22 Cal.3d 258, 20233, People v. Wheeler

Docket Nº:20233
Citation:22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748
Opinion Judge:[12] Mosk
Party Name:People v. Wheeler
Attorney:[7] Edward I. Gritz, Halpern & Halpern and H. Russell Halpern for Defendants and Appellants. [8] Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Assistant State Public Defender, Ezra Hendon, Mark Fogelman, Deputy State Public Defenders, and Jonathan R. Adler as Amici Curiae on ...
Case Date:September 25, 1978
Court:Supreme Court of California
 
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Page 258

22 Cal.3d 258

148 Cal.Rptr. 890, 583 P.2d 748

The PEOPLE, Plaintiff and Respondent,

v.

James Michael WHEELER et al., Defendants and Appellants.

Cr. 20233.

Supreme Court of California.

Sept. 25, 1978.

Rehearing Denied Oct. 25, 1978.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Edward I. Gritz, Los Angeles, Halpern & Halpern and H. Russell Halpern, Encino, for defendants and appellants.

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Ezra Hendon, Mark Fogelman, Deputy State Public Defenders, and Jonathan R. Adler as amici curiae on behalf of defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen, Harley D. Mayfield, and Beatrice W. Kemp, Deputy Attys. Gen., for plaintiff and respondent.

C. Stanley Trom, Dist. Atty. (Ventura), Michael D. Bradbury, Asst. Dist. Atty., and Peter D. Kossoris, Deputy Dist. Atty., as amici curiae on behalf of plaintiff and respondent.

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MOSK, Justice.

Defendants James Michael Wheeler and Robert Willis appeal from judgments convicting them of murdering Amaury Cedeno, a grocery store owner, in the course of a robbery. (Pen.Code, §§ 187, 189.)

During the noon hour Cedeno withdrew $6,000 in cash from a bank and returned with the money to his store. As he entered he was seen to be grappling with another man; after a few moments four shots were fired and Cedeno was fatally wounded. The assailant ran from the store with the money, and entered the passenger door of a waiting car that was quickly driven away. A witness noted its license plate number, but did not see the driver.

At trial the principal issue was identification. Two witnesses to the events inside the store identified defendant Willis as the assailant from groups of photographs and from a lineup, and pointed him out in court. Willis sought to discredit this testimony by exploring various discrepancies between his appearance at trial and the descriptions furnished to the police by the witnesses. He also offered an alibi defense.

It was the People's theory that the unseen driver of the getaway car was defendant Wheeler. The sole direct evidence connecting him with that car, however, was two fingerprints found on the driver's door one on the underside of the armrest and the other on the outside panel. A police expert identified the prints as belonging to Wheeler, but conceded on cross-examination that there is no way of determining when a fingerprint was actually placed on an object. The car in question had been stolen four days before the shooting.

To bolster their case the People also introduced, over objection, evidence of several prior incidents of assertedly similar but uncharged robberies or apparent preparations for robbery in which these defendants and other persons were implicated in varying degrees. Because the convictions must be reversed on other grounds, we do not reach the serious conflict over the admissibility of this evidence.

I

We begin with a claim of error arising at the very outset of the trial and infecting the entire remainder of the proceedings. Defendants are both black; the man they were accused of murdering was white; a number of

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blacks were in the venire summoned to hear the case, were called to the jury box, were questioned on voir dire, and were passed for cause; yet the prosecutor proceeded to strike each and every black from the jury by means of his peremptory challenges, and the jury that finally tried and convicted these defendants was all white. The issue is whether in such circumstances defendants were denied their right to trial by an impartial jury guaranteed by the California Constitution. The question is one of first impression in this court.

Not surprisingly, the record is unclear as to the exact number of blacks struck from the jury by the prosecutor: veniremen are not required to announce their race, religion, or ethnic origin when they enter the box, and these matters are not ordinarily explored on voir dire. The reason, of course, is that the courts of California are or should be blind to all such distinctions among our citizens.

