*1
May 31, 1967.]
10190. In
No.
Bank.
[Crim.
Respondent,
PEOPLE,
THE
Plaintiff
v. THOMAS
VARNUM,
Appellant.
Defendant and
LAMAS
*2
pro.
Varnum,
per.,
and Lester
Thomas Lamas
M. Fleisch-
Supreme
appointment
Court,
ner, under
for Defendant
Appellant.
Lynch, Attorney General,
James,
Thomas C.
William E.
Attorney General,
Ringer,
Deputy
Assistant
Gordon
At-
Respondent.
torney General, for Plaintiff and
TRAYNOR,
jury found
guilty
C. J.A
defendant
of as-
robbery,
degree
intent to commit
first
robbery,
sault with
kid-
bodily
purpose
naping with
harm for
robbery,
and first
penalty
degree murder. It fixed the
kidnaping
for
at life im-
prisonment
possibility
parole
penalty
A
at death. motion for new trial
murder
appeal
was denied. The
(Pen.
Code,
(b).)
is automatic.
subd.
§
jury
previous
penalty
trial the
fixed
At a
at death for
kidnaping
judgment
and murder.
reversed
We
penalty
of errors condemned in
because
v. Morse
People
Cal.Rptr. 201,
33],
Cal.2d
388 P.2d
(People
Cal.Rptr.
v. Varnum
392 P.2d
however,
retrial,
we
Before
issued a writ of habeas
*3
corpus
judgment
in
entirety
and reversed
its
on the
in
ground that confessions introduced
had
evidence
been ob
of Escobedo
in violation
v. Illinois (1964)
tained
money among the three some gun. use of his for the Hanks fingerprints at the were found service station Defendant’s receipts kept box in which credit were cardboard on on ring and inside of the left the horn front window of kidnap expert victim. A ballistics car used to testified the that had fired a Colt bullets been such as the lethal one defendant had taken him. with testified Victoria support foregoing is sufficient to the verdicts. contends, however, Defendant trial court admitting alleged weapon murder evidence, erred into ground that it interrogations was located as a result of on the preliminary protections required conducted Escobedo v. Illinois People Dorado 1758], Cal.Rptr. 169, 361]. conducted a fruitless search gun for the Police offiers throughout building They where Jacksons lived. then jail upon confessed, was in Jackson, who had prevailed telephone wife, in the jail, who was women’s and ask her hiding place gun. Mrs. to reveal the Jackson it said was hallway apartment box of the building, fuse later found it. The thus where hiding officer officers learned of the place gun from both Jackson his wife who rights. advised had not been of their constitutional in- quiry they had focused on them, both of were not in custody merely potential witnesses but been handcuffed transported jail being and had been while booked for the *4 Although prosecuted murder. Mrs. Jackson not offense, rights of her she was entitled to be advised before being subjected police inspired supervised questioning to and
812 custody charged
by her husband while she inwas with mur- implicated from The information elicited Victoria der. implicated participant as a defendant also Jackson direct might encouraged indicated that wife have commission of robbery. physical information and Under these circumstances evi questioning dence secured as result of the Jacksons without rights warning against their them of could not be used them. (People (1967) 595, Cal.Rptr. v. Stoner 600 [55 People 897, ; Dorado, supra, 338, P.2d Cal.2d 585] People 353-354; (1965) 757, v. Bilderbach 763-767 Cal.2d Cal.Rptr. People (1962) 401 P.2d 313, ; v. Ditson [44 921] ques Cal.Rptr. 165, 714].) 415, 439 P.2d Cal.2d [20 however, standing remains, whether defendant has tion challenge rights. the violations Jacksons' In cases of searches seizures conducted in violation of the Fourth Amendment standing held that defendant we have has object rights even his own when were not violated. 755, (People (1955) v. Martin 760-761 [290 exclusionary 855].) the deterrent effect of the rule Otherwise seriously Defendant weakened. contends that we would rule Escobedo-Dorado-Miranda apply same viola should tions effectively interrogations. deter unlawful Non questioning however, is unlawful, itself eoercive rights protected by Amendment Esco the Fifth and Sixth bedo, Dorado, Miranda violated when evidence required warnings and without the waiver is intro obtained person produced against questioning evi duced whose required warnings by Miranda is the for the dence. basis (Miranda Arizona privilege self-incrimination 694, 713-721, L.Ed.2d 384 U.S. 457-470 [16 974]), privilege and that is 1602, 10 A.L.R.3d 86 S.Ct. elicited unwarned the information not violated when (See Murphy v. suspect used him. Waterfront 52, 78-79 (1964) 378 York Harbor U.S. New Com. of Similarly right 1594].) 