THE PEOPLE, Plaintiff and Respondent, v. JESSE JAMES GILBERT and ROBIN CHARLES KING, JR., Defendants and Appellants.
Crim. No. 8690
In Bank
Dec. 15, 1965
Rehearing Denied January 12, 1966
63 Cal.2d 690
The order appealed from is reversed; all parties to bear their own costs on appeal.
McComb, J., Peters, J., Tobriner, J., Peek, J., Mosk, J., and Burke, J., concurred.
The petition of the plaintiff and appellant for a rehearing was denied January 12, 1966. McComb, J., was of the opinion that the petition should be granted.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Nоrman H. Sokolow, Deputy Attorney General, for Plaintiff and Respondent.
TRAYNOR, C. J. - Defendants were convicted on two counts of first degree murder (
Shortly after 10:30 a.m., January 3, 1964, defendant Gilbert and Edgar Ball Weaver entered an Alhambra savings and loan association office, hereafter referred to, as a bank, wearing hats and sunglasses. Gilbert, armed with an automatic pistol, shouted, “Everybody freeze; this is a hold-
Alhambra Police Officer George Davis, who had been alerted to the robbery, entered the bank with a shotgun and disarmed Weaver. Gilbert then grabbed a woman teller and pushed her toward the door, pointing his pistol at her head and warning Davis: “Drop that gun and back off or I‘ll shoot the woman.” Davis backed toward the front door, saying, “No you won‘t; you will never shoot.” Officer Billy Edward Nixon then arrived at the bank in a police car and saw Officer Davis backing out of the front door with a shotgun. As Gilbert followed Davis out of the bank, he pushed the woman toward Davis and fired, mortally wounding Davis. Weaver picked up his revolver and followed Gilbert out of the bank. As they fled, Officer Nixon shot and wounded Weaver.
Gilbert and Weaver escaped in a white automobile. A witness gave the license number to Officer Nixon, and several bystanders directed him as he pursued the automobile. Several blocks from the bank a man ran up to Officer Nixon and told him that two men who seemed to be trying to get away from something left a white automobile and entered another white automobile and continued north on Granada. Officer Nixon found an unoccupied white automobile with the license number that had been given to him parked facing north on Granada. Farther north on the same street he saw a green automobile that had run over the curb and crashed into a tree. Weaver was inside, semiconscious and bleeding, with a revolver on the seat beside him. Weaver died in the hospital later that evening from a bullet that had entered his back.
Law enforcement officers questioned defendant King about the robbery twice on January 5, two days after the robbery, and again on January 10, when he came to the Alhambra police station pursuant to a request. On each occasion he denied knowledge of the robbery. The San Gabriel police arrested him on February 7, and on February 11 took him to the Alhambra police station. Upon being told that he was
King told the officers that he met Weaver at a parole meeting. Although he refused to help Wеaver rob a “bookie joint,” he later accepted Weaver‘s offer of $100 to steal an automobile. On the morning of January 3, 1964, King stole a white automobile and drove it to Los Feliz and San Fernando Road. A friend followed in King‘s own white automobile. Gilbert and Weaver arrived in a green automobile at 10 a.m., and King and his friend followed them to Alhambra. Gilbert and Weaver parked the green automobile and took the stolen automobile. For $1,000 King agreed to wait for them and to drive Gilbert back to Glendale.
After leaving his friend at a bowling alley, King waited for Gilbert and Weaver. When they returned, Weaver, who was bleeding badly, got into the green automobile, and Gilbert got into King‘s automobile with a shopping bag. Gilbert put a .45 automatic pistol against King‘s stomach and threatened to kill him unless he did what he was told.
King drove to Gilbert‘s apartment in Glendale. On the way, Gilbert told King that he and Weaver had robbed a bank. He said that when a policeman entered the bank he used a woman as a hostage and forced the policeman to back out the door. He shot the policeman and fired two shots at another officer who was sitting in a police car. Gilbert said, “I have killed one cop today, and I will kill a lot more before I am through.” He also said that he thought that Weaver got in his line of fire and that he had accidentally shot Weaver.
