People v. Sears

Citation62 Cal.2d 737,401 P.2d 938,44 Cal.Rptr. 330
Decision Date21 May 1965
Docket NumberCr. 7749
CourtUnited States State Supreme Court (California)
Parties, 401 P.2d 938 The PEOPLE, Plaintiff and Respondent, v. Earl Clarence SEARS, Defendant and Appellant.

Edward D. Nino, San Jose, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., Albert W. Harris, Jr., and Robert R. Granucci, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

The jury found defendant guilty of the first degree murder of his stepdaughter Elizabeth Olives, the attempted murder of his estranged wife Clara Sears and the attempted murder of his mother-in-law Frances Montijo. As to the first degree murder conviction, the jury fixed the penalty at death. This appeal comes to us automatically under Penal Code section 1239 subdivision (b).

For the reasons stated below we hold that the trial court erred in admitting into evidence incriminating statements elicited from defendant without his either being advised of his rights to counsel and to remain silent or otherwise having waived those rights. For guidance of the court on retrial we set forth our reasons for concluding that although the evidence does not warrant an instruction to the jury as to felony murder mayhem, it does support an instruction as to felony murder burglary. We further hold that the trial court did not abuse its discretion in refusing to call Robert Kjaerbye as a witness for the court. We do not discuss defendant's contentions that the prosecutor committed prejudicial misconduct in offering into evidence an inadmissible extrajudicial statement of Robert Kjaerbye and in commenting on his failure to testify because we doubt that these factual situations will recur.

With reference to the penalty phase of the trial we also point out that the rendition of instructions identical to those condemned in People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 585, coupled with the presentation of certain evidence and arguments to the jury necessarily worked prejudicial error. (People v. Hines (1964) 61 Cal.2d 164, 37 Cal.Rptr. 622, 390 P.2d 398.) We do not, however, discuss defendant's other contentions relating to the penalty phase of the trial because of the improbability that these issues will arise in a subsequent penalty trial.

Defendant married Clara Sears in 1960. Mrs. Sears had three children from previous marriages, the youngest being Elizabeth Olives, the murder victim. Approximately three weeks prior to May 16, 1963, the defendant moved from the family residence in Monte Vista to a hotel in San Jose.

After leaving his place of employment on the afternoon of May 16, 1963, defendant went to a neighborhood tavern where he remained until 7:30 p. m. drinking beer with friends. After returning to his hotel, defendant met Robert Kjaerbye, and the two men had dinnner in a nearby restaurant. They then went to a bar but left after 20 minutes because defendant wanted to drive to the house in Monte Vista to pick up his mail.

The two men entered the house through the unlocked front door. Defendant had a piece of reinforced steel pipe under his shirt. Clara and Elizabeth were already in bed. Defendant told Clara that he wanted to talk with her. Although she complained about the lateness of the hour, Clara joined defendant in the kitchen while Kjaerbye stayed in the living room. Noticing that the floor was cold, Clara returned to the bedroom to put on her robe and slippers. As she re-entered the kitchen, defendant grabbed the collar of her robe and said, 'You don't want me to come back to you.' He pulled out the steel pipe and struck her about the head and face. Elizabeth came into the living room and shouted at defendant to let her mother alone. Clara tried to place herself between defendant and Elizabeth, but defendant grabbed the little girl and struck Clara several times, rendering her unconscious.

Frances Montijo, who lived next door, heard the noise from her daughter's home and decided to investigate. As she approached the Sears' residence she encountered Kjaerbye leaving the house and asked him what was happening inside. He responded that he did not know.

As Frances entered, she saw the defendant struggling with Elizabeth on the floor. When defendant saw Frances, he attacked her with a knife, cutting her face and neck, and threw her into a chair, pressing the steel pipe against her chest and throat. Frances cut her hand in a struggle for possession of the knife. She then effected her escape and ran to the nearby home of her son-in-law Patrick to get help.

When Patrick entered he saw defendant standing over the prone body of Clara with a barbecue fork in his upraised hand. Patrick also observed that Elizabeth was lying on the floor in a pool of blood. When Patrick asked defendant what he was doing, defendant lunged at him with the fork. Patrick wrestled with defendant, chasing him out of the house and down the driveway. Defendant then ran to his car and drove away.

