THE PEOPLE, Plаintiff and Respondent, v. DAN CLIFTON ROBINSON, Defendant and Appellant
Crim. No. 7242
In Bank
June 16, 1964
61 Cal. 2d 373
[Crim. No. 7279. In Bank. June 16, 1964.] THE PEOPLE, Plaintiff and Respondent, v. CHARLES DRIVERS, Defendant and Appellant.
Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Gilbert F. Nelson, Deputy Attorney General, for Plaintiff and Respondent.
PETERS, J.—Dan Clifton Robinson, Charles Drivers, Willie Hickman and Fred Guliex were jointly charged with the murder of Lewis Joseph Grego on February 4, 1962. All defendants pleaded not guilty, and were jointly tried by jury. Verdicts were returned finding Robinson, Drivers and
The Facts:
The following statement of facts constitutes a summary of the undisputed evidence produced by the prosecution.
Hickman was a night porter at the Fox Hills Country Club, in Los Angeles. Grego, the victim, was a bartender at the same establishment. On the evening of February 3, 1962, a private party was in progress at the club. Shortly after one a.m. of the 4th, the party having concluded, there was present on the premises only Mr. Morrisey (the club manager), Grego, Hickman and Arthur Lee Johnson (a second night porter). Johnson was working in a distant part of the clubhouse, and neither heard nor saw anything that occurred during the commission of the crime. Morrisey, Grego and Hickman were together in the vicinity of the dining room, bar and office, preparing to close. Morrisey instructed Hickman to rope off a certain portion of the club parking area, as was the usual custom. Hickman left, ostensibly for such purpose. Grego gave Morrisey the night‘s proceeds, and Morrisey deposited them in the office safe. As he rejoined Grego in the dining room, three men appeared in the doorway leading from the kitchen. Morrisey saw two of these men clearly, and observed that they could not be recognized because they wore masks made of white material with holes cut for the eyes. One carried what appeared to be a gun. Grego said, “There are three of them.” Immediately thereаfter Morrisey heard a loud explosion, and turned away. There was a second explosion, and Morrisey was knocked unconscious. He did not regain his senses until several weeks later. He was then in a hospital. When Hickman returned to the dining room area he was met by Johnson, who had come from where he had been working, and the two entered the dining room together. They found Morrisey unconscious on the floor and bleeding from wounds in the back. Hickman telephoned for the police. When the latter arrived they were met by Hickman outside,
When the police arrived during the early morning hours of the 4th at the address of Campbell, they found Robinson in Campbell‘s apartment. He had just telephoned the police and reported the Ford as stolen. He readily admitted ownership of the car, and had the keys in his possession. His fingerprints were found in the driver‘s compartment, and Drivers’ fingerprints were found in and around the right-hand front passenger seat and the door. Drivers was Hickman‘s cousin, and both he and Robinson were frequent visitors at the Hickman apartment. Search of that apartment disclosed a white cotton bag, or portion of a pillow case, containing a piece of rope that matched a similar piece found abandoned at the country club, and which bag matched the material of two of the three masks subsequently found discarded near the scene of the crime. Several weeks later a shotgun was found abandoned in the cemetery aсross the road from the country club. The gun was so rusted that it showed no fingerprints, but was definitely identified as the property of Robinson‘s grandfather. Its case was found in Hickman‘s apartment, and subsequent tests demonstrated that it was the murder weapon. On the morning of the 4th the police received a report of another stolen car which they later recovered in downtown Los Angeles. The point of recovery, the point from which it was taken, and the location of the various objects which had been found near the scene of the crime, taken together, indicated that two men had left the country club via the golf course, utilizing the stolen car as a
In addition to the foregoing, the prosecution introduced transcriptions of extrajudicial confessions and admissions made by Hickman, Robinson and Guliex.1 These statements were offered by the prosecution expressly only against the particular individual who made the statement, and the court, at the time of admission of each statement properly instructed the jury that it was not to consider anything contained therein as evidence against any other defendant.
As each statement was offered the defendant making it objected on the ground that he had been coerced into making it and that it was involuntary. When such objection was made, the court allowed the defendant involved to present voir dire evidence on the allegedly involuntary nature of the statement, carefully explaining to the jury that the testimony was being received for the sole purpose of determining whether or not it had been made voluntarily. At the conclusion of each voir dire examination, the trial judge expressed his opinion (out of the presence of the jury) that the statement was voluntary, and allowed the prosecution witness to read the transcript of it into evidence.2
The extrajudicial confessions of Hickman, Robinson and Guliex were, except in certain respects hereafter mentioned, substantially similar. Therein those three defendants stated that Hickman, Robinson and Drivers had planned for several weeks to rob the Fox Hills Country Club;3 that Robinson purchased the Ford from Campbell on February 2d; that sometime on the 3d they decided to consummate their plan that night; that Hickman went to work, pursuant to the plan, at the ordinary time, with the understanding that the other two would drive to the club parking lot later in the evening; that thereafter, and before going to the club, Robin-
According to Hickman, after advising the others that it was time to go in, he left them in order to rope off a separate portion of the parking lot which was out of view of the spot where the Ford was parked. He stated that while he was so engaged he heard what sounded like two shotgun blasts from the dining room area; that he looked in a window and observed Mr. Morrisey attempt to reach for the telephone which was on the office desk, but that Morrisey fell over before he reached the telephone; that he (Hickman) then panicked, and ran to the locker room, where he locked himself in; that sometime later he left the locker room and, on approaching the dining room, saw Johnson; that together they entered the dining room and found Morrisey lying as described by the prosecution witnesses; that they attempted to give him aid, but were unable to help him; that Hickman then telephoned for the police; that after doing so he went outside to await the arrival of the police, whereupon he noted, for the first time, that the Ford had been abandoned near the parking lot exit; that he then reentered the club where he waited until he saw the headlights of a car, at which time he went outside; that he was met by the police in the parking lot, and reentered with them; that after being interrogated by the police, he was taken into custody.
Guliex indicated in his statement that when Hickman told them that the time was ripe, the remaining three alighted from the car and moved toward the kitchen door; that he
Robinson‘s statement contained most of the matters set forth in the résumé of Guliex’ statement, except that it gave no indication of the identities of the other parties, and contained no reference to Guliex’ alleged suggestion that they terminate the attempted robbery. In his statement he admitted having done the shooting; although he claimed that he shot as Morrisey was approaching him. He, also, stated that the parties fled, in the manner indicated by Guliex. Neither he nor Guliex mentioned Drivers by name at any point after Hickman indicated that the time was ripe to enter the club.7
In addition to the foregoing, the prosecution offered proof of what was intended as an adoptive admission allegedly made by Drivers. Since the objection to this evidence constitutes one of Drivers’ principal contentions on appeal, the facts surrounding its admission are set forth in detail.
