Imbler, In re

• Decision Date: 03 December 1963
• Docket Number: Cr. 7212
• Parties: , 387 P.2d 6 In re Paul Kern IMBLER, on Habeas Corpus.
• Court: California Supreme Court

Page 293

35 Cal.Rptr. 293

60 Cal.2d 554, 387 P.2d 6

In re Paul Kern IMBLER, on Habeas Corpus.

Cr. 7212.

Supreme Court of California, In Bank.

Dec. 3, 1963.

Rehearing Denied Dec. 30, 1963.

Gregory S. Stout, San Francisco, Charles Hollopeter, Pasadena, Warren L. Ettinger, Hollywood, Albert C. Garber, Ellory E. Cuff, Public Defender, Los Angeles, Richard S. Buckley, Deputy Public Defender, Jules C. Goldstone and Low & Stone, Beverly Hills, for petitioner.

Stanley Mosk, Atty. Gen., John S. McInerny and Albert W. Harris, Jr., Deputy Attys. Gen., William B. McKesson, Dist. Atty., Los Angeles, and Harry Wood, Deputy Dist. Atty., for respondent.

TRAYNOR, Justice.

Petitioner was convicted of first degree murder and of assault with a deadly weapon with intent to commit murder. The jury fixed his penalty at death. This court affirmed the judgment and an order denying a motion for new trial. (People v. Imbler, 57 Cal.2d 711, 21 Cal.Rptr. 568, 371 P.2d 304.) In this proceeding, petitioner seeks a writ of habeas corpus, coram vobis, or other appropriate relief.

On January 4, 1961, two men entered a Los Angeles market, one of them shot and fatally wounded Morris Hasson, the proprietor, and they departed in different directions. The only eyewitness to the crime, Hasson's wife, was unable to identify the man who did the shooting, but later identified his accomplice. A passerby, Alfred Costello, ran toward the market when he heard the shot, and at the lighted entrance encountered a man leaving the store with a gun in his hand. Costello chased the killer through several parking lots adjacent to the store; the killer shot at Costello and dropped his hat and coat while making his escape. A pistol, later identified as the murder weapon, a razor in a plastic case, and a soiled handkerchief were in the coat.

Entirely on the basis of the identification testimony of several witnesses, petitioner was convicted of murdering Hasson in the perpetration of an armed robbery and of assault with intent to murder Costello. All attempts to tie the physical evidence at the scene of the murder to petitioner were fruitless, and a police exert testified that fingerprints on the murder weapon and on the razor and its case were too fragmentary to assign to anyone. Petitioner was identified as the man who left the store with a gun by Costello, who had seen the killer at the entrance of the store and again during the chase, by Billy Hillen, who was leaving the store as the two men entered and who testified that he had clearly seen them again as they left, and by Alonzo Dunlap, who was an attendant at one of the parking lots through which the killer escaped. Hillen and Mrs. Hasson identified the other man at the killing as Leonard Lingo, an accomplice of petitioner in an attempted robbery in Pomona on January 14, 1961. During this January 14 attempt, Lingo was killed and another accomplice, Jerry Mayes, was capured. On January 15, Imbler surrendered to the Pomona police.

Petitioner testified that he first met Lingo, whose identify as the accomplice of the killer was not disputed, on the morning of January 14 and that he spent the evening of January 4 with several other persons in various Los Angeles bars. Both alibis were corroborated by Mayes, his accomplice in the January 14 robbery attempt.

The petition alleges that the prosecution secured petitioner's conviction through the knowing use of perjured testimony and that newly discovered evidence completely undermines the entire structure of the case on which the prosecution was based. After examining the petition and the affidavits attached to it, we issued an order to show cause and appointed the Honorable Thomas P. White, retired Associate Justice of this court, as referee to take evidence directed to the following questions:

'1. Did any witness who testified against Paul Kern Imbler in the trial which resulted in the judgment of conviction, affirmed by this court in People v. Imbler, 57 A.C. 757 (57 Cal.2d 711, 21 Cal.Rptr. 568, 371 P.2d 304), commit perjury as defined in the Penal Code of the State of California?

'2. In the event that any witness did commit perjury, did any representative of the State of California cause or suffer such testimony to be introduced, knowing such testimony as given was perjured?

'3. Did any representative of the State of California suppress or prevent the introduction of any evidence which, had it been given, would have been favorable to the defense of Paul Kern Imbler?

'4. What if any new evidence has been discovered that undermines the case presented by the prosecution at the time of the judgment of conviction of Paul Kern Imbler?'

