THE PEOPLE, Plаintiff and Respondent, v. ORBRY LEE WILLIAMS, Defendant and Appellant.
Crim. No. 13818
In Bank
Mar. 12, 1973
24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38
Molly H. Minudri, under appointment by the Supreme Court, for Defendant and Appellant.
Thomas C. Lynch and Evelle J. Younger, Attorneys General, William E. James, Assistant Attorney General, Philip C. Griffin and Daniel W. McGovern, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT.—A jury found defendant guilty of one count of first degree murder and four counts of first degree robbery. His codefendant, William B. Thomason, was found guilty of one count of first degree murder and three counts of first degree robbery. The penalty for the murder was fixed as death for defendant and life imprisonment for Thomason. This appeal is automatic. (
About 12:30 a.m. August 3, 1968, Rick Dwayne Taylor, age 19, was on duty as a liquor store clerk at Silver‘s Liquor Store in Long Beach.
About 1:45 a.m. August 20, 1968, Robert T. Molby was tending bar in Long Beach at the High Hat Cafe. There were three customers at the bar, including Louis Merklein. Defendant entered alone, wearing dark glаsses, and ordered some beer. A few minutes later, Thomason entered, spoke with defendant, and then moved to where he could watch the patrons. Defendant pulled a gun on Molby and forced him to empty the cash register, put the money (about $60) in a paper bag, and lie down on the floor. After defendant and Thomason left, Molby called the police. He identified both defendant and Thomason at the preliminary hearing. From a stack of individual photographs, Merklein was able to identify both men, even though the photographs of defendant showed him with blond hair, while at the time of the robbery his hair was dark.
About 3:30 a.m. August 23, 1968, Jack Wall, age 19, was working at Lerner‘s Service Station on the northwest corner of 7th and Magnolia Streets in Long Beach. He noticed a 1958 black Pontiac turn right on 7th Street. Shortly thereafter, the two men who had driven by in the Pontiac entered the station. Wall identified defendant and Thomason as the two men. Defendant wore sun glasses. Later, defendant pulled a black .25 automatic on Wall and required Wall to give him the money in the cash box. Defendant then told Wall to go to the office. There, Wall was forced to give the man the money he had ready for the next shift and also his own wallet. Altogether, defendant and Thomason took $107 frоm the station and $65 from Wall. In addition, defendant required Wall to give him a big Texas belt buckle Wall was wearing. Defendant gave the belt buckle to Thomason. They then took some cigarettes, and defendant told Wall to lie on the floor. Defendant said that if he got up within 15 minutes, he would shoot him. A minute or so after defendant and Thoma-
A week later, police officers brought photographs to the service station, and from them Wall was able to identify both defendant and Thomason. Wall nеxt saw defendant and Thomason at their preliminary hearing October 17, 1968. After Wall entered the court room, defendant was brought in and placed in the jury box. His hair was shaved off, and he was growing a mustache and a goatee. When he sat down, he looked at Wall, and it seemed to Wall as though he said, “You are a dead man.” Wall had noticed that defendant had a gold tooth. At the trial, he examined defendant‘s teeth and verified that the gold tooth in defendant‘s mouth was the way it had looked the morning of the robbery. September 11, 1968, a detective sergeant found a .25 caliber empty cartridge case in the gutter by the service station, partially imbedded in an inch of mud.
Shortly after 1 a.m. August 24, 1968, defendant entered Lucky‘s Doll House in Long Beach. He had black hair, full across the sides and combed straight back, and was wearing horn-rimmed sun glasses. He was clean shaven and very heavy set. James Hutcheson, the bartender, Irene Hanson, the cocktail waitress, and two customers, Tex D. Hensley and Gary K. Jonasson, were in the bar at the time. Defendant ordered two draft beers. He later walked over to the end of the bar and accused Jonasson of staring at him, telling him to stop it. A few minutes later, Thomason came in, walked over to the pool table, and racked up the balls. Defendant took the beers to the pool table, and he and Thomason played pool until about 10 minutes before 2 o‘clock. Hutcheson was suspicious of the two men, watched them closely, and took his gun out from underneath the cabinet. Irene Hanson and her husband, who had come to pick her up, also feared trouble. At 2 o‘clock, Hutcheson asked defendant and Thomason to leave, because it was time to close. They did so, and Hensley also walked out.
