People v. Terry

Defendant contends, among other things, that it was improper to excuse for cause veniremen who were opposed to capital punishment. We have concluded that under the compulsion of Witherspoon v. Illinois, 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ], the death penalty must be set aside because at least one venireman was improperly excluded. It is therefore necessary that defendant again be remanded to the trial court for another trial limited to the issue of the penalty for the murder.

On June 24, 1960, defendant fatally shot Police Officer Vernon Owings. Police Officer Richard Brizendine and defendant’s companion, Ross Wilson, who were present at the shooting, testified as prosecution witnesses to the circumstances surrounding the killing. The prosecution also introduced additional evidence to support its theory that defendant intentionally shot the officer to prevent being taken into custody for various offenses. Defendant testified in his own behalf and introduced other evidence to support his theory that the shooting was accidental and that he had not committed the other offenses.

Excluding Veniremen Opposed to Capital Punishment

Thirty-five prospective jurors were excused for cause on the basis of their attitude toward the death penalty.^[1] Under Witherspoon v. Illinois, supra, 391 U.S. 510 , it was error to exclude one or more of them. For example, the court asked if any of the veniremen “have a conscientious objection or opinion as to the imposition of the death penalty in a proper ease. ’ ’ Several prospective jurors raised their hands, and one such

Venireman McFarland’s response “I am opposed to the death penalty, yes” manifestly is ambiguous. The response can reasonably be interpreted as stating in effect that if the question was whether he was opposed to the death penalty the answer is yes. It appears from the trial court’s subsequent remark heretofore quoted that the court understood the response as merely expressing opposition to the death penalty, but the court did not continue with the voir dire to clarify the venireman’s attitude and instead excused him for cause.^[2]

The record thus shows that venireman McFarland did not make it 41 unmistakably clear” that he “would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial” (Witherspoon v. Illinois, supra, 391 U.S. 510 , 523, fn. 22 [ 20 L.Ed.2d 776 , 794]). Witherspoon noted (at p. 516, fn. 9 [20 L.Ed.2d at p. 781]) that “Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.” (Italics added.) “[A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” (Witherspoon v. Illinois, supra, 391 U.S. 510 , 522 [ 20 L.Ed.2d 776 , 784].)

Whether Fifth Penalty Trial Will Constitute Cruel or Unusual Punishment

Defendant also contends that subjecting him to any

Before final arguments defendant orally requested that the court givé an instruction “relating to the question of possible innocence of the defendant as bearing on mitigation.” The court denied the request, stating that the instructions that would be given were adequate. After the jury began its deliberations the court refused to give a written instruction submitted- by defendant regarding doubt of guilt as a mitigating factor.^[3]

The instructions given informed the jury in part that11 The defendant in this case has been found guilty of the offense of murder in the first degree, and it is now your duty to determine which of the penalties provided by law should be imposed for that offense. In arriving at the determination you should consider all of the evidence received here in court presented by the People and defendant throughout the trial before this jury. You may also consider all of the evidence of the circumstances surrounding the crime, of the defendant’s background and history, and of the facts in aggravation or .mitigation of the penalty which has been received here in court. However, it is not essential to your decision that you find mitigating circumstances on the one hand or evidence in aggravation of the offense on the other. . . . Beyond prescribing the two alternative penalties, the law itself provides no standard for the guidance of the jury in the selection of the penalty, but, rather, commits the whole matter of determining which of the two penalties shall be fixed to the judgment, conscience and absolute discretion of the jury. ...”

