Opinion
Rehearing Denied June 20, 1963.
For Opinion an Hearing, see 31 Cal.Rptr. 479, 388 P.2d 711
Daniel J. Jaffe, Beverly Hills, under appointment of District Court of Appeal, for defendant and appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent
JEFFERSON, Justice.
By information, appellant Alverson, Charles Allen Stoner and Donnally Charles Williamson were jointly charged with burglary in violation of section 459 of the Penal Code. The information charged appellant with five prior felony convictions. Williamson was charged with one prior conviction. Appellant and Williamson admitted the prior convictions. Appellant refused appointment of counsel by the court and chose to act as his own counsel. All defendants entered pleas of not guilty. Trial was by jury. The jury found appellant and Stoner guilty of second degree burglary, but acquitted Williamson. Appellant was sentenced to state prison for the term prescribed by law, the sentence to run concurrently with any other sentence then being served. He appeals from the judgment.
At approximately 3:35 a. m. on the morning of April 26, 1961, in the City of Los Angeles, police officers Bennett and Madama were sitting in their parked patrol car when they heard a burglar alarm ringing about half a block away. They drove in the direction of the sound; as they approached the intersection of Third and Spring Streets they observed two male Caucasians run from what appeared to be a doorway, approximately 46 to 60 feet west of Spring Street, and enter an automobile which was moving slowly on Third Street. They saw that the showcase window of a store located at 210 West Third Street had been smashed and that the two men had come from this location. The officers were about 80 feet away from the moving car when the two men scrambled into the rear seat. The vehicle was identified as a red and white 1955 Nash. The officers turned on the patrol car's bright lights, then its red lights, and sounded the horn. The two men in the rear seat of the Nash turned and looked out of the window at the police car. The officers could see their faces but could not make an identification. They did notice, however, that one of the men was wearing a pork-pie type hat. The driver of the car at first appeared to be about to stop his vehicle, but then accelerated rapidly to the next intersection where he stopped for a red light. The police car drew alongside and the officers ordered him to pull over to the curb and stop. When the light changed he proceeded another half block and then pulled over and stopped. The officers parked behind the Nash and got out of their car with side arms drawn. Officer Bennett approached the car on the driver's side and officer Madama proceeded to the passenger side. The men in the back seat crouched down below the window level. The motor of the Nash was still running and the car was slowly moving forward. Madama attempted to open the car doors but had no success. Officer Bennett shouted Upon searching the area they found defendant Stoner lying face down in a recess approximately twenty feet from the abandoned Nash. When Stoner got up, the officers discovered under him a pamphlet describing a radio model such as was found in appellant's possession. In the back seat of the Nash they found a rubber-tipped hammer, a pair of pliers and a screwdriver. Under the driver's seat there was a small transistor radio (later determined to be one of the radios taken from the burglarized store); on the front seat they found a borrower's agreement for the Nash, entered into between an automobile agency and defendant Williamson. In response to the interrogation by the officers, Stoner denied he was one of the men involved in the burglary. He said he had been out drinking and had laid down there two hours before. The officers detected no strong smell of alcohol on his breath. He appeared to them to be sober. He was sweating and appeared to be out of breath. Stoner was permitted to talk with appellant. They were placed together in the back seat of the police car. At the police station appellant was thoroughly searched. In his wallet a photograph with a California prison tag was found. He denied that the picture was of him, saying it was of his younger brother and that he had never been to jail.
Abe Green, the owner of the burglarized store, stated he came to his store shortly after the burglary in response to a call from the burglar alarm company. He found nine radios were missing. One of the radios a Zenith Model 1000, retailing for $250, was identified by its serial number as being the radio in the possession of appellant at the time of his arrest. In addition, Mr. Green identified his partner's handwriting on the price tag found in appellant's pocket. The radio had been in the show window on the night before the burglary with this price tag attached. The police found three fingerprints on the radio discovered under the front seat of the Nash, all made by defendant Stoner. Prints on the shattered glass of the show window were found and identified as also made by Stoner. Two days after the burglary, defendant Williamson was arrested.