The prosecution first made an offer of proof in chambers, outside the presence of the jury. It there offered to prove that Drivers stated, when accused of the crime, that he was not “copping out to nothing,” claiming that such was admissible as a failure to deny an accusation. Various defendants (including Drivers) objected on the ground that the offered statement was of itself a denial, and hence not subject to the rule authorizing evidence of an undenied (or equivocally answered) accusation. Thereupon the prosecuting attorney repeated the alleged phrases used by Drivers in slightly
“Q. ... [Y]ou had a conversation with Drivers at Lennox Station; is that right?
“A. Yes.
“Q. And at that time you told him in substance that you knew what—what had happened out at the Fox Hills Country Club and that he‘d better tell you what happened?
“A. No. At the first questioning we asked him where he was and he related what he had done. After Willie Hickman was brought into the room is when Chuck Drivers asked Willie Hickman that [sic, if] he, referring to himself, was at the Fox Hills Country Club. Willie Hickman at this time stated yes, he was.
“At this time he said he was not out at the Fox Hills Country Club, and Sergeant Human related to him the incident that occurred and that Willie Hickman had involved him in the crime.
“Q. In other words, he denied then to you that he had anything whatever to do with the crime that we are interested in in [sic] here now?
“A. He did.”
Whereupon the prosecution objected and moved to strike the answer for the purpose of the objection. The answer was stricken for that purpose, and before the court was able to rule on the objection, counsel for Drivers withdrew the question, stating that he would reframe it.10 Thereupon the examination continued as follows:
“Q. ... Did he at any time admit to you that he had any part in this crime that we‘re interested in?
“A. He did not.
“Q. Didn‘t he at all times tell you that he didn‘t know what you were talking about when you questioned him about the gun and also the shooting at the Fox Hills Country Club?
“A. That is true.”
Returning to direct examination, the witness testified (over legitimate objections that the questions were leading) that Drivers had made conflicting statements as to his whereabouts on February 2d, 3d and 4th.11 Counsel for the prosecution then queried the witness as to the asserted failure to
“Q. All right, would you relate as best you can the conversation between Willie Hickman and the defendant Drivers?
“A. Yes. At this time Chuck Drivers asked Willie Hickman if he was at the Fox Hills Country Club, referring to himself.
“Q. Excuse me, Drivers asked Hickman?
“A. Yes.
“Q. All right.
“A. And Willie Hickman informed Chuck Drivers that he was also at the Fox Hills Country Club the night of February 3rd, to which Chuck Drivers stated, ’No, I was not there, and that‘s that.’ [Italics added.]
“At this time Chuck Drivers was informed of the incident at the Fox Hills Country Club, and that a shooting had occurred, which one person was dead, to which Chuck Drivers said, ‘I am not copping out to nothing, even if my own mother said it.‘”
This was the state of the evidence when the prosecution rested. Then, the defendant Hickman commenced his defense, and a most confusing situation developed. His entire direct testimony consisted of his reply to a single question in which he reiterated that his previous testimony, regarding the coercion and force used to secure his confession, was the truth.11a He was then cross-examined by the prosecuting attorney. During such examination he continued to reiterate that his confession had been obtained by brutality, threats and refusal of food. However, while insisting that his confession was involuntary, he also admitted that the confession,
As the cross-examination continued, the questions changed from inquiry as to whether a particular fact set forth in the recorded confession was true, to an inquiry concerning the truth of the same fact, without any reference to the extrajudicial statement. At just what point the prosecuting attorney ceased referring to the confession obtained by the police and commenced to obtain answers that amounted to a judicial confession, is not clear from the record. It is clear, however, that the cross-examination, which commenced with an inquiry into the truth of the extrajudicial confession, ended with testimony from Hickman that was identical to the facts set forth in the extrajudicial statement. When the change in the type of cross-examination first became apparent, the codefendants objected on the ground that the questions were beyond the scope of the direct examination. Even though that direct had been limited to the one proposition that Hickman‘s extrajudicial statement had been obtained by coercion, the court ruled that questions designed to obtain a piecemeal confession of the crime were proper cross-examination, and that the answers thereto were binding on all defendants. To complicate the matter, the court overruled further objections as to the form of the questions, holding that great latitude would be allowed on cross-examination. Thus, the prosecution was able to ask leading questions, and to accomplish a “rehabilitation” of Hickman, and to obtain a complete confession from the witness stand, which confession implicated each of the other defendants by name.
By way of cross-examination of Hickman‘s so-called “defense,” the defendant Robinson attempted to prove (through questions to Hickman) that the latter had, on the
Guliex then put on a defense not material to this appeal.
Robinson presented a defense in which he did not himself take the stand, but which consisted entirely of a further attempt to prove a deal between Hickman and the prosecution. The prosecution did not undertake to rebut this defense, but in a proceeding labeled (in the transcript of record) as “Hickman‘s Rebuttal of Robinson‘s Defense,” Hickman produced both prosecuting attorneys to deny that any deal had been made.12 Then Robinson, by way of surrebuttal, called Drivers to the stand for the limited purpose of testifying that on the previous day, in open court, he had overheard Hickman‘s counsel attempting to make such a deal with the prosecuting attorneys. Robinson then called Drivers’ attorney to the stand to testify that, on the previous day, Drivers had reported to him the fact that he had overheard such deal. On cross-examination Drivers’ counsel stated that when his client told him what he thought he had overheard he “didn‘t believe it.”
Drivers offerеd no defense, and did not take the stand except as a witness called by Robinson for the limited purpose mentioned above.
After arguments and instructions the jury returned their verdicts of murder in the first degree against Robinson, Hickman and Drivers. The penalty phase of the trial was short and without incident.13 At its conclusion the jury assessed the death penalty against Robinson, and life imprisonment for Hickman and Drivers. As stated above, Hickman has not appealed.
The Issues:
The principal issues on these appeals involve, first, the voluntary nature of the extrajudicial statements and their admissibility. Included therein are questions regarding the
In addition to the principal issues last enumerated, appellants have made several assignments of error which are without merit. These include the contentions that reversal is required because the court overruled the challenge which they made to the jury panel at the commencement of the trial, that the testimony of Hickman was proved to be false and should have been excluded, that the prosecution indulged in improper argument, that the prosecution should be bound by Drivers’ extrajudicial denial of complicity because the same was produced as a portion of its case in chief, and that Drivers was denied effective assistance of counsel. These contentions, all without merit, can be disposed of quickly.