About 2:15 or 2:20, Hutcheson, Jonasson, and the Hansons went out the front door and walked to the parking lot. There defendant and Thomasоn, each with a gun, stopped them. Defendant said, “This is a hold up.” Hutcheson laughed, saying it was comical because he had only $6 in his pocket. Defendant told Hanson to lie down, and Hanson did as he was told. Defendant and Thomason then took Hutcheson to the other side of the car by which they had been standing and, with defendant pressing a gun to the back of his head, told him to go into the bar and open the safe. Hutcheson told them that once he locked the safe, he could not open it. Defendant said, “You better be able to or we going to deface the
Hutcheson testified on cross-examination that he went to a lineup but was not able to identify defendant and that he was not able to identify him from mug shots shown to him by the police prior to the lineup. Hutcheson saw a newspaper article showing defendant‘s photograph, and he was not able to identify him from that photograph either. However, when an article appeared in the paper September 21, 1968, with photographs of both defendant and Thomason, and Hutcheson darkened the hair on defendant, he recognized him.
Hаnson saw defendant in a lineup August 30, 1968, but he did not make a positive identification at that time because of the color of defendant‘s hair. It was blond instead of black. At the preliminary hearing, he identified both Thomason and defendant, but noted that defendant looked 20 pounds lighter, had shaved off his hair, and had grown a goatee and a mustache. The first time Hanson was able to identify anyone positively was when defendant‘s hair was colored black in his photograph in the paper. Irene Hanson did not positively identify defendant in the lineup or from mug shots. She picked out one photograph of defendant and said it lookеd like him except for the bleached blond hair.
About 12:30 a.m. August 28, 1968, defendant entered Western Union‘s office at 214 Locust Street in Long Beach. He was wearing sun glasses, and his hair was bleached blond. He told the night manager, Maurice E. Real, that he wanted to send a telegram or money order to San Francisco. Real directed him to a table in the lobby containing blanks. Later, defendant returned to the counter and presented a telegram to Real. As defendant handed the telegram to him, Real noticed that he had a tattoo on his left hand. (At the trial, defendant presented his left hand to the witness, and Real testified that the tаttoo was in the same location.) Written on the
David C. Stevens testified that as he and Lange, both Navy sailors on the USS Ticonderoga, entered the Westеrn Union office, defendant moved with his left hand a piece of paper which had been in front of Real; that there was a tattoo mark on defendant‘s left hand; that defendant had his right hand in his armpit; that he had seen a flash of something “kind of a blue gunmetal” as defendant had folded his arms; that after he and Lange left, they saw a police car come up to the Western Union office; that they returned to Western Union and learned there had been a robbery; that they gave defendant‘s description to the police; that about 2 a.m. they saw defendant, wearing the same clothes and dark glasses and with the tattoo on his left hand, in front of a bar; and that they immediately notified the police, who then arrested defendant.
The Weapon
About the middle of July 1968, defendant purchased a .25 automatic from Edwin E. Howard, who owned the Snuggle Inn, a bar in Long Beach. Defendant had told Howard that he needed a gun, because some people were bothering his wife or fiancee, and he was going East carrying money. A .25 automatic was introduced in evidence as Exhibit 3. It had a distinctive mark on the right side of the handle. Although Howard testified that he could not be sure it was the same gun, he admitted that the gun he sold defendant had a similar mark on it.
Leonard and Louise Dobrowolski managed the apartments at 80 Maine in Long Beach. They owned a 1959 beige Cadillac, which they had lent
Thomason‘s Arrest
On the afternoon of September 2, 1968, Thomason went into a liquor store owned by Israel Katz in Hollywood. He later came to Katz at the cash register with something like a soda in his hand and said, “Ring me up.” Katz did not want to ring up the cash register, as he thought that Thomason was the person who had robbed him a year ago and that he might be preparing to rob him again. Finally, Thomason dropped his wallet on the counter and said, “Oh boy, no money.” Hе ran out of the store, saying he would be right back. Katz and a customer saw him get into a car with another person and drive away. The customer wrote down the make and license number of the car (“JFR 711 out-of-state license green Corvair 61 or 62“). Katz turned the wallet over to the police. In it were the social security card and draft papers of James Edward Hutcheson, as well as a bill of sale to Michael L. Pepper for a 1958 Pontiac, photographs (including one of Thomason and a woman), traffic tickets of Thomason, and a receipt signed by L. Dobrowolski.
