People v. FroggePeople v. Frogge
Appellant Progge, his wife, Sylvia, and appellant Tudor were each charged by a four-count information with kidnaping for the purpose of robbery, which resulted in bodily harm to the kidnaped persons, violation of Penal Code section 209; robbery of Ralph Smith; robbery of William Smith; and attempted murder of Ralph Smith.
On the morning of trial, Sylvia Progge pleaded guilty to the included offense of count one of the information, kidnaping for the purpose of robbery, without bodily harm to the victim; the remaining three counts were dismissed as to her. An amended information was then filed as to defendants Tudor and Progge, adding a charge of prior conviction оf a felony as to each. Upon being arraigned on the amended information, each pleaded not guilty as to count one, violation of Penal Code section 209, kidnaping for the purpose of robbery with bodily injury; not guilty as to count four, attempted murder of Ralph Smith; guilty as to counts two and three, robbery of Ralph Smith and William Smith; and each admitted suffering the alleged prior conviction of a felony.
Before trial, defendants moved for a change of venue upon the ground that pretrial publicity by newspaper, radio and television so inflamed the community that a fair trial in Kern County was impossible. The motion was denied. Defendants did not petition the appellate court for a writ of mandate, and they now urge that because of pretrial publicity they did not receive a fair trial.
The uncontradicted evidence reveals that the crimes were committed in the following manner: Defendants and Sylvia Progge entered the Ralph Smith home in Bakersfield on September 8, 1966, about 4 p.m. and the three held Mrs. Smith captive while they ransacked the home. The son, William Smith, came home shortly and he, too, was held captive. About 5:15 Ralph Smith, the husband and father, arrived and was accosted in the carport by Tudor who covered him with a gun and marched him into the house and into the kitchen, where Mrs. Smith and William were guarded by Progge,
Ralph Smith was forced, at gunpoint, to drive Frogge to Smith’s office, open the safe and remove the cash box, from which Frogge took approximately $450. They returned to the house, where Sylvia Frogge had been busy packing suitcases with household effects and other personal property of the Smiths. Tudor obtained some adhesive tape and told Frogge: “We will take them upstairs, tape them up, load the ear, and I’ll come back and do what has to be done.” At gunpoint, the Smith family was marched upstairs to a bedroom where Mrs. Smith and William were directed to stay on the side of the room nearest the entrance and Ralph Smith was ordered to the far side. Tudor, who was covering Smith with his gun, ordered him to remove his shoes and lie on his stomach on thе floor. As he leaned over to take off his shoes, Smith said to his son, “Billy, I’ve had enough. Let’s go.” He charged Tudor, who shot him when he was six or seven feet away and again from a distance of two or three feet.
Smith grabbed Tudor’s gun hand and hit him in the face, knocking the gun to the floor. He picked up the gun, chased Tudor and shot at him three times as Tudor ran from the room, down the stairs and disappeared around a corner. Smith ran back to the bedroom where Mrs. Smith and William were struggling with Frogge. William grabbed a pair of scissors and started toward Frogge, who shot him in the cheek, knocking William out of the room into the hallway. Smith told his family he could handle Frogge and for them to get some help.
William escaped through a bathroom window and went to the front of the house to seek help from passers-by. Ralph Smith continued to struggle with Frogge until his left thigh bone, which had been struck by one of the bullets, broke, and he collapsed. Frogge then attempted to shoot him, but his gun was either empty or would not fire, and he left the room. Mrs. Smith returned, locked the door, left her husband lying on the
Frogge then fled in Smith’s pickup truck, but-flipped it оver at a corner. The truck came to rest in a service station lot, where Frogge was pinned in the wreckage, still wearing Smith’s coat and in possession of other personal property belonging to the Smiths. Meanwhile Tudor, suffering from three bullet wounds, ran to a neighbor’s home and was driven to the hospital.
