People v. Smith

Opinion

Defendants Smith, Mitchell, and Easter appeal from judgments after a jury found them guilty of first degree robbery. A fourth defendant, Zollicoffer, was convicted at the same trial but has not appealed. At the trial each defendant was represented by separate counsel. On appeal a court-appointed attorney filed an opening brief on behalf of all three appellants. After the respondent’s brief was filed, this court appointed another attorney to represent Smith, on behalf of whom briefs were filed. Although the parties’ briefs do not raise the same contentions, we shall consider all contentions as though made on behalf of all appellants to whom they might be available.

The Your Market Liquor Store was held up by two men at about 10:45 p.m. The robbers’ faces were covered by hoods and one had a revolver. Joseph Krause, the clerk, was knocked down by one of the men, then, under threat of the revolver, assisted them in opening the cash register. The armed robber forcibly shoved Krause into a rear room, told him to remain there for a while, and took his wallet. Although both robbers were wearing masks, Krause testified that the men holding the revolver took his mask off at one point. At the trial Krause identified defendant Smith, a Negro, as the armed robber.

In addition to Krause’s wallet, various items were taken by the men: currency and silver coins; money orders; a box bearing the label of Hoffman’s Cherry-a-let candies in which the store kept rolled change and currency; three bottles of liquor.

A few minutes after the robbery two police officers in a patrol car received a broadcast that a liquor store had been held up by male Negroes in a white Chevrolet. The officers then saw an automobile of that description at a point about 30 blocks distant from the site of the robbery. They stopped the car and approached it. Mitchell was the driver and the three other defendants were the passengers. The officers saw Easter make movements as though he were putting something underneath the front seat. Looking into the car with the aid of a flashlight, the officers saw currency and

Janet Roper, an accomplice, testified that she and the defendants planned the robbery; that she purchased two ski masks for the robbers to wear; that, on the night of the robbery, she loaned them her 1961 Chevrolet for its commission.

Defendants Mitchell, Easter, and Zollicoffer took the stand. All three confirmed being in Janet Roper’s car on the evening in question and stopping outside the Your Market Liquor Store. In general, their testimony was that they had been drinking; that Zollicoffer and Smith entered the store to purchase liquor and had returned with several bottles of whiskey; that they had driven away; that some currency and coins were loose in the automobile. On rebuttal, several officers testified that when arrested the defendants gave no indications of drinking or of intoxication.

An issue is raised as to the adequacy of evidence to corroborate the testimony of Janet Roper, the accomplice. Corroboration is sufficient if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice has told the truth. (People v. MacEwing, 45 Cal.2d 218 , 224 [ 288 P.2d 257 ].)

The admitted presence of all four defendants at the market and their discovery a few minutes later in possession of the accomplice’s automobile, the stolen goods and the paraphernalia of crime supplied corroboration. (See People v. Henderson, 34 Cal.2d 340 , 343 [ 209 P.2d 785 ]; People v. Antone, 141 Cal.App.2d 681 , 683-684 [ 297 P.2d 88 ]; People v. Keene, 128 Cal.App.2d 520 , 525 [ 275 P.2d 804 ].)

The next question arises from defendant Smith’s appearance in a police station confrontation with Krause, the robbery victim. After the arrest of the four suspects, Krause was summoned to the police station where he viewed them. He was unable to identify any of them as the holdup man whose face he had seen.

In United States v. Wade, 388 U.S. 218 [ 18 L.Ed.2d 1149 , 87 S.Ct. 382 ], and Gilbert v. California, 388 U.S. 263 [ 18 L.Ed.2d 1178 , 87 S.Ct. 1951 ],