Appellant testified at the trial in his own behalf, denying that he participated in the burglary or that he knew his codefendants. He stated his apartment is located at 433 South Hope Street (which is less than a block and a half from where the 'getaway Billy Joe Suel, a mechanic's helper, testified as an alibi witness for appellant. He entered the coffee shop on West Third Street between 2:00 and 2:30 a. m. on April 26. Appellant came in about 3:00 a. m. They drank coffee, ate doughnuts, and talked cars. As appellant left he asked Suel what time it was: Suel said 3:45 a. m. Appellant had no radio with him. On cross-examination, Suel admitted he was presently lodged in the county jail and that he was in the same cell with appellant. He also admitted a previous felony conviction for burglary.
The manager at appellant's apartment house testified he had never seen either of the codefendants at his apartment house.
Defendant Stoner's defense was also alibi. Nathaniel Durden saw Stoner on Fifth Street near Flower at approximately 3:55 a. m. He seemed intoxicated and said he was going to a show. Stoner, testifying in his own behalf, said he had been 'on a drunk' for a few days. He walked along Third Street with a young lady he met in a bar the same evening, and whose name he did not know. They necked in doorways and leaned against buildings on Third Street. The lady left him before he met Durden and took a cab home. After seeing Durden he began to feel sleepy. He came to a parking lot, found a car with its doors unlocked (the 1955 Nash). He crawled in the back seat, pushed some articles out of the way, and laid down. When a police car came by and began shining its spotlight over the area, he became frightened and, not wanting to be found in someone else's car, got out and laid down in a dark area next to a building.
Williamson also testified in his own behalf. He stated that he met appellant two weeks before April 26, that he had been to appellant's apartment. He met Stoner at a bar on the morning of the burglary between 1:00 and 1:30 a. m. They went to appellant's apartment at his suggestion. Stoner did not know appellant prior to this occasion. Appellant asked if Williamson would drive him over to Third Street in order for him to collect a debt. Williamson took appellant and Stoner to a hotel at 221 West Third Street, then he drove around and, when he returned he saw appellant and Stoner across the street. He heard the sound of a burglar alarm. Appellant and Stoner ran for the car carrying something in their hands. One said, 'I busted a window and took some radios out.' Appellant said, 'Get going, the police are right behind us.' Williamson testified that he wanted to tell the police he had nothing to do with it, but that appellant said they would laugh at him. He was on probation at the time and he knew that if he was caught with someone having a prison record or who was drinking, it would be a violation Appellant filed a brief in propria persona prior to the appointment by the court of counsel to represent him in this appeal. Having read and considered this brief, we find that the contentions raised therein are without merit and that any discussion of them is unnecessary.
Appellant contends through his court appointed counsel that the trial court committed prejudicial error in repeatedly admitting into evidence certain admissions of codefendant Williamson and in allowing a police officer who had at first testified for the prosecution to be recalled as a defense witness in Williamson's behalf.
Sergeant Larson of the Los Angeles Police Department was originally called as a witness for the People. He testified that Williamson had a conversation with him after his arrest. Williamson stated that he was the driver of the Nash automobile; that appellant and defendant Stoner broke into the store; that he had no idea what they were planning to do; that he ran from the police because he was afraid. The jury was properly instructed that these extrajudicial statements were admitted only as to defendant Williamson. On cross-examination, counsel for Williamson asked to be allowed to read to the jury Sergeant's Larson's narration of his conversation with Williamson, as given at the preliminary hearing. He asserted that a recital of this statement would tend to impeach Larson's testimony at the trial. An objection by the district attorney on the ground there was no inconsistency was overruled. Appellant contends that, in this instance, the district attorney was correct in making the objection because the testimony was in fact almost identical. Appellant argues the objective of counsel for Williamson was not to impeach the officer but to impress upon the jury that his client denied responsibility for the crime and identified his co-defendants as the guilty parties.
Williamson thereafter took the stand himself and again incriminated appellant while denying his own complicity in the crime. Sergeant Larson was later called a third time to testify, but this time as a defense witness for Williamson. He corrected in certain particulars the testimony he had given earlier in the trial. He had testified, concerning events leading up to the burglary, that Williamson told him he and appellant were out drinking on the night the crime was committed. He corrected this testimony by stating that after he had listened to a tape recording of his conversation with Williamson he found he had made a mistake, that Williamson had said he and Stoner had made the rounds of the bars and later went to appellant's apartment and not that he and appellant had been out drinking together. This testimony was admitted in evidence under the 'refreshed memory' rule. As corrected, the officer's testimony confirmed with the order of events as recounted by Williamson in his testimony.