When they arrived at Gilbert‘s apartment, King waited with the shopping bag while Gilbert obtained a key from the manager. After Gilbert changed clothing, he offered King $1,000 to drive him to Salt Lake City. When King refused, Gilbert came toward him holding a pillow. King heard a click and realized that a pistol under the pillow had misfired. He begged for his life, and, after a few moments, Gilbert said that he was not going to kill him. Gilbert gave King $1,300, and they left the apartment. King waited while Gilbert returned the key to the manager. They drove to an alley where
King‘s statements were admitted into evidence at the trial on the issue of guilt. He contends that they were erroneously admitted over his objection.
Incriminating statements are inadmissible if they were obtained when “(1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his right to remain silent, and no evidence establishes that he waived those rights.” (People v. Dorado, 62 Cal.2d 338, 353-354 (1965); Escobedo v. Illinois, 378 U.S. 478 (1964).)
King‘s statements were admitted in violation of this rule. When King made them he was in custody and the investigation was no longer a general inquiry into an unsolved crime but had focused upon him. When the police took him into the interrogation room shortly after 3 p.m. on February 11, their purpose was to elicit incriminating statements. A short time after the interview began a tape recorder was started without King‘s knowledge. At 10 p.m. King was asked to make a formal tape recording for use in court. When he refused to do so he was asked to dictate a statement to be used in court. King said that he would make a statement, but that he would not sign it until he had advice from an attorney. At no time was he advised of his right to counsel or of his right to remain silent.1 Accordingly, the statements should have been excluded.
In People v. Stewart, 62 Cal.2d 571, 578 (1965), we pointed out that in most cases an interrogation following an arrest will lend itself to eliciting incriminating statements. (See also People v. Bilderbach, 62 Cal.2d 757, 761-762 (1965).) When King made his statements he was not only under arrest but had been in custody for four days. He had been interrogated three times previously concerning the robbery. When the police formally charged him with murder, robbery and kidnaping, the accusatory stage had been reached. When they took him into the interrogation room, their purpose was to elicit incriminating statements, and they had a duty to advise him of his constitutional rights.
In People v. Cotter, 63 Cal.2d 386, 393, 398 (1965), and People v. Jacobson, 63 Cal.2d 319, 329, 331 (1965), we held that the fact that a defendant is willing to confess and has already volunteered incriminating statements and confessions does not absolve the police of the duty to advise him of his constitutional rights before eliciting further confessions at stationhouse interrogations. We further held, however, that error in admitting confessions so elicited in the absence of such warning is not prejudicial when there are also in evidence equally damaging admissible confessions that were made before the police improperly elicited the inadmissible confessions.
In the present case, however, the booking officer did not testify to the details of what King volunteered before he was formally interrogated. The officer stated only the conclusions he drew therefrom. There is nothing in the record to indicate that King‘s volunteered statements during booking were not wholly consistent with his testimony at the trial that he had no knowledge of the planned robbery until after it occurred. There is evidence, however, that King admitted
There is also no merit in the contention that the erroneous admission of King‘s statements was not prejudicial to him because he took the stand and testified to committing the same acts that he had admitted in his statements. When King testified, the only evidence other than his statements that had been introduced to connect him with the crime was a fingerprint identified as his on a shopping bag similar to the one that had been used in the robbery. Since the details of his volunteered statements during booking are not in evidence, it is impossible to determine whether detailed evidence of those statements alone would have impelled his testimony. The detailed inadmissible statements, including admissions of guilty knowledge, clearly left King no choice but to take the stand and attempt to exculpate himself by testifying that he did not know that Gilbert and Weaver intended to commit a robbery. Thus, King‘s testimony cannot be segregated from his erroneously admitted statements to sustain the judgment. (Fahy v. Connecticut, 375 U.S. 85, 91 (1963); People v. Davis, 62 Cal.2d 791, 796 (1965); People v. Ibarra, 60 Cal.2d 460, 463 (1963); People v. Dixon, 46 Cal.2d 456, 458 (1956).) Accordingly, the judgment convicting King must be reversed.
