*1 26, 1961.] No. 6715. Bank. Dec. [Crim. Plaintiff PEOPLE, Respondent,
THE LAWRENCE GARNER, Appellant. Defendant and CHRISTOPHER *3 Court, Supreme appointment Gregory Stout, under S. Appellant. *4 Attorney General, James, William E. Assist- Stanley Mosk, Deputy Goertzen, Attorney E. At- General, Jack ant Respondent. torney General, for Plaintiff and judgment appeal from a McCOMB, J. an automatic This degree after trial first on two counts guilty murder punishment jury at death. jury. a fixed before light in the most People, Viewed favorable to the the record following discloses facts: September defendant, subsequently Sep- On who 4,1959,
tember codefendant, married his Garner, Sandra party a apartment attended Inglewood, drunken at Clifford Red’s among guests California. Included were Rich- (Rick) (Pat) ard Nowlen and Hurley, Patricia with whom Red, Sandra, Clifford participated and defendant had in a robbery evening. earlier that stayed with Defendant Rick and Pat at a motel after the party. apartment He went back to Clifford Red’s about 11:30 September 5,1959, a. m. on but returning then left for while, p. about 5 m. Pat and Rick then arrived at Red’s apartment, Clifford argument developed proceeds over the division of the robbery. apartment Sandra left the p. about 6 m. and p. returned about 8:30 m. Defendant had taken Rick and weapons
Pat’s .45 and .32 caliber replaced with him. He weapons when he and apartment. Sandra returned to the August, Since the hiding middle Pat and Rick had been police. During out from the they stayed most the time had with Sandra, days Clifford Red and they but for stayed few at the girl home of defendant’s friend San Bernardino. they each promised pay instance large had money sum of for room and board, but had failed to do so. argument Defendant had had an at the motel with Rick that morning, and Rick had threatened to involve defendant escapade some sort of an or to involve his mother girl and his friend. Defendant then way decided that there was out of his relationship except with Rick to kill him and Pat. September 5, Rick afternoon, talked into That accompany Vegas with him to Las Pat and agreeing to Sandra. they car, later that defendant drove the evening, left When seat, front and Rick and Pat in the were Sandra was seat. back Vegas. They route, Las Bn drove a desert area toward County. Adelanto, in De- they stopped at San Bernardino go sleep, and said he told Rick and Pat to wanted fendant while, After a get acquainted with Sandra. defendant They got of the car and walked around the area. Sandra out could look over the took another walk so later highway they conditions. When returned and traffic in the remembered there were bottles back seat car, defendant *5 plan get possession on a and decided floorboard on the pistols. and Pat’s Rick pistol awhile, gave him a him Rick coaxed After defendant up and the bottles com- fully Defendant then set loaded. purposely, he firing weapon. missed because the He menced watching get out of the car to show and would Rick was knew him emptying defendant went pistol, the to shoot. After how clip, him got and Rick followed car another to the back possession. weapon in his caliber with .32 firing the .45 and Rick fired continued caliber, Defendant shots, reloaded, men and defendant fired two Both the .32. up nicking set breaking another. Defendant one bottle and placing standing behind Rick was him. After bottles, more up brought Rick, toward defendant walked bottles, shooting Rick fell fired, him the over weapon, and stomach. holding. dropped weapon he had been backwards and sorry way. no other but there was told Rick was Defendant through him defendant, but defendant shot pleaded Rick with top of the head. and told her there had been then awakened Pat Defendant ran had hurt. When she over to and Rick been accident her her and shot in the back defendant followed Rick, head. days fled Mexico. The few later defendant Sandra A they
day they the automobile in which after reached Mexico reported driving in an wrecked accident. Defendant were subsequently and was the federal authorities the matter to officersfrom the Ber- questioning. in for Later two San called Inspector Office, Oxnevad and Lieutenant nardino Sheriff’s investigation in an of the murders. flew to Mexico Mathewson, After Obregon Department Police these officers contacted department defendant, agents arrested osten- Mexico, in sibly investigation regarding his identification documents for in which been accident he had involved. and the automobile Inspector Mexico, During detention defendant’s Oxnevad going to ask the Mexican authorities him that he was advised call his and that he would pending him extradition to hold arrest, at which ask for of warrant of issuance office and you freely go with stated, “Well, I will back time defendant lay voluntarily, I want around Mexican don’t jails.” by day were escorted and Sandra The next into Arizona. immigration across the border Mexican officers Mathewson, pre- had who and Lieutenant Inspector Oxnevad piously going been informed that defendant and Sandra were put waiting They were for them Mexico, to be out there. placed the two under arrest and took to a then them courthouse they Prom there were Arizona. returned California. contends: That the trial court was First: try alleged power to without the murders because arresting bringing the method used him to officers California. *6 This contention devoid of It is is merit. immaterial whether compliance there awas with the Mexican extradition or laws on Arizona laws arrest and extradition. California follows rule relative to trial of a federal defendant who has jurisdiction from been obtained outside the of this state. The is a rule is that it immaterial whether defendant has been forcibly country in seized another or state and transferred to by violence, this state or fraud for trial an force, for offense alleged to provision in in state, have been committed this being there Constitution, laws or treaties of the United guarantees any protection States which (K him in such transaction. Illinois, 436, seq. v. 119 S. et U. 443 S.Ct. [7 er 225, ; 30 Collins, L.Ed. Frisbie 342 519, v. U. S. 522 421] 509, 541] ; Jones, 96 In Cal.App. S.Ct. L.Ed. re 423, 944] ; 35 (1960) P. Extradition, § 47, p. C.J.S. seq.) et Collins, supra, In Supreme Frisbie of the Court United ‘‘ page said, States 522: This has departed Court never from the rule announced Ker v. Illinois, 436, 119 U. S. 444 [7 225, power S.Ct. try L.Ed. that the aof 421], court to a person impaired by not crime is the fact that he had been brought jurisdiction by within the court’s reason of a ‘forcible ’ persuasive abduction. No overruling presented reasons justify are now They this line cases. on rest the sound basis process that present due of law is satisfied when one in court having fairly is convicted of crime apprized after been charges against him and after a fair trial in accordance with procedural safeguards. nothing constitutional There is in the requires Constitution that a permit guilty person court to a rightfully escape justice brought convicted because he was against to trial will.” promptly arraigned Second: That not he was during the interval he made certain which confessions should not have been received in evidence. This contention is devoid merit. Defendant was arrested Friday, September on 18, 1959, arraigned Arizona. He