The trial court was not required to initiate an instruction to the jury on the considerations that should be taken into account when determining the penalty. As we stated in People v. Polk, 63 Cal.2d 443 , 451 [ 47 Cal.Rptr. 1 , 406 P.2d 641 ] : “We do not agree that such an instruction is compulsory. The Legislature has entrusted to the absolute discretion of the jury the awesome decision between life imprisonment and the death penalty in first degree murder cases. (Pen

Before final arguments to the jury, the court refused defendant’s oral request that the jury be instructed as to second degree murder and manslaughter. The instructions given defined first degree murder only. After the jury began its deliberations defendant submitted written instructions regarding second degree murder and manslaughter, and the court refused to give them. Defendant contends that had the same jurors been present at both the guilt phase and the penalty phase of the trial, they would have received the benefit during the latter of the instructions given at the former. He alleges that jurors not present at the guilt trial could not ■ meaningfully consider his claim of innocence as a mitigating factor in the penalty trial without such instructions to provide a frame of reference within which to weigh the evidence of his innocence. However, for the reasons set forth above in People v. Clark, supra, 62 Cal.2d 870 , 887, it was not obligatory for the trial court to give the instructions in question.^[5]

Ross Wilson was permitted to testify, over objection, that during a conversation with defendant while they were confined in jail after having been charged with the murder, defendant freely and voluntarily made certain incriminating statements concerning the killing of Officer Owings.^[6] Although Wilson admitted that he pointed out defendant’s residences to the police before the conversation and that he ultimately testified for the prosecution at defendant’s trials, he maintained that at the time of the conversation he was not “in any way working with or for police officers in an attempt to secure evidence from Mr. Terry.’’ Since defendant’s statements were not elicited by the police and the evidence supports the trial court’s implied finding that Wilson was not acting as a government agent at the time, Wilson’s testimony was not inadmissible under Escobedo v. Illinois, 378 U.S. 478 [ 12 L.Ed.2d 977 , 84 S.Ct. 1758 ], People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ], and Massiah v. United States, 377 U.S. 201 [ 12 L.Ed.2d 246 , 84 S.Ct. 1199 ]. (People v. Teale, 63 Cal.2d 178 , 184-185, 196 [ 45 Cal.Rptr. 729 , 404 P.2d 209 [revd. on other grounds in 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ]]; cf. People v. Boulad, 235 Cal.App.2d 118 , 124 et seq. [ 45 Cal.Rptr. 104 ]. [cert. den. 383 U.S. 915 [ 15 L.Ed.2d 669 , 86 S.Ct. 905 ]].) Nor will Wilson’s testimony be inadmissible under Miranda v. Arizona, 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ], at defendant’s fifth penalty trial if the evidence and finding are the same.^[7]

To support its theory that the murder was committed intentionally to avoid arrest, the prosecution introduced, among other things, evidence regarding a robbery of a branch office of the Bank of America on March 13, 1959. A bank teller testified that defendant robbed him, and Ross Wilson testified as to conversations with defendant pertaining to the robbery

Defendant points out that he was never formally charged with or convicted of the offense. However, there is no requirement that a defendant must have been charged or convicted in order to introduce at a penalty trial relevant evidence of other prior criminal conduct. (People v. Griffin, 66 Cal.2d 459 , 464 [ 58 Cal.Rptr. 107 , 426 P.2d 507 ]; People v. Tahl, 65 Cal.2d 719 , 734 [ 56 Cal.Rptr. 318 , 423 P.2d 246 ]; People v. Mitchell, 63 Cal.2d 805 , 815-816 [ 48 Cal.Rptr. 371 , 409 P.2d 211 ]; People v. Jones, 52 Cal.2d 636 , 647-648 [ 343 P.2d 577 ].)

Defendant further asserts that the statute of limitations had run as to the robbery. (Pen. Code, § 800.)^[9] He suggests that section 800 embodies a policy judgment by the Legislature that penal sanctions should not be imposed as a result of a finding of guilt of robbery for which prosecution was not commenced within three years after its commission. He points out that as a result of the lapse of time it may be difficult for defendants to prove the facts or make a 'fair presentation of the case (see Developments in the Law: Statutes of Limitations, 63 Harv.L.Rev. 1177 , 1185, 1186), and he argues that “ [T]he jury may conceivably rest the death penalty upon any piece of introduced data. ...” (People v. Hines, 61 Cal.2d 164 , 169 [ 37 Cal.Rptr. 622 , 390 P.2d 398 ]) and that the introduction of evidence of the robbery would allow the jury to violate indirectly a policy that cannot be directly violated.