On the first morning of the trial, and before selection of a jury had commenced, the several defendants (who were all Negro) challenged the entire panel on the sole ground that Negroes were systematically excluded therefrom. The challenge was made on information and belief, only, and no evidence was offered. In the absence of the showing subsequently made by the prosecution, the record merely showed that there were no Negroes on either of the two panels which were called to try these defendants. The question of whether there has been a systematic racial discrimination in the selection of jurors must be determined from the facts of each particular case (Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947)), and it is incumbent upon a defendant to establish such facts. Here, the appellants not only failed to establish any facts whatsoever, but they made no attempt to rebut the showing gratuitously made by the prosecution. From that showing it was made to appear that the practice used in the selection of jurors was designed to obtain a cross section of the registered
The claim that the testimony of Hickman must be disregarded because some of his testimony was shown to have been false is without merit. Appellants rely on the fact that the prosecution offered convincing evidence that Hickman‘s claims of brutality, and other unlawful means used to obtain a statement from him, were untrue, and yet rehabilitated him for the purpose of obtaining an “in court” confession which implicated his codefendants. No authority is cited by appellants to uphold their contention that the jury may not accept one portion of a witness‘s testimony while rejecting another. The authorities are to the contrary. The point which appellants attempt to make here goes not so much to the rejection of Hickman‘s testimony because it is unworthy of belief, as it does to the question of whether it was proper cross-examination. That point will be discussed later.
Appellants claim that one of the prosecuting attorneys committed prejudicial misconduct when, in his argument to the jury during the penalty phase of the trial, he made some reference to the fact that the jury had been selec-
Appellant Drivers’ contention that the prosecution was bound by his extrajudicial statements because the same were produced during its case in chief, misconceives the point at issue. Respondent argues that it was not bound because portions of that statement came in during Drivers’ counsel‘s cross-examination of the witness. It is true that the record indicates that the statements were repeated on several occasions, both on direct examination and on cross, but what both counsel overlook is that this is not the point at issue. The prosecution has not claimed (and does not claim) that it is not bound by Drivers’ extrajudicial statements. It has attempted to use the same to prove an alleged admission by reason of failure to deny an accusation. Drivers now wishes to bind the prosecution with that testimony because he sees in the remarks an unequivocal denial of the accusation. The real issue is not who is bound by the testimony, but whether or not there was a denial of an alleged accusation. This phase of the problem is discussed later.
The final contention that lacks merit relates to the claim that Drivers was denied effective assistance of counsel when his attorney was required to testify. The claim is not made that the mere calling of Drivers’ counsel to the witness stand denied the client the effective assistance of counsel.17 Rather, it is urged that when counsel testified that he did not believe what his client had told him, he placed his client in such a light that the jury could not possibly believe in his innocence. In this respect, Drivers misinterprets the record. He interprets counsel‘s testimony to be that he did not believe in the veracity of his client. The record shows the statement (given in reply to a question calling for counsel‘s reac-
The Voluntary Nature of the Extrajudicial Statements:
The contention is that Robinson‘s extrajudicial statement should have been excluded because it was involuntary.18 Such contention overlooks the manner in which the statement was admitted. The trial judge allowed the parties to produce evidence in a voir dire proceeding before determining whether he would allow the extrajudicial statement to be read into evidence. He advised the jury that the evidence thus to be produced was received for the sole purpose of determining whether the alleged statement was voluntary or involuntary. The evidence so produced was in direct conflict, and the trier of fact certainly had the right to accept either the prosecution‘s version or that of Robinson and his witnesses. This constituted a simple factual issue. At the conclusion thereof, the trial judge expressed to counsel, and out of the presence of the jury, his disbelief of Robinson‘s claims. Under proper instructions he allowed the jury to determine whether or not the statement was voluntary. The parties, in their briefs, argue the merits of the facts testified to by the various witnesses. But we are not concerned with that question.19 That was the sole concern of the jury. The cases
Hickman‘s Judicial Confession:
As stated above, when Hickman took the stand in his own defense, his direct testimony was strictly limited to the claim that his extrajudicial confession was coerced. Since that matter had already been completely covered on voir dire during the presentation of the People‘s case, the reason for offering this defense is not readily understandable. However, he so testified, and at the conclusion of his direct, the prosecution cross-examined. Over objection, the court allowed the prosecuting attorney to elicit the fact that, regardless of the voluntary or involuntary nature of the confession, the facts stated therein were true. Undoubtedly that ruling was predicated on the theory that the truth or falsity of the statement is a fact from which the jury might infer that it was voluntary. For such purpose it was a proper subject of cross-examination. But, in allowing such cross-examination, the court expressly sustained the objections of the three codefendants, ruling that the subject was hearsay as to them, and that the
time, and without further coercion, Robinson requested the opportunity to “take the rap” himself, and clear his friends. His confession (which did not name the others) followed.
matter was admitted solely as against Hickman. Subsequently, when the questions were shifted to elicit the truth or falsity of those same facts, without regard to whether they were contained in the extrajudicial confession, the court continued to rule the cross-examination proper, and held that the answers thus elicited were now binding on all defendants. If the first portion of that ruling was correct, there was no error in the second; for the factual testimony of any witness, given in open court, is not hearsay. But there is a grave question as to whether the last portion of the cross-examination was within the scope of the direct. The direct went only to the voluntary or involuntary character of the extrajudicial confession. The truth of that confession having been established, no further cross-examination was necessary or proper. Furthermore, the truth or falsity of any fact, without relation to the extrajudicial statement, bore no relationship to the matter developed on direct.By authorizing the cross-examination to the extent set forth, the trial court allowed the prosecution two distinct and unwarranted advantages. In the first place, had it not obtained the testimony by cross-examination, the prosecution could not have produced this most compelling portion of its case. It could not have examined Hickman on direct, because it could not have called him as a prosecution witness except at his request (People v. Talle, 111 Cal.App.2d 650 [245 P.2d 633]). Secondly, assuming the unlikely event that Hickman would have voluntarily offered himself as a prosecution witness, the prosecuting attorney would have been unable to elicit the information from him by means of leading questions and similar forms of cross-examination which were utilized in the instant case. Review of this portion of the record raises a grave doubt that Hickman‘s judicial confession (i.e., that portion of his examination which was admitted as against all codefendants) could have been obtained had the prosecution been confined to the ordinary rules of direct examination.
From the foregoing analysis we must conclude that the trial court erred, so far as the two appellants are concerned, in allowing, over proper objection, cross-examination of Hickman in regard to the facts of the crime, as distinct from the sole matter touched upon in his direct examination. Was such error prejudicial? This depends upon whether the evidence, exclusive of that which was improperly received, was sufficient to sustain either conviction, and whether the im
Instructions to the Jury:
Before turning to a review of the sufficiency of the evidence, it is necessary to determine appellants’ assignments of error regarding the jury charge, for the challenged instructions bear directly upon those portions of the evidence which the jury may have considered as against the respective defendants.