In People v. Zammora, 66 Cal.App.2d 166, 212, 152 P.2d 180, 203, the court held, '* * * it is not permissible to get before the jury damaging and prejudicial, but inadmissible evidence against a co-defendant, under the guise of introducing an admission or confession by someone else who has made a statement. The parts of such declarations containing accusatory and inadmissible statements against co-defendants should have been excluded, and only those parts containing admissions against interest or confessions by a declarant or which were properly admissible for purposes of impeachment People v. Foote,
The People acknowledge that the admissions made by Williamson were severable from the hearsay statements he made against his codefendants. It is contended, however, that any objection to the testimony which appellant might have had was waived. It is apparent from the record that appellant on only one occasion objected to the introduction of the testimony and on that occasion later withdrew the objection. The rule is well established that any claim of error is waived by failure to make a timely objection at the trial. (People v. Marsh, 58 Cal.2d 732, 26 Cal.Rptr. 300, 376 P.2d 300.) For this reason, we hold appellant is foreclosed from raising now his objection to the testimony.
We find no merit in appellant's contention that it was error to allow the police officer to be recalled to testify as a defense witness for Williamson. The prosecution can not exercise control over whom a defendant may choose to call. Moreover, if a defendant feels he can be benefited by calling one of the People's witnesses as his own witness he had a right to do so and the officer has the duty to testify.
The principal contention made by appellant through his court appointed counsel is that he was legally prejudiced by the district attorney's closing argument to the jury recommending that the jury acquit codefendant Williamson. Preliminary to a legal analysis of this contention it is necessary to set forth certain additional surrounding facts. Appellant was tried with two codefendants, Stoner and Williamson. Both appellant and Stoner maintained the position throughout that they had nothing to do with the crime. Williamson's story was that he had driven the getaway car, but that he knew nothing of the burglary until he picked up Stoner and appellant after dropping them off on Third Street, and that when he became aware of what they had done he fled in fright. In effect, Williamson, in his statements to the police and in his testimony, said appellant and Stoner committed the crime but that he was not guilty.
There was strong evidence against Williamson. He was the only one of the three identified as fleeing the scene. He admitted driving the getaway car. He was impeached with a prior felony conviction for grand theft. There could be no question of the legal adequacy of the evidence to sustain a verdict against him. Nevertheless the district attorney, in his closing argument, recommended that he be acquitted, saying he was impressed with Williamson's testimony and that he believed his story.
A part of the statement made by the district attorney to the jury is as follows:
'Now, ladies and gentlemen, it's a very interesting situation sometimes that the District Attorney finds himself in, and it's infrequent enough that it's a delightful experience when it happens, and I find myself in that situation right now, and, frankly, I am very happy about it. A man here, Mr. Williamson, has been charged along with two others, Mr. Alverson and Mr. Stoner, and quite frankly in my own mind I think Mr. Williamson is telling you the truth, and quite frankly I do not think he is guilty of this charge.
'Now, there was sufficient evidence for him to be held to answer at a preliminary hearing. None of the defendants testified at the preliminary hearing. There was certainly sufficient evidence, based on the officer's testimony and the statements involved, so that a reasonable person would have a strong suspicion that he was guilty of the charge, because he admitted that he was there. He admitted that he fled from the scene, he eluded arrest. With all these things tied in together, the only question was, did he actually know that a burglary was going to be committed, and a Magistrate sitting at a preliminary hearing has a very hard time determining intent when the defendant never takes the stand. 'All right, the testimony you have heard, it's up to you to determine whether, in fact, he is telling the truth; whether, in fact, he is guilty or innocent of the charge. I express to you my own opinion, I express to you what I think the evidence has shown, and I wouldn't make the statement until all of the evidence is in. You have the right to determine the credibility of witnesses, that is not only your right it's your duty, and I leave it up to you as to whether, in fact, he was telling the truth.
