People v. Crosslin

Two informations, one charging defendant with armed robbery at a market on September 21, 1963, and the second charging him in two counts with attempted armed robbery and assault with a deadly weapon at a liquor store on October 11, 1963, having been consolidated for trial, and defendant having been found guilty on the charges in both informations, defendant appeals from the judgment of conviction sentencing him to state prison for consecutive terms on the robbery and attempted robbery charges and withholding sentence on the assault charge. Defendant’s contentions on appeal are as follows: (1) The trial court erred in admitting into evidence a card containing defendant’s fingerprints; (2) a statement made by defendant in which he identified himself to the police as Tony Collins and a statement which defendant made for voice identification purposes during a lineup were elicited in violation of Escobedo v. Illinois (1964) 378 U.S. 478 [ 12 L.Ed.2d 977 , 84 S.Ct. 1758 ], and People v. Dorado (1965) 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ], and should therefore not have been allowed

The Record

The Market Robbery

Dolores Turner, a clerk at Littleman’s Supermarket in East Palo Alto, testified that between 4:30 and 5 p.m. on September 21, 1963, while she was working at the checkout stand and waiting on a customer named Mrs. Irish, she noticed a man standing at the side of her cash register holding a gun; that the man told her to give him all the money out of the cash register and the cash box or he would shoot her; that Mrs. Turner took the money from her cash register and cash box, put it in a small bag and gave the bag to the man, who then left the store after telling Mrs. Irish and Mrs. Turner not to move or to say anything until he had gone.

Mrs. Turner described the person who had robbed the market as between 25 and 27 years old, very neat in appearance, with large eyes, gold in the middle of his teeth, “processed” hair, and a mustache; further testified that on the day of the robbery this man had been in the store at least two times before the robbery occurred and on each occasion had bought a can of Country Club beer; and testified that prior to the day of the robbery she had often seen the same man in the store and on one of these occasons the man had purchased a can of Country Club beer and had returned to the store about 15 minutes later and asked to exchange the can as the first can had gotten warm. Mrs. Turner further testified that after the robbery she saw the robber in the store on two occasions, once in October 1964 and the other time in January 1965; that on the former occasion she was working at one checkstand and she saw the robber go through another checkstand; that she and the robber stared at each other for a moment and the robber then came over and checked out at her stand; and that she reported both incidents to the police.

Mrs. Ruby Irish, who testified that she was at Mrs. Turner’s checkstand at the time of the robbery, corroborated the testimony of Mrs. Turner concerning the details of the robbery. In addition, Mrs. Irish described the robber as a young Negro man who was very neat and clean in appearance, wore

The Attempted Bobbery and Assault at the Liquor Store

Mrs. Rose Ferrando testified that at around 2 p.m. on October 11, 1963, while she was working at Charlie’s Liquor Store at 2380 Cooley Street in Bast Palo Alto, a man placed a 12-ounce can of Country Club beer on the counter and ordered her to open the cash register; that there then followed a dialogue between the parties which culminated in the man’s telling Mrs. Ferrando that he would shoot her if she did not do as he told her; that Mrs. Ferrando still refused to comply with the man’s order, whereupon the man shot her in the leg; that the man then went to the front door of the store to close the door and came back to the cash register; that at this point a scuffle ensued and the man struck Mrs. Ferrando on the head; that Mrs. Ferrando then ran outside and called for help, the man meanwhile leaving the store by a back door. Mrs. Ferrando’s daughter, Joanna, testified that on the afternoon of October 11, 1963 she was in the rear of the store washing dishes when she heard gunshots in the front of the store and came forward to see what was happening; that when she arrived at the front of the store she heard the man order her mother to open the cash register; that as the man came around the counter and attacked her mother, Joanna stepped on the alarm which signalled for the police.

Mrs. Ferrando described her attacker as a very neat-looking, well-mannered Negro, who was short and had big, black eyes. However, when asked to identify defendant as her attacker she stated that defendant’s eyes were similar to those of her attacker but that she did not know if defendant was the attacker. Joanna, who had viewed a lineup subsequent to the attempted robbery, testified that she did not recognize defendant by his features but did recognize his voice when he said, “This is a hold up.” When asked if she could identify defendant as the assailant Joanna testified that she was not

Testimony identifying some fingerprints on the Country Club beer can left by the assailant at the liquor store as those of defendant was adduced as follows: Wesley Blum, a deputy sheriff who went to the liquor store in response to a radio call, testified that from the time he arrived at the store until the arrival of Don Harding, a criminologist for San Mateo County, Blum did not allow anyone to touch the beer can which was sitting on the counter. Harding testified that when he examined the beer can at the liquor store he found several latent fingerprints on the can; that he took the can to the laboratory for further examination; and that by comparing the fingerprints lifted from the can with fingerprints on a card which was reputed to contain defendant’s fingerprints, he determined that defendant had handled the can. Harding further admitted that he found other prints on the can and could not determine when defendant had handled the can or whether he was the last person to handle the can.