The court instructеd that Hickman‘s testimony, given in court on cross-examination (as related immediately above), might be considered as binding on all defendants. The court continued with the admonition that “If you find that the crime of murder was committed, and if you further find that the defendant, WILLIE WARNER HICKMAN was an accomplice in the commission of that crime, then as against codefendants DAN CLIFTON ROBINSON, FRED GULIEX and CHARLES DRIVERS, his testimony must be corroborated....” (Italics added.) The vice claimed is that the court, by the italicized portion of the quoted instruction, invited the jury to speculate upon whether or not Hickman was an accomplice, and implied that if they found him not an accomplice, they could convict the others on his uncorroborated testimony. Hickman was, of course, bound by his extrajudicial confession, the truth of which he admitted. That testimony made Hickman an accomplice, as a matter of law, and the court should have so instructed the jury. By telling the jury that corroboration of his testimony was required only if they found him to be an accomplice, the court impliedly and erroneously authorized the jury to find him not an accomplice, thereby making corroboration unnecessary. The fact that the court may have, thereafter, given either a proper or an improper definition of accomplice does not cure the error.20 It only emphasizes it, for such definition serves to strengthen the thought that the jury was the sole judge of whether or not Hickman was an accomplice. In fact, one of the defining instructions advised the jury that “whether or not any witness in this case was an accomplice as defined in these instructions is for the jury to determine from all of the testimony and circumstances as shown by the evidence.” That statement was incorrect, not only for mak
In this situation, the language of Justice Edmonds in People v. Rogers, supra, 22 Cal.2d 787, 807, is in point: “Error in an instruction which ordinarily would not prejudice the rights of a defendant may justify a reversal of the judgment where the jury is misdirected or misled upon an issue vital to the defense and the evidence does not point unerringly to the guilt of the person accused.” Although not on all fours, that case and this have certain elements in common, in that in Rogers there was also evidence of involuntary confessions and determination of issues which the court gave to the jury, and of other issues which it kept from them. In such cases care should be taken not to confuse the jury as to the limit of its prerogatives as the fact finder. Respondent‘s reliance on People v. Richardson, 182 Cal.App.2d 620 [6 Cal.Rptr. 61], is misplaced. That case states that if the undisputed evidence establishes that a witness is an accomplice the jury should be so instructed (citing authorities for the proposition). It does not appear that the court (in that case) invited the jury to speculate on whether the witness was an accomplice. And, under the peculiar facts of the case, the appellate court found that defendant was not prejudiced by the failure to admonish the jury that the witness was an accomplice.
In the instant case, the court‘s error in authorizing the jury to find that Hickman may not have been an accomplice denied the codefendants the protection intended by
The error was compounded by the court‘s instructions regarding the law of conspiracy. At the outset of the trial the prosecuting attorney stated that he intended to rely upon the law of conspiracy. He did not explain his purpose, but it is to be supposed that he intended to take advantage of the rule that in a conspiracy all of the conspirators are bound by the extrajudicial statements of each of the conspirators. But, surprisingly, the prosecution made no attempt to offer evidence of a single extrajudicial statement except as being specifically limited to the defendant who made the same. In each instance it conceded (and the court ruled and later instructed) that the extrajudicial statement, if found to be voluntary, was admitted solely as against the individual, and constituted hearsay as to the codefendants. Furthermore, none of the defendants were charged with conspiracy, and the prosecution made no effort to amend in this regard. For these reasons, the question of conspiracy was not involved. In spite of this fact, the court gave 14 instructions on the law of conspiracy, all at the request of the prosecution. This was more instructions than were given on any other issue in the case, and included, among other things, instructions on the definition of conspiracy, the rule that an absent conspirator is jointly responsible for the acts of his coconspirator committed within the scope of the conspiracy, the rule that conspiracy may be proved by circumstantial evidence, and several instructions designed to invite the jury to determine (as an issue in this case) whether a conspiracy existed and who were the conspirators. On the other hand, the charge did not include a single instruction to the effect that a defendant (whether charged with conspiracy or not) may not be held to be a conspirator on the uncorroborated testimony of an accomplice. It is true, as argued by respondent, that once a
So viewed, the instructions were highly prejudicial. To this, respondent offers but two arguments. It points out that the defense did not offer any instructions on conspiracy. Such is no answer if the issue was not a proper subject for instructions in the first instance. Furthermore, it contends that conspiracy need not be charged in order that proof thereof may be shown, and that instructions may be properly given when the proof shows that defendants did in fact conspire. Those statements are true, and the authorities cited for both propositions so hold. But the point here is that conspiracy never did become an issue for the reason that, for all its talk about it, the prosecution never did attempt to prove anything under the rules of conspiracy.
The Sufficiency of the Evidence Against Drivers:
It will be recalled that when the prosecution rested, very little evidence had been admitted as against Drivers. The extrajudicial statements and confessions of Hickman, Robinson and Guliex had been admitted as binding only on the respective individuals. The evidence which linked Drivers with the crime consisted only of: (a) his fingerprints on the Ford automobile, (b) testimony of the police that Drivers gave conflicting and evasive replies when queried in regard to his whereabouts during the weekend of the crime, and (c) the alleged adoptive admission set forth hereinabove. Drivers offered no evidence in rebuttal of the People‘s case. Thus, if
Respondent claims that the necessary corroborating evidence is to be found in the fingerprints, the evasive replies and the alleged admission by failure to deny an accusation made in his presence. None of those three items, independently or cumulatively, constituted the requisite corroboration.
The fingerprints showed no more than that Drivers had been present in or about the Ford on some recent date. The fingerprint expert produced by the prosecution testified that he could not place the date on which the prints were put on the car, but that he believed them to be relatively recent because of the fact that the car was out of doors. He was of the opinion that prints on such a surface disappear sooner when exposed to the elements, but was still unable to state that they had been placed on the car within the last day or two prior to the date of the crime. As opposed to this, the evidence (also produced by the prosecution during its case in chief) showed that Drivers was Hickman‘s cousin, and spent much time at the Hickman apartment which was in the same building as the apartment of Campbell (the original owner of the car), and that Campbell was also a frequent visitor to the Hickman apartment. Thus, Drivers’ fingerprints on the Ford are as equally susceptible to an inference that they came there innocently, as they are to any inference that their presence connects defendant with the commission of the crime. In addition, the prosecution witnesses (police sergeants) testified that when they queried Drivers concerning his move
“It is necessary that the evidence corroborating an accomplice shall connect or tend to connect the defendant with the commission of the crime. Corroborative evidence is insufficient where it merely casts a grave suspicion upon the accused. It must not only show the commission of the offense and the circumstances thereof, but must also implicate the accused in it. . . .” (People v. Robbins, 171 Cal. 466, 470 [154 P. 317].)