Ralph Smith was shot four times; one bullet entered the middle of his chest and lodged in his back, where it remained at the time of trial, one shot struck his right thigh and two hit his left thigh, one fracturing the bone. During the struggle, Frogge bit almost through one of Smith’s thumbs and inflicted a one-and-one-half-inch gash on the second finger of his right hand.
Defendants urge a number of points on appeal, but the principal grounds are that pretrial publicity prevented a fair trial and that the injuries inflicted upon the Smiths were not the kind contemplated by Penal Code section 209, which provides for increased punishment if the kidnap victim suffers bodily harm.
Turning, first, to defendants’ charge that they were denied a fair trial, it must be conceded that there was pretrial publicity that might well have prejudiced the minds of many persons in the area. Publicity of this character is inevitable and no doubt will become more prevalent as the mobility of various media of communication is perfected. Even now immediate cpverage of spectacular happenings is not unusual, and where a crime is. accomplished by violence it is probable the public will view colored television pictures of the scene, and even of the victims. When an alleged perpetrator of the crime has suffered a prior conviction of a felony,- he is quite likely to be characterized as an ex-felon, or an ex-convict, as were the defendants.
The Supreme Court has recognized the impact which pretrial publicity may have on the trial of an accused and the difficulty in assessing, after the fact, whether such publicity .prevented the accused from having a fair and impartial trial. In
Maine
v.
Superior Court,
Defendants argue that the rationale of
Maine,
which relieves the defendant of the burden of showing actual prejudice, applies to any review of the question of pretrial publicity, whether raised before or after trial. The People assert that the rule is limited to review on petition for writ of mandate before trial, and where the question is raised after a trial on the merits of the long-standing rule that an accused has the burdеn of showing that adverse publicity influenced the verdict of the jury, governs.
(People
v.
Modesto,
The diverging points of view of counsel stem largely from a' footnote to
Maine.
Although the opinion states clearly that it delineates a ‘1 standard of reasonableness that should guide
trial courts
in the exercise of their discretion on
a motion for
a venue change and appellate courts, if pretrial review by
mandamus
is sought” (p. 383; italics added), footnote (8) says that insofar as footnote (2) of
People
v.
Modesto, supra
(which requires an accused on appeal to show prejudice resulting from pretrial publicity) is contrary to
Maine,
it is disapproved. The People argue that since
Maine
was concerned with prejudice raised by a pretrial motion for change of venue or petition for writ of mandate, the disap- _ proval in footnote (8) should be limited to those circumstanсes, and not applied to an appeal after trial. Defendants counter that since the issue of pretrial publicity was raised in
Modesto
by appeal after trial, disapproval of any part thereof
It seems to us there is no categorical answer, even though counsel take inflexible positions that are nearly diametrically opposed. Under the rationale of Maine, the thrust of the language “defendant shall not be required to show actual prejudice” is directed toward the kind of review the appellate court must make. It is held that in a mandamus proceeding before trial, the court must make an independent review of the record. At this point, before trial, the question of prejudice is prospective and the determinative factor is whether there is a reasonable likelihood that a change of venue is necessary to insure a fair trial. Where the issue is raised after trial, the review is retrospective and the test is whether the accused did, in fact, receive a fair and impartial trial. Before trial a court has no way to test the impact of publicity upon the individual triers of fact by voir dire examination because usually it is not known who will be called as the jurors in the case. Further, the court has no way of knowing, at proceedings prior to trial, what the evidence will be, how it will unfold, or how the jury will resolve the issues presented by the evidence. These imponderables weigh heavily in favor of granting a change of venue, simply because an accused’s right to a fair trial cannot rest on speculation or conjecture.
On the other hand, when the issue of prejudicial pretrial publicity comes before a court on appeal after trial, the totality of circumstances is greatly enlarged; facets of the case unrevealed prior to trial are before the reviewing court. It seems to us that the nature of the alleged prejudice which a defendant contends prevented him from receiving а fair and impartial trial determines the particularity with which he must show prejudice, and likewise determines the scope of review. For example, he may be able to point to specific incidents, as in
Rideau
v.
