THE PEOPLE, Plaintiff and Respondent, v. OTIS RONALD COLEMAN, Defendant and Appellant; In re OTIS RONALD COLEMAN on Habeas Corpus
Crim. No. 12369, Crim. No. 13437
In Bank
Oct. 3, 1969
1159
Thomas C. Lynch, Attorney General, Robert R. Granucci, John T. Murphy and Horace Wheatley, Deputy Attorneys General, for Plaintiff and Respondent.
TRAYNOR, C. J.—A jury found defendant guilty of the first degree murder of Vincent Sulezich and fixed the penalty at death. The trial court denied a motion for a new trial or to reduce the penalty to life imprisonment and entered judgment on the verdict. This appeal is automatic. (
Vincent Sulezich operated a cocktail bar in Newark, California. He borrowed money every week from a bank to cash paychecks of his customers, and it was “common gossip” that he carried large amounts of money on his person. He was fatally shot and robbed when he returned to his home in Oakland after work about 3:30 a.m. on Sunday, November 20, 1966. A witness who was in a nearby apartment heard the gunshots, went to the window, and saw two persons run to a car in the street and drive off.
In February 1967, more than two months after the crime was committed, James Stevenson went to the Oakland police station and confessed to being one of the participants. He named defendant as the other. He pleaded guilty to first degree murder and was sentenced to prison for life. Thereafter he testified against defendant at defendant‘s trial.
Stevenson testified that he had known defendant for from six to eight weeks before the crime was committed and that he had been with him many times in bars in the Newark area. They discussed the gossip that Mr. Sulezich carried large sums of money and developed a plan to rob him when he returned home from work. Their first attempt failed, and they returned the next night when the crime was committed. They went in Stevenson‘s car.
Stevenson testified that he did not have a weapon and did not know that defendant had a gun until they parked near the Sulezich home to wait for Mr. Sulezich to return. When
Stevenson testified that he and defendant returned to defendant‘s home where they divided the loot, about $1,100. En route defendant had thrown away the gun, a gun clip, bullets, and a wallet. They stayed at defendant‘s home for about two hours, and defendant took a shower and changed his clothes because the clothes he had been wearing were bloody. They then drove to Niles Canyon and threw the bloody clothes in a creek. About 7 a.m. they went to a bar in Newark. Stevenson and his wife both testified that later in the morning Stevenson‘s wife, who had been looking for him to tell him he could not come home, came to the bar and confronted Stevenson. Defendant said to her, “now Brenda, don‘t be mad at Jim. He hasn‘t done anything wrong. He‘s been with me all night.”
Later in the day Stevenson drove defendant to San Jose and thereafter to the San Francisco airport. Defendant flew to Baltimore and then went to Virginia where he stayed in various places until his arrest in February. There was evidence that he had several hundred dollars while he was in Virginia.
Police officers found the gun where Stevenson told them defendant had abandoned it. There was ballistic evidence that the bullets found at the scene of the crime had been fired from that gun. There was also evidence that defendant bought the gun and had it in his possession before the crime was committed.
Defendant testified in his own defense. He denied participating with Stevenson in any way in planning or committing the robbery and murder. He testified that he sold his gun to Stevenson about a week before the crime was committed, and that he saw it in the glove compartment of Stevenson‘s car a few days earlier.
Defendant testified that on Saturday evening he was with Stevenson, another friend, and his brother-in-law at a bar in Newark. About midnight defendant, his brother-in-law, and Stevenson went to another bar where defendant and his brother-in-law had a drink. Stevenson stayed outside and met a friend whose name defendant did not remember. Defendant‘s brother-in-law took him home shortly before 1 a.m., and defendant stayed at home the rest of the night and did not see Stevenson again until the next morning. Stevenson arrived around 6 or 7 a.m. and took defendant to the bar where later in the morning defendant sought to placate Stevenson‘s wife by telling her that he had been with Stevenson all night. Thereafter Stevenson drove defendant to San Jose and then to the airport and lent him money for plane fare and the trip to Virginia. Defendant and a defense witness testified that defendant won by gambling the several hundred dollars that he had in Virginia.
Defendant contends that it was prejudicial error to admit into evidence a hearsay statement of witness Hood that defendant had approached Hood in jail and asked him to secure Stevenson‘s signature on a piece of paper so that defendant could fabricate a sales slip for the murder weapon. We agree with this contention.
Defendant testified that when he sold the murder weapon to Stevenson about a week before the crime was committed, he did not request or receive a receipt for the sale. On cross-examination he denied that he ever attempted to procure Stevenson‘s signature for the purpose of making a false receipt as evidence of the alleged sale of the gun. In rebuttal the prosecution called Hood, who had been an inmate in the same jail with defendant and Stevenson before defendant‘s trial.
Inspector Hughes was then called and testified over objection to a conversation that he had with Hood in which Hood stated that defendant had asked Hood to secure Stevenson‘s signature on a piece of paper that could be used to create a false sales slip for the gun to be predated before the Sulezich murder.
Since Hood‘s prior statement was used to prove the truth of the matter therein asserted, defendant‘s constitutional right to confront the witness against him was violated. (
It must also be noted that the error was not limited to the failure to restrict the jury‘s consideration of Hood‘s statement to impeachment of Hood‘s testimony. That statement was not admissible at all, for its probative value to impeach Hood‘s testimony was obviously “substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice.” (
The error in permitting the jury to consider Hood‘s statement as evidence of the truth of the matters contained therein was a violation of defendant‘s constitutional rights and compels reversal, for we are not convinced beyond a reasonable doubt that the error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824]; People v. Odom, supra, 71 Cal.2d 709, 717.)