Defendant Gilbert contends that since King‘s statements and testimony implicated him, the error was also prejudicial as to him, thereby compelling reversal. In People v. Aranda, 63 Cal.2d 518, 526 (1965), we held that instructions that an erroneously admitted confession of one defendant implicating his codefendant should be considered against the former only did not cure the error as to the latter. We pointed out that “The giving of such instructions, however, and the fact that the confession is only an accusation against the nondeclarant and thus lacks the shattering impact of a self-incriminatory statement by him (see People v. Parham, 60 Cal.2d 378, 385 (1963)) preclude holding that the error of admitting the confession is always prejudicial to the nondeclarant.” This rule also applies to King‘s testimony that was impelled by the erroneous admission of his statements.
Nor was the admission of King‘s statements and testimony at the trial on the issue of guilt prejudicial on the issue of Gilbert‘s penalty. At the trial on the issue of penalty King‘s statements were not reintroduced, King did not testify, and the district attorney did not comment upon his statements or testimony in arguing to the jury. Most of the prosecution‘s evidence at the penalty trial was introduced to show faсts in aggravation of Gilbert‘s penalty. Gilbert was convicted in 1947 of second degree murder upon a plea of guilty for killing a fellow prisoner while serving a term in San Quentin. He was released on parole in 1959, and convicted of burglary in 1960. He escaped from prison in July 1963, and committed a series of armed bank robberies on October 28, December 6, December 20, December 23, and December 31, 1963.2 In the face of such facts in aggravation of the penalty and of the circumstances of the killing of Officer Davis, the erroneous admission of King‘s statements at the trial on the issue of guilt was not prejudicial on the question of Gilbert‘s penalty. (
Gilbert also contends that the trial court erroneously refused to instruct the jury to disregard King‘s testimony as evidence against him, on the ground that such testimony was not part of the People‘s evidence and was introduced after he rested his case. The contention is frivolous that the corroborated testimony of an accomplice cannot be considered as evidence against a defendant who is tried separately. (
It is true that when the accomplice is also on trial, the prosecution may not call him as a witness. (
Both defendants contend that since their accomplice was killed by a police officer, the felony-murder doctrine cannot be invoked to convict them of first degree murder for that killing. (Count II.) In People v. Washington, 62 Cal.2d 777, 781-782 (1965), we held that since the purpose of the common-law felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit, malice afоrethought cannot be imputed under that rule unless a felon commits the killing. We recognized, however, that entirely apart from the felony-murder rule, malice may be established when a defendant initiates a gun battle, and that under such circumstances he may be convicted of murder for a killing committed by another.
Although the evidence in the present case would support a conviction of first degree murder on the ground that Weaver was killed in response to a shooting initiated by Gilbert, the court did not instruct the jury on that ground, but gave an erroneous instruction that defendants could be convicted of murder for that killing
Regardless of the conclusion that the jury, properly instructed, might have reached on Gilbert‘s liability for the death of his accomplice, that death was a circumstance of the murder of Officer Davis that the jury could properly consider in aggravation of the penalty for that murder. (
Since the application of the principles of criminal liability for a killing committed by another may arise upon King‘s retrial, it is appropriate here to define that liability. The following principles may be invoked to convict a defendant of first degree murder for a killing committed by another:
(1) Proof of malice aforethought. “Murder is the unlawful killing of a human being, with malice aforethought.” (
(2) The killing must be attributable to the act of the defendant or his accomplice. When the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life.
(3) Vicarious criminal liability. Under the rules defining principals and criminal conspiracies, the defendant may be guilty of murder for a killing attributable to the act of his accomplice. To be so guilty, however, the accomplice must cause the death of another human being by an act committed in furtherance of the common design. (People v. Schader, 62 Cal.2d 716, 731 (1965); People v. Boss, 210 Cal. 245, 249 (1930); People v. Ferlin, 203 Cal. 587, 597 (1928).)