with him, after, on October evidence rior pretrial confession It municipal court is Court, court-appointed counsel and he was settled so far 46 Cal.2d this 6, 1959, due arraigned on state process 3, Tuesday, September 22, voluntarily made, it is [9] indictment thereunder representing is concerned. et where, seq. as was returned in the instant him. October 9, (Rogers P.2d admissible 1959. There- 929].) against Supe 1959, case, supra, Superior the defendant had been Rogers Court, days arrest, magistrate eight after his well until taken before voluntarily statutory maximum; but his beyond the 48-hour properly held re pretrial was nevertheless made confession ceived. given by that each confession here discloses record freely voluntarily given, without threats defendant was they by promises officers. were law enforcement Therefore, trial court. properly evidence received prose- upon part was a Third: That there failure discovery pretrial comply certain orders. with cution argues is also devoid merit. This contention given 5, him on confession October a handwritten joint given by tape-recorded confession upon de- codefendant, Sandra, on October “burst complete surprise.”1 as a and utter fense counsel *7 inspect, was entitled to trial counsel Defendant’s any defendant, all of copy and statements and view, hear, discovery judge proceedings of the trial was the order such had before trial counsel to seek ant contrary This him for Cal.2d and his codefendant. out defendant’s P.2d [1] right 92, 93 et inspection. 68], is Schindler extended seq. district trial. go [1] disapproved. to the office of the district trial counsel and attorney, however, P.2d to Bather, Superior (Cash P.2d 407] joint it ; 773].) was the cf. Vance v. confession Court, 161 Superior present the Any was not duty given Court, inference to Superior Cal.App.2d of attorney defendant’s required to by statements 53 Cal.2d defend- Court, and him inspect there. the statements available not trial counsel did shows defendant’s The record respect duty to the handwritten confession. perform this with by following Turner, statement Mr. the assistant It shows the by represented appeal from that this different counsel on 1Defendant court. the trial attorney: Bailin district “Mr. trial [defendant’s counsel] my perhaps on two occasions, very came to office or three with connection this case. Mr. Bailin me at asked briefly, copies him to furnish with of one time the documents which tape. my also on I were not advised Mr. Bailin that office copying very not have did documents, the facilities for lengthy these made him the same offer I that had made to Hartley Mr. for Sandra Garner], that Mr. Bailin [counsel bring tape, would machine and and I Stenorette understood he also that would furnish used the Stenorette dictation machine; that I my him a lend room and him Stenorette dicta- machine, copy tion he could all of the statements which we have.
“This was requested never done. Mr. Bailin that because of lack copies of time that he had been furnished with tape, those matters which were that he was asked furnish tapes, large tapes to be used the Sheriff’s officefor making copies, and I did, believe I he understood, and I allege on that basis that tapes because the which he furnished were not in the condition, best copies Sheriff’s officemade relating some of statements to his client on Sheriff’s tapes they office which furnished to him. I do not know, my exactly knowledge, own get what Mr. Bailin copies did of, present any I not since was at of the occasions on which he copies. my received doI know of knowledge own that he at my copied no time came to officeand anything my out of file.
“. . . no time At has Mr. Bailin asked me whether he had copied all no statements; at time has he advised me fact, what statements he did, have, and at no time has me whether asked there were other statements which he not had seen. ready Our officehas been any and all times suiting permit his convenience to copy any him to statements by his client.” made refers to the fact at one time Sandra’s attorney’s officefor a counsel asked the district list of state- ments, by made both dates, Sandra, defendant and given any that the list contained reference to material Actually, 5 or the list October October 1959. did refer tape evident, however, to the It is October 1959. prejudiced on the list defendant, omission could have *8 attorney asked for list. since had not the objection in No was made the trial court to the intro tape-recorded joint in duction evidence the confession on had not been afforded an counsel ground that defendant’s the trial, and it clear hear it the from before opportunity contending tape no that the there is basis record that the trial counsel. surprise to defendant’s awas attorney’s the list which the district place, first In the for Sandra contained notation that counsel furnished office :20, 6 between 3:30 and 5 tape was made October that he notified defendant’s trial testified for Sandra counsel of the list. counsel commencement of over two weeks before the Furthermore, separate arguing a motion for counsel were trial, while the attorney, support argu- in of his district trials, the assistant trials, particularly separate “I feel that against stated: ment say fact that their confessions which I still are of the in view in major points agreement, they in to those addition in all they joint join confession which both it and made one have happened. they describe what ...” which appears that trial counsel actu- addition, it defendant’s tape During the trial. the ally before discussion heard objection trial of defendant’s counsel to which followed confession, of the handwritten the assistant introduction relating the attorney, after failure of defendant’s district statements, inspect written said: defendant's trial counsel Hartley Office, to the Sheriff’s I came Bailin Mr. “Mr. Saturday here, Sunday, when I wasn’t but with told, on am course, tape recording heard a which is my blessings, ’’ yet offered. to be only tape tape-recorded joint confession was there- as it evidence, above, stated when and, after introduced trial contention was made defendant’s was introduced given opportunity to it in ad- not been hear had counsel clear, therefore, that it trial. It seems vance had heard some time tape which trial counsel defendant’s beforehand. also be noted that defendant’s handwritten con- It should joint confession, contained the same matter as fession heard, appears trial had from counsel
which defendant’s objected made following which he time statement the to of the handwritten confession: introduction evidence Judge Fogg as a order of believe, however, do result “I discovery and in all connection with fairness [the order] case, been marked 48 that the item which has this [defendant’s suppressed,- it is cumula- should be handwritten confession] been pre- nature with other have tive materials
145 suppression sented, I that its could hurt his and doubt [the attorney’s] district case.” appears pursued that the course did not result in It thus any prejudicial error to defendant. That various were Fourth: of defendant confessions granted or withheld at the