678, 694-695, S.Ct. infringed protected by and Dorado is not Escobedo counsel through the viola any evidence obtained exclusion of when the any precludes interference rules of those eases tion of the (See representation. Mas suspect’s right to effective with L.Ed. siah v. United States unreasonable Unlike 246, 250-251, 2d Constitution, always seizures, which violate searches suspect an unwarned questioning nothing unlawful there *5 physically psychologi and the refrain long as so process by due tactics condemned do cally coercive suspect any Ac against evidence obtained.1 use tactics, there is no cordingly, in the of such coercive absence nonhearsay excluding physical or evidence other basis for suspect disregard in questioning a acquired a result of as rights when such evidence Fifth and Sixth Amendment his person. another at the trial offered in next that the trial court erred Defendant contends by prosecu Hanks, a called impeaching Thomas witness already had to Hanks been convicted sentenced tion. prosecution part crimes, in the and the called prison for his weapon testify him to defendant to that he lent murder contemplated robbery. purpose When Hanks for the took the privilege against stand he his self-incrimina claimed Proceeding presence jury, the trial court of the tion. subject longer brought out the fact that Hanks no to already prosecution he had convicted. It there because been questions. ordered him Hanks fore any personal to answer the then denied any knowledge of defendant’s involvement part having taken in the crimes. by did not elicited the trial court establish information jury that were for Hanks’ the facts the basis convic- this impeach by Hanks’ was to show- Its effect tion. felony. error was committed prior of a No ing his conviction purpose impeach been to thereby if the court’s even privilege.2 his rule claim of risks instead on Hanks thought justify now that had discredited abuse been impeaching (see party’s his own witness against a Evid. rule operative January 1, 1967, repealing 785, 788, Code, §§ States, supra, point Massiah v. United court was careful 1In out legality questioning secret surveillance the distinction between the unconstitutionality of the defendant and the use of evi of dence indicted against question case, “We do that in so obtained him. this as many entirely investigation cases, proper it continue an of the alleged suspected his criminal activities of defendant confeder already ates, though defendant had been indicted. All that we even statements, incriminating by hold is that defendant’s own obtained disclosed, agents under the circumstances here could federal not constitu ’ ’ by tionally prosecution him be used at his trial. (377 p. 207, p. 251.) U.S. at 12 L.Ed.2d at though may questioning elicited 2Even trial court facts that credibility impeached witness, of the it did not intimate that have credibility convey any impression jury his doubted or to the as to court any (See People v. the attitude court on issue the case. 636, ; People (1906) v. Soeder Cal. 1083] P. Szafcsur 12, Cal. P. party impeaching rule own witness; Wigmore, Evidence, seq.) impeachment when et absent § undertaken entirely proper court. It is for the court elicit fact that a witness has been convicted as an accomplice charged. (United (2d Crosby the crime States v. 1961) 928, 948; (8th Cir. F.2d Wood v. United States Cir. 359, Davenport 1960) 279 F.2d (9th United 363; States Cir. 591, 1958) (10th 596; F.2d Richards v. United States Cir. 554, 1951) 556; (9th 193 F.2d Nemec v. United States Cir. 1949) 656, 661; 178 F.2d see also United States Jannsen (7th 1964) 916, 339 F.2d United 919; Cir. v. Aronson States (2d 48, 1963) Cir. 319 F.2d 51-52; United States v. Freeman (2d 1962) Cir. 302 F.2d cert. den. 375 U.S. *6 958 316, 448].) 84 Any impeach- [11 was ment in this case incidental inquiry to court’s into ’ privilege, Hanks Fifth Amendment but court would have inquiry presence been well advised make that outside of jury any possibility prejudice. to avoid of inadvertent Its so, however, failure to do resulted in no error for merely it brought impeaching jury properly out evidence the could hear.3 penalty phase trial, Error committed in the however, requires (People (1964) reversal. Hines 61 Cal.2d v. Cal.Rptr. 164, prosecution 390 622, 398].) 170 P.2d The [37 encouraged punishment jury aggravate defendant’s had shortly evidence that committed robberies he other before solely which he was This those for tried. of consisted testimony Hanks, of Thomas claimed defend who to be accomplice escapades. ant’s in the earlier Penal section Code provides 1111 that “A upon conviction cannot had