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'I am beginning to sound like a defense counsel, but this is the duty of a District Attorney, of the prosecutor, not to convict innocent people, it's to convict the guilty, and I will leave it very simply, very plainly with you here.'
Appellant contends that, under the circumstances, it was prejudicial error for the district attorney to wait until his closing argument and then to ask for the acquittal of a defendant who has implicated his codefendants by direct testimony and by statements to the police which were hearsay as to his codefendants. He argues the recommendation that Williamson be acquitted was inherently unfair to him, a codefendant, and that the circumstances surrounding it created an unfair advantage for the district attorney in conducting the balance of his case against appellant.
The People admit the district attorney gained an advantage. 'It is certainly true that the district attorney gains an advantage of sorts. He appears before the jury as a man who has demonstrated in a striking instance how fair he is, and the jurors may regard the rest of what he says and does in a more favorable light.' The People contend however that '* * * our solicitude for the defendant who receives the benefit of the recommendation should outweigh this advantage.' It is argued that 'the interests of justice appear to be best served by permitting the recommendation to be made despite the possible advantage it might confer in facilitating the conviction of the other defendants.'
Neither appellant nor the People have cited any case in which the district attorney has deviated from his normal partisan role and argued for the acquittal of a codefendant. Clearly distinguishable from this case are cases in which it is held to be error for the district attorney to inject into the proceedings his personal opinion or belief as to the guilt of the accused when his opinion or belief is predicated upon anything other than the evidence presented in the case. In the case at hand the district attorney properly made it clear that his opinion was based on the evidence introduced at the trial.
In People v. Davis, 48 Cal.2d 241, 309 P.2d 1, cited by appellant, two defendants were jointly charged with murder. Throughout the trial, counsel for each defendant sought to establish an alibi defense. In his closing argument, counsel for one defendant switched his whole line or argument, stating that his defendant was present at the scene of the crime and in effect told the jury the alibi defense he relied on was false and that the People's witnesses were telling the truth in placing his client at the scene. He inferred that the defendant himself Appellant contends that same situation, although in reverse, faced the jury in the instant case, and that the jury had little choice but to accept the opinion of the prosecuting attorney that Williamson was telling the truth. The district attorney in his argument stated: 'If he [referring to Williamson] was telling the truth, then there is no question as to the guilt of the other two parties here.'
It is, of course, clear that a district attorney has a duty to obtain a dismissal or acquittal for a person he believes is charged with a crime he did not commit. (Canon 5, Canons of Professional Ethics of the American Bar Association.) And this duty persists no matter at what point in the trial the district attorney comes to the realization that one of the defendants he is prosecuting should not be convicted. However, it is also clear that the district attorney has the duty to investigate thoroughly all charges brought against a defendant. In this case appellant argues the district attorney did not adequately investigate the charges made against Williamson; that he did not obtain his story prior to the trial, although in essence it was contained in the preliminary transcript, as narrated by Sergeant Larson, and was also contained in a tape recording made of Williamson's original statement which tape was readily available to him. Appellant contends that if the district attorney delays until the conclusion of the trial to argue for the acquittal of one defendant, he has the duty to have a mistrial declared against the codefendants.
We conclude that the district attorney's action deprived appellant of his right to a fair trial for the following reasons:
(1) Williamson's hearsay accusations against appellant, testified to on three separate occasions by officer Larson, and adopted and confirmed by Williamson's testimony on the stand, had the stamp of incontestibility put upon them when the district attorney told the jury he believed Williamson's story. Although the court instructed the jury that these statements were to be considered only as to Williamson, the statement of the district attorney, above quoted, as to the effect of Williamson's testimony on the guilt of appelllant stripped this instruction of all meaning.
(2) The district attorney is not permitted to discharge a defendant and grant him immunity after the defense has commenced to put on its case. Section 1099 of the Penal Code provides:
'When two or more defendants are included in the same accusatory pleading, the court may, at any time before the defendants have gone into their defense, on the application of the prosecuting attorney, direct any defendant to be discharged, that he may be a witness for the people.' (Emphasis added.)
