APPEALS, including one automatically taken under Pen. Code, § 1239, subd. (b), from judgments of the Superior Court of Los Angeles County. Bernard Lawler, Judge.
In Bank. Peters, J. Gibson, C. J., Traynor, J., Tobriner, J., and Peek, J., concurred. Schauer, J., dissents. McComb, J., concurred.
Dan Clifton Robinson, Charles Drivers, Willie Hickman and Fred Guliex were jointly charged with the murder of Lewis Joseph Grego on February 4, 1962. All defendants pleaded not guilty, and were jointly tried by jury. Verdicts were returned finding Robinson, Drivers and
Hickman guilty of murder in the first degree. A mistrial was declared as to Guliex, the jury being unable to agree as to him. The penalty issue was tried before the same jury, and verdicts were returned fixing the death penalty for Robinson and life imprisonment for Drivers and Hickman. Robinson's appeal is automatic under the provisions of subdivision (b) of Penal Code section 1239. Drivers' appeal has been consolidated with Robinson's for review by this court. Hickman has not appealed.
The following statement of facts constitutes a summary of the undisputed evidence produced by the prosecution.
Hickman was a night porter at the Fox Hills Country Club, in Los Angeles. Grego, the victim, was a bartender at the same establishment. On the evening of February 3, 1962, a private party was in progress at the club. Shortly after one a.m. of the 4th, the party having concluded, there was present on the premises only Mr. Morrisey (the club manager), Grego, Hickman and Arthur Lee Johnson (a second night porter). Johnson was working in a distant part of the clubhouse, and neither heard nor saw anything that occurred during the commission of the crime. Morrisey, Grego and Hickman were together in the vicinity of the dining room, bar and office, preparing to close. Morrisey instructed Hickman to rope off a certain portion of the club parking area, as was the usual custom. Hickman left, ostensibly for such purpose. Grego gave Morrisey the night's proceeds, and Morrisey deposited them in the office safe. As he rejoined Grego in the dining room, three men appeared in the doorway leading from the kitchen. Morrisey saw two of these men clearly, and observed that they could not be recognized because they wore masks made of white material with holes cut for the eyes. One carried what appeared to be a gun. Grego said, "There are three of them." Immediately thereafter Morrisey heard a loud explosion, and turned away. There was a second explosion, and Morrisey was knocked unconscious. He did not regain his senses until several weeks later. He was then in a hospital. When Hickman returned to the dining room area he was met by Johnson, who had come from where he had been working, and the two entered the dining room together. They found Morrisey unconscious on the floor and bleeding from wounds in the back. Hickman telephoned for the police.
When the latter arrived they were met by Hickman outside,
and accompanied him back to the dining room area. There they found Morrisey, as described, and also found Grego's body, half sitting and half reclining in a booth. He was dead, killed by a shotgun blast that tore off part of his face and his jaw and which had continued downward through his throat and into his shoulders. Morrisey's wounds were also caused by a shotgun, fired from behind him. An unexpended shell and the remnants of two expended shells were found on the premises. Subsequent police search revealed a Ford automobile on the club parking lot, facing the exit and with its gears jammed in such manner that it could not be driven, and with its rear license plate obscured by means of a white rag. The Ford was registered to one Alfred Campbell who lived in an apartment, which turned out to be in the same apartment house where Hickman lived. Robinson had purchased the Ford from Campbell two days before (on February 2d).