The testimony of the police to the effect that Drivers gave two conflicting versions of his movements on the weekend of the crime does not satisfy the requirement that the accomplice‘s testimony must be corroborated. The police were here testifying to an extrajudicial interview with Drivers, which took place after the latter voluntarily turned himself in to the police department. When the witness (Sergeant Wrona) was asked to point specifically to the conflict in Drivers’ statements which indicated untruth, he was able to point to but one conflict in the repetition of a narrative covering Drivers’ movements for three days (i.e., the place in which he slept during the early morning hours of February 4th). Respondent contends that this is corroborative evidence for the reason that it indicates a guilty frame of mind. Of course, a guilty frame of mind may be proved, in proper circumstances, by evidence that the defendant made inconsistent or conflicting statements. But ordinarily that rule is applied in relation to circumstantial evidence of the guilt of a defendant who has otherwise been connected with the crime. Where, as here, it is offered in corroboration of the testimony of an accomplice a necessary element is lacking. At best, it tends to prove that Drivers, while talking to the police, had a guilty frame of mind. But in regard to what? It
This leaves, as the only claimed corroboration, the alleged admission by reason of failure to deny a claimed accusation. Neither appellant nor respondent has properly briefed this point, but an examination of the testimony shows that here there was no adoptive admission. To constitute such the evidence must show that an accusation was made under such circumstances that the defendant heard and understood the same, and had the opportunity to deny, and that, having such opportunity, he either failed to reply or made a reply so equivocal as to be consistent with guilt. In
Some mention should be made of the five variations of the reply that is alleged to have been made. Immediately upon making the reply quoted above, Drivers was advised by the police sergeant that a murder had taken place and that he was suspected of complicity. He is alleged to have replied in one or another form of the phrase, “I am not copping out to nothing, even if my own mother said it.” In all five statements he used some form of the phrase to “cop out.” The same police sergeant, when testifying at another point in the trial, was qualified by the prosecution as an expert on language of the underworld, and testified that the verb to “cop out” is synonymous with “to admit.” Thus, by its
The respondent makes certain other contentions on this issue which are clearly devoid of merit. Thus, respondent claims that the independent evidence shows that the crime was committed by three persons. This is true, since Morrisey so testified, although he was unable to identify any of the three. Respondent then argues that the independent proof shows that two of the criminals escaped in one direction and the third in another direction. This is also true. Respondent then argues that since Robinson and Guliex have both confessed to having escaped together, via the golf course, the third, who escaped via the cemetery, must have been Drivers. Such argument is unsound. In the first place, the confessions of Robinson and Guliex were not admitted against Drivers. Even if they had been, they do not indicate that Drivers escaped by the alternate route, since that is the route on which the shotgun was found, and no one disputes the fact that Robinson carried and used that gun. The argument simply indicates that some third person left via the cemetery. In order to connect Drivers with the crime it is necessary that that particular evidence be given both meaning and direction
The only other argument that respondent makes in regard to corroboration seems to be connected in some vague way with the rules of conspiracy. The applicability of such argument is not apparent. As already pointed out the prosecution accomplished nothing when, at the start of the trial, it announced that it would rely on the law of conspiracy. At no time did it offer evidence by which a conspiracy might be proved against Drivers, other than the accusations of coconspirators. Three extrajudicial accusations were admitted under the express ruling that they were limited to the case against the defendant whose statement was being admitted. The fourth was Hickman‘s judicial confession made in open court. Although we have found it to have been improperly admitted for other reasons, it did not require any rule of conspiracy to make it binding against a codefendant.
Thus it is clear that the evidence is insufficient to sustain the conviction of Drivers. Even if we were to consider Hickman‘s judicial confession as properly admitted against Drivers, it constitutes as a matter of law the testimony of an accomplice, uncorroborated by competent evidence tending to connect him with the commission of the crime. Without Hickman‘s confession there is nothing in the record on which to convict Drivers other than the extrajudicial statements which, concededly, were not binding upon him.
The Sufficiency of the Evidence Against Robinson:
Much that has been said in regard to the evidence admitted against Drivers is equally true in regard to Robinson. However, there is one important distinction between the
However, we cannot say, as a matter of law or fact, that the jury accepted the prosecution‘s testimony regarding the voluntary character of Robinson‘s confession, or that it rejected Robinson‘s claim of coercion. If the jury determined that the confession was coerced, then it may have convicted Robinson on the theory that the improperly admitted confession of Hickman was corroborated by the independent evidence which placed Robinson at the scene of the crime. Or, it may have reacted to the improper instructions noted above, and convicted Robinson on Hickman‘s confession standing alone, on the theory that the latter was not an accomplice whose testimony required corroboration. It may even have been confused by the improper instructions on conspiracy, and convicted on the theory that the conspirators’ extrajudicial statements were binding on Robinson. Conviction on
When, as in this instance, a reviewing court is unable to determine from the record whether a jury convicted on admissible evidence or rejected that evidence and convicted on inadmissible evidence improperly received, it must find the error to have been prejudicial. Under a different factual situation, but where the principle was equally applicable, this court said: “However reprehensible the conduct of an accused, he is entitled to have its legal consequences determined from competent evidence by a jury properly instructed. Here, we cannot fairly say that, had the improper evidence improperly used not been before the jury, unadvised of its impropriety, the verdict and sentence would have been the same.” (People v. Orcalles, 32 Cal.2d 562, at p. 573 [197 P.2d 26].)
When, as here, reliance on the improperly received evidence was aided by improper instructions, there should be no question of the prejudicial nature of the dual error (People v. McCaughan, 49 Cal.2d 409, 416 [317 P.2d 974], and cases cited therein). In civil appeals it has been the invariable rule that reversal is required when it is impossible to determine whether the verdict was based on admissible evidence submitted under correct instructions, or on erroneous determination of questions improperly submitted to the jury. (Miller v. Peters, 37 Cal.2d 89, 95 [230 P.2d 803]; Clement v. State Reclamation Board, 35 Cal.2d 628, 644 [226 P.2d 897]; Edwards v. Freeman, 34 Cal.2d 589, 594 [212 P.2d 883]; Huebotter v. Follett, 27 Cal.2d 765, 770-771 [167 P.2d 193]; Oettinger v. Stewart, 24 Cal.2d 133, 140 [148 P.2d 19, 156 A.L.R. 1221].) It is equally (if not more) important to grant the same benefit of the doubt to a defendant on trial for his life.
Viewed without reference to the foregoing concept, the evidence of guilt here appears to be strong. But that very thought is, in itself, a warning of danger. Why do we consider the evidence of guilt to be overwhelming? In all probability it is because we are aware that the four statements of the various defendants, each made independently of the other, dovetail completely. Taking them together, and considering the circumstances under which each was made, there seems to be no likelihood that any one of the four defendants was innocent of the crime with which he was charged. But, we are
The judgments of conviction as to Robinson and Drivers are reversed, and the cause, as to them, remanded for a new trial.
Gibson, C. J., Traynor, J., Tobriner, J., and Peek, J., concurred.