If the district attorney is permitted to do what he did in this case, namely, to wait until a defendant finishes testifying against his codefendants, and then obtain his acquittal by proclaiming his innocence in his closing argument to the jury, the district attorney is effectively circumventing the policy behind Penal Code section 1099.
(3) By expressing his personal belief in the truth of Williamson's story, the district attorney, in effect, removed Williamson from the role of an accomplice in the eyes In effect the prosecutor made Williamson his own witness and 'Comments by the prosecutor on the reputation and credibility of witnesses for the People have been condemned as prejudicial misconduct. (Citations.)' (People v. Adams, 182 Cal.App.2d 27, 35, 5 Cal.Rptr. 795, 800.)
As was true in the Adams case, supra, the veracity of certain eye witnesses, in this case Williamson was crucial to the prosecution's case. It is reasonably probable, here as in Adams, that absent the remarks of the prosecutor, the jury would have chosen to disbelieve the testimony of Williamson. 'Under these circumstances, the belief or disbelief of the jury in the honesty and veracity of the two witnesses was a matter of fine balance. That balance was obviously weighed in favor of the prosecution by the comments of the prosecutor * * *. Thus, in the light of the whole record, the conclusion is inescapable that a 'miscarriage of justice' within the meaning of Article VI, Section 4 1/2 of the California Constitution resulted from the foregoing misconduct of the deputy district attorney.' (People v. Adams, supra, 182 Cal.App.2d 27, at p. 37, 5 Cal.Rptr. 795, at p. 801.)
The People take the position that appellant has waived any objection by failure to object at the trial. As stated in People v. Berryman, 6 Cal.2d 331, 337, 57 P.2d 136, 139, 'The general rule regarding misconduct of the district attorney which tends to and is likely to result in prejudice to the defendant is that where no objection is made to such misconduct by the defendant, or where objection is made and the court sustains the objection and properly admonishes the jury, the misconduct claimed to be prejudicial to defendant's rights will not furnish grounds sufficient to justify the granting of a new trial or the reversal of the judgment. (Citation.)'
'There is an exception to this well-recognized rule in cases where the comment is of such a character that the error could not be cured and the harmful result would not be obviated by a timely admonition or instruction to the jury.' (People v. West, 215 Cal. 87, 96, 8 P.2d 463, 466; People v. Kirkes, 39 Cal.2d 719, 726, 249 P.2d 1.)
In this case the exception and not the general rule is applicable.
Appellant contends the district attorney was guilty of prejudicial misconduct and bad faith in impeaching appellant on re-cross-examination by showing he was in possession of benzedrine, when narcotics was never an issue at the trial.
Presentation of a certain amount of background material is necessary for proper analysis of appellant's position. At the time appellant was arrested, he told officers Bennett and Madama that his address was 2824 Hill Street, Huntington Park. Later, however, he admitted that he did not give his correct address but had given his mother's address and that, in fact, his own address was 433 South Hope Street, Los Angeles. On cross-examination of appellant, the district attorney brought out the fact that appellant had not given his correct address to the arresting officers. At the conclusion of the cross-examination appellant requested a conference with the trial judge out of the presence of the jury. A discussion then took place, the material parts of which are as follows:
'Mr. ALVERSON: Your Honor, this is a statement I want to make to you, first the reason for the giving of my mother's address, the benzedrine pills in my apartment, and if the police went up there six months in jail was nothing, but it would return me to State 'THE COURT: Why didn't you say this address was your mother's address when he cross examined you?
'MR. ALVERSON: I didn't know
'THE COURT: Sure, you should have said that.
'MR. ALVERSON: I have it on record at the Parole Department. Then my mother and everything--I didn't connect any importance to it.
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'MR. FUNDENBERG: You will testify that address is your mother's?
'MR. ALVERSON: I'd like this entered in the court transcript.
'THE COURT: Say it in front of the jury.
'MR. DENNY [Deputy District Attorney]: I will let you get back on the stand. I will be your attorney.
'MR. ALVERSON: Thank you.' Back in the presence of the jury the following transpired.
'THE COURT: Now, Mr. Alverson, what was the reason for you to give the police the Huntington Park address?