When the police arrived during the early morning hours of the 4th at the address of Campbell, they found Robinson in Campbell's apartment. He had just telephoned the police and reported the Ford as stolen. He readily admitted ownership of the car, and had the keys in his possession. His fingerprints were found in the driver's compartment, and Drivers' fingerprints were found in and around the right-hand front passenger seat and the door. Drivers was Hickman's cousin, and both he and Robinson were frequent visitors at the Hickman apartment. Search of that apartment disclosed a white cotton bag, or portion of a pillow case, containing a piece of rope that matched a similar piece found abandoned at the country club, and which bag matched the material of two of the three masks subsequently found discarded near the scene of the crime. Several weeks later a shotgun was found abandoned in the cemetery across the road from the country club. The gun was so rusted that it showed no fingerprints, but was definitely identified as the property of Robinson's grandfather. Its case was found in Hickman's apartment, and subsequent tests demonstrated that it was the murder weapon. On the morning of the 4th the police received a report of another stolen car which they later recovered in downtown Los Angeles. The point of recovery, the point from which it was taken, and the location of the various objects which had been found near the scene of the crime, taken together, indicated that two men had left the country club via the golf course, utilizing the stolen car as a
getaway vehicle, and that one man had left in the opposite direction, via the cemetery.
In addition to the foregoing, the prosecution introduced transcriptions of extrajudicial confessions and admissions made by Hickman, Robinson and Guliex.*fn1 These statements were offered by the prosecution expressly only against the particular individual who made the statement, and the court, at the time of admission of each statement properly instructed the jury that it was not to consider anything contained therein as evidence against any other defendant.
As each statement was offered the defendant making it objected on the ground that he had been coerced into making it and that it was involuntary. When such objection was made, the court allowed the defendant involved to present voir dire evidence on the allegedly involuntary nature of the statement, carefully explaining to the jury that the testimony was being received for the sole purpose of determining whether or not it had been made voluntarily. At the conclusion of each voir dire examination, the trial judge expressed his opinion (out of the presence of the jury) that the statement was voluntary, and allowed the prosecution witness to read the transcript of it into evidence.*fn2
The extrajudicial confessions of Hickman, Robinson and Guliex were, except in certain respects hereafter mentioned, substantially similar. Therein those three defendants stated that Hickman, Robinson and Drivers had planned for several weeks to rob the Fox Hills Country Club;*fn3 that Robinson purchased the Ford from Campbell on February 2d; that sometime on the 3d they decided to consummate their plan that night; that Hickman went to work, pursuant to the plan, at the ordinary time, with the understanding that the other two would drive to the club parking lot later in the evening; that thereafter, and before going to the club, Robinson
and Drivers met Guliex, told him of their plan, and persuaded him to join them;*fn4 that the three arrived at the parking lot sometime before midnight of the 3d, were met by Hickman, and advised by him that a party was in progress, and that it was not yet safe to perpetrate the robbery; that at the time they had with them the shotgun, which was later identified by the police, and a .22-caliber rifle; that the shotgun was loaded and the rifle was not; that sometime after midnight Hickman again came out to the car and advised the others that it was now time to consummate the robbery.*fn5 From this point on, the statements necessarily differed, for the reason that the three confessing defendants were not together at all times.
According to Hickman, after advising the others that it was time to go in, he left them in order to rope off a separate portion of the parking lot which was out of view of the spot where the Ford was parked. He stated that while he was so engaged he heard what sounded like two shotgun blasts from the dining room area; that he looked in a window and observed Mr. Morrisey attempt to reach for the telephone which was on the office desk, but that Morrisey fell over before he reached the telephone; that he (Hickman) then panicked, and ran to the locker room, where he locked himself in; that sometime later he left the locker room and, on approaching the dining room, saw Johnson; that together they entered the dining room and found Morrisey lying as described by the prosecution witnesses; that they attempted to give him aid, but were unable to help him; that Hickman then telephoned for the police; that after doing so he went outside to await the arrival of the police, whereupon he noted, for the first time, that the Ford had been abandoned near the parking lot exit; that he then reentered the club where he waited until he saw the headlights of a car, at which time he went outside; that he was met by the police in the parking lot, and reentered with them; that after being interrogated by the police, he was taken into custody.