“obtained in return for favors and that the trial discretion lawof enforcement officials” respect erroneously jury with to the stand court instructed the by was to be ard which the voluntariness of confessions determined. The record This contention is not well taken. discloses freely in each of the received evidence was confessions voluntarily promise made, duress, inducement, or without reward. et [303 Rogers Richmond, seq. P.2d P.2d (People 344] ; 753] P.2d ; People Nagle, v. 811].) Crooker, Grace, U. 47 Cal.2d S. 534 25 Cal.2d Cal.App.2d 348, S.Ct. 352 223 et [1] et L.Ed. [2a] seq. seq. 760], by 2d relied on defendant, applicable is not to the present The case. defendant in by was, ease a ruse, led to believe that his wife, who suffered from arthritis, was about to custody, be taken into spare in confessed order to her being transported from to the questioning. scene of the reversing judgment of conviction, the United States Supreme said, page Court of 81 S.Ct.: “From a [4-6] reading fair expressions of these trial court’s [the instructions to jury], we cannot but question conclude that the whether Rogers’ confessions were admissible into evidence an- was legal swered reference to a standard which took into probable account the circumstance of falsity. truth or And permissible this is not a standard under the Due Process Clause of the Fourteenth The Amendment. attention of the judge trial focused, purposes should have been of the Fed- Constitution, question eral on the whether the behavior of the State’s law enforcement peti- officialswas such as to overbear bring tioner’s will to resist freely about confessions not question self-determined—a complete be answered with disregard petitioner of whether or not spoke fact the truth. employment of a ... standard infected the inclusion probable reliability of references to resulted a constitu- tionally pursuant Rogers invalid conviction, which is now ” ‘in detained violation of the Constitution.’ present The instructions case, hand, on the other suggestion probable reliability contain confessions was a factor determining to be considered their voluntariness. delay arraignment contends that be yond legally prescribed alleged time, grant failure to request permission an attorney, given contact allegedly understanding see his wife with the that he would tending make a statement were all factors to establish “im plied argues coercion.” He then that the instruction
given setting out in determining the factors to be considered involuntary whether confession is erroneous that it subject implied not cover the did coercion as such coercion might *10 be found from or all of the facts enumerated. ‘‘ jury The trial court had instructed the as follows: The you absolutely law mining forbids to consider a confession deter- guilt a the innocence or of defendant unless the con- voluntarily made, although fession was and the court has tending to show admitted evidence confession, that a defendant made you disregard entirely must the asserted confession by your you, yourselves, weighing own unless of all the evi- credibility dence, your judging of the own of witnesses, and your deductions, conclude that alleged own reasonable con- only voluntary. but made, fession not was was “A an involuntary confession or admission is when it is by any any obtained sort of threats, by or violence or direct implied promises or proper immunity by any benefit, or or im- might influence which induce in the mind the de- hope or gain fendant the belief that he would or benefit or by making be better off a statement, when the defendant makes such any confession or as the admission result of such originating inducement with a law enforcement But, officer. though a an hope even confession or admission a is made under involuntary of benefit, hope or belief it will not be if such originated or benefit solely, the mind of the defendant by solely relative, was induced the advice or of a counsel at- ’’ person torney, or other not connected with law enforcement. Even if we that assume the above instruction would be inade- quate if there that a given was evidence confession was as a “implied constituting type result of specified by coercion” not of action rendering
the instruction as a confession invol- untary, defendant, this would be of no avail to as the record support not that does contention such coercion existed. pointed As out, hereinabove the rule is settled in period pretrial given during this state that confession illegal process far evidence, detention is so as due admissible is Court, concerned, Rogers supra, case, if it at Cal.2d page 10, voluntarily [9] “The et seq.) voluntary made. (Rogers admission is not As was said Superior necessary product illegal But detention. ...” might if the confession have been found involun even earlier tary jury delay arraignment, because of arraigned the com record discloses that defendant was mitting magistrate before time September at that 22, 1959, on appointed represent 5 and counsel was 1959, him. On October presence of his in the confessions, he made three one support a wife, nothing and there in the record that would earlier finding that were influenced these confessions appointing delay bringing magistrate before a represent counsel to him. respect alleged request attorney
With to defendant’s him, Inspector be contacted for defendant testified Oxnevad, Waite, walking upstairs he Lieutenant were interrogation September after his 18 at a substation another officer Victorville, sheriff’s office informed them (to telephone that placed mother whom a had defendant’s call been request) telephone. was on the at defendant’s Al- speak Inspector though her, was not with allowed give her him that he would whatever informa- Oxnevad told According testimony, tion to defendant’s defendant desired. Gladys requested Root, to have of Los An- she be told attorney, When asked whether or geles, his come out there. mother, message to his defend- was ever communicated *11 replied, “My ant mother said no.” Inspector testimony de- was no that Oxnevad told There relay message, not, not, from fendant he would or did and reply may that it was not until he it be assumed defendant’s a date that he learned with his mother at later had contact alleged request not communicated to her. had been that he told Lieutenants Continuing, testified that he had the substation Keene and Waite the Victorville attorneys called, Root be and asked that Mrs. of two cards will that later.” He then “We do reply, he which received upstairs ... about five or me Waite talked to : “After testified right, I will him, I ‘All door, told there at the 10 minutes ” so willingness to confess Defendant’s make a statement.’ request on his put it, “a stall” receiving, he shortly as after into he was coerced hardly that shows Root be called that Mrs. alleged actions. of the officers’ as a result giving the confession respect With to defendant’s contention that he was giving by promise his handwritten confession a coerced into by the sheriff that he could have visit with his wife made if he making any gave the sheriff statement, denied such agreement.