testimony accomplice of an unless it be . corroborated. . .” Although no “conviction” was involved at the trial on the 1111 penalty, apply issue cannot be construed section only guilt, the trial long on the issue for it was enacted adoption separate before the trials of those issues.4 We have held “evidence the earlier crime must accomplice 3Defendant in its instructions on law contends responsibility jury guilty. the trial court in to find him effect directed the anyone charged, The court instructed that if had committed crimes Hanks, law, accomplice. jury then as a matter of was an Because already part crimes, knew that Hanks been convicted jury argues, defendant accomplice. he could conclude that was defendant’s instruction, however, The like revelation of Hanks’ con viction, way in no with Hanks. connected defendant Code, 1111, penalty procedure, § 4Pen. was enacted 1872. The trial provided by Code, 190.1, § Pen. established until 1957. 815 proof admissibility governing of that crime rules of meet penalty proceed properly admissible be otherwise or 97 (1961) 93, Purvis Cal.2d Cal. (People v. ing.” [13 People (1963) v. Hamilton 713]; Cal. Rptr. 801, P.2d ; Cal.Rptr. People 383 P.2d v. 4, 412] 129-131 105, 2d Bentley [32 458, Cal.Rptr. 685, 58 Cal.2d [24 Moreover, because evidence of other crimes 645].) impact jury’s damaging particularly on the “may a have defendant should be whether the executed determination beyond proved they reasonable doubt before must be ...” (People v. Polk jury may them. Cal.2d consider Cal.Rptr. 1, People 406 P.2d see also v. 641]; 443, Cal.Rptr. 605, 137, 149 390 P.2d Terry (1964) Cal.2d penalty at the trial on the issue of Accordingly, crime must be established an earlier before corpus delicti of extrajudicial confession can be admitted an uncorroborated Hamilton, supra), an earlier crime v. cannot be (People Purvis, supra). v. by hearsay (People For the proved 1111, proof prohibiting Penal section of an same reasons Code uncorroborated of an accom crime earlier penalty. the trial on the issue of applies at also plice, accomplice testimony admitting the error sub reasonably probable that a result more favor stantial, and it have reached in been defendant would absence able to Const., VI, ; People art. (Cal. Hines, supra, § the error. People Hamilton, supra, 170; 137.) insofar as penalty. reversed it judgment relates In is affirmed. respects, it all other *7 Sullivan, J.,† J., J., White, concurred.
Tobriner, majority PETERS, I concurwith the J. reversal as majority I insofar as penalty, but dissent the affirm the judgment challenged by defendant. That balance too be reversed. should introduced the murder weapon, there was At trial a prosecution. important piece of for the
most This by a gun discovered as direct result of had been interrogation improper wife, Edward and his Jackson also sitting Supreme assign †Retired Associate Justice of Court under by the of the Judicial Council. ment Chairman 816 majority opinion murder
charged here involved. The with interrogation frankly that the of the Jacksons admits was at accusatory stage—they jail charged both in were with suspicion them, questions on murder, had focused incriminating information asked to elicit Var were interrogation Admittedly, as the well Jacksons. num as laid v. violated rules down Escobedo the Jacksons nois, Illi 977, L.Ed.2d 1758], People S.Ct. [12 Cal.Rptr. 169, Dorado, 361], P.2d [42 be no doubt that this evidence There can been offered they objected properly could Jacksons have its say But, the majority, Varnum, into evidence. admission charged also “standing” murder, challenge has no with rights. If holding the Jacksons’ constitutional invasion of is correct then this biga hole has blown in been the barriers erect Escobedo, progeny. by purposes and its The beneficent ed by Escobedo the more intended Arizona, recent case of Miranda v. U.S. 436 great 974], been to A.L.R.3d have a extent defeated. I am Supreme States that the United Court will not convinced a permit purposes. such contraction of its should majority although is they This result reached admit ease of an unlawful search and per- that seizure third urge standing illegal although sons have rights search their directly (People Martin, violated. majority 855].) The assert, correctly, 755 basis that the rule is that otherwise this “the deterrent effect of the exclusionary seriously rule would be weakened.” Certainly greater with say, even emphasis, can that one the rule here majority adopted by seriously impair will the deterrent improper police on activities effect intended Escobedo. A reading Escobedo, Dorado, and Miranda demonstrates that adopted adopted largely rules there were to deter im- just activities, proper police as the unlawful search and sei- adopted purpose. zure were for the same rules The same rule applied be to both situations. should majority imply also that if the confession had been Jacksons, from the Varnum would standing coerced have majority attack it. But what the overlook rules adopted in Escobedo, Dorado and adopted Miranda were be- the fear required cause of confession without the warn- ings suspect Certainly, as coercive. the United States Su- preme applied Escobedo