Guliex indicated in his statement that when Hickman told them that the time was ripe, the remaining three alighted from the car and moved toward the kitchen door; that he
(Guliex) had been handed the unloaded rifle, and that one of the others carried the shotgun; that before they entered the club,*fn6 he (Guliex) decided that he did not wish to continue with the robbery, and attempted to talk the others into leaving; that when he received no response to that suggestion, he turned to leave by himself; that he then heard the two shotgun blasts, and (with the others) ran to the Ford; that the gears of the Ford jammed so that it would not move; that he and Robinson fled on foot, via the golf course; that after leaving the area, they found a parked car with the keys in the ignition; that they took that car, and Robinson drove him to downtown Los Angeles, where they parted company.
Robinson's statement contained most of the matters set forth in the resume of Guliex' statement, except that it gave no indication of the identities of the other parties, and contained no reference to Guliex' alleged suggestion that they terminate the attempted robbery. In his statement he admitted having done the shooting; although he claimed that he shot as Morrisey was approaching him. He, also, stated that the parties fled, in the manner indicated by Guilex. Neither he nor Guliex mentioned Drivers by name at any point after Hickman indicated that the time was ripe to enter the club.*fn7
In addition to the foregoing, the prosecution offered proof of what was intended as an adoptive admission allegedly made by Drivers. Since the objection to this evidence constitutes one of Drivers' principal contentions on appeal, the facts surrounding its admission are set forth in detail.
The prosecution first made an offer of proof in chambers, outside the presence of the jury. It there offered to prove that Drivers stated, when accused of the crime, that he was not "copping out to nothing," claiming that such was admissible as a failure to deny an accusation. Various defendants (including Drivers) objected on the ground that the offered statement was of itself a denial, and hence not subject to the rule authorizing evidence of an undenied (or equivocally answered) accusation. Thereupon the prosecuting attorney repeated the alleged phrases used by Drivers in slightly
different language and context,*fn8 and it was agreed that the testimony should be elicited in open court, and objections made at the proper points of the examination. Sergeant Wrona of the Los Angeles Police Department was then asked to state his conversation with Drivers at the police headquarters. Before any reply was made, Drivers' counsel asked for permission to examine the witness on voir dire. The request was granted, and it was brought out that Drivers had not been apprehended by the police, but had given himself up voluntarily when he learned that the police were looking for him. During that cross-examination the witness was questioned, and answered, as follows:
"Q. . . . [You] had a conversation with Drivers at Lennox Station; is that right?
"Q. And at that time you told him in substance that you knew what -- what had happened out at the Fox Hills Country Club and that he'd better tell you what happened?
"A. No. At the first questioning we asked him where he was and he related what he had done. After Willie Hickman was brought into the room is when Chuck Drivers asked Willie Hickman that [ sic, if] he, referring to himself, was at the Fox Hills Country Club. Willie Hickman at this time stated yes, he was.
"At this time he said he was not out at the Fox Hills Country Club, and Sergeant Human related to him the incident that occurred and that Willie Hickman had involved him in the crime.
"At this time Charles Drivers said, 'I'm not copping out to nothing even if my own mother told on me.'*fn9
"Q. In other words, he denied then to you that he had anything whatever to do with the crime that we are interested in in [ sic ] here now?
Whereupon the prosecution objected and moved to strike the answer for the purpose of the objection. The answer was stricken for that purpose, and before the court was able to rule on the objection, counsel for Drivers withdrew the question, stating that he would reframe it.*fn10 Thereupon the examination continued as follows:
"Q. . . . Did he at any time admit to you that he had any part in this crime that we're interested in?
"Q. Didn't he at all times tell you that he didn't know what you were talking about when you questioned him about the gun and also the shooting at the Fox Hills Country Club?
Returning to direct examination, the witness testified (over legitimate objections that the questions were leading) that Drivers had made conflicting statements as to his whereabouts on February 2d, 3d and 4th.*fn11 Counsel for the prosecution then queried the witness as to the asserted failure to
deny an accusation made in his presence, and the following ensued:
"Q. All right, would you relate as best you can the conversation between Willie Hickman and the defendant Drivers?
