People v. SimmsPeople v. Simms
- Reporters:
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- Before:
- Molinari
MOLINARI, P.J.
Defendant appeals from a judgment of conviction entered pursuant to a jury verdict finding him guilty of robbery. (
The Facts
On February 14, 1968, at about 2:15 p.m., defendant, codefendant Scott, and one Brady Harvey, the victim of the subject crime, were drinking together in an Oakland bar. Harvey left the bar in order to pick up his child from school. Defendant, Scott and one Collins followed Harvey to his car and asked him for a “lift.” Harvey agreed. Defendant and Scott got into the back seat while Collins got into the front seat.
After Harvey had been driving for some time, defendant, from the back seat, put a knife to Harvey‘s throat and stated “This is as far as you go.” Defendant then told Collins to take everything Harvey had. Collins thereupon removed all valuables from Harvey‘s person.1 Harvey was then struck alongside the head with a club he had in the car. Harvey “blacked out.” On regaining consciousness he observed that the three passengers were gone. Harvey called the police and reported the incident.
Some six days subsequent, on February 20, 1968, while driving in the vicinity of the robbery, Harvey observed defendant and codefendant Scott. Harvey stopped a nearby police officer and reported defendant‘s presence. The officer thereupon stopped defendant and Scott. A pat-search of defendant produced a knife. Defendant and Scott were arrested and taken to police headquarters.
Codefendant Scott, testifying in his own behalf, stated he was drunk the day of the incident. He stated further that the incident in fact took place as Harvey described, but that he took no part in it. Specifically, Scott stated that defendant, at knife point, took all of Harvey‘s valuables, struck Harvey with the club and fled the scene. Scott further stated that he had made similar statements to the police prior to trial and after his arrest. Scott‘s counsel introduced such prior consistent statement into evidence in corroboration of Scott‘s testimony. In the same vein, a psychiatric report concerning Scott‘s sanity made by Dr. Norman Rogers was introduced in evidence and read aloud. In that report Dr. Rogers stated that Scott told him that the man seated next to him in Harvey‘s car had robbed the latter at knife point.
Separate Trials
(1a) Defendant asserts that reversible error was committed when the trial court permitted him to be tried jointly with Scott. In making this contention he acknowledges the rule that the failure to move for a severance or to make any objection to the consolidated trial before the commencement of the trial is deemed waived and not subject to review on appeal. (See People v. Burns, 270 Cal. App.2d 238, 251-252 [75 Cal. Rptr. 688]; People v. Irvin, 264 Cal. App.2d 747, 764-765 [70 Cal. Rptr. 892]; People v. Chambers, 231 Cal. App.2d 23, 28 [41 Cal. Rptr. 551]; People v. Amata, 270 Cal. App.2d 575, 586 [75 Cal. Rptr. 860]; see People v. Massie, 66 Cal.2d 899, 915 [59 Cal. Rptr. 733, 428 P.2d 869]; People v. McGautha, 70 Cal.2d 770, 785 [76 Cal. Rptr. 434, 452 P.2d 650].)
(2a) Defendant contends, however, that the trial court should have granted the severance on its own motion when it became aware that the defenses to be presented by defendant and Scott were conflicting and antagonistic and that Scott had made extrajudicial statements implicating defendant. In this connection we point out that there is nothing in the record to show such awareness on the part of the court prior to the commencement of the trial. Indeed, these matters first came to the attention of the court during the opening statements of counsel for the prosecution and the defense and during the testimony adduced at the trial. (3) It should be observed here, therefore, that jeopardy had attached to the defendants since the jury had been duly impaneled and charged with their deliverance. (Jackson v. Superior Court, 10 Cal.2d 350, 352 [74 P.2d 243, 113 A.L.R. 475]; Paulson v. Superior Court, 58 Cal.2d 1, 5 [22 Cal. Rptr. 649, 372 P.2d 641]; People v. Ham, 7 Cal. App.3d 768, 774 [86 Cal. Rptr. 906].) (4) Under these circumstances a severance at that stage would have amounted to a discharge of the defendant whose trial was severed and, unless done with the consent of such defendant or justified on the basis of legal necessity, such severance would have placed that defendant in jeopardy so that he could not be retried. (Cardenas v. Superior Court, 56 Cal.2d 273, 275 [14 Cal. Rptr. 657, 363 P.2d 889, 100 A.L.R.2d 371]; Paulson v. Superior Court, supra; People v. Ham, supra, at pp. 774-775.)