A judgment of conviction based on testimony known by representatives of the state to be perjured deprives the defendant of due process of law (Mooney v. Holohan, 294 U.S. 103, 112-113, 55 S.Ct. 340, 79 L.Ed. 791; Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214) and may be attacked on habeas corpus (In re Mooney, 10 Cal.2d 1, 15, 73 P.2d 554; In re Lindley, 29 Cal.2d 709, 722, 177 P.2d 918; In re Horowitz, 33 Cal.2d 534, 537, 203 P.2d 513). In making such an attack, however, petitioner must establish by a preponderance of the evidence that perjured testimony was adduced at his trial, that representatives of the state knew that it was perjured (In re Mooney, supra, 10 Cal.2d at p. 15, 73 P.2d at pp. 560-561; In re Lindley, supra, 29 Cal.2d at p. 722, 177 P.2d at p. 926), and that such testimony may have affected the outcome of the trial (Napue v. Illinois, 360 U.S. 264, 272, 79 S.Ct. 1173, 3 L.Ed.2d 1217; See In re De La Roi, 27 Cal.2d 354, 365, 164 P.2d 10; In re Mitchell, 35 Cal.2d 849, 856, 221 P.2d 689.)

Petitioner alleges several instances of knowing use of perjured testimony. He first attacks Costello's identification testimony. At the preliminary hearing and at the trial, Costello identified petitioner as the man he chased, but when asked at the reference hearing if petitioner was that man, he testified that 'at this time I will have to say no.' This change in testimony alone does not constitute perjury, but merely indicates that Costello changed his mind. The pertinent inquiry is whether he testified at the trial contrary to his belief at that time. (See People v. Von Tiedeman, 120 Cal. 128, 134-137, 52 P. 155.)

More than a year after the trial and several months before the reference hearing, Costello was interviewed by the police. A tape recording of that interview (the accuracy of which was challenged by Costello) disclosed that when asked if he had any doubts about his identification of petitioner at the trial, he answered: 'No at that time there was no doubt. * * * I'm not worried about perjury because I don't think I perjured myself. I answered the question to the best of my knowledge and recollection.' At the hearing, however, Costello claimed that he always had grave doubts about his identification. The referee found that he 'testified of his own free will as to such identification based upon his own knowledge as disclosed by his testimony at both the preliminary examination and the trial of Petitioner in the Superior Court.'

At the reference hearing, Costello also testified that he had told the police that he was extremely reluctant to testify because of his doubts, but that they had forced him to testify by holding some bad check charges over him. This charge was categorically denied by the police officers involved although they admitted having knowledge of several outstanding bad checks issued by Costello and of his previous convictions for issuing such checks. The referee found that the record 'reflects definitely that no threats of any character were made to Costello with regard to the aforesaid worthless checks.' Costello also testified that he had expressed doubt about his identification, both before and after the trial, to at least 16 state officials, including members of the Los Angeles Police Department, members of the Vernon Police Department, members of the staff of the Los Angeles District Attorney, and two judges of the Superior Court of Los Angeles County. Testimony and affidavits from these persons uniformly denied that Costello expressed such doubts to them. In fact, some of them stated that he seemed quite certain and unshakable in his identification of petitioner. The prosecuting attorney and a police officer testified that they talked to Costello before he testified at the trial to impress upon him the seriousness of his identification and to tell him that there would be no disgrace in withdrawing it if he were unsure. Costello replied: "I'm positive. I know it's serious to be wrong. I have been convicted myself of a felony, so I know how serious it is. I'm positive in my identification." The referee found 'that at no time either before or after the trial of Petitioner Imbler on the charge of murder, which resulted in his conviction, did the witness Alfred Costello express to any representative of the State of California a doubt as to his identification of Petitioner Imbler as testified by the witness Costello.'

We adopt both of these findings involving Costello's allegedly perjured identification. Although we are not bound by the findings of a referee (In re Mooney, 10 Cal.2d 1, 17, 73 P.2d 554), they are entitled to great weight (In re Riddle, 57 Cal.2d 848, 853, 22 Cal.Rptr. 472, 372 P.2d 304; In re Martinez, 52 Cal.2d 808, 812, 345 P.2d 449; In re Mitchell, 35 Cal.2d 849, 855, 221 P.2d 689). After a full hearing, the referee disbelieved most, if not all, of the changes that Costello made in his trial testimony and the charges he made at the reference hearing. He found 'that the testimony given by said Alfred J. Costello at the Reference Hearing, which varied from his testimony at the murder trial, was thoroughly impeached and discredited by numerous witnesses, while the testimony of said Alfred J. Costello, as given at the murder trial concerning his...