People v. Gordon
| Citation | 29 Cal.App.3d 140,105 Cal.Rptr. 253 |
| Decision Date | 05 December 1972 |
| Docket Number | Cr. 21417 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Richard David GORDON, Defendant and Appellant. |
| Court | California Court of Appeals |
Norman W. DeCarteret, Sherman Oaks, under appointment By the Court of Appeal, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Howard J. Schwab and Lawrence P.Scherb II, Deputy Attys. Gen., for plaintiff and respondent.
By information, defendant was charged (Count I) with murder, a felony, in violation of Pen.Code § 187 and (Count II) with burglary, a felony, in violation of Pen.Code § 459. A first trial resulted in his conviction of both crimes, each found to be in the first degree, but that judgment was reversed on appeal because of an error in instructions. (People v. Gordon, Crim. No. 19548, unpublished opinion filed 8/10/71.) The present appeal is from a second trial which resulted in his being found guilty of second degree murder and not guilty of burglary.
Briefly capsulated, on Saturday morning February 21, 1970, defendant shot and killed Carl Pieper in Pieper's home at 7056 Ramsgate Avenue in Los Angeles. Seventeen witnesses testified for the prosecution, three for the defense (including appellant) and, in addition, there were stipulations regarding the testimony of other persons. Many exhibits were offered and admitted. In general, the evidence showed that Mrs. Carolyn Thorin Simpson 1 had been living with decedent; she testified they had planned to be married that Saturday night. Defendant Gordon testified she had said that she would marry him, instead, and that she shot Pieper during a planned confrontation that Saturday morning. Gordon had given three different stories to the police, had testified at the first trial that he shot Pieper, and was thoroughly impeached; Pieper, and was thoroughly impeached; additionally, both his and Mrs. Simpson's testimony was, in some instances, self-contradictory and was inherently illogical.
Appellant's first contention rests upon the prosecutor's opening statement to the jury, appellant contending the statement shows the prosecutor knowingly produced perjured testimony and thereby deprived appellant of the due process of a fair trial. The deputy District Attorney's statement is footnoted herein. 2 As will be observed in the footnote, he claimed only partial credibility for Mrs. Simpson's expected testimony; that part to be relied upon would be corroborated by other evidence, he said. He did not rely on other phases of her expected testimony nor did he ask the jury to do so.
The parties to a lawsuit cannot always select their own witnesses; some witnesses are forced upon them by circumstances. Such was the case with Mrs. Simpson since she was the only person who could relate what was said, what if anything was planned and what occurred.
Appellant relies upon In re Imbler, 60 Cal.2d 554 (1963) as authority requiring a reversal, spelling out, as it does (p. 560, 35 Cal.Rptr. 293, 387 P.2d 6), the elements to be established by an appellant who claims that the use of perjured testimony, resulting in his conviction, deprived him of due process. Horn v. Atchison, T. & S.F. Ry. Co., 61 Cal.2d 602, 605, 39 Cal.Rptr. 721, 394 P.2d 561 (1964), also relied upon by appellant, is clearly distinguishable.
In re Imbler, supra, does not assist appellant. The first element Imbler requires is that the testimony, in fact, be perjured. Mrs. Simpson expressed few, if any, doubts as to the accuracy of her own testimony. While the prosecution may conclude that anticipated testimony does not 'hang together,' i. e., is not cohesive, and that it is illogical and, therefore, unreasonable, such a conclusion fails to establish that a witness will knowingly give perjured testimony. (Also see: In re Mitchell, 35 Cal.2d 849, 856, 221 P.2d 689 [1950]; In re Wallace, 24 Cal.2d 933, 937-938, 152 P.2d 1 [1944].) The fact the prosecutor expressed belief that Mrs. Simpson would not tell all that she knew, and that he did not believe part of her expected testimony, fails to establish perjury on her part. Furthermore, at no time did the prosecutor say that he knew her testimony would be fabricated or did he state he would rely upon the part whose truth he questioned.
Before our Evidence Code became effective on January 1, 1967, (Evid.Code § 12) there existed limitations on a party's right to impeach his own witness. In recognition, however, that 'a party does not necessarily have free choice of witnesses but must take those who know the facts, and therefore cannot 'vouch' for them' (Witkin, Cal.Evidence, §§ 1270-1271, pp. 1176-1177), Evid.Code § 785 was adopted, reading: 'The credibility of a witness may be attacked or supported by any party, including the party calling him.' (Emphasis added.) Bearing this rule in mind, a prosecutor can attack the character of the testimony of his own witnesses (Evid.Code § 780). However, the fact that a prosecutor does not believe the witness to be entirely credible does not establish that the witness is guilty of perjury.