and Court Miranda the coercive They applied rules. should confession also here. *8 majority problem seem The to think that here involved search differs unlawful seizure situation because ab initio illegal, the search and seizure was here while original interrogation “lawful,” of the Jacksons unlawful would become when if the confession or its fruits were introduced into evidence the Jacksons. Since confession was never introduced the Jack- sons no error was committed. Thus it is said: “Noncoercive questioning again, itself unlawful” and is “there is nothing questioning suspects long unlawful unwarned so police physically refrain from and psychologically coer- “reasoning” misconception cive tactics.” Such discloses a the rules Improper under discussion. interrogation, without requisite warnings, violated the Fifth and Sixth Amend- rights interrogate ment suspect of the witness. It is “unlawful” to giving required warnings him without from the very question. right privacy moment of the first recog- nized in Escobedo Miranda has been violated the moment interrogation important fact starts. The that the most sanc- violating imposed right privacy tion is inadmissi- bility evidence, confession into and that the defendant complain in his cannot criminal trial unless the confession is introduced, interrogation not make does lawful. The same can said about unlawful and seizure; yet search there is no doubt that the unlawful search is unlawful when commit- ted, and not when fruits of such search are introduced thing crystal into clear evidence. one made Escobedo certainly by explanation of that ease in Miranda is interrogate that it is unlawful warnings. giving required without may be if the sanction the confession is not
What intro- not now determine. All that we we need have to duced deter- interrogation unlawful. is that the mine Violation occurs at Amendment the time of the unlawful Fourth search. Fifth occurs of the Amendment the moment Violation defend- incriminating give information. Violation ant is induced to occurs the moment the accused the Sixth Amendment interrogated is being right informed to counsel. majority Escobedo, fail realize What Dorado impact pushed back the of the Fifth and Sixth and Miranda from the courtroom to station. Amendments logical interrogation conclusion the rule that Carried to its interrogation unlawful until of that results trial, suggested in evidence a criminal introduced *9 privilege against majority, would mean that the self- interrogated by does not exist when a witness is incrimination a engaged legislative legislative because committee committees are not majority criminal I am sure the in trials. intended no result, but that would seem to the such ridiculous be result of reasoning. their that support privi-
In of its contention the violation of the does until lege self-incrimination not occur the evi- majority rely is used the accused the dence on Harbor, New York Murphy Com. Waterfront 678, 694-695, 1594], L.Ed.2d S.Ct. That is the jurisdiction repudiated rule the old that one case that could testify compel testimony, although a where his witness to not jurisdiction might in him incriminatory that incriminate jurisdiction. granted The laws of another state under the immunity law, state but under he claimed the witness the ground testimony his privilege on the that would incriminate federal law. him under grant immunity under its the was held that state It testify and compel the witness to that witness’ could by precluding protected au- the federal
privilege would be testimony using prosecution in a criminal thorities holding support But does against him. this not the thesis of adopted majority. court the rule to announced interests the State and Federal Govern- “accommodate investigating” in crime. Unless state under its ments immunity purpose the whole statute could take immunity many, would be defeated statutes if not of the designed. they were No for which such com- most, situations are here interests involved. federal peting state States, 377 U.S. United Massiah upon 1199], is also relied 250-251, 84 246, majority support right their that conclusion of the prosecuting is not violated until counsel accused to attempt use words while the elicited accused authorities that that lawyer. It is true case states that the a without was right to counsel when the confession denied accused nothing opinion in that there is indi- introduced. But rights accused’s violation of the if the that there was no cate In Escobedo where the at trial. accused used confession rights right accused counsel were demanded being request immediately upon that denied. violated holding questioning noncoereive Implicit that is introduced a criminal trial is the confession until lawful interrogation is desirable concept that such noncoereive contrary Escobedo, encouraged. Dorado and To the and to be interroga- that all such in no uncertain terms Miranda tell us discouraged. permit Insofar as we the fruits of are to be tions interrogation in to be introduced violation of those cases deterring encouraging we are unlawful into evidence police activity. holding practical of such a effects cannot minimized. be majority attempt have done is to turn