(4) The application of
Defendants contend that the trial court erred in admitting evidence illegally obtained by a search of Gilbert‘s apartment. At a hearing outside the presence of the jury the prosecution introduced evidence of the following facts:
Weaver was taken to the hospital shortly after Officer Nixon found him in the crashed automobile. At the hospital he told an F.B.I. agent4 that he committed the robbery with a man named Gilbert who lived in apartment 28 of a certain apartment house on Los Feliz Boulevard in Glendale. Pursuant to a broadcast of this information, agent Kiel located the apartment house at 1 p.m. When he arrived he saw a man talking to the manager. After the man left, Kiel talked to the
Even though the officers entered Gilbert‘s apartment without a warrant,5 the trial court properly admitted into evidence the articles found in the apartment and testimony by fingerprint experts who found fingerprints of Gilbert and Weaver in the apartment and King‘s fingerprint on the shopping bag. A search without a warrant is reasonable when it is incident to a lawful arrest (Ker v. California, 374 U.S. 23 (1963); Harris v. United States, 331 U.S. 145 (1947); People v. Boyles, 45 Cal.2d 652 (1955)), or is justified by a pressing emergency (People v. Roberts, 47 Cal.2d 374, 377-378 (1956); see McDonald v. United States, 335 U.S. 451, 454 (1948)). It is also reasonable when the officers enter in fresh pursuit of escaping felons to make an arrest.6
The officers identified Gilbert and found out where he lived less than two hours after the robbery. En route to Gilbert‘s apartment, agent Schlatter heard over the radio that three men were suspected of committing the robbery and
The search in the present case is thus different from the search condemned in Stoner v. California, 376 U.S. 483 (1964). In that case, two days after the robbery of a food market, police officers identified the defendant as one of the two robbers. Without a warrant, the officers went to the defendant‘s hotel where a clerk let them into his room. They had no reason to believe that the defendant was in his room, for his key was in his mailbox at the hotel desk. The officers were not in fresh pursuit of escaping robbers, and they therefore had no reason to believe that the accomplice was in defendant‘s room. Moreover, they had time to obtain a warrant. Accordingly, there were no exigent circumstances such as existed in the present case to justify the search.
The search in the present case was also properly limited to and incident to the purpose of the officers’ entry. While the officers were looking through the apartment for their suspect they could properly examine suspicious objects in plain sight. (People v. Roberts, 47 Cal.2d 374, 378-380 (1956).) Moreover, they could properly look through the apartment for anything that could be used to identify the suspects or to expedite the pursuit. Accordingly, the evidence obtained through the search was properly admitted.
Defendant Gilbert makes several other contentions that affect him only.
F.B.I. Agent Dean arrested Gilbert in Philadelphia on February 26, 1964. When Dean attempted to interrogate Gilbert about the Alhambra bank robbery, Gilbert refused to talk until he obtained the advice of counsel. Later that day, agent Shanahan interviewed Gilbert. Shanahan told him that he was not required to say anything without advice from an attorney and that any statement he made might be used against him. Gilbert agreed to talk about anything except the California robbery. Shanahan interrogated Gilbert about robberiеs in Philadelphia in which a demand note had been used and he asked Gilbert for a sample of his handprinting. Gilbert voluntarily wrote some exemplars. Shanahan testified that he obtained those exemplars for the purpose of investigating the Philadelphia robberies and that they were thereafter filed by the F.B.I. in the same manner as fingerprints. He did not tell Gilbert that the exemplars would not be used in any other investigation. Thus, even if Gilbert believed that his exemplars would not be used in California, it does not appear that the authorities improperly induced such belief.
Gilbert further contends that Escobedo requires the exclusion of testimony of witnesses who identified him as one of the robbers after they attended a police “show-up” in which he appeared without counsel after indictment.7
We rejected a similar contention in People v. Lopez, 60
Gilbert contends that counsel is necessary at the show-up to observe whether the proceedings are fairly conducted. Counsel can effectively obtain such information, however, by pretrial discovery of prosecution witnesses and by cross-examination on the issue of the procedure employed during the show-up.
Gilbert contends that the trial court erroneously admitted into evidence testimony that he was armed with a concealed deadly weapon when he was arrested. We agree.