Appellant next argues there was evidence that Mrs. Simpson was his accomplice for which reason the court should have, sua sponte, instructed the jury on the definition of 'accomplice' and on the rules applying to accomplice testimony. (Pen.Code § 1111; People v. Bevins, 54 Cal.2d 71, 75-76, 4 Cal.Rptr. 504, 351 P.2d 776 [1960].)
Under Pen.Code § 1111 an accomplice is defined 'as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.' Mrs. Simpson was not such a person. She could not have been prosecuted in the second trial wherein she gave her testimony since, in the first trial, she had been acquitted. While appellant argues that her acquittal is irrelevant, his argument is unsupported by authority and is directly contrary to California law. Thus, as stated in People v. Lawson, 114 Cal.App.2d 217, 220, 249 P.2d 850, 852 (1952): '. . . a verdict of not guilty as to one defendant is a finding of fact that he was not an accomplice of another defendant convicted of the same crime with which both were charged.' (Also see: People v. Darnold, 219 Cal.App.2d 561, 578, 33 Cal.Rptr. 369 [1963]; People v. Goldstein, 136 Cal.App.2d 778, 789, 289 P.2d 581 [1955].) 3 Mrs. Simpson could not have been an accomplice within the meaning of the Code definition and, accordingly, the court properly gave no instruction on accomplice testimony.
As a third point, appellant argues that a statement, inadvertently made by the trial court to prospective jurors during his voir dire examination of them, was prejudicial. We disagree. In talking to the jury panel, the judge had stated that he later would instruct them that 'a defendant is presumed guilty . . . until his innocence is proved by the prosecutor . . .' Counsel immediately brought this misstatement to his attention and he corrected himself, saying, 'I made a horrible mistake. . . . a defendant is presumed to be innocent until his guilt is proved beyond all reasonable doubt and to a moral certainty.' At the conclusion of the evidence he again so instructed the jury, using CALJIC instruction No. 2.90. While the court's initial statement was grossly incorrect, the judge recognized his error and immediately so told the jury, correcting himself. The jury cannot have been misled and we apprehend no miscarriage of justice. (People v. Watson, 46 Cal.2d 818, 836-837, 299 P.2d 243 [1956].)
Appellant contends there was evidence that Carl Pieper was 'accidently' [sic] killed so that the court should have, sua sponte, instructed the jury on involuntary manslaughter, defining it. The court did, on its own initiative, read CALJIC instruction No. 17.10 regarding included offenses, concluding by instructing that: 'The offense of murder with which the defendant is charged in Count I necessarily includes the lesser offenses of voluntary and involuntary manslaughter.' The court defined 'voluntary manslaughter' and, on its own initiative, also gave several other instructions distinguishing murder from manslaughter. (CALJIC Nos. 8.50, 8.37, 8.40, 8.42, 8.43, 8.44, 8.52 and 8.74.) Accordingly, appellant's argument revolves around his contention that the court should have defined 'involuntary manslaughter.'
Defendant's contention rests on the ground that the jury could have found him guilty of aiding and abetting Carolyn Thorin Simpson and that there was evidence she shot the victim by accident. Thus, according to appellant's testimony at the second trial, all three were in the bedroom; Pieper took a pistol from the dresser and hit Simpson with it; defendant grabbed the gun and he and Pieper struggled with it into the hallway; the gun fell to the floor and defendant thereafter heard a shot fired; looking up, he saw Simpson had the gun; she later said, 'It was an accident.' (Oppsed to this, Simpson had testified that defendant entered the bedroom, fired a shot at her and the decedent and, thereafter, had struggled with decedent and they disappeared into the hallway; she then heard three shots fired, following which she saw Pieper's body lying in the bathroom.)
One problem is ignored by the litigants. Thus, when a person who is claimed to be an 'accomplice' is adjudged innocent of a crime, may such person, nevertheless, be deemed a principal whose alleged crime another may be found guilty of aiding and abetting? The answer to this is in the affirmative. (People v. Bearss, 10 Cal. 68 [1858]; People v. Simpson, 66 Cal.App.2d 319, 329, 152 P.2d 339 [1944]; People v. Blackwood, 35 Cal.App.2d 728, 732-733, 96 P.2d 982 [1939]; 1 Wharton's Criminal Law and Procedure (Anderson ed.) § 116, pp. 253-254.)
The distinction...
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