"A. Yes. At this time Chuck Drivers asked Willie Hickman if he was at the Fox Hills Country Club, referring to himself.
"Q. Excuse me, Drivers asked Hickman?
"A. And Willie Hickman informed Chuck Drivers that he was also at the Fox Hills Country Club the night of February 3rd, to which Chuck Drivers stated, 'No, I was not there, and that's that.' [Italics added.]
"At this time Chuck Drivers was informed of the incident at the Fox Hills Country Club, and that a shooting had occurred, which one person was dead, to which Chuck Drivers said, I am not copping out to nothing, even if my own mother said it.'"
This was the state of the evidence when the prosecution rested. Then, the defendant Hickman commenced his defense, and a most confusing situation developed. His entire direct testimony consisted of his reply to a single question in which he reiterated that his previous testimony, regarding the coercion and force used to secure his confession, was the truth.*fn11a He was then cross-examined by the prosecuting attorney. During such examination he continued to reiterate that his confession had been obtained by brutality, threats and refusal of food. However, while insisting that his confession was involuntary, he also admitted that the confession,
itself, was true. Objections and motions to strike were made by the codefendants on the ground that the answer was nonresponsive. The motions were overruled. The prosecuting attorney then went through the confession, point by point, asking if each statement appearing in the confession was true, and received an affirmative reply to each. The court sustained the objections of each of the other three defendants on the ground that as to them, the testimony was hearsay, but allowed the examination to continue and the answers to stand as against Hickman, alone. The court did not on this occasion, however, specifically advise the jury to consider the testimony as limited to Hickman. But, it did state to counsel that it considered that the objections and the rulings were continuous, and applicable to the entire line of examination.
As the cross-examination continued, the questions changed from inquiry as to whether a particular fact set forth in the recorded confession was true, to an inquiry concerning the truth of the same fact, without any reference to the extrajudicial statement. At just what point the prosecuting attorney ceased referring to the confession obtained by the police and commenced to obtain answers that amounted to a judicial confession, is not clear from the record. It is clear, however, that the cross-examination, which commenced with an inquiry into the truth of the extrajudicial confession, ended with testimony from Hickman that was identical to the facts set forth in the extrajudicial statement. When the change in the type of cross-examination first became apparent, the codefendants objected on the ground that the questions were beyond the scope of the direct examination. Even though that direct had been limited to the one proposition that Hickman's extrajudicial statement had been obtained by coercion, the court ruled that questions designed to obtain a piecemeal confession of the crime were proper cross-examination, and that the answers thereto were binding on all defendants. To complicate the matter, the court overruled further objections as to the form of the questions, holding that great latitude would be allowed on cross-examination. Thus, the prosecution was able to ask leading questions, and to accomplish a "rehabilitation" of Hickman, and to obtain a complete confession from the witness stand, which confession implicated each of the other defendants by name.
By way of cross-examination of Hickman's so-called "defense," the defendant Robinson attempted to prove (through questions to Hickman) that the latter had, on the
previous day, made a bargain with the prosecution for a lesser charge in return for a confession which would implicate the codefendants. He was unable to obtain any such admission from Hickman.
Guliex then put on a defense not material to this appeal.
Robinson presented a defense in which he did not himself take the stand, but which consisted entirely of a further attempt to prove a deal between Hickman and the prosecution. The prosecution did not undertake to rebut this defense, but in a proceeding labeled (in the transcript of record) as "Hickman's Rebuttal of Robinson's Defense," Hickman produced both prosecuting attorneys to deny that any deal had been made.*fn12 Then Robinson, by way of surrebuttal, called Drivers to the stand for the limited purpose of testifying that on the previous day, in open court, he had overheard Hickman's counsel attempting to make such a deal with the prosecuting attorneys. Robinson then called Drivers' attorney to the stand to testify that, on the previous day, Drivers had reported to him the fact that he had overheard such deal. On cross-examination Drivers' counsel stated that when his client told him what he thought he had overheard he "didn't believe it."
