination whether there has been a waiver depends upon the particular facts and circumstances surrounding the case, including the conduct of the accused. (In re Johnson (1965) 62 Cal.2d 325, 335 [42 Cal.Rptr. 228, 398 P.2d 420]; In re Sheridan (1964) 230 Cal.App.2d 365, 369 [40 Cal.Rptr. 894].) The conversations of defendant with the police on December 11 and 12, according to his own testimony, demonstrate both his legal acumen and an intellectual capacity adequate for comprehending the nature and legal consequences of his acts. Under these circumstances it would be a superfluous exercise in ritual to require police officers to advise a defendant of his rights, of which he had indicated abundant knowledge and which he had, by conduct, waived.
Although other participants in the melee actually struck and shot the victim, this defendant anticipated participating in violence when he went to the dance with a hammer up his sleeve. The evening‘s denouement was a senseless and brutal murder.
There was no miscarriage of justice. The evidence amply supports the judgment, which should be affirmed. (
McComb, J., and Burke, J., concurred.