Defendant, however, that on 5 he sent for testified October tell the truth and he sheriff, told that he would wanted and the sheriff that the latter had wife, to see his reminded promised Victorville that he could have visit with his said, then testified: “He ‘Write wife. Defendant [the sheriff] your you said, I ‘I I will let see wife.’ want the statement and ‘ ’ my statement, here, is started and I said, I This see wife. my go said, I wife.’ He ‘You it, finish but want see will jailer it.’ And back to the cell finish he told the ahead pad pen, know, and I so he would then went I had that my lay segregation unit and down on bunk and to the back along pen. pad with the He came back on the floor tossed the if asked me I was finished I couple of hours later and pad you you want, back if but I want ‘No, can take said, my morning. go ‘In the You ahead said, He wife.’ to visit you your I will let visit wife.' After chow it and and write my they got morning me out of cell and took me to the in the ’’ my an hour and minute with and I had visit wife. back Thus, version it will be under defendant’s seen even only that defendant could agreed what occurred the sheriff defend- However, see his after wife he the statement. finished finishing and it four it, ant was was allowed to see her before he ended before hours after his conference with his wife had completed lengthy gave it to the sheriff. statement gave proof far the statement This falls short of permission that defendant in return for to see his wife. ‘‘ jury follows: The instructed the The court also amade fact that a under arrest at the time he defendant was the time an was not at confession or admission or state represented that he was told counsel or against him or might or would be used ment he make could implicating made statements that he was told that others had him in confession or admission crime, will not render such ’’ involuntary. though this instruction contends that even instructing not further proper itself, the court erred together with other jury might considered that these factors be confes- bearing of defendant’s on the voluntariness evidence only relevant instruction, however, would be Such sion. *12 an part of showing to be these factors when there is evidence and, improper influence, pattern of coercion or other overall support de- pointed record does out, the as hereinabove or influence such coercion contention fendant’s existed. into evidence admission Fifth: That the of confes indictment, arraignment or hy his
sions made defendant after right presence counsel, was a denial outside the of of process due clause and to counsel a violation Fourteenth Amendment. absence of no merit to this contention. There is voluntarily freely at the time defendant’s counsel promise force, duress, or confession, threats, makes a without the confession inadmissible reward, not of itself render does stitution. P.2d think each case we must consider to impaired 2d ence would have .We provide Oregon concur with the statement violation [11] (State or to 1110 et Kristich, voluntary et permit an must be examined seq. of the due the facts violated constitutional seq.] Oregon Kristich, 226 supra, at character ; cf.Rogers Superior Court, 46 P.2d accused process clause of the federal this 929].) of Mr. page case. to consult to determine an ’’ Justice admission. rights or otherwise counsel Ore. Sloan P.2d] if a Therefore, failure : “We State exist- Con Cal. 5, 1959, The record discloses that on sheriff October jailer speak a note from received that defendant wished to to this request, with him. Pursuant the sheriff visited defend- ant at at jail, which time defendant that he would stated regarding killings. making him tell the truth After agreed orally, confession it in his own write handwriting. began requested then writing, Defendant but go complete permission to his cell and take his time to it. evening the sheriff visited defendant in his cell Later him if he had his confession. Defendant and asked finished replied that he would finish it that he was tired and morning. defendant, day a. m. the sheriff asked
The next 7:30 written confession. effect, if he had finished the replied then told he would he had The sheriff not. up pick it later. jail, brought a room in the At a. m. Sandra 7:45 permitted her talk with there for defendant was twenty minutes. hour *13 grand jury
At 12 noon the returned the indictment under which defendant was tried.2 p. again About 1 m. the sheriff asked if he had replied finished the statement. Defendant that he had about page write,
one more to completed and he then pres- it in the ence the At request, sheriff. the sheriff’s the read statement aloud and then it handed to the sheriff. Defendant had dated the statement October 1959. The sheriff if willing asked defendant he would be to make presence
the same statement Sandra, and defendant said that he would. Later brought that afternoon Sandra was to the homicide parts
office,where the sheriff read of defendant’s statement if to her. He asked her it was the truth and her told defend- given him replied and had the statement. To this Sandra say she would have to hear defendant it. brought Defendant was then to the homicide office. The again part sheriff read his statement to and asked Sandra replied defendant if he had not written it. Defendant turning might and, Sandra, said, affirmative “We as well tell the truth.” p. m.,
At 3 :30 within five or ten minutes of the time defend- room, making tape ant had recording entered the of a was begun. tape shows Lieutenant Keene first a few made
preliminary
present
remarks to
then
record who
and
brought
you
“We have
both of
down here to the
stated:
Division,
you
willing
Homicide
and we understand that
are
exactly
Saturday
September
night,
tell us
what occurred on
early Sunday
September
6th,
and
at the
5th,
morning,
Nowlen, known as Rick
and
Nowlen,
time that Richard L.