SCHAUER, J.—I dissent from the reversals of the judgments of conviction as to both Robinson and Drivers. In my view all but one of the asserted errors found by the majority are not errors at all; and that one (which at most is questionable)—i.e., failure of the trial court to instruct on its own motion that Hickman was an accomplice as a matter of law—is clearly not prejudicial (
Asserted Error in Allowing Hickman to Make a Judicial Confession of the Crime
The majority hold (ante, pp. 392-394) that the trial court erred in allowing Hickman (a convicted coconspirator who has not appealed) to testify in detail as to the facts of the crime and thus make a full judicial confession. The opinion asserts that such confession was “elicited” by a cross-examination that “exceeded the scope” of the direct examination of Hickman, which dealt only with the initially claimed, but subsequently disproved, “involuntariness” of his extrajudicial confession. In my view neither the established facts nor the applicable law support this holding. A reading of the relevant portion of the transcript (see especially fn. 1, post) shows that the matter assertedly “elicited” or “obtained”
It is undisputed (see majority opinion, ante, p. 385, fn. 11a) that Hickman took the witness stand and testified on direct examination that his previous account (given on his request before the confession was received in evidence) of asserted events allegedly coercing his confession was true. The prosecuting attorney then cross-examined, and that inquiry began and progressed to the volunteer statement exactly as set forth in the margin.1 It is apparent from this transcript that the italicized testimony—i.e., “and the statement I gave Sergeant Wrona is the truth“—was volunteered
The majority‘s extended discussion about hearsay in relation to Hickman‘s testimony appears to be devoid of materiality because no such issue is actually involved. As counsel at the trial apparently well knew, Hickman‘s judicial confession was not subject to hearsay objection at all. This, the majority ultimately acknowledge (ante, p. 393): “the factual testimony of any witness, given in open court, is not hear-
To begin with, the record discloses that the only objection made on the ground that the cross-examination of Hickman exceeded the scope of the direct was belatedly voiced by counsel for Robinson; no such objection was at any time made or joined in either by Hickman, who was the defendant actually being examined, or by Drivers, who now benefits from the asserted error. Robinson‘s objection came too late, in that Hickman had already testified without such objection that his extrajudicial statement was true and in particular that he and Robinson and Drivers had several times discussed robbing the Fox Hills Country Club about three weeks before the night of the crime. Moreover, no motion was made by any defendant to strike the latter testimony, which therefore remained in the record for the jury to consider with the defendants’ acquiescence.
Secondly, even if a timely objection had been made by the proper party it would not have warranted restricting the prosecutor‘s right of cross-examination in the circumstances here shown and under existing law. It has been held in varying contexts that if a defendant in a criminal case volunteers a statement on cross-examination he may be further examined thereon by the prosecuting attorney (or judge), even though the statement concerns matters which were not embraced in his direct examination. (People v. Peete (1946) 28 Cal.2d 306, 321 [10] [169 P.2d 924]; People v. Sutton (1887) 73 Cal. 243, 244-245 [15 P. 86]; People v. Shields (1945) 70 Cal.App.2d 628, 638 [7] [161 P.2d 475]; People v. Fitch (1938) 28 Cal.App.2d 31, 44 [6] [81 P.2d 1019].) Applying that rule to the case at bench, the subject cross-examination would thus have been proper even if it had technically “exceeded the scоpe” of Hickman‘s direct examination.
Thirdly, it does not appear that the latter‘s scope was “exceeded” in any event. The majority acknowledge (ante, p. 392) that “it was a proper subject of cross-examination” to ask Hickman whether “the facts stated [in his extrajudicial confession] were true,” on the theory that “the truth or falsity of the statement is a fact from which the jury might infer that it was voluntary.” But the majority then assert (ante, p. 393) that “the truth or falsity of any fact,
Hickman‘s answers, of course, constituted a judicial confession implicating each of his codefendants, but the latter have no ground to complain of its admission in evidence against them. As noted above (and as the majority acknowledge), such a confession is not hearsay; rather, “it is direct evidence competent for the proof of all elements of the crime” (People v. Ditson (1962) 57 Cal.2d 415, 445 [18] [20 Cal.Rptr. 165, 369 P.2d 714]). It was volunteered by Hickman for reasons best known to himself;4 and if in so doing he also dealt a blow to his codefendants’ chances of acquittal, such is a risk that must be run by those who conspire together to break the lаw. It is, after all, far from rare that one of a band of arrested conspirators decides to unburden his guilt at the bar of justice, and his partners in crime must be prepared to face that eventuality.
Asserted Insufficiency of the Evidence Against Drivers
The majority further hold (ante, pp. 397, 404) that there was insufficient evidence to corroborate Hickman‘s judicial
In this connection the majority discuss the evidence of Drivers’ fingerprints which were found on both sides of the right-hand front (passenger) door of the intended getaway car. It will be remembered that this car, a 1950 Ford purchased by defendant Robinson only a day or so before the commission of the crime, was abandoned with its gears jammed in the parking lot of the Fox Hills Country Club, facing the exit, and with its rear license plate obscured by means of a white rag. Although the fingerprint expert could not fix “an exact time” when Drivеrs’ prints were placed on the car, he also testified that one such print was found on the outside surface of the door glass and that prints disappear soon when exposed to the elements in that manner. The majority summarized (ante, p. 398) by saying that this evi-
It is true that in such relatively early cases as People v. Robbins (1915) 171 Cal. 466, 470 [154 P. 317], relied on by the majority, support may be found for their theory that corroborative evidence is insufficient as a matter of law when, in the opinion of the reviewing court, it is “equally susceptible to an inference” of the defendant‘s innocence. But in People v. Henderson (1949) 34 Cal.2d 340 [209 P.2d 785], this court recognized that such a theory is in conflict with the proper function and limits of appellate review as set forth in the leading case of People v. Newland (1940) 15 Cal.2d 678, 681 [1]-684 [2] [104 P.2d 778]. Thus we stated in Henderson (at pp. 346-347 [6] of 34 Cal.2d) that “When as in the present record it is discovered that there is testimony aside from that of the accomplice which tends to connect the de
Moreover, the majority reject the fingerprint evidence as showing only “association with the criminal,” not with the crime itself (citing People v. Reingold (1948) 87 Cal.App.2d 382, 399-400 [6] [197 P.2d 175], and People v. Braun (1939) 31 Cal.App.2d 593, 601-602 [3] [88 P.2d 728]). But this court has held that “The relationship of the men [i.e., the defendant and his accomplice] and all of their acts and conduct may be considered in determining whether there are
The latter proposition, of course, is simply an illustration of the broader principle that the prosecution is not required to single out an isolated act or word which in and of itself is offеred as sufficient corroboration of the accomplice‘s testimony; rather, the prosecution may rely for this purpose on the combined and cumulative effect of all the relevant nonaccomplice evidence and the inferences that the jury may reasonably have drawn therefrom. The majority purport to recognize this principle in asserting (ante, p. 398) that none of the items of evidence discussed, “independently or cumulatively, constituted the requisite corroboration.” But the
For example, the majority view the evidence of Drivers’ conflicting statements to the police entirely out of context. The majority say (ante, p. 400) that the witness, Officer Wrona, “was able to point to but one conflict in the repetition of a narrative covering Drivers’ movements for three days (i.e., the place in which he slept during the early morning hours of February 4th).” But this seemingly innocuous discrepancy takes on a far different light when it is remembered that it was precisely during those same “early morning hours of February 4th” that this murder was committed. The inconsistency in the suspect‘s explanations of his whereabouts during that period was obviously of the utmost importance. As that inconsistency could not reasonably be reconciled with total innocence, the majority are compelled to concede (ante, p. 400) that “At best, it tends to prove that Drivers, while talking to the police, had a guilty frame of mind.” (Italics added.) But again attempting to find this evidence “equally susceptible to an inference” that Drivers was innocent of this crime, the majority ask: “But in regard to what? It may be reasonable to assume that he had in mind some activity which he desired to hide from the police. But, there is no reasonable inference that his conflicting replies were made for the purpose of hiding connection with the crime with which he is now charged.” (Ante, pp. 400-401.)