Nevertheless, when an issue of this nature does arise in any case it is incumbent upon counsel, however delicate the matter, to make a record sufficient to preserve the point for review. In the case at bar defense counsel discharged that burden: after the People had exercised eight peremptory challenges, defense counsel began eliciting from each successive black prospective juror an acknowledgement of his or her race. In a declaration filed in this court, Edward I. Gritz, attorney for defendant Wheeler, explained the reason for undertaking to make that record: "During the course of the voir dire proceedings, and only after two black jurors had been peremptorily excused by the prosecutor, I became aware that the prosecutor was utilizing his peremptory challenges in a systematic effort to exclude any and all otherwise qualified black jurors from serving on my client's petit jury."

Defense counsel thereafter established that prospective jurors Louise Jones, Odessa Bragg, and Napoleon Howard were black. 1 All three responded that racial considerations would not affect their impartiality and they would base their verdict solely on the facts; as Mr. Howard succinctly put it, "We are not trying color. We are trying a case." Both defense counsel passed these prospective jurors for cause, and the prosecutor did likewise after almost perfunctory questioning. 2 Nevertheless

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the prosecutor exercised three of his next five peremptory challenges against these same three prospective jurors.

At this point Mr. Gritz expostulated that "It is obvious to me that there will be no blacks on this jury," and moved for a mistrial. He gave his count to the number of black prospective jurors struck by the prosecutor, and stated: "whatever the reason for that is, that's up to him to say. I am not impugning his integrity or anything like that. It is obvious to me that these defendants cannot get a jury of their peers or, how shall I say, a proper cross section of the community, if what is apparent to me is the policy of the district attorney's office. Maybe it is only in this case, I don't know, to excuse all blacks that are being called." His purpose in moving for the mistrial was, he said, "so we can try and get a fair cross section of the community." Mr. Halpern joined in the motion, stressing that from the manner in which the prosecutor was exercising his peremptory challenges "it is apparent that he is using a form of unauthorized procedure, and that is to exclude blacks rather than exclude people who hold prejudices one way or the other."

The trial court asked the prosecutor if he desired to respond, but advised him that "you don't have to respond if you don't wish to." The prosecutor declined to explain his conduct, and the court denied the motion for mistrial.

Voir dire then resumed. Defense counsel established that two more prospective jurors, Lloyd Hill and Evelyn Smith, were black. Both testified that racial considerations would not enter into their deliberations, and Mr. Hill specifically denied that he would be prejudiced in defendants' favor simply because he was black. Voir dire examination of these two prospective jurors by the court and defense counsel was brief and uneventful. Mr. Hill testified he was employed as a car man by the Santa Fe Railroad, his wife was a housewife, and his daughter a waitress; he had never served on a jury before, had never been the victim of or witness to a crime, and had no relatives or friends who were police officers or attorneys. In turn, Mrs. Smith testified she was employed as a cabin service planner by United Airlines and her husband was a presser at a cleaning business; she had previously served on a jury in two civil cases, one of which ended in a nonsuit; she had never been the victim of or witness to a crime, had never testified in court, and had no relatives or friends who were police officers or attorneys. Defense counsel passed both these prospective jurors for cause.

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This time the prosecutor asked no questions whatever, quickly passed both Mr. Hill and Mrs. Smith for cause and then used two of his next three peremptory challenges to strike them from the jury.

Once more Mr. Gritz vigorously objected, stating: "For the record, Your Honor, by my count, there are seven Negroes that have been kicked off the jury by (the prosecutor), I make a motion for mistrial. It is apparent that it is a policy of the district attorney's office not to permit any Negroes on this jury. Some of them have been kicked without him even questioning them. . . . I feel that these defendants cannot get a trial by their peers." Mr. Halpern joined in the motion, contending that because "there is evidence that the peremptory challenge is being used to excuse only blacks from the jury," there is "a prima facie case of abuse" of such challenges by the People.

Again the court offered the prosecutor the opportunity to respond, but made clear that it was "ready to rule on the matter" without the need of any explanations. The prosecutor replied, "I have no response, Your Honor, and I don't wish my silence to be construed as any tacit admission of the charges." The court agreed it was "not considering it as such," and ruled that "Attorneys have a right to select the jury and use all the peremptories available to them without stating the reason."

Impliedly denying the second motion for mistrial, the court directed voir dire to proceed. No more black prospective jurors were called to the box, and in due course...

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