Concerning the fingerprints on the card which were used for comparison with the fingerprints on the can, the testimony was as follows: The card, which was introduced into evidence, purported to show defendant’s fingerprints as taken by M. Gunderson on January 23, 1965. According to the testimony of Donald Hartnett, a captain with the San Mateo sheriff’s office, this card was part of the records of the San Mateo County sheriff’s office. Hartnett further described in detail the fingerprinting system used by the sheriff’s office: He described the cards and the method by which they were created, maintained, and filed; he also explained the meaning of certain numbers and entries appearing on the card; in addition he testified that the card in question was prepared in the usual course of business; and finally he stated that he knew the fingerprints on the card were those of defendant because he had compared them with another set of defendant’s prints which he had taken himself at a later date.

The Arrest

Sergeant Henry Crossfield, a detective with the San Mateo County sheriff’s office, testified that he was assigned to investigate the armed robberies at the liquor store and the market; that this investigation led to the arrest of defendant under the authority of an arrest warrant. Crossfield further testified that at the time he and several other officers went to

The Defense

Defendant took the stand on his own behalf, denied the charges, and testified as follows: He and his present wife had lived in Redwood City at the time of the robberies and during this time he had shopped frequently at Littleman’s Market and Charlie’s Liquor Store. In October 1963 defendant and his wife moved to San Francisco where they lived until January 1964, at which time they moved to Oklahoma. After defendant returned to California in September 1964 he shopped numerous times at Littleman’s Market in Bast Palo Alto and saw Mrs. Turner there several times. Defendant also testified that he normally drank Country Club beer and that he could have touched the can which was found on the counter in the liquor store because he took a can or two out of the cooler and then placed them back, but that he did not recall when that might have occurred. Finally, defendant testified that he had used the name Tony Collins when he was an entertainer and also when he was in Oklahoma.

Admissibiliiy of the Fingerprint Card

In arguing that the fingerprint card purporting to show defendant’s fingerprints as of the date of his arrest was erroneously admitted in evidence, defendant makes two distinct contentions: first, that the card was hearsay testimony and its admission was not justifiable under any of the exceptions to the hearsay rule; and second, that the effect of the card was prejudicial because of the reference contained on the card to charges against defendant which are unconnected with

From the above it is apparent that it was quite proper for the trial court to conclude that “. . . the sources of information, method and time of preparation were such as to justify . . . [the records] admission.” (Code Civ. Proc., § 1953f.) The court properly exercised its discretion and its decision must be upheld.

Defendant, in contending that the card was inadmissible, is apparently making the argument that the foundation for its admission was improper in the respect that the person who actually took defendant’s fingerprints was not called as a witness. However, in Gorgol, we find this language with relation to the admissibility of hospital records under section 1953f: “. . . if a proper foundation is laid, the fact that . . . the particular nurse, doctor or person making the record has not been called, does not preclude their admission.” (P. 300.) Similarly, in the instant case since the fingerprint card was verified so as to satisfy the trial court as to its authenticity, the fact that the person who actually took defendant’s fingerprints and made this card was not called as a witness is immaterial.

Defendant, relying on the case of McGowan v. City of Los Angeles, 100 Cal.App.2d 386 [ 223 P.2d 862 , 21 A.L.R.2d 1206 ], argues that because Hartnett was unable to testify that the fingerprints on the card were actually those of defendant the card was inadmissible. In McGowan a document entitled “Blood alcohol determination,” which purported to be an analysis of the alcoholic content of the blood of the driver of one of the cars involved in an automobile accident in which the plaintiff’s father was killed, was offered in evidence. However, it was held in that case that the trial court properly refused to allow this report into evidence under Code of Civil Procedure section 1953f for the reason that oral evidence by the person who himself prepared the report would be inadmissible since there was no proof adduced at the trial that the blood which this person analyzed for the purpose of the report was actually that of the person whose name appeared on the report. Stated the court, “The statute [Code Civ. Proc., § 1953f] does not change the rules of competency or relevancy with respect to recorded facts. It does not make that proof which is not proof. It merely provides a method of proof of

The record discloses that counsel for defendant objected to the admission of the card in its entirety because of the notation thereon of the charges of other offenses. The objection was overruled, apparently on the basis that the admission of the card with the subject notation was not prejudicial.