What a doctrine protective rights constitutional into rule of evidence. It majority holding must remembered rule interrogation warnings is lawful not encourages interrogations encourages such but also officers to ignore express requests ignore for counsel and to assertions privilege against reliance on self-incrimination. Under Miranda applicable the same rules Dorado situations. In Miranda the court to both *10 unequivocally covered the following language. under discussion in the (Miran situation Arizona, pp. at da v. L.Ed.2d 694 at p. 723, 974].) A.L.R.3d "If the individual any manner, any prior indicates at time or during ques tioning, he silent, that wishes to remain interrogation the must point cease. At this [Footnote he has shown omitted.] that intends to his he exercise Fifth privilege Amendment ; any person statement taken after the invokes privilege his product cannot be other than the compulsion, subtle or ... If otherwise. attorney, the individual states that he wants an interrogation must cease until an attorney is ’’ present. interpret I those police words as limitations on activity— majority do not. A conscientious must, officer try course, by every to obtain evidence lawful means. Now he impliedly told majority that, where there are multi- ple suspects, may, giving required he warnings despite suspect’s request for counsel or desire to remain silent, interrogate suspect one in violation of these rights hope getting admissible suspects. majority opinion other interpreted can be as not only condoning encouraging but in effect such violation rights. fundamental constitutional I would hold gun the admission of was error, and under clearly prejudicial. judg- I would reverse the entire facts appealed from. ment
BURKE, judgment J.—I concur the affirmance of the as guilt judgment but dissent from the reversal of the as my opinion penalty. reasonably probable In it is not that a would result more favorable to defendant reached have been relating testimony had the asserted error to the of Thomas (Cal. Const., VI, 13; committed. art. Hanks not been Peo § ple Watson, 818, 836-837 Hanks he, testified that defendant others committed two rob street, that defendant beries on the was unarmed on both occasions, and on neither that occasion was victim hurt. compared were of a character These offenses minor to the committed, they defendant other crimes added little appears prosecution’s brutally case. It that defendant robbery victim, Merrill, by shooting killed James him robbing him kidnaping twice back after him for robbery. purpose of Defendant also committed an assault upon robbery intent Fields, with an to commit James during the commission of offense after Fields had fallen pointed directly pulled defendant his revolver at Fields and trigger. In addition defendant has twice been convicted of driving taking unlawful or of a vehicle. penalty Furthermore, at trial the court informed the general having jury that "the instructions to do with credi- [given bility guilt and so forth at of witnesses trial] phase apply this of the case as one,” well to the other guilt fully trial jury and at the the court instructed the relating accomplice’s law regarding the to an testimony. The jury testimony instructions informed the of an accomplice with is to be viewed distrust and that a conviction may upon accomplice it unless corroborated, and the instructions further defined an involving accomplice, stated that if the offenses Merrill were anyone then as a matter law committed Hanks was an *11 explained accomplice, and what corroboration is sufficient. In given view instructions the further of these instruction at penalty trial may that evidence of other crimes not be proved beyond as evidence unless considered a reasonable appear alleged doubt, preju- it does not that the error was dicial. opinion circumstances, my alleged error Under miscarriage
relating did not result in a to Hanks’ judgment justice, entirety. affirm the its and I would MeComb, J., concurred. rehearing
Appellant’s petition for a was denied June place Mosk, J., White, J.,* who deemed himself 1967. sat opinion petition disqualified. Peters, J., was of the granted. should he 2, 1967.] In June No. 29342. Bank. A.
[L. JEHL, MICHAEL F. Plaintiff and Respondent, SOUTH Appellant. COMPANY, ERN Defendant PACIFIC Supreme *Retired sitting assign- Associate Justice of the Court under ment Chairman the Judicial Council.