Mrs. Katz, who managed the apartments where Thomason lived, had previously reported that she had seen two persons changing license plates on a Corvair in front of her apartment. On September 17, 1968, Thomason was arrested in one of the apartments. At the time of his arrest, he was wearing the belt and buckle taken from Jack Wall in the Lerner‘s Service Station robbery. In the meantime, investigation had revealed that the license plate (Minnesota) on the Corvair in which Thomason left Mr. Katz’ liquor store had been registered to the 1958 Pontiac. The 1958 Pontiac was found parked near the apartment house.
Defense
Katherine Springer testified that she met defendant August 12 or 13, 1968, and had never seen him with any other than blond hair; that they
Defendant testified in his own behalf that he came to Long Beach some time after July 6, 1968; that within the first two weeks of August he became a blond, bleaching his hair to match the hair of his girl friend, Martha Henderson, and he remained a blond during the month of August; that he wanted to purchase a gun, because Martha was having a problem; that Howard had sold him a .25 Browning U.S.-made automatic, which defendant thereafter kept behind the cash register at the Snuggle Inn; that he sold the gun to Steve Jackson during the latter part of July; that from 5:30 or 6 in the evening until 2 a.m. he worked for Howard at the Snuggle Inn, checking identifications, handling beer kegs, making sandwiches, and keeping the peace; that he had no recollection of his whereabouts 12:30 a.m. August 3, 1968, or 1:45 a.m. August 20, 1968, but in each instance he should have been working at the Snuggle Inn; that 3:30 a.m. August 23, 1968, he was with Katherine Springer in her apartment at 80 Maine; that he remembered the date, because Marthа had a birthday August 26, 1968, and was celebrating it Friday, the 23d; that she and a fellow named Shorty Lampley were having their birthday party at the Snuggle Inn the next day; that they moved the party to the Plush Poodle across from where he lived; that he was not at Lucky‘s Doll House August 24, 1968; that he had worked until 2 a.m. August 23, 1968; that that evening he went from the Snuggle Inn to the Plush Poodle, arriving there about 6 p.m.; that he took Katherine Springer with him; that they did not leave the Plush Poodle until 2 a.m. August 24, 1968; that they went to her apartment at 80 Maine; and that he stayed there until 10:30 a.m.
On cross-examination, defendant testified that the next time he saw Real was 12:30 a.m. August 28, 1968; that he was not armed on that occasion; that he was acquainted with Leonard Dobrowolski as the manager of 80 Maine and had borrowed his car at 7 p.m. August 27, 1968, telling him he wanted to go to Shorty Lampley‘s house to see about a motorcycle; that he took the car to see Shorty and returned to the Snuggle Inn, remaining about half an hour; that he left the bar about 8:30, telling Howard he was going to another bar called The Box; that after the fake robbery with Real, he went to The Box to wait for a girl named Sherri; and that that was where he was arrested. Defendant further testified on cross-examination that Martha Henderson was his common law wife, and Katherine Springer was his girl friend; that he and Martha had been living together for a year and had moved into 23 Elm Street together; that he wore dark glasses only because he was nearsighted, and his dark glasses werе the only prescription glasses he had; that he was acquainted with Thomason only by reason of the fact that Thomason frequented the Snuggle Inn bar; and that he was in the United States Navy stationed at the Long Beach Naval Station, and was absent without leave.
Maurice Real denied ever having seen defendant before the robbery August 28, 1968, denied that there was any prearrangement between the two men for defendant to come in and fake a robbery, and denied ever having been in the Snuggle Inn. He testified that he had two children, ages 6 and 9, and that his wife was not pregnant during 1968.
