People v. Kearns

Defendant was charged in an information with robbery in two counts, committed by means of force and by putting in fear, while armed with a deadly weapon, a gun. The information also alleged that the defendant had previously been convicted of two felonies, to wit, assault with intent to commit robbery, and robbery. Defendant pleaded not guilty to each charge of robbery and admitted having suffered the two prior convictions. Trial was had before a jury which returned verdicts of guilty as to each count and found each offense to be robbery in the first degree. It also found each charge of being armed with a deadly weapon to be true. A motion by defendant for a new trial was denied. Defendant was sentenced to be punished by imprisonment in the state prison for the term prescribed by law, as to each count, the sentences to run concurrently. This appeal by defendant is from the judgment and sentence of conviction and from the order denying his motion for a new trial.

The following points are urged by the defendant as grounds for reversal: (I) that the trial judge erred to the prejudice of the defendant by admitting evidence regarding possession of guns by the defendant prior to the commission of the crimes alleged; (II) that prejudicial error was committed by the court’s admitting evidence of prior robberies by the defendant; (III) that the deputy district attorney was guilty of misconduct to the prejudice of the defendant by bringing to the attention of the jury, in argument and in the questioning of witnesses, a gun in a package which had been in the possession of the Police Department of San Francisco continuously from a date prior to the commission of the crimes charged to a date subsequent thereto and could not have been the weapon used in the commission of the crimes; and, further, by having, in company of a police officer, visited a defense witness and frightened him into being hesitant and evasive in his testimony; (IV) that the trial judge erred and prejudiced the defendant by permitting cross-examination of the defendant beyond the scope of the direct examination; and (V) that prejudicial error occurred when the trial judge denied the defendant a new trial based upon newly discovered evidence. We have reached the conclusion that none of these grounds of appeal has merit.

With respect to count one, the essential facts are as follows:

The following facts appear as to the robbery charged in the second count: On October 17, 1955, at about 7:45 p. m., defendant entered the grocery store of Albert Citti at 2260 Van Ness Avenue in San Francisco. Citti described defendant’s dress as “a tan coat that could have been used as a raincoat, that was buttoned up to his neck.” He was bareheaded and had “unruly hair; wasn’t combed back slick or anything at the time.” Defendant asked Citti for a fifth of gin and was told that he had only pints. Defendant said that would do. Citti placed a pint bottle of gin on the counter near the cash register and defendant pulled out a gun, menacing Citti with it, and ordered, “Open it up and give me the money.” Citti gave him the money. Defendant ordered

Appellant says the court erred in permitting reference by the deputy district attorney to a Smith and Wesson .38 caliber revolver taken from defendant by the police on September 20, 1955, and conceded to have been in their possession continuously from that date through the time of trial. Of course, this could not have been one of the weapons used in the robberies. Defendant testified he had no gun on either October 13th or 17th. It therefore was competent for the prosecution to attempt to show by cross-examination or other competent testimony that he had had possession of a weapon similar to either of the guns used in the robberies at a previous date. It is true that both the deputy district attorney and the attorney for defendant knew of the gun in the possession of the police. If this had been the only gun of which the prosecution had any knowledge or which it expected to show defendant had previous to the robberies, its good faith in bringing up the subject would have been subject to question. But the gun in the possession of the police was a snub-nosed or short-barreled Smith and Wesson, described by the defendant as “a stub-nosed Colt and Wesson, I believe; I’m not sure. It was a stub-nosed revolver . . . Well, the barrel is short, yes.” The prosecntion produced a witness, Patricia Adler, a friend of defendant, who testified to the defendant’s having shown her a revolver about 8 or 9 inches long during the month of September, 1955. It was thus necessary, both in fairness to the defendant and in the interest of accuracy, to distinguish the short-barreled gun from the gun which the prosecution sought to prove was similar to one of those used in the robberies. This the deputy district attorney did in an eminently fair manner. He first asked the defendant if he had in his possession a .38, possibly a .45 caliber revolver prior to the dates of the robberies. Following argument out of the

“Now, I’m permitting it on that very narrow ground, and for a very narrow reason, so I want you to keep those things in mind as you listen, and under our methods of procedure, it is necessary for the People, who have to ask him the questions, and presumably will produce their own evidence in an attempt to prove he did have such a gun, but they must ask him first to lay a foundation, as we call it, so, it is a difficult situation, and I want you to approach it thoughtfully and with this narrow issue in mind. ’ ’ The question was then read back by the reporter and defendant answered, “I had a .38.” Asked if he had more than one .38, he answered, “No.” He was then asked to describe the .38 that he had and did so as above set out. The record then shows the following: “Mr. Hanley: Do you have the exhibit, Mr. Clerk. Q. And, Mr. Kearns, so there will be no misunderstanding, I’m going to show you a gun, but this is the gun that the police-that a police officer took from you under date of September 20th, is that correct ? Mr. Cohn: Oh, your Honor, I’m going to object to this. This is terrible. Mr. Hanley: I wasn’t-Mr. Cohn: This is terrible misconduct on the part of the District Attorney. The Court: Mr. Hanley, we had a distinct agreement what you were to question this man about, and you are now questioning him about something that I construe to be a violation of that understanding. Mr. Hanley: Well, your Honor, if the Court feels so, I intended no wise.