To so hold is to refuse to face the facts of this case. It will be remembered that when first asked (on the way to the police station) where he had spent the night of February 3-4, 1962, Drivers told the police he had spent it at his aunt‘s house. Oncе at the police station, however, Drivers changed his story and said he was in a dance hall from 10:30 p.m. that evening to 2 a.m. the next morning, but that he saw no one there he knew; that he then “had a hamburger” and went to Hickman‘s apartment at 3:30 or 4 a.m., noticed that it had been searched, and spent the remainder of the night there. It is well settled that “False and contradictory statements of a defendant in relation to the charge are themselves corroborative evidence.” (People v. Santo (1954) supra, 43 Cal.2d 319, 327 [8]; accord, People v. Simpson (1954) 43 Cal.2d 553, 564 [6] [275 P.2d 31]; People v. Hannie (1962) 202 Cal.App.2d 462, 465 [2] [20 Cal.Rptr. 808]; People v. Dykes (1961) 198 Cal.App.2d 75, 80 [2b] [17 Cal.Rptr. 564];
Moreover, the jury were entitled to consider more than the bare contradiction between Drivers’ stories; they could also consider the contents of either or both of such explanations. In particular, the jury could weigh the significance of Drivers’ claim that at 10:30 p.m. on February 3 he went to a public dance hall and remained there until 2 a.m. on February 4. Such an alibi would neatly account for his whereabouts during the crucial period of time relating to the murder (which was committed shortly after 1 a.m. on February 4), yet would have been virtually impossible to verify because the asserted locale was a public dance hall and Drivers claimed he knew no one there.
The jury could also consider the significance of Drivers’ movements thereafter. In spite of the lateness of the hour he did not return home but (according to his second story to the police) went to Hickman‘s apartment at about 3:30 or 4 a.m. that night. The jury could reasonably infer that the purpose of Drivers’ nocturnal visit was not an innocent social call, but to learn whether Robinson and Hickman had successfully escaped after their getaway car had stalled while leaving the scene of the crime. Upon reaching Hickman‘s apartment, however, Drivers observed that the police had arrived before him and were still on the premises; but rather than entering to see if he could be of any assistance to his cousin, Drivers remained outside until the police departed. He then went into the apartment and found that it had been searched and Hickman was not there; nevertheless Drivers remained in the empty apartment until morning. When no оne returned (Robinson and Hickman had already been arrested, but Drivers did not yet know this) he left and spent the day at his uncle‘s house. At 10 p.m. Drivers took a bus to downtown Los Angeles, and slept that night in an all-night movie theater. The majority assert (ante, p. 401) that there was no evidence of flight on Drivers’ part, but fail to mention any of the foregoing facts. While Drivers’ evasion and flight may not
In summary, the picture presented to the jury was as follows: Drivers’ contradictory stories to the police concerned his whereabouts not just on any night, but during the precise period of the murder of Grego at the Fox Hills Country Club on February 4, 1962. Drivers’ fingerprints were found not just in a car of “a relative,” but in the particular car used by that relative and his accomplices as an attempted getaway vehicle after the commission of that same murder. And Drivers’ evasive movements thereafter covered not just any sequence of time but the days and nights immediately following, again, the murder of Grego in the early morning hours of February 4. It is stretching the long arm of coincidence to the breaking point to require the jury as a matter of law—as the majority do—to find no corroboration of Hickman‘s testimony in the cumulative effect of the foregoing sequence of events.
Asserted Error in Accomplice Instructions
The majority hold (ante, pp. 394-396) that the trial court prejudicially erred in instructing that whether or not any witness in the case was an accomplice was for the jury to determine, and in failing to give on its own motion an instruction that Hickman was an accomplice as a matter of law. But even if we assume error was so committed, consideration of the other instructions given on this subject shows that it could not reasonably have been prejudicial. The majority predicate prejudice on the ground (ante, p. 396) that this claimed error “denied the codefendants the protection intended by
The majority also assert (ante, p. 395) that the trial court “should not have invited the jury to speculate” on who was an accomplice. But when, as here, the jury are otherwise properly instructed9 and the facts establishing complicity are so clear that an appellate court can hold (as do the majority here) that the witness is an accomplice as a matter of law, we must presume that the jury obediently applied the instructions to those facts and found Hickman to be an accomplice. To do otherwise would be to presume that the jury violated
The above mentioned specific accomplice instruction (“In weighing the testimony of . . . HICKMAN as against his codefendants you ought to view it with distrust” (italics added)) was, of course, obedient to the command of
Asserted Error in Giving Conspiracy Instructions
The majority hold (ante, pp. 396-397) that the trial court committed prejudicial error in instructing on the law of conspiracy. This—to me—on any view of the record, is an erroneous and confusing holding. I think we would not permit it to stand in a District Court of Appeal published opinion. It is not contended that any such instruction was an incorrect statement of law; rather, it is said first that “the question of conspiracy was not involved” and “conspiracy never did become an issue” in this case, and hence that the giving of conspiracy instructions “must have confused the jury” (citing People v. Sanchez (1947) 30 Cal.2d 560, 572 [7] [184 P.2d 673]). To the contrary, the issue of conspiracy was indisputably very much involved in the evidence put before the jury. Were the defendants accomplices? Did they by agreement cooperate in committing the crimes charged? Hickman‘s testimony on the witness stand constituted ample direct evidence of such a conspiracy: he testified that he and Robinson and Drivers had discussed robbing the Fox Hills Country Club three or four times “or more“; that among the matters discussed was the question of “what night it would be“; that on the day of the crime Hickman “told ‘em [i.e., Robinson and Drivers] what time to come” to the country club; that when Hickman saw Guliex in the car waiting in the parking lot, “I figured that he would get his part” and that there would be a four-way split of the loot; that when the others first met Hickman at 11 p.m. he told them in substance that “We can‘t hold the robbery right now because there‘s a lot of people inside,” and that it was agreed that Hickman would return to tell the others when “The coast is clear“; thereafter the robbery was attempted on Hickman‘s signal, culminating in the wounding of Morrissey and the murder of Grego.