(5) In considering defendant‘s contention we first observe that in
The trial court is not obliged, therefore, to order a separate trial on its own motion. Such an order requires a request for a severance by the defendant and the exercise of a legal discretion upon the showing made at the time the motion is made and not upon what may have transpired thereafter. (See People v. Santo, supra, 43 Cal.2d 319, 332; People v. Eudy, 12 Cal.2d 41, 46 [82 P.2d 359].)
(6) In the light of these principles we observe that the principle contended for by defendant is one that comes into play when the trial court has been called upon to exercise its discretion upon a timely demand for a separate trial. Accordingly, in the exercise of sound discretion a court should separate the trials of codefendants where it is shown that there are conflicting defenses or a prejudicial association with a codefendant; that confusion will likely result from evidence on multiple counts; that there is a possibility that at a separate trial a codefendant will give exonerating testimony; that the prosecution proposes to introduce into evidence a confession of one defendant that implicates a codefendant. (People v. Massie, supra, 66 Cal.2d 899, 916-917; People v. Graham, supra, 71 Cal.2d 303, 330.) (7) We should point out here that it is not an abuse of discretion to deny a motion for a separate trial where a defendant moves for a separate trial on the basis of a codefendant‘s extrajudicial confession, if the incriminating portion of a codefendant‘s confession can be effectively deleted without prejudice to the defendant, or if the prosecutor assures the court that the confession will not be used. (People v. Aranda, 63 Cal.2d 518, 530-531 [47 Cal. Rptr. 353, 407 P.2d 265]; People v. Charles, 66 Cal.2d 330, 333 [57 Cal. Rptr. 745, 425 P.2d 545]; People v. Massie, supra, at p. 918.)
We observe, finally, that in the cases where the court‘s discretion was reviewed in the light of the foregoing principles, timely objections were interposed. (See People v. Massie, supra, 66 Cal.2d 899, 915; People v.
In the instant case it does not affirmatively appear that defendant‘s trial counsel was unaware of the principles enunciated in Aranda and Massie. Certainly, he should have been aware of these principles since the instant case commenced over two years after the decision in Aranda and almost one year after the decision in Massie. The contention that the exception applied in Charles is applicable because Graham was decided after the trial in the instant case is without merit. Graham, insofar as pertinent to this discussion, does not declare new principles but merely reiterates the principles laid down in Massie. (2b) We observe here that, as we shall later point out in this opinion, defendant‘s counsel as a matter of trial tactics appears to have preferred to have defendant jointly tried with Scott. This preference appears also to have been the choice of Scott‘s counsel. It is doubtful, therefore, that even if the court had determined to sever the case on its own motion that it would have obtained the consent of both defendants in order to avoid prejudice from the attachment of jeopardy.
(1b) We are not unmindful that, although prejudicial error may not be predicated upon a failure to make a timely objection to the consolidation
The Right of Confrontation
(8a) Defendant correctly asserts that the introduction of Scott‘s extrajudicial statements implicating defendant were violative of his constitutional right to confront witnesses against him. (9) In Bruton v. United States, 391 U.S. 123, 127-128 [20 L.Ed.2d 476, 480-481, 88 S.Ct. 1620], it was held that it is a denial of the right of cross-examination, guaranteed to a defendant in a criminal case by the confrontation clause of the Sixth Amendment, to admit at a joint trial an extrajudicial confession of a codefendant which implicates the defendant, despite instructions to the jury to disregard the confession as evidence against the nonconfessing defendant. We observe here that in the instant case no such limiting instruction was given or requested.
