THE PEOPLE, Plаintiff and Respondent, v. ROBERT LEE KIDD, Defendant and Appellant.
Crim. No. 6821
In Bank. Supreme Court of California
Nov. 2, 1961
759
Stanley Mosk, Attorney General, Arlo E. Smith, Albert W. Harris, Jr., and John S. McInerny, Deputy Attorneys General, for Plaintiff and Respondent.
As to the factual background of this prosecution the record reveals that on December 14, 1954, a police inspector went to the address of Alfred Clarke, who lived in the rear of an antique shop which he owned and operated. The front door was locked, but the inspector was able to enter through a rear door and found the body of Clarke on a bed. Decedent had died from multiple traumatic injuries. There were about 30 lacerations on his head and face and numerous laсerations on his body and legs. His nose and ribs were broken, and there was a large burned area on his right foot. His hands had been tied behind his back. One of his pockets had been turned inside out, and the room where he was found had been ransacked. A vault containing $1,570 was subsequently discovered hidden under the kitchen sink. Blood of type “O,” decedent‘s type, was on the walls and furniture. Two swords were found in the room, one lying on the floor near the body. On each sword was a fingerprint in dried blood, and these fingerprints were identified as defendant‘s. An analysis of the blood on one of the swords disclosed that it was type “A,” which was defendant‘s type. There was no evidence establishing that blood of type “O” was on either of the swords. Material of some kind appeared to have been wiped off both swords.
There was evidence that instruments such as the swords could have caused the lacerations. However, Paul Kirk, a criminologist who testified on behalf of the defense, stated that in his opinion it would be “impossible for this sword not
Defendant and his wife were living in San Francisco in 1954, and the day before the body was found defendant wаs seen with two men in a tavern a few doors from Clarke‘s antique shop. About four days after the body was found the police questioned defendant‘s wife concerning her husband‘s whereabouts, and told her that someone had reported to them that she had said that her husband had committed some serious crime and had left the city. She informed them that he had gone to Los Angeles. Shortly thereafter the police talked with her again, and she stated that she had not heard from her husband. On a third visit the police found that she had departed without leaving a fоrwarding address. The police attempted to locate defendant in Los Angeles and in March 1955 requested the F.B.I. to notify them if defendant was apprehended anywhere in the United States.
Over five years later, in June 1960, the police received a response from the F.B.I., and shortly thereafter a police officer interviewed defendant in a county jail in Indiana. Defendant denied that he was implicated in the murder and stated that he had not been in the antique shop. When informed that his fingerprints had been found in the shop, he replied that if so, he must have been there. He was then asked if he could explain how his fingerprints came to be in the shop in blood, and he answered that he had no explanation for that.
At the trial defendant denied that he had killed Clarke. He stated that he had lived in San Francisco for a few months in 1954, left in the latter part of December to look for work in Los Angeles, after a few days there moved to Chicago where he worked for about four months, and then moved to Gary, Indiana where he lived until June 1960. He further testified that while in San Francisco he and a mаn, who was a certified public accountant and whose name he thought was Clyde Reynolds, visited Clarke‘s antique shop, saw two swords, and began “horse-playing” with them. He stated
There was evidence to the effect that no man by the name of Clyde Reynolds had ever been registered or licensed in California as a public accountant or certified public accountant, and no man named Clyde Reynolds was produced to testify.
Defendant contends thаt the trial court improperly prevented his attempt to impeach Coroner Henry Turkel; that the prosecutor was guilty of prejudicial misconduct in questioning Inspector Ralph McDonald about a “rap sheet” and assertedly waving it before the jury; that the police department‘s destruction of articles taken from Clarke‘s address prevented defendant from having a fair trial; and that the trial court erred in excluding testimony regarding the deterrent effect of the death penalty. We have concluded that the first two of these сontentions are sound, and it is therefore unnecessary for us to consider on this appeal the several additional arguments of defendant.
Dr. Henry Turkel was called as a witness by the People and testified on direct examination concerning his visit to the place where Clarke‘s body was found and certain samples of stained areas in the room which he had taken. On cross-examination he was asked if he had made statements to the press within a day or two after looking at several items at the scene of the crime to thе effect that death was caused by an instrument which made cross-like striations on the body, and that the instrument was not one of the two swords that was admitted into evidence. Objection was made by the prosecution on several grounds, one of which was that the question went beyond the scope of direct examination. Defense counsel immediately said that he would ask Dr. Turkel to return another day as a witness on behalf of defendant. The court did not rule on the prosecution‘s objection, but it is clear that the objection was valid.
