People v. Williams

Convicted of robbery of Howard Lee Johnson while armed with a deadly weapon (Pen. Code, §§ 211 and 211a), defendant, appearing in propria persona, appeals from the judgment and an order denying his motion for new trial. At the trial he was represented by the public defender of Los Angeles County.

First, appellant claims insufficiency of the evidence to sustain the verdict, asserting “numerous instances of per jurous inconsistency” in the testimony of the complaining witness. The argument centers upon the matter of identification of the robber. Appellant says: “That factor (darkness) makes it impossible, according to Mr. Johnson’s testimony, for him to have identified the robber.” As our duty begins and ends with ascertainment of a substantial conflict in the evidence, we “ ‘must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.’ If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.” (People v. Daugherty, 40 Cal.2d 876 , 885 [ 256 P.2d 911 ].) To the same effect see People v. Walker, 154 Cal. App.2d 143 , 147 [ 315 P.2d 740 ]. That the evidence is sufficient to sustain the verdict is clearly apparent from the record.

Howard Lee Johnson, on his way home from work, stopped at McDonald’s Café in the early morning of May 24, 1957; there he remained with friends for an hour or an hour and a half, one of the friends being Bill Dennis. Seated behind Johnson during that time was defendant Williams, whom he saw on that occasion and had seen frequently in that place.

Three or four weeks later Dennis (who had arrived at Johnson’s house before the police on the morning of the robbery) telephoned Johnson from McDonald’s Café and told him that defendant was there. Johnson took police to the place and defendant was there arrested. Later Johnson went to a police line-up and there identified defendant as the robber. He did so again at the trial. Officer Houston corroborated Johnson’s testimony to the extent of saying that he found the slug from the gun buried in the porch; he preserved and presented it in court.

Defense counsel sought to weaken Johnson’s testimony as to the foregoing facts by cross-examination concerning defendant’s clothing, whether his hair was long or short, whether he had a mustache or a goatee or neither one. At best this created a conflict in the evidence which was resolved against defendant by the jury and again by the trial judge.

Defendant testified that he was not a party to any robbery of Johnson, was not at his house with a gun on the 24th, never saw Johnson at McDonald’s or elsewhere prior to his own arrest on June 17th, although he had been at that café some 20 times. To this he added the defense of alibi. He and Marie A. Chanel had lived together, at least intermittently, without the sanction of a marriage ceremony, for some years, begetting four children. His testimony was that he won some money in shooting dice on the 24th and so he took his “girl friend” that evening to the Celebrity Club where they stayed from about 11 p.m. to 2 or 2:15 a.m.; while there they saw and talked with Doris Concepcion and Eliza Hayward and other acquaintances; from the club they went to Marie’s home,

Closely related to the foregoing contention is that of permitting improper rebuttal evidence. On cross-examination defendant was asked: “In other words, once you knew that the offense here alleged was alleged to have been committed on the 24th of May, you immediately remembered you had been to the Celebrity Club that evening and had been shooting dice? A. No. No, not right then. No.” In further response he volunteered information as to a conversation with the police: “ [W]hen I was at 77th Street Police Station . . . they told me, asked me did I know this man and I said no, I never seen him before. They called his name. I didn’t remember his name. They called four more names and had the address, and I do remember he said this man worked at some kind of aircraft place, and three of the other guys’ names on there worked at the aircraft place, but the other guy, he worked somewhere else; and he said, ‘Williams, you could be getting around but,’ he said, ‘if you did not do the robbing, it was somebody probably who looked like you. You went out to this man’s house. They were playing poker. You held them up.’ I denied. I didn’t know the man or any of the fellows who were supposed to have been there. When he gets to the preliminary hearing, he says he was home by himself and the whole thing is a mystery to me. That’s why I am confused.”

Asked if he did not tell the investigating officer he had been to McDonald’s on the 24th of May he said he did not. To the inquiry whether the officers talked to him at the 77th Street Police Station about the night of May 23-24, his counsel objected and the court sustained the objection. Defense counsel at the bench then objected to any conversation between defendant and any officer as outside the scope of the direct examination; also: “That it will be, maybe, evidence in the nature of an admission and, if such, it should have been placed by the People in the ease in chief. Not having

Appellant’s claim is that this was a violation of the rule that the prosecution cannot hold back part of its case in chief until after defendant has rested and then surprise and embarrass him by producing it in rebuttal. “In criminal cases, as in civil, the order of proof lies in the discretion of the trial judge. [Citations.] But the practice of permitting the prosecution to withhold a part of its case for use on rebuttal has been severely condemned.” (People v. Newton, 139 Cal.App.2d 289 , 291 [ 293 P.2d 476 ].) “The purpose of the restriction in that section is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in the trial; and to avoid any unfair surprise that may result when a party who thinks he has met his opponent’s case is suddenly confronted at the end of trial with an additional piece of crucial evidence. Thus proper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.” (People v. Carter, 48 Cal.2d 737 , 753 [ 312 P.2d 665 ].)

Fricke on California Criminal Evidence, Third edition, page 325: “While a party should not be allowed to introduce

It cannot be said at bar that there was any impropriety in the prosecutor’s procedure. He had made a clear ease before resting. It was not necessary for him to anticipate and disprove every possible defense or alibi of the defendant. The evidence under discussion was directed toward defendant’s alibi. He himself had given a portion of his conversation with the police and the prosecutor was entitled to develop the rest of it. (Cf. People v. Sutton, 73 Cal. 243 , 245 [ 15 P. 86 ]; 98 C.J.S. § 392, p. 164.)

Likewise these questions were proper as the basis for impeachment under Code of Civil Procedure, section 2052. (People v. Scalamiero, 143 Cal. 343 , 350, 351 [ 76 P. 1098 ]; People v. Durrant, 116 Cal. 179 , 220 [ 48 P. 75 ]; People v. Kimball, 23 Cal.App.2d 32 , 34 [ 72 P.2d 157 ].) “In the present case, the People did not withhold a material part of the case until rebuttal, but offered rebuttal testimony to support their case in chief after it had been controverted by the defendant. The evidence was properly admitted. ’ ’ (People v. Nye, 38 Cal.2d 34 , 39 [ 237 P.2d 1 ].)

Appellant claims that the deputy public defender who conducted his case “proved himself to be incompetent, indifferent and oblivious to his duty to protect the rights of his client” and therefore appellant should have a reversal. On this subject People v. Wein, 50 Cal.2d 383 , 410-411 [ 326 P.2d 457 ],

Finally appellant says that when he asked the judge what procedure to follow in order to “appeal for a new trial” the judge ‘ ‘ did so distort, garble, misquote and equivocate the necessary process, which the defendant was bound to follow by the rules adjudicated by the California Judicial Council, that had the defendant been lulled into a temporary sense of legal security and followed the ‘30 day,’ dubious, evasive and fraudulent course as directed by the Court (Judge Ode-mar) then he would have been most decidedly duped and defrauded by the Court to the extent of forfeiture of his right to a direct appeal.” The reference is to the following colloquy: “Defendant Williams: Your Honor, Judge, I would like to make a motion for an appeal. The Court: Well, all right. You are mating an oral notice of appeal at this time. It will be necessary for you to take the regular steps that are necessary in an appeal, which will have to be done within 30 days.” But appellant was not misled by this “30 days”

No prejudicial error appearing, the judgment and the order denying the new trial are affirmed.

Fox, P. J., and Herndon, J., concurred.