Defendant contends that the trial court erred in reсeiving in evidence the former testimony of the Dobrowolskis given at the preliminary hearing, but there is no merit to this contention. The Dobrowolskis testified at the preliminary hearing that defendant had used their Cadillac on the night of the robbery of the Western Union office and that the following day the murder weapon was found under the dashboard of the Cadillac. Upon a showing that the Dobrowolskis were unavailable and could not with due diligence be found in the State of California, the trial court admitted in evidence their testimony at the preliminary hearing. Defendant contends
At the time of the preliminary hearing October 17, 1968, both of the Dobrowolskis were friendly and cooperative. Since they managed the apartment building at 80 Maine, and one of them had to be at the building at all times, it was arranged at that time to shuttle the two witnesses, the building being only two or three blocks from the court house. No difficulty in having the Dobrowolskis appear at the trial was anticipated, and the district attorney‘s office therefore followed its usual practice of mailing subpenas to witnesses, notifying them, “You are on call. Do not appear until notified.” The subpenas so mailed are accompanied by a pamphlet explaining the duties and obligations of the witness. On the back of the pamphlet, it is stated that the procedure has the approval of all of the supervisors and the Superior Court of Los Angeles County.
Subpenas were mailed to all witnesses, including the Dobrowolskis, November 20, 1968, the trial at that time being set for January 9, 1969. There was no indication on the district attorney‘s rеcord that any of the subpenas were returned as undeliverable. The charges against defendant were later consolidated, the trial date was continued to February 19, 1969, and subpenas were mailed January 16, 1969. Some time between that date and February 19, 1969, the subpenas mailed to the Dobrowolskis were returned. After trailing to February 20, February 21, February 26, and February 27, defendant‘s trial was continued to March 3 and then to March 4, at which time selection of the jury commenced. March 6 the jury was impaneled, and the actual trial began; and March 14 the testimony of the Dobrowolskis at the preliminary hearing was read to the jury.
The subpеna records of the district attorney‘s office show a notation opposite Leonard Dobrowolski‘s name, “P/S,” which indicated that the investigator for the district attorney‘s office in charge of obtaining the attendance of witnesses, Gary T. Komers, anticipated personally serving Dobrowolski. The notation was apparently made between November 20, 1968, and January 9, 1969, but no effort was made to serve the Dobrowolskis until January 27. This was due to Komers’ having been advised by the Long Beach Police Department that the Dobrowolskis were very cooperative, that they were the managers of the building, and that there was no reason to doubt their ability or capacity to appear when they were called.
The trial judge commented on the procedure of mailing subpenas and acknowledged that it did not give dignity to a subpena whеn so served, but recognized that it was an acceptable procedure in Los Angeles County, in view of the exigencies facing law enforcement agencies at this time, and held that there was no negligence on the part of the prosecution resulting in the unavailability of the Dobrowolskis. The trial court further found that a reading of the preliminary transcript indicated that the cross-examination at the preliminary hearing was adequate. Under the circumstances, the trial court properly admitted the Dobrowolskis’ testimony. (California v. Green, 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930]; People v. Smith, 4 Cal.App.3d 403, 405-411 [84 Cal.Rptr. 412]; People v. Benjamin, 3 Cal.App.3d 687, 692, 698 [83 Cal.Rptr. 764].)
As stated in People v. Peters, 276 Cal.App.2d 71, 78 [3] [80 Cal.Rptr. 648]: “Whether due diligence has been shown is a factual question to be determined according to the circumstances of each case. [Citation.] Unless there has been an abuse of discretion, the ruling of the trial judge will not be disturbed. [Citations.]” (People v. Dunn, 29 Cal.2d 654, 660-661 [177 P.2d 553].) No abuse of discretion has been shown here.
Defendant‘s reliance on People v. Harris, 266 Cal.App.2d 426 [72 Cal. Rptr. 423], is misplaced. Contrary to the situation existing here, no evidence was produced in that case in support of the claim of due diligence. The entire good faith showing consisted of statements of counsel detailing the number of times that process servers had visited the home of the missing witness, who, according to the prosecution, was somewhere in Canada.