The jury was confronted with a direct conflict between Stevenson‘s testimony and defendant‘s testimony as to defendant‘s participation in the crime, and it is impossible to determine how the jury would have resolved that conflict had it not had before it inadmissible hearsay evidence that defendant attempted to fabricate a false sales slip to dissociate himself from the murder weapon. Not only did the erroneously admitted evidence strike at a key element in defendant‘s case, it could well have been devastating to defendant‘s credibility. It is therefore reasonably possible that it contributed to the result. (Chapman v. California, supra, 386 U.S. 18, 24; Fahy v. Connecticut (1963) 375 U.S. 85, 86-87 [11 L.Ed.2d 171, 172-173, 84 S.Ct. 229]; see also Harrington v. California (1969) 395 U.S. 250, 254 [23 L.Ed.2d 284, 287-288, 89 S.Ct. 1726, 1728].)
We now turn to contentions that may arise on retrial.
Defendant contends that it was error to admit evidence that Stevenson had made statements to his father and wife that were consistent with his testimony at the trial. These statements were made before Stevenson turned himself in to the police. They were admitted in evidence in rebuttal after Stevenson had testified on cross-examination that he turned himself in, pleaded guilty, and received a life sentence and after defendant had testified that he had not been with Stevenson at the time of the crime and characterized Stevenson‘s testimony implicating defendant as lies. Over objection, the trial court admitted the statements under
Although defendant made no charge of recent fabrication or bias and no express charge of other improper motive, we agree with the Attorney General‘s contention that defendant‘s testimony that Stevenson was lying was an implied charge that Stevenson had confessed to a lesser role in the crime and named defendant as the killer for the improper motive of falsely placing the major blame on defendant so that Stevenson might not receive the death penalty. To establish the admissibility of the prior consistent statements under subdivision (b) of
Before the enactment of the Evidence Code it was misconduct for the prosecuting attorney to comment on the failure of a defendant‘s spouse to testify for the defendant. (People v. Wilkes (1955) 44 Cal.2d 679, 687 [284 P.2d 481], and cases cited.) At that time, however, neither spouse could testify for or against the other without the consent of both. (
Defendant contends that at the trial on the issue of penalty, the trial court erred in refusing to allow the pastor of the church defendant attended while he was a teenager to testify as to his opinion of defendant‘s potential for rehabilitation. Although the pastor of the defendant‘s church will frequently be qualified to give an opinion with respect to the defendant‘s potential for rehabilitation, it is for the trial court to determine whether in a particular case, the pastor‘s opportunities to know and observe the defendant were sufficient to provide a basis for a meaningful opinion. In the present case, defendant had not been a member of the witness’ congregation for over ten years before the trial. Accordingly, the trial court did not abuse its discretion in refusing to allow the witness to state his opinion. (See People v. Davis (1965) 62 Cal.2d 791, 801 [44 Cal.Rptr. 454, 402 P.2d 142].)
Defendant contends that at the trial on the issue of penalty, the prosecuting attorney committed misconduct by arguing that defendant‘s refusal to admit his guilt demonstrated his lack of remorse. The prosecuting attorney stated: “There he sits. A murderer. A robber-murderer. Remorse? Where is the remorse? . . . A man who, to this very day, will not get on that stand and admit what he has done. . . . You are dealing with a cunning individual, a man who refuses, up to this very minute I am talking to you now, to admit his guilt; . . . a care-less individual.”
The jury may properly consider the defendant‘s remorse or lack thereof in fixing the penalty. Evidence on that issue is therefore admissible, and counsel may comment thereon. (People v. Talbot (1966) 64 Cal.2d 691, 712 [51 Cal.Rptr. 417, 414 P.2d 633].) It does not follow, however, that every inference bearing on the question of remorse may be urged upon the jury by counsel. It is fundamentally unfair to urge, as was done here, that a defendant‘s failure to confess his guilt after he has been found guilty demonstrates his lack of remorse and that therefore such failure should be considered as a ground for imposing the death penalty. Even after he has been found guilty, a defendant is under no obligation to confess, and he has a right to urge his possible innocence to the jury as a factor in mitigation of penalty. (People v. Terry (1964) 61 Cal.2d 137, 145-147 [37 Cal.Rptr. 605, 390 P.2d 381].) A defendant would be placed in an intolerable dilemma if his failure to confess following conviction could be urged at the trial on the issue of penalty as evidence of lack of remorse. To silence such argument, a defendant who had denied his guilt at the trial on the issue of guilt would have to admit or commit perjury at the trial on the issue of penalty, and he could do neither without in effect forfeiting his right to urge the trial court on motion for new trial to reweigh the evidence on the issue
By petition for a writ of habeas corpus filed while this appeal was pending, defendant contends that it was error to admit evidence that he had been convicted of burglary in Virginia, on the ground that he was denied effective representation of counsel in the Virginia proceedings. Since defendant did not challenge the validity of his prior conviction at the trial, there is nothing in the record on appeal to support defendant‘s contention. We issued an order to show cause in the habeas corpus proceeding, however, so that we could determine, if necessary, whether the evidence of the prior conviction vitiated the judgment before us on the automatic appeal. Since the judgment must be reversed on other grounds, the validity of the prior conviction can be determined on retrial in accord with the procedure set forth in People v. Coffey (1967) 67 Cal.2d 204, 217-218 [60 Cal.Rptr. 457, 430 P.2d 15]. Accordingly, our order to show cause will be discharged.
The judgment in Crim. No. 12369 is reversed.
The order to show cause in Crim. No. 13437 is discharged, and the petition for a writ of habeas corpus is denied.
Peters, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
MCCOMB, J.—I dissent from that part of the opinion that reverses the judgment in Crim. No. 12369, and would affirm the judgment.
I concur with that part of the opinion discharging the order to show cause in Crim. No. 13437 and denying the petition for a writ of habeas corpus.