'THE WITNESS: In my apartment there were
'THE COURT: Why the Huntington Park address?
'THE WITNESS: It's my mother's address.
'THE COURT: Okay. All right, that is sufficient. Anything else?
'MR. DENNY: Yes, your Honor. 'BY MR. DENNY:
'Q. Your Honor; I want to find out why you gave that address, rather than your proper address.
'A. Have I got to answer? Don't I
'THE COURT: I think so
'THE WITNESS: The defendant had benzedrine pills in his possession in this apartment, and if these pills were found it would--it would tend to send him back to State Prison on a violation.
'Q. by MR. DENNY: When you say 'the defendant', you mean 'me'?
'A. I mean me.
'Q. You had benzedrine pills in your apartment at 4
'A. Yes, I did. Benzedrine pills in my apartment.
It is the People's position that the district attorney's action was proper, on the theory that he was showing the full reason for the false answer given by appellant to the police so that the jurors could evaluate the credibility of appellant's explanation, and that, in any event, since appellant had been already properly impeached with five prior felony convictions, this circumstance would not be a decisive factor which could affect the verdict.
As stated in People v. Adams, 76 Cal.App. 178, 184, 244 P. 106, 109 'It is well settled that the guilt of a defendant on trial for an alleged crime cannot be established by proof of general bad character or of other crimes or wrongful acts which have no relevancy to the crime charged, nor may a witness be impeached 'by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony.' Code Civ.Proc. § 2051. This statutory rule is so clear and certain that it is deemed unnecessary to cite any of the numerous cases holding that the statute means precisely what is stated therein.'
To us, no plausible reason appears for the district attorney to have injected the issue of possession of narcotics into the trial of a defendant charged with burglary and impeached by five prior felony convictions, none of which involved narcotics, except to further degrade appellant in the eyes of the jury.
The question remains whether or not the misconduct of the district attorney The yardstick used to determine the question, as stated in People v. Watson, 46 Cal.2d 818, at 836, 299 P.2d 243, at 254 is whether this court is of the '* * * 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'
Or stated another way: '* * * where the case is closely balanced and guilt has not been so clearly established as to render it improbable that the harmful effect of the misconduct may have turned the scales against the accused, such misconduct has consistently been deemed ground for reversal. (Citations.)' (People v. Ford, 89 Cal.App.2d 467, 471, 200 P.2d 867, 870.)
The ultimate question presented is: Has the accused been accorded a fair trial? In reviewing the overall picture of the trial as framed by the evidence presented, we are persuaded that, because of the errors to which we have alluded, the answer to this question must be answered in the negative. We are of the opinion that appellant's guilt was not so clearly established as to render it improbable that a different result would have occurred in the absence of the error.
It is true that no question could be raised as to the legal adequacy of the evidence to support the appellant's conviction. He was found near the getaway car in possession of one of the stolen radios scant minutes after the officer's fresh pursuit. He wore a hat similar to a hat worn by one of the fleeing suspects. He and his alibi witness were impeached with prior felony convictions.
The People's evidence however, excluding Williamson's testimony and admissions, was not particularly strong. Unlike Williamson the officers did not identify appellant. No independent evidence was introduced to corroborate Williamson's story that he, Stoner and appellant were together on the night of the burglary or that he had met appellant two weeks prior to the burglary. Williamson's story identifying appellant was unquestionably the determining factor in securing appellant's conviction. Williamson's identification of appellant was not conclusive. As pointed out by appellant, Williamson was not arrested for three days after the crime. He could have taken appellant's name from the newspaper account of appellant's capture.
The jury had sufficient basis for disbelieving Williamson's entire story, considering the manner in which he escaped and his conduct in reporting the Nash stolen. However, when the district attorney expressed his personal belief in his truthfulness and innocence, the People had a witness whom the jury had no real choice but to believe.
This circumstance, when considered with the inadmissible evidence concerning narcotics, deprived appellant of his right to a fair trial. As stated in People v. Lyons, 47 Cal.2d 311, 324, 303 P.2d 329, 336 '* * * the denial of a fair trial is a miscarriage of justice. (Citations.)'
The judgment is reversed.
BURKE, P.J., and KINGSLEY, J., concur.