Dr. Turkel was lаter called as a witness by defendant and testified on direct examination that an instrument such as either of the swords could have caused the injuries to Clarke. Defense counsel asked leave of court to cross-examine his own witness and asked the witness, “Isn‘t it a fact that you stated to the Press the date of this incident that these were not the murder weapons?” The prosecution objected to the question on the grounds that it was incompetent, irrelevant, and immaterial and that a proper foundation had not been laid. The
When an attempt is made on cross-examination to obtain an admission from a witness of a prior inconsistent statement, it is not necessary to first relate to the witness the statement together with the circumstances of the time, place, and persons present, although such a foundation must be laid before the witness may be impeached by extrinsic evidence of the prior inсonsistent statement. (People v. Jones, 160 Cal. 358, 364-365 [117 P. 176]; People v. Capps, 129 Cal.App.2d 429, 430-431 [277 P.2d 39]; People v. Vollmann, 73 Cal.App.2d 769, 789 et seq. [167 P.2d 545]; People v. Campos, 10 Cal.App.2d 310, 317 [52 P.2d 251]; see McBaine, California Evidence Manual (1960), pp. 133-134). Where, as here, the witness sought to be impeached is the party‘s own witness,
The courts in many stаtes hold that surprise is not properly a part of the impeachment rule at all, and the requirement of a showing of surprise has been criticized. (See 3 Wigmore on Evidence [3d ed.], p. 383 et seq.) In this state, however, a showing of surprise is necessary. The trial judge is vested with discretion in ruling upon whether surprise exists, but the purely formalistic concepts that the party producing a witness vouches for him and is bound by his testimony should not preclude impeachment where fairness requires it. (People v. Spinosa, 115 Cal.App.2d 659, 668 [252 P.2d 409].) Trial courts should be liberal in permitting such impeachment, and doubts should be resolved in favor of allowing the testimony. (People v. Spinosa, supra, 115 Cal.App.2d 659, 668.) The People claim that there was not a sufficient showing of surprise in the present case and cite People v. Wilson, 156 Cal.App.2d 728 [320 P.2d 117]. The court in the Wilson case held that where the surprise was disputed it was incumbent that the party seeking to impeach the witness show the basis of the surprise he claimed unless the surprise was obvious, and that it was improper for the trial court in that case to merely take the word of counsel that surprise existed.
Here defense counsel not only stated that he was surprised but also showed the bаsis of his surprise by indicating that the witness’ testimony regarding the swords differed from a statement the press reported the witness made six years ago. The witness was a public official, and it would not appear unreasonable for defense counsel to assume that the witness’ testimony would be the same as the statement attributed to him by the press. Also the fact that the prosecution had called Dr. Turkel as a witness and had not asked
In regard to the alleged misconduct of the prosecutor the record discloses the following: Defendant testified that in 1955 he went to Calumette City in Illinois and told the police there that he was wanted for questioning in San Francisco, that there was no arrest, that he “just walked in,” and that he was held for several hours and then asked, “What do you want, a free ride back to San Francisco?” In rebuttal the prosecutor called Inspector McDonald who testified that his department sent a request to the F.B.I. in March 1955 asking to be notified if defendant was apprehended anywhere in the United States and that from the time of the request until June 1960 the department heard nothing from the F.B.I. regarding defendant‘s whereabouts. The prosecutor showed the witness a document and asked whether it was a photostatic copy of the record of the Department of Justice. The witness repliеd that it was, and in answer to a further question by the prosecutor as to what the record was, the witness stated, “This is what we refer to as a rap sheet. It is a complete record of any and all arrests of a certain individual or other matters that would be brought to the attention of the Federal Bureau of Investigation in Washington pertaining to them. For instance, application which called for fingerprints, and it indicates where they have been arrested and in some cases the charge, any place in the United States.” He further testified that, “This copy is sent-or a copy similar to this-is sent back to the agency that reports an arrest. For instance, when an individual is arrested in San Francisco,
The People contend that the F.B.I. report was used for a proper purpose, namely rebutting the claim of the defense that defendant had turned himself in to the police in Illinois in 1955. They cite People v. Coefield, 37 Cal.2d 865, 869 [236 P.2d 570] wherein it is stated that if evidence in a criminal case tends logically, naturally and by reаsonable inference to overcome any material matter sought to be proved by the defense, it is admissible whether it embraces the commission of another crime or not. Here, however, there was no evidence that a contact with the Illinois police of the kind to which defendant testified would appear in the F.B.I. report. In the absence of such evidence it would seem doubtful that the report would logically and by reasonable inference rebut defendant‘s testimony. Moreover, Inspector McDonald had already testified that from March 1955 until June 1960 the San Francisco Police Department had not heard from the F.B.I. concerning the whereabouts of defendant, and from this it could be inferred that the Illinois police probably had not contacted the F.B.I. Showing the witness the “rap sheet” and questioning him about it added nothing to the prosecutor‘s case and was highly improper. The jury could easily infer from seeing the document in the hands of the prosecutor
If misconduct by the prosecutor is of such a character that it cannot be purged of its harmful effect by an admonition, it may constitute a ground for reversal even if no objection was made or admonition requested on behalf of the accused. Moreover, if guilt has not been so clearly established as to render it improbable that the harmful effect of the misconduct may have turned the scales against the accused, such misconduct has consistently been deemed a sufficient ground for reversal. (People v. Lyons, 47 Cal.2d 311, 318 [303 P.2d 329].) The present case clearly comes within this rule.