Defendant complains that at the time the Dobrowolskis testified at the preliminary hearing hе was not aware that they had suffered prior felony convictions and that he had a right to confront them with information regarding those convictions for the purpose of impeachment. There was, however, ample corroboration of the testimony of the Dobrowolskis through the testimony of defendant‘s girl friend, Katherine Springer, and Edwin Howard, his alleged employer. Defendant also claims that he was entitled to cross-examine the Dobrowolskis as to the color of his hair, but the only issue affected by their testimony was the murder weapon.
Defendant further contends that he was denied the right to counsel or due process of law in pretrial identification procedures. In the trial court, defendant had moved to suppress the evidence of identification as to him, on the ground that the circumstances surrounding his identification by the witnesses were so suggestive as to give rise to a substantial likelihood of irreparable misidentification. To support his motion, he put on the testimony of himself, Robert Molby, Irene Hanson, James Hutcheson, Rick Dwayne Taylor, and Jack Wall. After hearing the testimony, the trial court denied defendant‘s motion, ruling: “It appears to me that the facts developed on cross as well as some of the facts develоped on direct examination, indicate that there was no unfairness indulged in by the officers in the identification procedures involved in this case. I also [base] that conclusion on what is contained in the transcript.
“In other words, I would say that the proof is clear and convincing that the in-court identification at the time of the preliminary hearing was based upon observations by the witnesses of the accused defendants on the occasions of the episodes dealt with in this case.”
From the evidence hereinabove recited, it is clear that each of the witnesses who identified defendant had ample opportunity to observe him at the time of the commission of the various crimes and that most
Defendant argues that the identification testimony of both Taylor and Molby with respect to him was inconclusive, confused, unclear, unconvincing, and not positive and should therefore have been suppressed. Any lack of convincing quality or positive identification of defendant by the witnesses, however, would merely go to the weight of their testimony and not to its admissibility. (People v. Gonzales, 68 Cal.2d 467, 472 [5] [67 Cal.Rptr. 551, 439 P.2d 655].)
Defendant has failed to show that the police engaged in improper pretrial identification procedures. In any event, there being evidence that his in-court identification had an origin independent of any pretrial identification procedure, it was properly received. (In re Hill, 71 Cal.2d 997, 1006 [80 Cal.Rptr. 537, 458 P.2d 449].)
Finally, defendant contends that the trial court erred in denying his motion for a new trial on the ground of the inadmissibility of the testimony of Officer McMahan. While testifying, Molby was shown photographs allegedly displayed to him shortly after thе robbery at his bar. Although he testified that he was able to make a positive identification of defendant from the photographs shown to him shortly after the robbery, he identified only four of the sixteen photographs shown to him in court as photographs shown to him previously. Subsequently, Officer McMahan was put on the stand and testified that the photographs were the same ones exhibited to Molby shortly after the robbery and that at that time he had picked out all the photographs of defendant and all the photographs of Thomason (a total of seven photographs).
Likewise, Officer McMahan testified that Merklеin had identified all the photographs of defendant and all the photographs of Thomason. Merklein had testified that when he was shown photographs shortly after the robbery, he identified both men from the photographs; but when asked to select which of the photographs he had identified previously, he did not pick out all the photographs of defendant and Thomason.
Taylor testified that he had made a positive identification of Thomason but had not positively identified any of the photographs depicting defendant. McMahan testified that Taylor had selected the photographs of both defendant and Thomason, but although he had been positive in his identification of Thomason, he had stated he was not positive about defendant.
All the witnesses with respect to whose allegedly prior inconsistent statements Officer McMahan testified were present in court and available for cross-examination concerning their current and prior statements. Under the circumstances, the officer‘s testimony was admissible for the truth of its contents under
In view of this court‘s decision in People v. Anderson, 6 Cal.3d 628 [100 Cal.Rptr. 152, 493 P.2d 880], that the death penalty violates our state constitutional provision against cruel or unusual punishment, the judgment is modified to provide for life imprisonment and, as so modified, is affirmed.
McCOMB, J.—I concur in the majority opinion, except that, for the reasons expressed in my dissenting opinion in People v. Anderson, 6 Cal.3d 628, 657 [100 Cal.Rptr. 152, 493 P.2d 880], I dissent from the modification of the judgment.