Louisiana,
In the face of a charge of prejudice of this character, no independent review of the entire record would be required to determine the issue of prejudice; a case such as the one at bench is not so easily particularized—the prejudice alleged does not lend itself to specificity. The pretrial publicity was not injected into the trial by any particular act or fact, and defendants can do no more than point objectively to the pretrial publicity and to the jury’s verdict.. But this does not demonstrate prejudice; it is, in substance, an argument that the evidence does not support the verdict and, a fortiori, that the verdict resulted from the influence of prejudicial pretrial publicity. Can this reviewing court, under these circumstances, refuse to make an independent review of the record because defendants contend the pretrial prejudice subjectively permeated the entire trial? We think not, in view of the broad language of the Supreme Court in
Marshall
v.
United States,
In the context of an independent review of the record we examine, first, the voir dire examination of the jurors. The statements of the individual jurors are, in substance, as follows:
(1) Mrs. Bower thought she might have seen a televised newscast when the crimes occurred, and had some idea that there had been a robbery or a kidnaping, but had formed no opinions at all; she had no knowledge of the background of the defendants and did not lmow whether they were residents of the state or not; shе had no feelings one way or the other against the defendants; she had seen a newscast the preceding evening, and she had seen pictures of the defendants, but did not know whether there was a reference to the charges against Tudor or whether disposition had been made of charges against him.
(2) Mr. Hubbard had read about the case in the paper and saw it on television, but did not recall what was stated aboutthe facts surrounding the crime. He did not hear or read anything concerning the background or prior history of the defendants; he knew the paper said that Ralph Smith had been shot but had formed no opinion as to how it happened; he felt it was likely that Smith had been shot and kidnaped since that was printed in the newspaper, but he did not form an opinion. He asserted he could put aside anything he knew about the case and would have no difficulty in distinguishing between facts heard in court and facts he had already heard or read about it.
(3) Mr. Rhoten believed that he had seen Mr. Progge on television one time “but I am not even satisfied it was he.” He had not read or heard anything about the case. He stated: “It wasn’t brought to my attention or I don’t remember it.”
(4) Mrs. Wattenbarger knew from newspaper articles that a mistrial had been declared; she read an аrticle concerning the disposition of the charge against Sylvia, and she was aware there had been some proceedings involving the defendants but she did not know what they were, other than that Mr. Tudor had entered a plea of guilty to robbery charges. She thought she had read some articles when the crime occurred and possibly at the time of the preliminary hearing, but she did not recall anything about it. She did remember reading that Ralph Smith had been kidnaped at gunpoint by somebody, and that Mr. Tudor had been shot, but did not recall the details. She did not read or hear or see anything mentioning the prior history or background of the defendants or thеir places of residence.
(5) Mr. Lane said he may have seen early television broadcasts but none recently, that he had seen a television picture of defendants and Sylvia Progge. He knew nothing about articles at the time of the preliminary hearing, motion for change of venue, or change of trial judges. He had read that Ralph Smith and defendant Tudor had been shot, that Smith had been kidnaped at gunpoint, but did not remember what the news article had said, formed no opinion about it, had no feeling about it, and at the time he read it he was not concerned with it. He had read something about Mr. Tudor’s prior history but did not recall it until he heard about it in court that day.
(6) Mr. Sanders said he had read headlines of some articles in the Bakersfield Californian but did not read the articles ; that, other than the headlines, “I don’t Imow a thing aboutit,” and that he had not been present when anyone else discussed any of the facts of the case.
(7) Mrs. Duntsch, who resided in Delano, saw something in the newspaper the first night, scanned it for familiar names and did not read it thoroughly or pay much attention to it; did not realize there was a kidnaping involved although she remembered there was a shooting.
(8) Mrs. Beaty read the headlines of some of the articles printed about the time of the crimes but stated she had not read any other news articles, as she seldom read the Californian. On the day the crimes were committed, she arrived home, turned on the television and there was a newscast on. She saw a wrecked pickup and thought one of the defendants had something to do with it, and saw a picture of the Smith residence. She saw, read or heard nothing else.