Hurley
they
Skene,
Pat,
known as
how
met their
Patricia
you
responsible.
you,
death,
willing,
Are
the two of
and who
exactly
us,
what occurred on that
to relate the facts
as
’’
early Sunday morning Saturday evening and
and Sandra answered
the affirmative and
Both defendant
they
acknowledged
were about
that the statements
to make
being
any
voluntary
and
and were
made without
were free
immunity
They
gave
then
promises of reward or
kind.
by
interrogation
Lieu-
crimes, with some
their accounts of the
regarding
from time to time
details.
tenant Keene
rights
support
that his constitutional
of his contention
September
arraigned on
had been
2It will be recalled that defendant
originally
against
22, 1959,
him.
filed
under the information
by
taking
were violated
presence
of the confessions outside
on two recent New
attorney,
of his
defendant relies
People
825],
Di
N.E.2d
cases,
Biasi,
York
In v. New after defendant, indict- first-degree murder, ment for through and retained counsel surrendered instrumentality attorney, of his who advised any subjected persistent not to make statements. He was all-night questioning eight and continuous for almost hours by police an prosecutor officers, assistant and numerous in- cluding personal fledgling policeman a a friend who was and importuned finally confess, having him to confess. He did after repeatedly opportunity and been an requested, denied, to con- attorney. sult his on It was held that the record in that case the defendant’s sympathy fatigue,
will officialpressure, was overborne and falsely therefore the confession was not aroused and freely voluntarily and made and its admission into evidence process the due clause of the Fourteenth violated Amendment. majority specifically The declined to rule on the defendant’s following contention that indictment no confession obtained violating in the absence of counsel can be used without Fourteenth Amendment. opinions question. concurring the latter It is discuss obtaining is the
clear, that what is there condemned however, persistent grueling a a confession as result of attorney after has asked for his and defendant secret he request has been denied. Spano given in the case was after hours of The confession grueling by during persistent officials, law enforcement which steadfastly unques- had and answer, the defendant refused tionably grueling. present case, from the In the resulted hand,
the other not confessions were made as a result of any grueling of defendant. pointed As out, heretofore defendant sent had word to the sheriff that he him, upon wanted to see the sheriff’s voluntarily gave arrival what he then insisted was true Clearly account the crimes. this confession not the any result of grueling of defendant. thing The same true defendant’s handwritten confes- sion. part Written for the most in his while was alone cell, it interrogation no involved nature. interrogation There was some of defendant and Sandra they joint the time made their oral statement later that after- noon; very beginning they but of the interview had willingness exactly indicated their to tell what had occurred respect with imagina- to the killings, stretch of the interrogation tion can it said be that such grueling constituted his confessing guilt. which resulted defendant’s Futhermore, request at no time oppor- did defendant tunity to consult Spano as the attorney, case had. Di Biasi, supra, Spano case, the de-
fendant, after
murder,
indictment for
had retained counsel
voluntarily
through
had
instrumentality
surrendered
attorney. Subsequently
of his
questioned by
he was
several
police
attorney
officersand an assistant district
in the absence
attorney
of his
damaging
own
certain
and made
admissions.
It
requested
is clear that the defendant
had
the interview
expressed any
desire to make a statement.
present
In the
voluntarily
case defendant did not
surrender
but was apprehended,
expressed
he had
desire for an
opportunity
interview and an
to make a statement.
*15
People
In
Waterman, supra,
ap-
v.
the defendant
been
had
prehended,
present
but,
the
case,
unlike
he had not solicited
presence
the
of the law enforcement officialto whom he made
expressed any
his
or
confession
desire to make a statement.
Shortly
handing
People
after
down its
decision
Di
Biasi, supra,
Appeals
of
the Court
of New York decided the
People Downs,
case of
logic and common sense. we contended guilty employ by counsel, man could sur- defendant, for freely voluntarily, and then outside the render himself, force, presence counsel, threats, duress, of his without reward, complete a full promise of having committed a make confession of felony, only and if he were the one who impossible be facts, knew the it would to convict had crime he committed. right prior That denial to counsel Sixth: of judicial process is a the commencement denial due of of
process. This contention is devoid of merit. Section 987 the Penal appears arraignment “If the Code reads: for with- be counsel, out he must informed the court that it is his right being arraigned, to have counsel before and must be if aid asked he desires the If he counsel. desires and is employ assign unable to the court must counsel, counsel to present him.” In complied defend ease trial court foregoing provisions with the of the Penal Code. proof That Seventh: collateral crimes under the guise impeachment may miscarriage justice. constitute a foregoing The contention is Defendant unsound. testified “fighting country that he inwas Korea for his in March of ” testimony 1951. It was gone defendant’s that he had February Korea in 1951 and been in Korea, wounded action and that he did not return January 21, to the States until On cross-examination 1952. defendant was asked if it were April not a fact that in 1951 he had been arrested Inglewood Department. Police denied arrest. prosecution established on rebuttal that defendant was April Inglewood both on April arrested and on Compton. 1951, in Apparently purpose the sole testimony defendant’s con- cerning “fighting country” sym- was to create a pathetic background understanding between himself and jury. appears It transcript from the that defendant’s trial attempting counsel was to utilize defendant’s extensive mili- tary background in this manner. Under these circumstances it prosecution was reasonable that be allowed to show fact *16 totally incompatible picture with the defendant’s counsel was attempting of being to draw. Instead in Korea aas wounded being veteran, jails was in two defendant booked the United suspected aas criminal. States It would seem that defendant’s counsel was satis fied that he had invited such line of cross-examination, for he raise Westek, clusion material evidence An did not Cal.App.2d 558, objections examination 31 Cal.2d Eighth: That there were may object therefore not now for the first to his cross-examination. the record discloses that this contention the trial to the [16] [203 [5] on et behalf seq. P.2d five prosecutor’s questions. instances defendant. 572] ; (People Lindsey, P.2d 9].) time, cf. on appeal, the ex assuming is without Even merit. that the evidence was im- properly excluded, prejudicial it was not error, and under VI, article section of the Constitution 4%, such error by disregarded would have to be this court. sustaining That the trial court Ninth: erred an objection question to a ashed Lieutenant Barton Keene on as permitted cross-examination make to whether was any telephone calls substation at Vic from sheriff’s attorney to his torville or his mother he had been returned after to California. This contention is also untenable. court sustained an objection to a question, such apparently on ground question the form and improper. order were However, the record shows that thereafter Keene, Lieutenant in re- sponse questions counsel, defendant’s testified that de-' request fendant did permission not telephone to make a call (Lt. Keene) given and that was attorney card of an Gladys the name of Root and asked defendant to call her. is clear that It defendant’s develop counsel was able to whether or not Lieutenant knowledge Keene had of defend- requests attempts any telephone ant’s to make calls. person, Betty That Tenth: an unauthorized Mrs. during Crouch, permitted trial, in the was courtroom exclusionary order. violation of This contention not correct. Crouch Mrs. was called to testify stand as to statements she witness had taken in capacity stenographer her Bernardino San Sheriff’s particularly with reference to statements taken from office, September Monday, Sandra 1959. She asked to notes, from read the statement her because she was unable memory. At this time questions from Lieutenant recall the questions Mrs. for a few before Crouch was recalled Keene *17 her statement. to read commenced stand, then recalled to the and counsel for was Mrs. Crouch concerning questions on voir the witness dire asked Sandra she had taken from Sandra. the statements for examina- again recalled voir dire Keene was Lieutenant concerning taking from the of statements both defendant tion at on the at re-enactment of the crime Adelanto Sandra September morning 1959. began testifying prose- point, Lieutenant Keene at this if in cutor Turner asked Mrs. Crouch could remain the room. stated, objection for “I have no to her re- Counsel Sandra maining.” counsel, who present, Defendant’s was and the judge no at trial made statements all. questioning
After counsel finished Lieutenant Mrs. Keene, Crouch resumed the stand and read into the record the inter- rogation of Mrs. was then Sandra. Crouch cross-examined. p. adjourned April The court then at on Monday, 2:47 m. 1960. day
The next
the court
convened
10:05 a. m. Sheriff
testify.