Drivers offered no defense, and did not take the stand except as a witness called by Robinson for the limited purpose mentioned above.
After arguments and instructions the jury returned their verdicts of murder in the first degree against Robinson, Hickman and Drivers. The penalty phase of the trial was short and without incident.*fn13 At its conclusion the jury assessed the death penalty against Robinson, and life imprisonment for Hickman and Drivers. As stated above, Hickman has not appealed.
The principal issues on these appeals involve, first, the voluntary nature of the extrajudicial statements and their admissibility. Included therein are questions regarding the
propriety of Hickman's judicial confession and its admissibility against each appellant. When these various issues have been resolved, only then can we determine the sufficiency of the evidence as to each of the appellants. In arguing the sufficiency of the evidence, the parties raise subissues relating to the testimony of accomplices and the law of conspiracy. They also contend that prejudicial error in the instructions requires reversal.*fn14
In addition to the principal issues last enumerated, appellants have made several assignments of error which are without merit. These include the contentions that reversal is required because the court overruled the challenge which they made to the jury panel at the commencement of the trial, that the testimony of Hickman was proved to be false and should have been excluded, that the prosecution indulged in improper argument, that the prosecution should be bound by Drivers' extrajudicial denial of complicity because the same was produced as a portion of its case in chief, and that Drivers was denied effective assistance of counsel. These contentions, all without merit, can be disposed of quickly.
On the first morning of the trial, and before selection of a jury had commenced, the several defendants (who were all Negro) challenged the entire panel on the sole ground that Negroes were systematically excluded therefrom. The challenge was made on information and belief, only, and no evidence was offered. In the absence of the showing subsequently made by the prosecution, the record merely showed that there were no Negroes on either of the two panels which were called to try these defendants. The question of whether there has been a systematic racial discrimination in the selection of jurors must be determined from the facts of each particular case (Patton v. Mississippi, 332 U.S. 463 [68 S.Ct. 184, 92 L.Ed. 76, 1 A.L.R.2d 1286]), and it is incumbent upon a defendant to establish such facts. Here, the appellants not only failed to establish any facts whatsoever, but they made no attempt to rebut the showing gratuitously made by the prosecution. From that showing it was made to appear that the practice used in the selection of jurors was designed to obtain a cross section of the registered
voters, without consideration of race, color or creed.*fn15 In People v. Burwell, 44 Cal. 2d 16, 41 [279 P.2d 744], it was held that a stronger showing than was made by defendants here was insufficient to sustain a contention that there was a systematic and purposeful attempt to exclude Negroes from the grand jury. Because appellants here offered no proof of their allegation that Negroes were excluded from jury service, the authorities on which they rely are not in point. On the contrary, this case comes within the rules of People v. Carter, 148 Cal. App. 2d 949, 951 [307 P.2d 670], and People v. Frye, 218 Cal. App. 2d 799, 802 [32 Cal. Rptr. 699], which hold that such a challenge to a jury panel must be factually supported.*fn16
The claim that the testimony of Hickman must be disregarded because some of his testimony was shown to have been false is without merit. Appellants rely on the fact that the prosecution offered convincing evidence that Hickman's claims of brutality, and other unlawful means used to obtain a statement from him, were untrue, and yet rehabilitated him for the purpose of obtaining an "in court" confession which implicated his codefendants. No authority is cited by appellants to uphold their contention that the jury may not accept one portion of a witness's testimony while rejecting another. The authorities are to the contrary. The point which appellants attempt to make here goes not so much to the rejection of Hickman's testimony because it is unworthy of belief, as it does to the question of whether it was proper cross-examination. That point will be discussed later.