The weapon found in Gilbert‘s possession when he was arrested was not identified as the one used in the robbery. (Cf. People v. Riser, 47 Cal.2d 566, 577 (1956);
Gilbert contends that the trial court erred in admitting evidence that he was arrested in Philadelphia, on the ground that the time and place of his arrest were too remote to prove flight. There was other more cogent evidence of flight, however, and Gilbert was not prejudiced by the evidence that he was arrested in Philadelphia.
Gilbert contends that the trial court improperly refused to give an alibi instruction. An alibi consists of evidence that the defendant was not at the scene of the crime when it was committed and did not otherwise participate in its commission. No evidence was introduced to show that Gilbert was somewhere else at the time of the robbery.
The robbery occurred about 10:45 a.m. on January 3, 1964. King testified that it took about 45 minutes to drive from Alhambra to Gilbert‘s apartment. The manager of the apartment house testified that Gilbert asked her for a key between 11 a.m. and 12 noon. Upon cross-examination, the manager said that she thought it was closer to 12 than to 11 when Gilbert asked her for the key. She admitted, however, that shе previously told the F.B.I. that Gilbert asked her for a key sometime between 11 a.m. and 11:30 a.m. Such evidence did not warrant an alibi instruction. The manager‘s admission upon cross-examination that her testimony varied somewhat from the statement she previously gave to the F.B.I. did not tend to establish that Gilbert was somewhere else when the robbery occurred. It merely cast some doubt on the accuracy of the manager‘s testimony. Accordingly, the trial court properly refused an alibi instruction.
The trial court did not err, however, in refusing to give Gilbert‘s requested instruction on bodily harm, since there was no evidence to support such an instruction. The victim testified that the grip on her arm was so firm that she “felt the impressions on that arm for sometime,” and that she was pushed toward the door. Although she fell down on the sidewalk, she was not sure whether she was pushed down, and there was no evidence that she suffered any injuries in falling. Such trivial injury is not sufficient to constitute bodily harm within the meaning of
Gilbert contends, however, that “any touching of the person of another against his will with physical force in an intentional, hostile and aggravated manner, or the projecting of suсh force against his person” constitutes bodily harm within the meaning of
Finally, there is no merit in Gilbert‘s contention that the trial court improperly excused jurors for cause who stated upon voir dire examination that they would have been able fairly to adjudicate guilt even though they were conscientiously opposed to capital punishment. He asserts that such
In People v. Riser, 47 Cal.2d 566, 573-576 (1956), we held that it is improper to permit such jurors to serve even though their exclusion is not compelled by a literal reading of
Such legislative preference for the same jury at both trials deprives the defendant neither of due process nor of the right to an impartial jury. Since all of the evidence properly introduced at the trial on the issue of guilt is relevant in determining the penalty (
The judgment as to King is reversed. The judgment as to Gilbert on count II is reversed. In all other respects the judgments аs to Gilbert are affirmed.
Peters, J., Tobriner, J., Peek, J., and Burke, J., concurred.
MOSK, J.-I concur in affirming the judgments as to Gilbert and I concur in the reversal of count II as to both defendants under compulsion of People v. Washington (1965) 62 Cal.2d 777. I
On the ladder of culpability, King was undeniably several rungs below his codefendant Gilbert. This factor was considered by the jury in sparing his life while returning a verdict of death for Gilbert. However, neither a distinction between the extent of involvement of the two defendants nor the facts of this case justify reversing King‘s conviction.
Viewed in the light most favorable to the People, as it must be (People v. Sweeney (1960) 55 Cal.2d 27, 33), the evidence does not support the view of the majority that the incriminating statements of King were obtained when “the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements” (Escobedo v. Illinois (1964) 378 U.S. 478; People v. Dorado (1965) 62 Cal.2d 338, 353).