Frank Bland
proceeded
was called as a witness and
to
taken,
afternoon recess was
and the
in
court reconvened
argument.
chambers
Sheriff Bland was recalled to the
stand and testified
defendant’s handwritten
After
confession.
Sheriff Bland was
excused,
prosecution
recalled Mrs.
For the
Crouch.
first
time,
objected
taking
defendant’s
trial counsel
to her
ground
stand,
spectator
on the
during
she
been a
had
morning in
exclusionary
violation of the
order. The trial
judge
objection.
overruled the
proceeded
testify
took the stand and
from
Crouch
Mrs.
concerning the statements of defendant and
transcript
Sandra
September 21,
crime on
1959.
of the
during
re-enactment
evidence,
read into
counsel for de-
After the statement was
questions on cross-examination.
asked no
fendant
except
testifying
a motion to exclude witnesses
the one
Since
(Code
Proc.,
trial
court
is within the discretion
Civ.
judge
the discretion of the trial
it was within
2043),
§
courtroom as he did.
permit
Crouch to remain
Mrs.
Cal.App.2d 134,
(People
139
P.2d
Persky,
v.
[4] [334
Cal.App.2d
People Alaniz,
560, 566
219] ;
v.
P.2d
[3] [309
People
Cal.App.2d 836,
P.2d
71] ;
White,
[1] [224
868].)
reporter
It
likewise settled that a court
can
properly testify despite
that he
the fact
has been
court
contrary
exclusionary
(People
Smith,
to an
order.
Cal.
present ease,
719].)
2d
P.2d
447 [3] [224
testimony
supra,
Mrs. Crouch’s
consisted
Smith,
reading
previously
Therefore,
*18
judicial
argument
jury
penalty
error in
his
on
hearing.
During
penalty hearing
attorney argued
the district
alleges
penalty.
the deterrent effect of the death
Defendant
There is no merit to this contention. We have examined argument attorney appears of the it in district the record and have concluded that of the effect his discussion deterrent penalty only of jury part appeal the death was a minor of his to the penalty. for that
was therefore VI, section 787 The reference [16] 4%, Cal.Rptr. not to the prejudicial the Constitution deterrent effect 801, 366 (People Lane, P.2d must be 57], and under of the death disregarded. 56 Cal.2d penalty article 773, judgment is affirmed. J., Schauer, Peters, J., Dooling, J., and concurred. White, J., judgment. Gibson, C. concurred TRAYNOR, J. judgment, I concur but wish to set my concluding forth for not de reasons defendant was prived right to counsel.
157 September 18, on arrested Arizona 1959. Defendant was shortly alleged police an failure after day, On that request counsel, comply made two statements with response questioning. damaging The first included ad- He another missions the second confession. made con- following day, questions put him and fession on the reporter. September On answers were recorded court police. September reenacted the crime for the On appointed arraigned, he was and counsel was for him. He voluntarily began a fourth 5, confession October but did sign approximately complete p. it until m. on joint October 6. Later that afternoon he and his wife made a grand jury had confession. The returned indictment shortly against 6, completed him on October before he had the fourth confession. He contends that the last two con- ground they fessions inadmissible on the were that since were deprived right taken the absence of counsel he to counsel. invokes the recent decisions of the New York Appeals
Court of
Basi,
v. Di
Although he had not then been custody, taken into he sur- days rendered three company later attorney, of his who him any questions. cautioned to answer ITe under- interrogation went substantial speak request and was denied his to attorney. to his he Thereafter confessed. The United Supreme States Court judgment reversed the ground that the confession involuntary, viewing absence of counsel as one of various factors to relevant a voluntariness. In con- curring opinion joined by Justice Douglas, Justices Black and Brennan, capital case, stated that ain where accused was formally charged questioned compliance and was without with request for presence, rights his counsel’s his constitutional seriously Fretag, were violated as as in Chandler v. 3U.S. 4], S.Ct. L.Ed. which the trial court had denied a to continuance allow defendant obtain counsel. Justice joined by Stewart, Douglas Brennan, emphasized Justices “questioning suspect the distinction between a in the course investigating of an questioning unsolved crime” man formally who has been indictment, stating, accused “the absence of counsel when this confession was elicited was alone enough to render it inadmissible under the Fourteenth Amend- guarantees ment. . Our . . Constitution of assistance orderly to a man courtroom, counsel presided on trial his life an by judge, open public, protected by over to the procedural Surely safeguards all the law. Constitu- promises tion which that much can vouchsafe no less to the squad midnight inquisition man under of a same room police station.” involving capital