(9) Mrs. Challes had been out of the state much of the time between the date of the crimes and the date of trial, and had read, seen or heard very little about the crimes. She read one of the first articles in the Bakersfield Californian, but did not remember much about it; and thought possibly she had seen something on television when Mr. Smith was released from the hospital.
(10) Mr. Hunt had read several articles in the Bakersfield Californian and thought he had seen pictures of Tudor or Frogge or the Ralph Smith residence. He did not recall any of the details but he had the impression that Ralph Smith had been shot, that he had been kidnaped at gunpoint and that he had been robbed. He repeatedly stated that he did not remember what he had read such a long time ago.
(11) Mr. Darnell did not read the initial headliner articles though he conceded that he may have read something two or three days after the incident occurred. At any evеnt, he did not pay much attention to it. About the only thing he remembered was that Ralph Smith was in the hospital and seriously wounded. He might have seen something on television but he could not remember it. He stated that about all he remembered was “there was some kind of a scuffle” at the Smith house and someone got shot.
(12) Mr. Geeslin stated that he had not followed the case, that he is “not much one to read” newspapers, that he glances at the paper and tosses it down. He may have had momentary exposure to television coverage or sketchy references to the case but none of it was impressed upon his memоry.
The manner of jury selection is an important factor to be weighed in reviewing the question of fair trial, of course, hut the radical element is how the jurors performed their duty. The final test must be the jury’s verdicts as measured against the evidence upon which the verdicts are grоunded. The fairness of the verdicts here can be judged clearly, because the evidence upon which the jury acted is remarkably free from inconsistencies and the trial was conducted with the utmost circumspection. There were no distractions during trial by various communications media or otherwise, as in Sheppard v. Maxwell, supra, and Estes v. Texas, supra.
Thus we turn to the question whether the verdicts, when analyzed in the light of the evidence, reflect that they are not supported by the evidence and, consequently, as defendants argue, can be explained only as being the product of prejudicial pretrial publicity. Each defendant pleaded guilty to the count chаrging him with the robbery of Ralph Smith, and each pleaded guilty to the count charging him with the robbery of William Smith. This left only the kidnaping and the attempted murder counts at issue.
The robberies were accomplished by two kidnapings; the first occurred when Frogge forced Ralph Smith at gunpoint to drive him to his office to remove money from the safe, the second, when all three Smiths were herded from the ground floor of their home to an upstairs bedroom. Tudor obtained
The verdict finding both defendants guilty of kidnaping with bodily harm and recommending life imprisonment without possibility of parole, rather than death, under section 209, presents a more complex problem. Whether the verdicts reflect the influence of pretrial publicity is relatively simple as it is clear from the uncontradieted evidence related above that Frogge and Tudor kidnaped and robbed the Smiths and that their victims were injured during the commission of the crime. The jury had the discretion of imposing the death penalty or the lesser sentence of life imprisonment without possibility of parole, as to each defendant, and chose the lesser penalty.
However, defendants make the additional argument that the jury might have been even more lenient with them had the judge permitted the jury to determine, as a question of fact, whether the injuries to the Smiths are within the purview of section 209. That section provides for a life sentence with possibility of parole if the kidnap-robbery victim suffers no harm, but where the victim suffers “bodily harm” the penalty is either death or life imprisonment without possibility of parole, in the discretion of the jury. It is argued that absent prejudice, the jury might have found the Smiths did not suffer bodily harm within the sense of the statute, and brought in a verdict of life imprisonment with possibility of parole. We conclude that since the evidence surrounding the shooting of the Smiths is clear and uncontradicted, whether the injuries inflicted are within the sense of the term “bodily harm” as used in section 209, presents a question of law for the court.