The Bruton rules are given retroactive application (see Roberts v. Russell, 392 U.S. 293, 294 [20 L.Ed.2d 1100, 1102, 88 S.Ct. 1921]), and they have been held to apply even where the codefendant takes the stand and subjects himself to cross-examination, or gives testimony in accordance with his prior confession. (In re Hill, 71 Cal.2d 997, 1012 [80 Cal. Rptr. 537, 458 P.2d 449]; People v. Washington, 71 Cal.2d 1061, 1075 [80 Cal. Rptr. 567, 458 P.2d 479].) They likewise apply where the extrajudicial and incriminating statements of the codefendant are introduced by the codefendant himself (People v. Graham, supra, 71 Cal.2d 303, 330), and they apply both to inconsistent statements (People v. Johnson, 68 Cal.2d 646, 658-659 [68 Cal. Rptr. 599, 441 P.2d 111]) and consistent statements. (People v. Washington, supra, at pp. 1076-1077.)4 (8b) Here, Scott‘s
(10) We observe here that defendant‘s trial counsel failed to object to the introduction of these extrajudicial statements. Ordinarily, such failure amounts to a waiver of the objection. (People v. Keel, 272 Cal. App.2d 275, 277 [77 Cal. Rptr. 298]; People v. Foster, 271 Cal. App.2d 763, 765-766 [76 Cal. Rptr. 775]; Douglas v. Alabama, 380 U.S. 415, 422 [13 L.Ed.2d 934, 939, 85 S.Ct. 1074].) We do not believe, however, that under the circumstances of this case there was a waiver of the Bruton, Graham and Washington principles. The instant case commenced two days after the Bruton decision. We doubt that trial counsel was then aware of the holding and its implications with respect to the present case. In any event, there was a question in view of the language in Bruton whether the rule it articulated applied to the situation when the extrajudicially confessing defendant takes the stand and is subject to cross-examination. (See In re Hill, supra, 71 Cal.2d 997, 1012.) Hill, holding that the Bruton rule applies to this situation, was decided after the instant trial.5 Moreover, in Washington, it was held that where, as here, a trial date preceded the May 28, 1968 decision of Johnson, an objection would have been futile and the failure to make an objection was excused. (People v. Washington, supra, 71 Cal.2d 1061, 1077, fn. 7.) Accordingly, we can reasonably conclude that defendant‘s trial counsel, if he was aware of the Bruton decision, was justified in believing that the Bruton rule was not applicable where the codefendant took the stand and subjected himself to cross-examination. Certainly he was justified in believing that
Limited Admissibility
(11a) Defendant next alleges error in the court‘s failure to instruct, sua sponte, that the jury could not consider Scott‘s extrajudicial and implicating
The Knife
(13a) The arresting officer testified that when he arrested defendant six days after the alleged robbery he found a knife on defendant‘s person incident to a pat-search. Defense counsel objected on the ground of irrelevancy and moved that the testimony be stricken. The trial court made an incongruous ruling in that it sustained the objection on the ground of irrelevancy because the finding of the knife was too remote from the day of the robbery, but refused to strike the testimony with the observation that there was no harm in the jury‘s knowing that a knife was found in defendant‘s pocket but “They can‘t tie that in the occurrence.” Defendant asserts that such refusal was error because the jury could easily have concluded that the knife found was that used to perpetrate the robbery.
(14) Adverting to the question of relevancy, we observe that there is no precise formula for relevancy. It is only that evidence which logically, naturally and by reasonable inference tends to establish some fact. (
The error in refusing to strike the subject testimony was, however, subsequently cured because the subject knife thereafter became relevant evidence in the case. Scott, who followed the arresting officer to the stand, testified under cross-examination by the prosecutor that the knife shown to him by the prosecutor was the one used by defendant in the robbery. Such testimonal identification by a percipient witness suffices as a foundation for its admissibility. (People v. Rader, 24 Cal. App. 477, 485 [141 P. 958]; People v. Ham, supra, 7 Cal. App.3d 768, 780; see People v. Richardson, 74 Cal. App.2d 528, 540-541 [169 P.2d 44]; see People v. Riser, 47 Cal.2d 566, 576-577 [305 P.2d 1].) Accordingly, since the knife was subsequently admitted in evidence the testimony that this knife was found on defendant‘s person six days after the robbery was cleansed of its taint of remoteness. (See People v. Richardson, supra, at p. 541.)