In the Di case Biasi defendant was custody likewise not taken until after the into indictment. hiding years, He had been for some six and a half but sur- attorney. rendered on the advice his There was no show- presence requested attorney’s ing, however, before summarizing making responses interrogation. his Spano opinions applying York and concurring v. New them Appeals case, the New York Court of down the rule laid right an the assistance indictment the accused “after attorney questioning in- is after absolute and attorney a violation dictment in the absence *20 828.) (166 p. (Italics added.) right N.E.2d at to counsel.” inadmissible, were therefore made Di Biasi The statements judgment and the was reversed. People in v. Waterman a non- holding This was extended to capital in The case which the accused had counsel. defend immediately apprehended ant was after the crime and made voluntary during interrogation two statements after indict They ment. “Waterman was without were excluded because alleged coimsel at the time was not He confession. assigned ashed . . . he had retained or teen counsel. The if fact that defendant Waterman was without counsel at the questioning, interrogator time of when he was known to deprive an accused, be should not him of the benefit of the principle People (208 Di announced v. Biasi. . . .” N.Y.S. p. (Italics 598.) added.) 2d at The decision was affirmed and reasoning approved by (9 its Appeals. the Court of N.Y.2d 445].) N.E.2d foregoing eases, during the confessions were obtained police interrogation present after indictment. In the case interrogation during immediately there was no preceding relatively interrogation during fourth confession little making joint Biasi, confession. Under Di v. however, exclusion does not turn on the extent of the inter rogation. After indictment a defendant is entitled to counsel’s any talking advice at time he the authorities. The Di Biasi require rule would therefore seem to exclusion of Garner’s fourth jointly confession as well as the one made with his wife. People Downs, 710], N.Y.2d 860 N.E.2d would compel opinion different conclusion. There was no in the
Bowns Appeals case. As the New York noted, Court has special “The however, decision on the Bowns turned circum present. explicitly stances there Thus, Downs was advised that required he was not to make statements and that he could actually consult an attorney; his first confession was volun any questions put him; teered before were and at the trial gave testimony defense, on direct examination in his own opening forecast counsel to the jury, which virtually identical with the statements he made to the Waterman, (People authorities before trial.” at 175 N.E.2d pp. 448-449 ; Rothblatt, Interrogation : see Rothblatt & Police Right Prompt Arraignment, The to Counsel and to 27 Brook lyn 24, 55-57.) L. Rev. language concurring in the New York cases and opinions Spano v. New York indicates concern strike society competing balance “between interest
protection hand, of cherished one rights, individual investigation crime, effective law enforcement (People Waterman, p. 447.) on the other.” N.E.2d *21 by attempting The balance was struck to a line draw between discovering inquiry police neutral the at aimed the facts interrogation person suspected the crime and of a of com- mitting assumption It is a the crime. formalistic that indict- point particularly ment is the a when defendant needs protection advice and a counsel.1 Often is highly suspicious arrested under circumstances from the guilt apprehended foregone he is a time in is conclusion police. Frequently suspicion upon of the too, minds falls him at point some intermediate before indictment. In some against may cases the stronger evidence the accused be at the may moment of arrest than it inbe other when cases hardly indictment is returned. It is realistic to assume that a defendant is less in need counsel hour before indict- ment than is an If inquiry-suspicion he hour after. the neutral process distinction is be read into the due clause of the Amendment, preferable Fourteenth rightly it would be to do so forth- Judge’s English in (Set as Rules. in forth Devlin, England, in The Criminal Prosecution 137.) Judge’s provide: “1) The Rules police When a officer endeavoring is the author discover of a crime, there is objection putting questions to his in respect any thereof to person persons, suspected or not, whether or from whom he that useful thinks information can be obtained. “2) police a up Whenever officer has made mind
charge person crime, with a first should caution such person any asking questions before or questions, further may as the ease be. “3) custody in questioned Persons should be without being the usual caution first administered.”
A Home OfficeCircular of 1930 stated: “Rule 3 was never questioning to authorize intended or cross-examination preliminary distinction formal 1The between accusation and investi gation justify requiring deny has also been used other contexts to ing (See presence e.g., Groban, of counsel. re 352 330 U.S. S.Ct. 376] ; Baer, 787 ; 1 L.Ed.2d Bowles v. 142 F.2d United States v. Levine, F.Supp. ; Rights 127 Witnesses in Administrative Inves 651 tigations, ; cf. 54 Harv.L.Rev. Hannah Larche, v. 363 420 U.S. 1502, 1514-1520, 1307].) [80 S.Ct. 4 L.Ed.2d custody person cautioned, he has been of a after on the custody. subject is in crime for which he ...” Police may in departure Rules trial from the discretion judge excluding op. (Devlin, result in the confession. cit. Regina supra, at 72, 77 ; facts ever the evidence [1918] in the case. Rex v. K.B. p. 42.) Straffen 531, 538 ; Grayson, (See Regina A decision to exclude [1952] Regina Wattam, 16 Crim. possession v. Bass Q.B. 911, App. Rep. 7, [1953] 914 ; depends 36 Crim. police 8.) Rex v. Voisin Q.B. 680, 684 ; has on all the “ App. [When become Rep. sufficiently weighty justify charge, charge is this purpose having suspect treated as and the there been made is op. supra as at (Devlin, after treated the accused.” cit. 35.) p. police objective are to an held standard deter mining justify when the evidence has become sufficient to charge.2 (Id. 36.) p. at support urged It is of the Di Biasi rule that once the brought, begun. (See indictment the trial has effect People Waterman, pp. 447-448.) N.E.2d It would just judicial however, process be as reasonable, to view the beginning at other arraign- some time as after arrest or after *22 ment. objections In reading event there are serious to into the Fourteenth