Numerous articles taken from Clarke‘s quarters were destroyed by the police department. Louis Reyff, a police officer, testified that the records of the police department showed that one package and thirty other various articles were received on January 5, 1955, and that in 1958 all the items were destroyed except for the two swords. He also stated that it was the practice of the police department to hold property for three years after the date that it was brought in, and then dispose of it. He testified that there might be a list of the items destrоyed and that if so, another officer would probably have it. A list was not produced at the trial, and no other officer was called to testify about it. Defense counsel did introduce two police department laboratory reports concerning the examination of miscellaneous articles relating to Clarke, and it would appear probable that the items in these reports were among those destroyed.2
People v. Carter, 48 Cal.2d 737, 747 [312 P.2d 665] is relied upon by defendant in support of his contention that the destruction of the articles prevented him frоm having a fair trial. In that case the defendant claimed that the prosecution had deliberately destroyed material physical evidence, and defense counsel stated that he had requested an opportunity to have a criminologist examine the scene of the killing and that the district attorney had “stalled” on various pretexts
During the phase of the trial dealing with penalty thе defense called two members of the Legislature who had served on a committee considering whether capital punishment should be abolished, a lawyer, and a chaplain from San Quentin. They were offered as experts on the subject of whether or not the death penalty was a deterrent to crime, and when each of them was asked his opinion on this subject, objections by the prosecution were sustained. The objections were properly sustained, and defendant‘s contention that the ruling of the trial court constituted prejudicial error is without merit. Innumerable witnesses could be produced to testify on both sides of the question whether the death penalty serves as a deterrent to crime. As was said by this court in the case of People v. Love, ante, p. 720 [16 Cal.Rptr. 777, 17 Cal.Rptr. 481, 366 P.2d 33, 809], “The [trial] court did not err in dismissing defendant‘s subpoena for Governor Brown and Warden Duffy. Defendant voluntarily dismissed the subpoena for Warden Duffy. He had subpoenaed Governor Brown to elicit his views on capital punishment. The penalties for first degree murder have been fixed by the Legislature. (
The instant case involves a close factual determination, and from an examination of the entire cause, including the evidence, we are of the opinion that it is reasonably probablе that a result more favorable to defendant would have been reached in the absence of the errors discussed above.
The judgment and the order denying defendant‘s motion for a new trial are and each is reversed.
Gibson, C. J., Traynor, J., Peters, J., and Dooling, J., concurred.
SCHAUER, J., Dissenting.-I agree with the majority‘s holding that the trial court “did not err in dismissing defendant‘s subpoena for Governor Brown and Warden Duffy. ... The penalties for first degree murder have been fixed by the Legislature. [Citation.] The wisdom or deterrent effect of those penalties are for the Legislаture to determine and are therefore not justiciable issues. Hence evidence as to these matters is inadmissible.”
By its enactments (as more fully discussed in my dissenting opinion in People v. Love (1961) ante, p. 739) the Legislature clearly has determined that the death penalty, as the strongest deterrent against certain crimes of violence, is essential for the protection of potential victims of such crimes. Therefore, evidence on the legislative issue as to whether that penalty is or is not the greatest deterrent is inadmissible. Conversely, evidence is admissible to help the jury in determining in each case (as contemplated by
The correct rules relative to the selection of penalty (as between death and so-called life imprisonment) are stated or indicated in People v. Friend (1957) 47 Cal.2d 749, 764 [8]-768 [13] [306 P.2d 463]. Insofar as appears proper to be quoted here, the opinion in that case declares (p. 764 [8]): “We note ... that the trend is toward the more liberal admission of evidence pertinent only to the selection of penalty. For еxample, it has become established practice to advise the jury of the facts concerning the possibility of pardon, commutation, parole, etc. [Citations.] Obviously, the law pertaining to pardons, commutations and paroles has not the slightest relevancy to the issue of guilt; it is pertinent only as
I agree further with the majority that “The instant case involves a close factual determination” but I do not agree with them that any prejudicial error was committed. The close factual question was for the jury and the trial judge. Under rules of law which I deem to be controlling I accept their determination and would affirm the judgment and the order denying defendant‘s motion for a new trial.
McComb, J., concurred.
Respondent‘s petition for a rehearing was denied November 29, 1961. Schauer, J., and McComb, J., were of the opinion that the petition should be granted.