Appellants claim that one of the prosecuting attorneys committed prejudicial misconduct when, in his argument to the jury during the penalty phase of the trial, he made some reference to the fact that the jury had been selected
as the arm of society appointed for the purpose of assessing the death penalty. A reading of the record at this point indicates that appellants have misconceived the purport of the prosecutor's remarks. He told the jury, in substance, that they were an arm of society, that society had provided for the death penalty in certain cases, and that they had been appointed to determine whether or not this was such a case. This was proper argument.
Appellant Drivers' contention that the prosecution was bound by his extrajudicial statements because the same were produced during its case in chief, misconceives the point at issue. Respondent argues that it was not bound because portions of that statement came in during Drivers' counsel's cross-examination of the witness. It is true that the record indicates that the statements were repeated on several occasions, both on direct examination and on cross, but what both counsel overlook is that this is not the point at issue. The prosecution has not claimed (and does not claim) that it is not bound by Drivers' extrajudicial statements. It has attempted to use the same to prove an alleged admission by reason of failure to deny an accusation. Drivers now wishes to bind the prosecution with that testimony because he sees in the remarks an unequivocal denial of the accusation. The real issue is not who is bound by the testimony, but whether or not there was a denial of an alleged accusation. This phase of the problem is discussed later.
The final contention that lacks merit relates to the claim that Drivers was denied effective assistance of counsel when his attorney was required to testify. The claim is not made that the mere calling of Drivers' counsel to the witness stand denied the client the effective assistance of counsel.*fn17 Rather, it is urged that when counsel testified that he did not believe what his client had told him, he placed his client in such a light that the jury could not possibly believe in his innocence. In this respect, Drivers misinterprets the record. He interprets counsel's testimony to be that he did not believe in the veracity of his client. The record shows the statement (given in reply to a question calling for counsel's reaction
to the information given by his client) was, "Frankly, I told him I didn't believe it." Read in context, this statement meant that the witness did not believe that Hickman's counsel had made a deal with the prosecuting attorney. It was not an expression of disbelief in his own client's veracity; it was a statement of his doubt of the conclusion reached by his client. Since Drivers had reported his own deductions, made from observations in the courtroom, the expression could not have been interpreted by the jury to reflect the attorney's doubt of the client's veracity. It cannot be contended successfully that Drivers was denied effective assistance of counsel.
The Voluntary Nature of the Extrajudicial Statements :
The contention is that Robinson's extrajudicial statement should have been excluded because it was involuntary.*fn18 Such contention overlooks the manner in which the statement was admitted. The trial judge allowed the parties to produce evidence in a voir dire proceeding before determining whether he would allow the extrajudicial statement to be read into evidence. He advised the jury that the evidence thus to be produced was received for the sole purpose of determining whether the alleged statement was voluntary or involuntary. The evidence so produced was in direct conflict, and the trier of fact certainly had the right to accept either the prosecution's version or that of Robinson and his witnesses. This constituted a simple factual issue. At the conclusion thereof, the trial judge expressed to counsel, and out of the presence of the jury, his disbelief of Robinson's claims. Under proper instructions he allowed the jury to determine whether or not the statement was voluntary. The parties, in their briefs, argue the merits of the facts testified to by the various witnesses. But we are not concerned with that question.*fn19 That was the sole concern of the jury. The cases
on which appellants rely deal with claims of coercion in which the facts were not in dispute. While it is true that the prosecution has the burden of proving that the alleged confession was voluntary (People v. Rogers, 22 Cal. 2d 787 [141 P.2d 722]), the trial court here required the prosecution to produce such evidence before allowing the confession to go before the jury. It is the function of the jury, and not of this court, to choose between the conflicting testimony of the parties. The extrajudicial statements and confessions of the various defendants were properly admitted. If the jury believed any one or more of them to have been involuntarily made, it must be deemed to have rejected the same under the court's instructions to that effect. It was also instructed that any statement which it believed to have been voluntarily made was to be considered only as against the particular defendant who made the same. Thus, Robinson's statement was either rejected by the jury on the ground that they believed it to have been made under ...