In United States v. Dressler, 112 F.2d 972 , 976-978, it was held that courts cannot annul the rule requiring the exclusion of incompetent and prejudicial information regarding other offenses of a defendant merely to facilitate the use of fingerprint evidence, and that where such information went to the jury room with other exhibits it constituted prejudicial error. The question of prejudicial error was considered in Lester v. State (Okla. Crim.) 416 P.2d 52 , 58, where marks on a fingerprint card identifying the defendant as a person who had been arrested for a criminal offense were covered up with cardboard and were not seen by the jury. In holding that there was no reversible error, the appellate court stated the applicable rule thusly: “The introduction in evidence of a fingerprint record containing extraneous material which in itself is incompetent, may or may not constitute reversible error, depending on such factors as whether the material was or was not seen by the jury, or whether the objection thereto, if made, was waived by the defendant.” Similarly, in Moon v. State, 22 Ariz. 418 [ 198 P. 288 , 292, 16 A.L.R. 362 ], the reviewing court held that it was not error to admit into evidence a fingerprint card which also contained the criminal record of the accused where the printing containing such record was covered in such manner as to render such printing invisible.

In the instant case the subject notation was not covered, obliterated or deleted. Although the record does not disclose whether the jury saw the notation, we must assume

Alleged Violations of Escobedo and Dorado

Relying on the cases of Escobedo v. Illinois, supra, and People v. Dorado, supra, defendant contends that (1) the statement which he made to Sergeant Crossfield at the time the latter came to defendant’s apartment to arrest defendant, which statement consisted of identifying himself as Tony Collins, was improperly admitted into evidence because defendant was not advised of his right to counsel and his right to remain silent prior to making this statement; and (2) evidence concerning the fact that Miss Ferrando identified defendant’s voice in a police lineup when she heard him say “This is a holdup” was similarly inadmissible because defendant was not advised of his rights prior to making this statement. Since the record reveals that defendant at no time during the trial objected to the introduction of this evidence and since the instant case was tried after the decisions in both the Escobedo and Dorado eases, it is clear that defendant is precluded from raising error on appeal as to the admissibility of this evidence. (People v. Palmer, 236 Cal.App.2d 645 , 650 [ 46 Cal.Rptr. 449 ] ; People v. Almond, 239 Cal.App.2d 46 , 49-50 [ 48 Cal.Rptr. 308 ]; People v. Sanchez, 239 Cal.App.2d 51 , 55 [ 48 Cal.Rptr. 424 ]; Witkin, Cal. Criminal Procedure (1965 Supp.) § 361N.)

Alleged Illegal Search and Seizure

Defendant contends that the admission into evidence of his identification card, temporary driver’s license and marriage certificate was improper since these items were obtained by means of an illegal search and seizure. The record discloses, however, that defendant did not object to the admission of these articles into evidence nor did he at any time during the trial raise the question of the legality of the search and seizure resulting in the discovery of these articles. Accordingly, it must be deemed that defendant has waived his right to raise the issue of illegal search and seizure, which issue is being raised for the first time on appeal. (In re Lessard, 62 Cal.2d 497 , 503 [ 42 Cal.Rptr. 583 , 399 P.2d 39 ] ; People v. Clapper, 233 Cal.App.2d 34 , 38 [ 43 Cal.Rptr. 105 ]; People v. Washington, 163 Cal.App.2d 833 , 841 [ 330 P.2d

Turning to the evidence tending to show that defendant. was the perpetrator of the liquor store crimes, we note initially that evidence indicating that defendant’s fingerprints were on the can of Country Club beer which was placed by the robber on the counter at the liquor store. In this regard we note that “Fingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant.” (People v. Riser, 47 Cal.2d 566 , 589 [ 305 P.2d 1 ]; People v. Massey, 196 Cal.App.2d 230 , 234 [ 16 Cal.Rptr. 402 ]; People v. Ang, 204 Cal.App.2d 553 , 555 [ 22 Cal.Rptr. 455 ].) Although defendant attempted to explain the presence of his fingerprints on this can by testifying that it is possible that he went to the liquor store, attempted to purchase several cans of beer and put one or two back, this testimony need not necessarily have been believed by the jury since defendant could not specifically recall when he might have done this. Moreover, it seems highly improbable that an unknown assailant would pick up the exact can as was handled by defendant at an earlier time.

Additional evidence identifying defendant as the person who attempted to rob the liquor store and who assaulted Mrs. Ferrando consists of Mrs. Ferrando's description of her assailant as a Negro, very neat looking, well mannered, short and with big, black eyes. Although Mrs. Ferrando could not positively identify defendant as her assailant, this description which she gave of her assailant matched the one given by Dolores Turner, the grocery clerk who was robbed by defendant and who positively identified defendant as the robber. Finally, Joanna Ferrando, who saw her mother’s assailant before he left the liquor store and heard his voice, testified that he had large eyes as does defendant and further testified that she recognized defendant’s voice at the police lineup as being the same voice as that of the person who held up "her mother.

The judgment is affirmed.

Sims, J., and Elkington, J., concurred.

A petition for a rehearing was denied July 14, 1967, and appellant’s petition for a hearing by the Supreme Court was