Defendants’ argument that the meaning of the words “bodily harm” as used in section 209 is a question of fact, is
Baker and the case at bench are not apposite; Smith did not run—indeed he could not, since he was confined to a room and held at gunpoint. The Smiths had every reason to believe defendants would not hesitate to kill them or inflict great bodily harm upon them. When Frogge forced Ralph Smith, at gunpoint, to drive him to his office to loot the safe, Frogge said to Tudor: “If we are not back in thirty minutes, you kill these two.” Tudor replied: “Okay if you are not back here in thirty minutes, I am to kill these two. ’ ’ Again, just before taking the Smith family upstairs, Tudor said: “We will take them upstairs, tape them up, load the car, and I’ll come back and do what has to be done.” Following the threat to kill Mrs. Smith and William, the language, “I’ll come back and do what has to be done,” would seem, on the face of it, to mean an intent to kill all three, for there could be no other reason to return to the bound and taped victims.
The instant ease is analogous to the situation in
People
v.
Monk,
We are mindful that the .negligence concept of proximate cause does not necessarily control an interpretation of section 209 simply because the Supreme Court used proximate cause as the vehicle for synthesizing the facts peculiar to
Monk.
Nevertheless, it seems clear to us that the Legislature used the
It follows that the trial court did not err in refusing to give defendants' proffered instructions based upon People v. Baker, supra, which would have left to the jury, as a question of fact, whether the injuries to the Smiths were “injuries” within the sense of section 209.
We turn to the alleged error in the manner the judge imparted judicial notice to the jury of defendants’ pleas of guilty of robbing Ralph Smith, count two, and robbing William Smith, count three. Proof of robbery, an essential element of the crime оf kidnaping for the purpose of robbery as delineated in Penal Code section 209, was obviated by defendants’ pleas of guilty to the robbery charges. The trial judge advised the jury that “A statement made by a defendant other than at his trial may be an admission” (CALJIG 29), and instructed them that defendants’ pleas of guilty constituted an admission to the robbery element of the crime of kidnaping. Defendants argue that the pleas of guilty were not made “other than at his trial,” as the instruction stated, and from this the jury may have surmised that defendants made other admissions of guilt which were not in evidence. We deem this a makeweight argument at best, as the pleas of guilty had bеen entered to the court before the selection of the jury and, insofar as the jury that tried the ease is concerned, the instruction was technically correct. We do not see how the jury could have been misled or how defendants were prejudiced by it; certainly the jury verdict should not be overturned upon such an attenuated ground.
Defendant Frogge asserts the court erred in not per
After Mrs. Frogge pleaded guilty to the lesser included offense of kidnaping for the purpose of robbery without bodily harm, and the other counts against her were dismissed, counsel for Frogge advised the court that because the jail lacked necessary facilities it had been impossible to set up a conference call. He cited Frogge’s inability to confer with his wife as prejudicial error. That no reversible error resulted is apparent from the trial judge’s observation that the оrder had been made some months earlier, yet the matter was brought to the attention of the court for the first time on the morning of trial.
Frogge does not indicate in what respect his inability to interview his wife prejudiced his case, and none is apparent from the record. Moreover, the trial court granted Frogge permission to interview his wife privately for a minimum of 45 minutes before trial, and delayed Mrs. Frogge’s transfer to the Department of Corrections for two days to enable both Frogge and Tudor to subpoena her as a witness if they so desired. Frogge talked with her privately, but neither he nor Tudor called her as a witness. We find no errоr in the court’s handling of this aspect of the case.
Finally, objection is made to the sentencing technique on the ground it violates the proscription embodied in Penal Code section 654 against multiple sentences for a single crime. The trial judge followed the procedure outlined in
People
v.
A number of cases have approved this procedure. In
In re Wright,
The judgment is affirmed.
Conley, P. J., and Gargano, J., concurred.
Appellants’ petition for a hearing by the Supreme Court was denied April 23, 1969.
Notes
This ease was tried before the opinion in
Maine
v.
Superior Court,
American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pair Trial and Free Press (1966), commonly called the Reardon Report. "