inquiry-suspicion Amendment the neutral may strange they “It police] distinction. seem the [to supposed questions should be to of person not ask the one L.Rev. who by the Police: Some Practical Considerations is central to the 325, 340.) Although questioning investigation.” (Williams, may sometimes be [1960] Questioning Crim. easy police work, substitute for scientific it is also often practice, happens police 2”In what is this. The officer the witness given by box is He evidence of a statement made the accused before caution. part keep of comes to it which counsel for the defense wishes to can; arguable point, object if ground out if he counsel thinks it an he will on incriminating part reached, the that before the was the accused ought cautioned, for, say, by stage surely to have been will this the police up charge officer must have made mind to the accused. Counsel police the is defense then allowed to cross-examine to officer establish, can, good grounds objection, if he there are for his being purpose interrupted. officer’s narrative of evidence for this If the police up point strong clearly which evidence had to this pointed accused, to the the officer will find it difficult to maintain under yet up cross-examination accused. charge that he had not made his mind to practice, judge to tends make his own assessment of the evidence; strong enough, put and if he thinks it he will not much value by police on assertions (Devlin, officer that he was still in doubt.” op. supra pp. 35-36.) cit. at 162 to the solution of a crime and conviction
essential may accused, other than the guilty. be no witnesses There may Thus, or unavailable. be dead Justice witnesses Connecticut, 568 stated Culombe v. U.S. Frankfurter “Despite modern 1860, 6 : advances S.Ct. L.Ed.2d 1037] [81 frequently technology detection, crime offenses occur in the things speak. And where there about which cannot be made offenses, be innocent human witnesses such cannot found police investigation is not be nothing remains—if balked begun—but possibly guilty fairly to seek out before it has who questions, is, them are witnesses, ask witnesses and suspected something precisely knowing about offense may which will because p. 1040 L.Ed.2d striction so persons though at and Police “Perhaps most about Price the best obtained directly, to lead the questioned. to book.” Senate, 357 U.S. Commonwealth letter.” Home Street, 765] ; Commonwealth Haley 583] Q.B. 680, “The The now, and tacit Constitutional S.Ct. ; serve perpetrator Secretary’s v. 85th University of they are questions questioned upon Liberty 64-65 ;see consent, Ohio, (Williams, evidence 504, 509 the truth (Williams, eventually to clear them. violation it, and his 684 ; Regina v. one Detention, Cong., 2d Or v. police questioning has become the activities 332 U.S. Valletutti, v. they time suspected just Rights which circular of 4 Dall. Dillon, of ] ; of his L.Ed. are themselves police op. is that the of the op. See may send Sess. v. because English Manchester] ; confession, crime Hearings Before the Subcommittee S.Ct. 596, 614 cit. Agoston, these cit. of the Committee on the Watts v. 1801] 297 N.Y. guilt that can be them to become Straffen They may Rules, generally, supra, supra, other is implication in 1297, L.Ed.2d [Statement suspected they are an unreasonable re courts *23 normally Rules have been [68 (concurring opinion).) Al police in Indiana, 364 they apparently do voluntarily made, (U.S.) 116, 117 prison or suspects 226 the means at quoted made to [1952] S.Ct. cf. p. 330 ; p. 332; Regina Pa. serve, [78 excluded confessions witnesses Cicencia the bringing 92 L.Ed. 302, 464 above, 338 U.S. N.E.2d than the Professor it. death. obtained. Q.B. one who knows directly see Confessions furnish see v. Bass quite common. [72 1523].) The abandoned, Barth, which the Judiciary, 485, ’' (Id. are A.2d criminals 49, [1 is persons Lagay, [1953] proofs Harry “dead or in L.Ed. asked 488] 57-62 often 914.) 224] (See 575, do at ;
163
Only overwhelming
policies
opinion].)
social
can
[dissenting
vital evidence. In the
of
of such
ease
justify the exclusion
may
unreliable;
if
confessions, the
be
even
evidence
coerced
society
police
cannot condone
methods that
reliable,
free
they
rights
dignity
person
of a
outrage the
whether
brutality
psychological
(See
physical
or
coercion.
include
Spano
York,
315,
1202,
v. New
360
320-321
U.S.
S.Ct.
[79
of
1265] ; Maguire,
109.)
Guilt
3
Evidence
When
L.Ed.2d
voluntary, however, courts are reluctant
to ex
confession is
“Interrogation
per
not,
per
se
it.
is
while violence
se
clude
143,
(Ashcraft
Tennessee, 322
is, an outlaw.”
U.S.
[dissenting opinion] ;
921,
S.Ct.
L.Ed.
see
[64
1192]
Lyons Oklahoma,
596,
1208,
U.S.
S.Ct.
L.Ed
; Lisenba California,
239-241
U.S.
S.Ct.
1481]
280,
166].)
86 L.Ed.
many
As
commentators and courts have recognized, there
“compulsion
Wigmore
is a
to crime.
confess”
the
states
"
point colorfully:
pressure
guilt
The
of
;
nervous
is enormous
heavy;
of
is
the load
the deed done
the fear of detection fills
comes,
consciousness;
pressure
and when detection
is
deep
relieved; and the
sense of relief makes confession a
moment,
all,
truly.
satisfaction. At that
he will tell
tell it
soliciting him,
prevent
To forbid
to seek to
relief,
this
tois
fly in
(Wigmore
the face of human nature.”
on Evidence,
p.
e.g.,
319 ; see,
3d ed.
Agoston,
Commonwealth v.
§ 851
583].)
psychiatrist
ards,
encourage
it is in the
interest
during interrogation.4
(See
confessions and admissions
Connecticut,
1860,
v.
16G
Supreme Court
place.
yet, however,
As
United States
take
constitutional
appointment of counsel
absolute
has not made
noncapital
(See e.g., Betts
at trial.
requirement
eases even
1252,
1595].) Until
Brady,
86 L.Ed.