“Now, this throws a pretty heavy burden on you, the jury, for this reason: The second gun to which the district attorney referred was in the hands of the police at the time that these robberies occurred, so it couldn’t possibly have been used in this—in these robberies. However, it is a simple fact, to those of us who lead normal lives, that the bare fact of the possession of the gun is sometimes injurious to the defendant. That is, the knowledge by the jury, the bare fact of the possession of the gun, is inclined to prejudice a jury against a defendant, and that is why I didn’t want-you are a perfectly good jury, but that is just the way human beings work. So, now, you are going to have to work, and be sure in your minds that the fact that this man possessed a gun earlier, even though it was in the possession of the police at the time

The second item of claimed error relates to the admission of evidence of previous crimes committed by defendant some five br six years prior to the robberies involved here. This evidence was admitted over objection as tending to show a similar pattern, scheme or modus operands to that employed in this ease under the rules applied in People v. Peete, 28 Cal.2d 306 [ 169 P.2d 924 ] ; People v. Morani, 196 Cal. 154 [ 236 P. 135 ] ; People v. Grimes, 113 Cal.App.2d 365 [ 248 P.2d 130 ] ; People v. Burns, 109 Cal.App.2d 524 [ 241 P.2d 308 , 242 P.2d 9 ]; People v. Miner, 96 Cal.App.2d 43 [ 214 P.2d 557 ], and People v. Hall, 25 Cal.App.2d 336 [ 77 P.2d 244 ], Remoteness of five or six years in point of time does not affect the admissibility of the evidence, but at most affects only its weight. Frank Joseph Oneto testified that the defendant entered his liquor store at 5170 Mission Street, San Francisco, on two occasions, one in 1949 and one in 1950; that he threatened him with what appeared to be a revolver held beneath a long coat and robbed him, causing him to take the money from a cash register, place it in a paper bag and hand it to him, then turn his eyes downward toward the cash register or the floor while he departed. In arguing that the conduct of defendant on these occasions was dissimilar to that involved in the instant case, defendant points out many differences of specific detail and urges that the asserted similarity exists only in general phases of conduct which would be likely in any robbery. However, various points of similarity, some general, and some quite remarkable, existed in all four instances. In each, the defendant was positively identified. Bach offense was at night. Defendant used or simulated the use of a pistol or revolver. Bach time, he wore a long, light-colored coat and no hat. On the earlier occasions, his hair appeared quite long; in the instant robberies, the hair was unruly or mussed. Oneto’s store was a liquor store; Johnson’s and Citti’s were grocery stores which had liquor

Appellant’s third claim of error has been disposed of by what we have said concerning the propriety of going into the question of prior possession of a revolver similar to one used in the offenses on trial. Since there was no error in pursuing that subject and developing facts tending to show the probability of defendant’s having had a gun or guns different from the only one admitted by him, there was no misconduct in the deputy district attorney arguing this phase of the evidence. It had distinct relevancy, as defendant admitted only his possession of the short-barreled Smith and Wesson and was asserting the impossibility of its use by him in the crimes charged. If, however, there was to be any claim of prejudicial misconduct in this regard, objection should have been raised and a request should have been made for the court to admonish the jury. Objectionable conduct of this nature, if such it be, must be opposed at the time before it can be made ground for appeal. (People v. Sampsell, 34 Cal.2d 757 [ 214 P.2d 813 ]; People v. Codina, 30 Cal.2d 356 [ 181 P.2d 881 ] ; People v. Cuevas, 148 Cal.App.2d 331 [ 306 P.2d 510 ].)

The assertion that the deputy district attorney intimidated the witness Raymond Choy into changing his testimony is devoid of merit. It rests upon the naked assertion of defendant’s attorney. The record furnishes no support for the argument either that this witness changed his story or was frightened by being interviewed by the deputy district attorney.

The scope of the cross-examination of defendant by the deputy district attorney permitted by the court over objection by defense counsel was well within proper bounds. Defendant had purported to have a rather definite recollection of time and events covering the period related to the alleged time of the robbery on the evening of October 17. His attempted alibi rested heavily upon the accuracy of his recollection concerning what he did and what note of

Finally, appellant urges that the trial judge erred in denying the motion for a new trial. The claim that defendant was denied a fair and impartial trial is based upon the grounds of appeal of which we have already disposed. We need not consider the alleged errors previously discussed beyond saying that none of them, either considered alone or collectively, deprived appellant of his right to a fair trial. As to the affidavits of alleged newly discovered evidence, that of Patricia Adler is stressed. She stated she was shown the revolver in the possession of the police on March 27, 1956, after the trial, and was quite sure it was the same one she saw in defendant’s possession in late August or early September, 1955. This witness testified for the prosecution. She could have been cross-examined as to whether the gun in court was the one she had seen earlier. The trial judge was quite correct in rejecting the claim that her testimony, as outlined in the affidavit, was newly-discovered evidence sufficient to justify a new trial. (People v. Poor, 52 Cal.App.2d 241 [ 126 P.2d 146 ]; People v. Gist, 28 Cal.App.2d 287 [ 82 P.2d 501 ] ; People v. Elder, 55 Cal.App. 644 [ 204 P. 29 ].) The affidavits of the driver of the Luxor Cab and the manager of the Luxor Cab Company tend to show that one of their cabs made but one call at Cooper and Yarni’s Bar the night of October 17; that the driver picked up one passenger there and took him to the vicinity of Post and Mason Streets; that the call was the first of five calls made between 8 and 9 p. m. and was probably shortly after eight. This was evidence which could have been produced by the exercise of due diligence at the trial. It tended to contradict defendant’s own testimony that he joined a friend and went to dinner with him at that time. It was on a subject presumably within defendant’s knowledge at the trial. Other affidavits were to facts which tended to add credence to the stories of the alibi witnesses, but these were of a cumulative nature and did not

The judgment and the order denying the motion for a new trial are affirmed.

Dooling, Acting P. J., and Kaufman, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied May 8, 1957. Carter, J., was of the opinion that the petition should be granted.