The prosecution attempted to introduce into evidence statements made by both defendants. After extensive voir dire examination outside the presence of the jury, the trial judge thoughtfully reviewed the facts and the relevant law on confessions. Gilbert‘s extrajudicial statements were excluded. As to King, however, the court made a specific oral finding: “I think the record is straight. The Court has heard the evidence in this case and is of the opinion that this defendant did not request counsel; that he had no desire to have counsel at the time. That the first time that he knew that he became suspect in this case it was his desire to make a complete confession of his involvement in this offense, on his own volition, and that whatever statement he made, from evidence I heard, was completely voluntary on his part. . . . I am not yet prepared to say that a defendant that wants to ‘spill his guts,’ if I may use that term, and make a complete confession of a crime, that he cannot be permitted to do so unless whoever is questioning him goes out and gets him a lаwyer.”
Under well-settled rules of law, we are bound by the determination of the trial judge on questions of fact. The trial court found not merely that King did not ask for counsel, but that he had no desire to have counsel at the time of his confession. The evidence amply supports that conclusion.
The majority opinion refers to “a period of prolonged interrogation” after arrest and during the accusatory stage
The tragic crime involved here was committed on January 3, 1964. From January 5 on, King knew that he was a suspect, and indeed he had been interviewed by the police three times. He had more than a month in which to obtain advice of counsel if he had so desired and having suffered two prior convictions of a felony, he could not have been unaware of the need for and the right to legal representation. Instead, however, he brooded about making a clean breast of his involvement, and in fact on one occasion he started for the police station with that in mind but lost his nerve en route. This background makes completely comprehensible his subsequent conduct when, on February 11, he was brought from San Gabriel, where he was in custody on another matter, to the Alhambra police department, where he was placed under arrest on these charges and a process of booking began. During that process King asked Officer Ted Bennett what charges he faced, and the officer responded that he was being booked for two counts of murder, one count of robbery, and one count of kidnaping. Thereupon King became voluble and freely discussed his participation in the events involved herein. Officer Bennett did not undertake a process of interrogation, but on the contrary tried to discourage King from talking and instructed him to wait until later, fоr his conversation was interrupting the booking procedure. Nevertheless, King persisted and continued to discuss the case. The dialogue related in the footnote summarizes the event.1
After several hours in the interrogation room, during which King related his version of events, he was asked to prepare a statement and sign it. He recited his story voluntarily and without interruption or interrogation. In fact, one witness described him as being as resolute as if he were dictating a novel.3
The first time the evidence suggests any reluctance by King to continue his volunteered narration was his declination to sign the dictated statement. He then added an
At the trial, King asserted he had expressed a desire to phone his girl friend to request her to obtain counsel for him. But on cross-examination he admitted that she would have been unavailable during working hours. Furthermore, King admitted to a witness outside the courtroom during preliminary proceedings that he had not asked for a phone call to contact an attorney, but had read of a recent Supreme Court decision in the newspaper about asking for an attorney, and “you can‘t blame a guy for trying.” In any event, we are bound by the factual determination of the trial court that he neither sought nor desired counsel during this period.
The majority, by reversing King‘s conviction merely because Dorado ritual was not recited, apply a parochial approach to a relatively uncomplicated factual situation. The police officers could not have given legal advice to King before he blurted out his incriminating statements at the boоking office; it is evident that efforts to deter his narration were unavailing. And it is wholly unrealistic, as well as futile, to require the police to advise a suspect of his right to counsel after he, of his own volition and without urging or prompting, takes the initiative to confess. It appears to be of little consequence that in the instant case King‘s unsolicited confession began during the booking process and continued in an interrogation room. The total circumstances are not as neatly divisible as the majority opinion chooses to make them. People v. Jacobson (1965) 63 Cal.2d 319, and People v. Cotter (1965) 63 Cal.2d 386, two cases involving multiple confessions cited by the majority, are inapposite. In both cases the defendants confessed several times during the investigatory stage, later were brought to the police station where they were interrogated and again confessed. The earlier and later events were clearly distinct as to time, location and circumstances. Here, King‘s incriminatory statеment resulted from one continuous process, all of it the product of his contrite frame of mind. The record is utterly devoid of evidence suggesting he was imposed upon, coerced, persuaded or in-
The evidence, including King‘s statement, amply supports his conviction. Therefore, except as to count II, I would affirm the King judgments.
McComb, J., concurred.
The petition of appellant Gilbert for a rehearing was denied February 9, 1966.