The language of section 800, however, does not prohibit the introduction of evidence of prior criminal acts for which prosecution would be barred by the statute of limitations. Such evidence is not introduced in order to impose a penalty for those prior acts, but rather as evidence “of the circumstances surrounding the crime [of murder], of the defendant’s background and history, and of any facts in aggravation or mitigation of the penalty [for murder] ” as authorized by Penal Code section 190.1. The fact that the prosecution for the robbery may have been barred by the statute of limitations is immaterial here.

In an analogous case, where the prosecution intended to ■

The officers further testified that they returned to the apartment house around midnight with the two boys and two plainclothes officers. Upon arrival, the police officers and one of the boys went to the subterranean garage, where the boy pointed out defendant’s automobile. Through the window of the locked car the police officers observed an object lying across the top of an open ashtray that appeared to be a partially smoked marijuana cigarette.

Meanwhile, the two plainclothes officers and the other boy went to the door of the apartment. The plainclothes officers placed themselves out of sight and the boy knocked on the door. When the door was opened, the officers came out of hiding and entered the apartment. The plainclothes officers had no warrant. They did not identify themselves or their purpose before entering.^[10] They neither asked for nor received permission to enter. They ignored defendant’s protests and demands that they leave, and proceeded to make a cursory visual search of the apartment, including the bedroom and the clothes closet, for narcotics or weapons. They discovered neither, but did note the presence of Ross Wilson in the bedroom. Defendant phoned his attorney, but the officers refused to speak to the attorney.

As prearranged, the plainclothes officers summoned the police officers from the garage after the former entered the apartment, and then left the premises. When the police officers entered the apartment, defendant was still on the telephone and Ross Wilson was in the bedroom. One police officer returned to the garage to look at the ear and attempt to unlock it. The other police officer was in the apartment for five or ten minutes when defendant took the phone into the bedroom and closed the door. When he entered the bedroom a minute or a minute and a half later, he found the window open and no one present. He notified his companions and a fruitless search was conducted.

Approximately thirty minutes later a plainclothes officer reentered the apartment with the manager and made a further visual search without a warrant. A day or two later the manager again accompanied police into the apartment; she

Even if it were assumed in the light of this additional evidence that the officers’ entry into the garage was a technical trespass, their observations therein, as we shall see, did not constitute an unreasonable search.

The Fourth Amendment of the United States Constitution provides, ‘1 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” This amendment, made applicable to the states by the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643 , 655-657 [ 66 L.Ed.2d 1081 , 1089-1091, 81 S.Ct. 1684 ]) “protects individual privacy against certain kinds of governmental intrusion,” although “its protections go further, and often have nothing to do with privacy at all.” (Katz v. United States, 389 U.S. 347 , 350 [ 19 L.Ed.2d 576 , 581, 88 S.Ct. 507 ].)^[11] The prohibition in the amendment is against unreasonable searches and seizures, not trespasses.

Police officers in the performance of their duties may, without violating the Constitution, peaceably enter upon the common hallway of an apartment building without a warrant or express permission to do so.. (United States v. St. Clair, 240 F.Supp. 338 , 340; United States v. Buchner, 164 F.Supp. 836 [affd. per curiam 268 F.2d 891 ; cert. den. 359 U.S. 908 ( 3 L.Ed.2d 573 , 79 S.Ct. 584 )]; People v. Seals, 263 Cal.App.2d 575 , 576 et seq. [ 69 Cal.Rptr. 861 ]; cf. United States v. Miguel, 340 F.2d 812 [cert. den. 382 U.S. 859 ( 15 L.Ed.2d 97 , 86 S.Ct. 116 )]; United States v. Lewis, 227 F.Supp. 433 , 436-437.) Even if.such an entry constitutes a trespass, a simple trespass without more does not invalidate a subsequent search and seizure. (United States v. Buchner, supra, 164 F.Supp. 836 , 839; People v. Seals, 263 Cal.App.2d 575 , 576 et seq.; see Teasley v. United States, 292 F.2d 460 , 464; see also People v. Willard, 238 Cal.App.2d 292 , 298 et seq. [ 47 Cal.Rptr. 734 ]; and Giacona v. United States, 257 F.2d 450 , 456, [cert. den. 358 U.S. 873 ( 3 L.Ed.2d 104 , 79 S.Ct. 113 )].

