Lessard, In re

• Decision Date: 18 February 1965
• Docket Number: Cr. 7548
• Citation: 62 Cal.2d 497,42 Cal.Rptr. 583,399 P.2d 39
• Court: California Supreme Court
• Parties: , 399 P.2d 39 In re Albert LESSARD on Habeas Corpus.

Page 583

42 Cal.Rptr. 583

62 Cal.2d 497, 399 P.2d 39

In re Albert LESSARD on Habeas Corpus.

Cr. 7548.

Supreme Court of California, In Bank.

Feb. 18, 1965.

Rehearing Denied March 17, 1965.

Albert Lessard, in pro. per.

Donald B. McCaw and Valentine C. Hammack, San Francisco, under appointment by Supreme Court, Thomas S. Harte and McCaw & Barnum, San Francisco, for petitioner.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., Albert W. Harris, Jr., and Edward P. O'Brien, Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

Petitioner seeks a writ of habeas corpus on the gound that he is imprisoned under a sentence of death in violation of rights guaranteed to him by the Fourteenth Amendment to the Constitution of the United States. A jury found petitioner guilty of first degree murder and fixed the penalty at death. We affirmed the judgment. (People v. Lessard (1962) 58 Cal.2d 447, 25 Cal.Rptr. 78, 375 P.2d 46.)

To give the factual background for the legal issues which we shall discuss in this opinion we quote in part from our former opinion: '* * * on June 15, 1959 the deceased registered at the Travel Lodge Motel in San Francisco. He had in his possession approximately $800, the proceeds of a check for his summer pay as a school teacher. On the afternoon of June 16 he met defendant in a tavern directly across the street from deceased's motel. The two had drinks and some conversation. Thereafter defendant left the tavern shortly before 6:00 p. m. and returned in approximately 15 minutes. The latter accompanied by the deceased then left the tavern at approximately 6:30 p. m. The deceased's body was found in his motel room the following morning. Death was caused by knife wounds in his chest and back areas. Other wounds on the deceased's arms and hands were described as of a type inflicted when one attempts to ward off a knife attack.

'Defendant's fingerprints were found throughout the deceased's motel room, and he admits to having entered the room after leaving the tavern. In addition, defendant's fingerprints were found on a knife in a display case at a restaurant supply store located in the same neighborhood as the motel and tavern. The owner of the store testified that on the afternoon in question at approximately 6:00 p. m., a man who might have been the defendant entered his establishment and purchased a boning knife. Before making his selection, however, the customer examined another knife which was returned to the display case. When the owner heard of the homicide he informed the police of the purchase, and it was the knife remaining in the display case on which defendant's fingerprints were found. The murder weapon was never identified or recovered.

'The latter admitted meeting the deceased at the tavern on the afternoon of June 16. He testified that after leaving the tavern they drove to another bar in the victim's automobile and then returned to the motel room; that deceased wanted to freshen up and while he was engaged in taking a shower defendant noticed deceased's wallet, removed it from the latter's clothing and quietly left. It is thus conceded that defendant committed a theft of personal possessions. * * *' (People v. Lessard (1962) 58 Cal.2d 447, 450-451, 25 Cal.Rptr. 78, 79, 375 P.2d 46, 47.)

As a defense, petitioner offered evidence that, if believed, could have established that he boarded a Greyhound bus to Seattle at 9:30 p. m. The victim was found at 11 a. m. the next day. The prosecution contends that the coroner testified that death occurred about 10 to 14 hours before the 11 a. m. hour of discovery; if the coroner correctly fixed the time, petitioner could have committed the crime and still have taken the 9:30 bus the previous evening.

In a prior proceeding in this court petitioner sought habeas corpus but we denied his petition (Crim. No. 7276, January 3, 1963); the United States Supreme Court denied certiorari on March 25, 1963 (Lessard v. Dickson, 372 U.S. 955, 83 S.Ct. 954, 9 L.Ed.2d 979). Two months later petitioner applied for habeas corpus in the United States District Court, alleging three grounds not previously set forth in his application to this court. That court denied the petition (No. 41497, May 20, 1963) but on appeal the United States Court of Appeals stayed execution of the death penalty and rendered an order to remand to the district court, which read in part: 'The appellant raised three points upon which he has apparently sought no state remedy. The case is remanded to the District Court with instructions to hold the case a reasonable time while appellant secures or attempts to secure a state determination of his new issues.' (No. 18686, May 23, 1963.) Subsequently, petitioner sought habeas corpus in the Superior Court of Marin County but that court denied the petition in July 1963. (No. 38123, July 26, 1963.)