Elizabeth died as a result of a knife wound which punctured her jugular vein. She also suffered a scalp wound and several lacerations to her face. Clara Sears suffered a fractured jaw and arm. Frances Montijo received several cuts and wounds to her face and hands.

We turn, first, to the issue arising from the introduction of a statement that defendant gave during his interrogation by the police without being advised of his right to counsel or his right to remain silent, in the absence of a showing that he did not otherwise waive those rights.

At the time the defendant rendered the statement, the investigation had reached the accusatory or critical stage. As we have stated in People v. Stewart (1965) 62 A.C. 597, 603, 43 Cal.Rptr. 201, 204, 400 P.2d 97, 100 'Whenever * * * the officers have arrested the suspect and the officers have undertaken a process of interrogations that lends itself to eliciting incriminating statements, the accusatory or critical stage has been reached and the suspect is entitled to counsel.'

As to the requirement for arrest, we note that the police arrested defendant at 10:42 a. m. on May 17, 1963, transported him to the Santa Clara police department and delivered him to the sheriff's department. As to the requirement regarding elicitation of incrimination statements, we have, pursuant to the Stewart formula, weighed all relevant factors such as 'the length of the interrogation, the place and time of the interrogation, the nature of the questions, and the conduct of the police and all other relevant circumstances' (People v. Stewart (1965) 62 A.C. 597, 605, 43 Cal.Rptr. 201, 206, 400 P.2d 97, 102); we have concluded for the reasons set forth below that such stage had been reached.

Thus the police interrogated defendant for approximately 45 minutes; the recorded statement, as read into the record, comprises 50 pages of reporter's transcript. Since the investigating officers had previously interviewed witnesses to the murder and assaults, the questions posed to defendant were designed to gather as many details about the crimes as defendant could supply. The types of questions propounded by the police were clearly intended to educe incriminating statements. For example, the police officers queried defendant as to how many times he hit his wife, what type of weapon he used, how many times he hit his mother-in-law, how many times he hit the child and where he hit her. They asked such questions as to whether defendant used the knife on the young girl; whether he left the knife in the child or pulled it out; whether he used the knife on the child after she had been knocked down. They further asked the defendant where he had obtained the knife.

Since the police placed defendant under arrest and engaged in a process of interrogations that lent itself to eliciting incriminating statements, they should have advised him of his rights to counsel and to remain silent. Yet nothing in the record indicates that the police did so advise him or that defendant knew or waived such rights. We cannot presume in the face of a silent record that the police informed defendant of his rights to counsel and to remain silent. (People v. Stewart (1965) 62 A.C. 597, 606-607, 43 Cal.Rptr. 201, 400 P.2d 97; see Carnley v. Cochran (1962) 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70.) The statement, therefore, should not have been admitted into evidence. (Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; People v. Dorado (1965) 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361.)

Inasmuch as defendant's statement constituted a confession, its erroneous admission cannot be characterized as harmless error. The Attorney General contends that the statement 'added nothing to the prosecution case which had been completely established by the physical evidence and the uncontradicted testimony of three eyewitnesses.' We have held, however, that the erroneous introduction of a confession is prejudicial per se. (People v. Dorado (1965) 62 A.C. 350, 368, 42 Cal.Rptr. 169, 398 P.2d 361; People v. Matteson (1964) 61 Cal.2d 466, 469-470, 39 Cal.Rptr. 1, 393 P.2d 161.)

Defendant's statement constituted a confession of first degree murder. From his account of the evening's events, the jury could properly have inferred premeditation and deliberation. In his statement defendant admitted entering the house through an unlocked door, concealing under his shirt a steel pipe that he intended to use to scare his wife. After entering, according to his statement, he hit his wife several times with the pipe and struck the little girl on the head with the same instrument, knocking her to the floor. After examining the child to see how badly she was hurt, defendant stated, he struck his wife a few more times, rendering her unconscious. Defendant uttered the further significant statement that he then went into the kitchen, got a knife from a drawer and returned to the living...

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