In the circumstances of the trial the assumed violation is an abstraction, no more. It does not taint Smith’s conviction with unconstitutionality. Evidence of the lineup was elicited by the defense, not the prosecution. Krause had testified as a prosecution witness and had made an in-court identification of Smith. Taken on cross-examination by Smith’s trial counsel, he admitted viewing the “lineup” of the four defendants and that he had been unable to identify Smith as the robber who had unmasked himself. The purpose of the inquiry was to impeach Krause’s courtroom identification by demonstrating that on the very night of the crime he had been unable to identify Smith. The doctrine excluding unconstitutionally obtained evidence is directed at the prosecution. It seeks to discourage unconstitututional police activities by preventing the government from reaping advantage from them. (Mapp v. Ohio, 367 U.S. 643 , 648, 659-660 [ 6 L.Ed.2d 1081 , 1086, 1092-1093, 81 S.Ct. 1684 , 84 A.L.R.2d 933 ]; People v. Cahan, 44 Cal.2d 434 , 445-449 [ 282 P.2d 905 , 50 A.L.R.2d 513 ].) The doctrine prevents prosecution use of illegal evidence against the violation’s victim, not his defensive use of it.

Possibly, though the point is not made in the briefs, Smith’s codefendants have standing to complain of a violation of Smith’s constitutional, rights which affect their own trial. As to Mitchell and Easter, the assumedly unconstitutional showup was harmless beyond a reaonable doubt because it resulted in no one’s identification and could have had no significant incriminatory impact. (Chapman v. California, 386 U.S. 18 , 21-24 [ 17 L.Ed. 2d 705 , 708-710, 87 S.Ct. 824 ].)

In response, the Attorney General leans on the proposition that the tactical choices of trial counsel are not the equivalent of inadequate representation, although seen to be damaging in retrospect. He fails to apply this proposition to the facts, because he fails to show that the absence of objections was the product of tactical choices. One method of settling a claim of inadequate representation is to determine whether defenses were lost through the ignorance or inadvertence of trial counsel, and if so, whether any of these defenses were crucial.

It is claimed that trial counsel should have objected to Krause’s courtroom identification of Smith, since the showup on the night of the crime not only violated the Wade-Gilbert rule but was unfairly suggestive. (See, e.g., In re Hill, supra, 71 Cal.2d at pp. 1004-1006; People v. Caruso, 68 Cal.2d 183 , 188-189 [ 65 Cal.Rptr. 336 , 436 P.2d 336 ].) The showup was not the producing cause of the courtroom identification by Krause, hence its propriety is of no consequence. Despite an improperly conducted showup, a courtroom identification is admissible if it is based upon other observations of the suspect. (In re Hill, supra, 71 Cal.2d at p. 1006.) Krause testified that the robber with the gun had removed his mask while he was forcing Krause to open the cash register; that he, Krause, got a “good glance” at him; that the man took him to the rear storeroom and shoved him so hard that he hit a shelf (knocking liquor bottles off) and fell to his knees; that the man then demanded his wallet. Later when he was shown the four men at the police station, he was “shook up and scared” and “almost sure" but not positive that Smith was the man. He told the police that he could not identify any of the four as the unmasked robber. Three weeks later, at the preliminary examination, he identified Smith as the man. He denied seeing photographs or discussing the identification with the police in the interim.

The police station showup failed to produce identification. The failure diminished the probative value of the later courtroom identification but did

It is argued that trial counsel should have objected to the crime equipment and stolen goods found in the Chevrolet, these being the product of an illegal search. The record depicts a standard syndrome: the genesis of reasonable cause for temporary detention and interrogation, followed by disclosure of new facts culminating in a totality of information constituting probable cause for a warrantless arrest and an incidental search of the vehicle. The officers had a broadcast description of a felony involving men and a vehicle corresponding generally to the persons and vehicle stopped. This knowledge provided reasonable cause for temporarily detaining the vehicle and questioning its occupants. (People v. Moore, 69 Cal. 2d 674 , 682-683 [ 72 Cal.Rptr. 800 , 446 P.2d 800 ]; People v. One 1960 Cadillac Coupe, 62 Cal.2d 92 , 95-96 [ 41 Cal.Rptr. 290 , 396 P.2d 706 ].) In viewing the car and its interior from their position in the street, the officers gained additional suspicion from the occupants’ behavior and from the liquor bottle and money in plain view. The officers’ dual sources of knowledge supplied probable cause for the arrest and for an incidental search of the car’s interior. (People v. Williams, 67 Cal.2d 226 , 229-230 [ 60 Cal.Rptr. 472 , 430 P.2d 30 ]; People v. Failla, 256 Cal.App.2d 869 , 873 [ 65 Cal.Rptr. 115 ]; see Chimel v. California, 395 U.S. 752 , 764, fn. 9 [ 23 L.Ed.2d 685 , 694, 89 S.Ct. 2034 ].)