In the instant proceeding, petitioner alleges as grounds for relief those specified in his petition to the federal court: grounds 3, 4 and 5 listed below, as well as those alleged in his prior petition: grounds 1 and 2 below. The grounds are: (1) That evidence (a shirt) was obtained by an illegal search of the apartment occupied by his 'estranged' wife; (2) That the jurors were guilty of misconduct; (3) That petitioner's absence from chambers during proceedings which led to the discharge of the juror Bernice Mayerhofer deprived him of his right to be present at all stages of his trial; (4) That the prosecution knowingly presented perjured testimony of Walter M. Ihle that fingerprints of the petitioner were found upon objects in the decedent's motel room and on a knife in the Empire Sales Company in San Francisco; (5) That the prosecution knowingly suppressed material evidence in several particulars.

Additionally, the petition raises issues under Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33.

As his first ground for habeas corpus relief, petitioner alleges that the prosecution introduced illegally obtained evidence, consisting of petitioner's shirt, which exhibited laundry marks similar to those on a shirt found at the scene of the crime. In denying his previous petition for habeas corpus this court rejected petitioner's contention. The United States Supreme Court likewise refused to grant certiorari to our denial of the petition for habeas corpus.

Petitioner's latest effort must similarly fail because he neither has properly raised the contention nor established its inherent merit.

We do not believe that petitioner may at this date employ the writ of habeas corpus to attack the introduction of evidence which allegedly has been illegally obtained. Not only did petitioner's counsel fail to object at the trial to the receipt of the evidence but he stated that he did not object to it and, additionally, did not present the issue on appeal. A failure to object to the introduction of evidence which defendant alleges was illegally obtained precludes the successful presentation of the issue at the appellate level. (People v. Hyde (1958) 51 Cal.2d 152, 157, 331 P.2d 42.) Even if defendant did urge an objection at the trial level and the court allowed the evidence to be introduced, defendant cannot neglect his appeal and seize upon habeas corpus as an alternate remedy.

We have held that in a situation which involves an evaluation of evidence petitioner cannot assert on habeas corpus a contention based upon his version of conflicting evidence. Thus in In re Dixon (1953) 41 Cal.2d 756, 264 P.2d 513, petitioner objected to the introduction of the evidence at trial but failed to appeal; we held that he was not 'entitled in this proceeding (habeas corpus) to a consideration of claims which are based upon his version of the conflicting evidence and which could have been, but were not, raised on appeal.' (Id. at p. 762, 264 P.2d at p. 516.)

Even if petitioner's contentions on habeas corpus do not require such evaluation of the evidence, we do not believe that the writ should serve as the means of attack upon a final judgment because of the introduction of evidence allegedly secured in violation of the Fourth Amendment. We hold that for the reasons stated by Justice Traynor in his concurring opinion in In re Harris (1961) 56 Cal.2d 879, 16 Cal.Rptr. 889, 366 P.2d 305, defendant may not collaterally attack a final judgment upon the ground that the trial court has accepted evidence which assertedly has been obtained illegally. Nor do we believe that Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, compels a different result; the United States Supreme Court in that case said: '* * * state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.' (Id. at p. 659, fn. 9, 81 S.Ct. at p. 1693.)

Furthermore, even if petitioner's point were properly before us, we doubt its merit. In the husband's absence, the officers could reasonably conclude that the wife could properly consent to a search of the property in the home; petitioner's present allegation of an 'estrangement' between them does not destory the consent. In People v. Carter (1957) 48 Cal.2d 737, 746, 312 P.2d 665, 670, we stated: 'When the usual amicable relations exist between husband and wife (cf. Kelley v. State, 184 Tenn. 143, 197 S.W.2d 545, 546), and the property seized is of a kind over which the wife normally exercises as much control as the husband, it is reasonable to conclude that she is in a position to consent to a search and seizure of property in their home.'

Petitioner's allegation that he was 'estranged' from his wife affords no justifiable distinction from Carter. Kelley v. State, supra, cited in Carter by way of comparison, illustrates a different situation in which a gross breach of amicable relations there manifest serves as a ground for distinction. In Kelley ...