Furthermore, even assuming that the plainclothes officers did not comply with the announcement requirements of Penal Code section 844 before entering the apartment,^[12] and that this illegality affected the legality of the subsequent method of entry of the police officers from the garage, evidence of the defendant’s flight from the apartment was not obtained “by exploitation of that illegality. ...” (Wong Sun v. United States, 371 U.S. 471 , 488 [ 9 L.Ed.2d 441 , 455, 83 S.Ct. 407 ].) Defendant fled through a bedroom window five- or ten minutes after the police officers exercised their legal right to enter, as discussed above, by employing an allegedly illegal method of entry. Prior to their entry he had conversed with the plainclothes officers regarding their right to be present and had called and consulted with his lawyer. After their entry he continued to talk to his lawyer, and was allowed to walk into the bedroom and shut the door. Under the circumstances, any connection between the evidence of defendant’s flight and the allegedly illegal method of entry has “become so attenuated as to dissipate the taint.” (People v. Bilderbach, 62 Cal.2d 757 , 766 [ 44 Cal.Rptr. 313 , 401 P.2d 921 ]. Cf. Wong Sun v. United States, supra, 371 U.S. 471 , 487-488 [ 9 L.Ed.2d 441 , 455-456]; Badillo v. Superior Court, 46 Cal.2d 269 , 273 [ 294 P.2d 23 ]; Gascon v. Superior Court, 169 Cal.App.2d 356 , 358 [ 337 P.2d 201 ].)

Evidence of the issuance of the warrant and the subsequent television publicity was properly admitted. The warrant was based on lawfully acquired evidence of the youths’ complaint and recovery of the marijuana cigarette

Defendant contends that evidence of his departure from the apartment should have been excluded because he was not advised of his rights in accordance with Escobedo v. Illinois, supra, 378 U.S. 478 ; Miranda v. Arizona, supra, 384 U.S. 436 ; and People v. Dorado, supra, 62 Cal.2d 338 . However, “The right to counsel during police interrogation-established in Escobedo v. Illinois, supra, is designed to prevent the use of coercive practices to extort confessions or other incriminating statements. (In re Lopez, 62 Cal.2d 368 , 372-373 [ 42 Cal.Rptr. 188 , 398 P.2d 380 ].) It does not protect a defendant from revealing evidence against himself in other ways, ft applies-only when ‘the police carry out a process of interrogations that lends itself to eliciting incriminating statements, . . .’ (Escobedo v. Illinois, 378 U.S. 478 , 491 [ 12 L.Ed.2d 977 , 986, 84 S.Ct. 1758 ].)” (People v. Graves, 64 Cal.2d 208 , 210-211 [ 49 Cal.Rptr. 386 , 411 P.2d 114 ] [cert. den. 385 U.S. 883 [ 17 L.Ed.2d 111 , 87 S.Ct. 175 ]].) Miranda likewise was designed to afford protection against coercion during in-custody interrogation. The police did not question or coerce defendant, and the danger against which the Escobedo-Dorado-Miranda rules were meant to guard was not present.

Defendant contends that for the purpose of establishing that his state of mind at the time of the killing was one of flight from the police, only his knowledge of the outstanding warrant charging him with felonies was admissible. He argues that the facts leading to the issuance of the warrant were not relevant or material to his state of mind, and that those facts were used to imply consciousness of guilt of the offenses charged in the warrant as a matter in aggravation of the killing of which he stood convicted. However, evidence of defendant’s flight from the Garfield Place apartment was relevant to the proposition that his state of mind at the time of the killing was one of avoidance of the police, and it could not be meaningfully presented without some explanation of the