Instructions
(15) Defendant requested an instruction that where a party presents weaker evidence than he possesses the evidence presented is to be viewed with suspicion. The court refused to give such instruction. The basis upon which defendant predicated this instruction is that there was no corroboration of Harvey‘s injuries to his neck and that, therefore, this issue was submitted to the jury on weaker evidence.
Although defendant‘s proffered instruction was a correct statement of the law (see
(16) Defendant also contends that it was error for the court to instruct that neither the People nor defendant need call all witnesses or introduce all exhibits or documents referred to in the testimony or suggested by the evidence. He asserts error because it was in direct repudiation of his contention that weaker evidence had been introduced and that it was unaccompanied by any immediate instruction as to the People‘s burden of proof. Accordingly, he argues that the jury could have inferred that the burden of proof was to be shared equally by the People and defendant. This contention is unsupported by any authority and we therefore are entitled to reject it on this ground. (See Solomont v. Polk Dev. Co., 245 Cal. App.2d 488, 496 [54 Cal. Rptr. 22]; People ex rel. Dept. of Public Works v. Garden Grove Farms, 231 Cal. App.2d 666, 674 [42 Cal. Rptr. 118].) We observe, moreover, that the instruction is a correct statement of law and that it was proper to so instruct. (See People v. Wein, 50 Cal.2d 383, 403 [326 P.2d 457]; People v. Adams, 249 Cal. App.2d 501, 508 [57 Cal. Rptr. 389]; People v. Galvan, 208 Cal. App.2d 443, 449-450 [25 Cal. Rptr. 128].) With respect to the burden of proof, the jury was thoroughly instructed on this burden. Although such instructions on the burden of proof did not immediately follow the questioned instruction, defendant does not point out that there was any confusion. We are entitled to assume that the jurors followed the court‘s instructions. (People v. Sparks, 257 Cal. App.2d 306, 309 [64 Cal. Rptr. 682]; People v. Isby, 30 Cal.2d 879, 896-897 [186 P.2d 405]; People v. Aranda, supra, 63 Cal.2d 518, 524-525.)
Effectiveness of Counsel
(17a) Defendant urges that his trial counsel was ineffective in several respects and that he is, therefore, entitled to a reversal. To sustain this claim defendant must show that counsel‘s ignorance of relevant law or his general dirth of diligence or competence reduced the trial to a “farce or a sham.” (People v. Ibarra, 60 Cal.2d 460, 464 [34 Cal. Rptr. 863, 386 P.2d 487]; In re Williams, 1 Cal.3d 168, 175 [81 Cal. Rptr. 784, 460 P.2d 984]; People v. Nicolaus, 65 Cal.2d 866, 883 [56 Cal. Rptr. 635, 423 P.2d 787]; People v. Pineda, 253 Cal. App.2d 443, 467 [62 Cal. Rptr. 144].) (18) In ascertaining whether there is such a showing we first observe that there is imposed upon counsel the minimal duty to investigate all defenses of law or fact and his failure to do so may result in the denial of effective
(20) In the light of these principles we advert to the contention that the failure of trial counsel to move for a separate trial deprived defendant of effective representation. In this regard the only showing made is that trial counsel did not move for a separate trial or object to the consolidation. There is no showing that counsel was unaware of the relevant and dispositive law, or that he was inadequately prepared or that defendant was deprived of a crucial defense because of the conduct of defense counsel. As we shall point out below, there is a strong indication in the record that defense counsel was aware that Scott would present a defense different than that presented by defendant; that he was aware of Scott‘s extrajudicial statements; and that his election not to move for a separate trial was a trial tactic. It is not for us to second-guess defense counsel‘s trial tactics in preferring to have Scott as a codefendant. (17b) Before ineffectiveness of counsel may be successfully urged, an extreme case must be shown. (People v. Ibarra, supra, 60 Cal.2d 460, 464; People v. Wein, supra, 50 Cal.2d 383, 410; People v. Doebke, 1 Cal. App.3d 931, 937-938 [81 Cal. Rptr. 391].) The assertion may not be predicated on mere surmise or speculation, but must be proved as a demonstrable reality or fact. (People v. Reeves, 64 Cal.2d 766, 774 [51 Cal. Rptr. 691, 415 P.2d 35]; People v. Robillard, 55 Cal.2d 88, 97 [10 Cal. Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086]; People v. Doebke, supra, at p. 938.) No such demonstration has been made here.