Smith points to discrepancies between the broadcast description and the stopped vehicle, arguing that the police had no reasonable cause for stopping it and questioning its occupants. According to the trial testimony of Officer Tobar, the broadcast informed the patrolling officers that three Negroes in a white 1960 or 1961 Chevrolet had held up a liquor store. At the preliminary examination the same officer testified that the broadcast referred to a white 1962 Chevrolet. The officers actually stopped a white 1961 Chevrolet containing four Negro occupants. Such minor discrepancies do not prevent development of the suspicions which justify temporary detention for questioning. Crime victims often have limited opportunity for observation; their reports may be hurried, perhaps garbled by fright or shock. More garbling may occur as the information is relayed to the police broadcaster and from the broadcaster to the field. It is enough if there is

It is not at all clear how the contents of Zollicoffer’s statement impeached his testimonial claim of drunkenness. (See People v. Sam, 71 Cal. 2d 194 , 208-210 [ 77 Cal.Rptr. 804 , 454 P.2d 700 ].) There was no real inconsistency. Dubious though its value, the purported impeachment was a distinct violation of Aranda-Bruton restrictions. The prior statement was inculpatory, implying that Zollicoffer had been in the store and had “taken” bottles and money. Preceding Zollicoffer to the stand, Mitchell and Easter had testified that Zollicoffer and Smith had entered the liquor store together. When the jurors heard the reference to bottles and money which “you had just taken from the liquor store,” they would not confine the reference to Zollicoffer alone. “You” is both singular and plural. Knowing that two men, Zollicoffer and Smith, had entered the liquor store, the jurors would regard the word in its collective sense. Even though a statement may not expressly name the objecting codefendant, it may incriminate him by implication. (People v. Barrett, 267 Cal.App.2d 135 , 144 [ 72 Cal.Rptr. 681 ].) Zollicoffer’s statement was incriminating hearsay as to Smith.

Diverging from accepted impeachment technique, the deputy district attorney did not ask the witness whether he had made the prior statement, but whether he “recalled” it. (See, e.g., Appleman, Cross-Examination, pp. 73-96.) Although the witness declared his inability to recall, both the extrajudicial question and its answer entered the jurors’ minds. Error of the Aranda-Bruton variety occurred.

In treating such errors, appellate courts encounter conflicting tempta

Lessons aside, solidity of the proper evidence of Smith’s guilt demonstrates that the improper evidence was harmless beyond a reasonable doubt. The evidence against Smith was so overwhelming that we find no prejudice. (See Harrington v. California, 395 U.S. 250 , 254 [ 23 L.Ed.2d 284 , 288, 89 S.Ct. 1726 ]; In re Hill, supra, 71 Cal.2d at p. 1015.)

Smith makes other claims of inadequate representation, but these are largely speculative and fail to establish the charge as a demonstrable reality. (People v. Durham, 70 Cal. 2d 171 , 192 [ 74 Cal.Rptr. 262 , 449 P. 2d 198 ]; People v. Reeves, 64 Cal.2d 766 , 774 [ 51 Cal.Rptr. 691 , 415 P.2d 35 ].) At Smith’s request his attorney on appeal has submitted additional arguments urged by his client, i.e., that perjury was committed by Krause and by Janet Roper, also that he was improperly denied a separate trial. The credibility of the witnesses was a jury question. Their testimony was in any event strongly supported by the remaining prosecution evidence. Prosecution use of ZollicofEer’s prior statement might have justified a severance at the outset. Nevertheless, because of the harmlessness of the Aranda-Bruton error, the joint trial did not prejudice Smith.

The judgments are affirmed.

Regan, J., and Janes, J., concurred.

The petitions for a rehearing were denied February 27, 1970, and appellants’ petitions for a hearing by the Supreme Court were denied March 25, 1970.