It cannot be seriously argued that the foregoing testimony did not constitute sufficient evidence upon which the jury
The majority concede, as they must, the latter long-established principle, but point to the fact that the conspiracy instruction contained no admonition that a defendant may not be found to be a coconspirator on the uncorroborated testimony of an accomplice; from this premise the majority conclude (ante, p. 397) that the conspiracy instructions as given were “highly prejudicial” because “they constituted an invitation to the jury to find that Robinson and Drivers were members of a conspiracy, predicated solely on the uncorroborated testimony of Hickman, and so guilty of the charge of murder.” But under the authorities cited hereinabove, we must presume that the jury followed the accomplice instructions given, and found (on evidence so clear that the majority hold Hickman to be an accomplice as a matter of law) that Hickman was in fact an accomplice; it follows that without violating their duty the jury could not have found Robinson and Drivers to be coconspirators on Hickman‘s testimony unless the latter was also found to be corroborated. That corroboration, as shown in detail hereinabove, was amply provided by the totality of the evidence put before the jury other than Hickman‘s testimony.
Asserted Grounds for Reversal of the Judgments
For the foregoing reasons I am of the opinion that no prejudicial error was committed as to Drivers and that, con
As to his coappellant, the majority—although they reverse his conviction—admit that “there is clearly sufficient evidence to support Robinson‘s conviction.” (Ante, p. 405.) Such evidence is found in Robinson‘s extrajudicial confession, in the fact that “the undisputed evidence placed him at the scene of the crime,” and in the inferencе that “his telephoned report of the theft of the car was nothing but an attempt to create an alibi for himself.” (Ante, p. 405.)
Moreover, the foregoing evidence of Robinson‘s guilt was unaffected by any of the errors discussed in the first part of the majority opinion. Yet the majority still conceive and project a theoretical basis for reversing the judgment as to Robinson as well. The majority note (ante, p. 405) that Robinson‘s extrajudicial confession was properly admitted by the trial court, “subject to its instructions that the jury must first determine that it was voluntary before it could consider it as binding upon Robinson.” The majority then make this remarkable statement: “However, we cannot say, as a matter of law or fact, that the jury accepted the prosecution‘s testimony regarding the voluntary character of Robinson‘s confession, or that it rejected Robinson‘s claim of coercion.” (Italics added.) (Ante, p. 405.) The statement is the more remarkable because earlier in the opinion (ante, p. 391, fn. 19) the majority brush aside the same issue of coercion with the following analysis of the relevant facts: “There is no substantial evidence of coercion. Not only was Robinson‘s testimony in this regard unconvincing, and thoroughly rebutted, but the admitted circumstances militate against any inference of coercion. . . .” (Italics added.) No citation of authorities is needed to demonstrate that if there is “no substantial evidence of coercion,” then we not only can say that the jury must have “rejected Robinson‘s claim of coercion“—we must say it, if we are to retain integrity in the judicial process; i.e., to remain guided by settled principles of law. To do otherwise is in effect to presume in favor of reversal that the jury violated their sworn duty to be governed (as they were instructed) “solely by the evidence introduced in this trial and the law as stated to you by the Court,” for it presumes that the jury would illegally reach a finding of coercion when “There is no substantial evidence” of that asserted fact.
This patently incongruous conjecture progenerates the fundamental error of the remainder of the opinion. The ma
In conclusion, for whatever it may be worth to those who participated in the proceedings below, I am impelled to express the personal opinion that seldom, in my experience, does a reviewing court see a record as commendably free of error, and creditable to the participants in the trial process, as this one. The trial judge and all counsel for both the People and each defendant, as I view the day-to-day action through the lens of the reporter, appear to me to have conducted the trial—and themselves—with appreciation of high ethical standards as well as with fairness, ability and devotion to duty. Neither is there any credible showing of overreaching at the apprehension or investigative stages.
I would affirm the judgments of conviction as to both appellants.
McComb, J., concurred.
Respondent‘s petition for a rehearing was denied July 15, 1964. Schauer, J., and McComb, J., were of the opinion that the petition should be granted.
Notes
BY MR. COURTNEY [deputy district attorney]:
Q. Well, Mr. Hickman, as I understand it then, all of the testimony which you gave here before in court you are again reiterating that all of those statements are true, is that right? A. [Hickman] Yes, sir, they are.
Q. And you have been present in court and heard all the witnesses the People have called to testify as to many of those same events, is that right? A. Yes, sir.
Q. And you have heard the officers from the County Jail come in here this morning and testify that they were the deck officers on the Deck 11-B-1 where you were located and they do not recall any complaints; you heard that testimony? A. Yes, sir.
Q. Is it still then your testimony that at least three times a day for the period of at least the week between February 7th and 14th that you registered complaints with the Deck Officers? A. Yes.
Q. And this is your testimony, that you were beaten, as you have told us before, in the Detective Headquarters of Homicide down in the Sheriff‘s Department, is that right? A. Yes, sir.
Q. And that was by the Captain Etzel? A. Yes.
Q. And you further testified that you were beaten again in the building where the polygraph is located? A. Yes.
Q. By Officer Wrona and Officer Human? A. Yes, sir.
Q. And all of that was the truth? A. Yes, sir, and the statement I gave Sergeant Wrona is the truth. (Italics added.)
The “statement” that Hickman had given to Sergeant Wrona was his extrajudicial confession (summarized by the majority at pp. 380-382 ante) in which Hickman admitted, inter alia, the following facts establishing his guilt of the crime charged: that he and Robinson and Drivers had planned for several weeks to rob the Fox Hills Country Club; that on the evening of the crime he went to work at the club at the usual time, with the understanding that the other two would join him there at the closing hour; that when Robinson and Drivers arrived (with Guliex) in the club‘s parking lot Hickman told them that it was not yet safe to carry out the robbery; and that Hickman subsequently returned to the parking lot and gave the signal, whereupon his coconspirators entered the club and proceeded with their prearranged plan for robbery which resulted in the murder of Grego.
“Q. You have previously told the jury some things that happened in the Detective Headquarters before you took the lie-detector test, and you have also told them about some things that happened right after you took the lie-detector test and before you gave this statement that the reporter took down. You remember testifying about those things, do you?
“A. Yes, I do.
“Q. Now, do you wish to change any portion of that testimony, or do you say it‘s the truth?
“A. It‘s the truth.
“MR. O‘NEILL: I have no further questions.”