(21) Defendant also suggests that his trial counsel‘s occasional confusion of him with codefendant Scott denied defendant the effective assistance of counsel by suggesting to the jury that trial counsel did not take defendant‘s case seriously. This assertion is mere speculation. We are unable to perceive, in the light of the principles applicable to the claim of ineffective counsel, how defense counsel‘s confusion of defendant and Scott on the
(22) It is also contended that defendant was denied the effective assistance of counsel when his counsel did not object to the offer of the prosecuting attorney to introduce the subject knife into evidence.6 There is no merit to this contention. As already pointed out, the knife was admissible in evidence. Therefore, an objection would have been futile since it would properly have been overruled.
(23) Finally, defendant contends that his trial counsel‘s failure to ask for an instruction to the effect that Scott‘s extrajudicial statements could not be considered as evidence against defendant denied him the effective assistance of counsel. In considering this contention we first observe that Scott‘s extrajudicial statements constituted hearsay and were inadmissible against defendant had defendant‘s counsel requested an instruction to this effect. (
In view of the foregoing it was apparent that defendant‘s counsel was attempting to discredit Scott who was the only eyewitness to what actually transpired other than the victim. The elimination of Scott‘s testimony by discreditation would leave the case in the posture where it was Harvey‘s word against defendant‘s, a circumstance which would undoubtedly affect the prosecution‘s burden of proving defendant guilty beyond a reasonable doubt. We may assume, under the circumstances, that counsel knew that Scott would testify in court that defendant was the robber. His strategy, therefore, appears to have been an attempt to show that this testimony was false because it was consistent with extrajudicial statements which Scott in a second statement had acknowledged were false. Accordingly, we are dealing with a matter of trial strategy rather than the matter of the deprivation of a crucial defense. Certainly we cannot say that these tactics rendered the trial a farce or a sham. Rather we are relegated to second-guessing the validity of counsel‘s trial strategy. This we may not do. (See People v. Brooks, supra, 64 Cal.2d 130, 140.)
Conclusion
(24) In view of the foregoing we perceive that the only error which occurred in the court below was the violation of the Bruton rule. We are satisfied, however, that this constitutional error was harmless to defendant “beyond a reasonable doubt” and that there was no “reasonable possibility” that such error contributed to defendant‘s conviction. (Chapman v. California, 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Spencer, 66 Cal.2d 158, 169 [57 Cal. Rptr. 163, 424 P.2d 715]; People v. Gallardo, 269 Cal. App.2d 86, 90 [74 Cal. Rptr. 572].) Scott‘s prior extrajudicial statements were substantially identical to his testimony at the trial. It is inconceivable that the jury could believe one and not the other. Moreover, defendant availed himself of the opportunity to cross-examine Scott with respect to his testimony consistent with his extrajudicial statements. Accordingly, the extrajudicial statements were merely a repetition of Scott‘s testimony in court which the jury, under its prerogative to give such testimony full substantive use, was entitled to believe.
(2c) In the light of this conclusion we are also impelled, upon an examination of the entire case, to conclude that, although defendant was tried, jointly with Scott, no unfairness so gross as to deprive defendant of a fair trial or due process occurred because of the consolidated trial.
The judgment is affirmed.
Sims, J., and Elkington, J., concurred.