Morse, In re

• Decision Date: 10 April 1969
• Docket Number: Cr. 10872
• Court: California Supreme Court
• Parties: , 452 P.2d 601 In re Joseph Bernard MORSE on Habeas Corpus.

Page 385

76 Cal.Rptr. 385

70 Cal.2d 702, 452 P.2d 601

In re Joseph Bernard MORSE on Habeas Corpus.

Cr. 10872.

Supreme Court of California,

In Bank.

April 10, 1969.

Joseph Bernard Morse, in pro. per., Benjamin Dreyfus, San Francisco, under appointment by the Supreme Court, and Garry, Dreyfus, McTernan & Brotsky, San Francisco, for petitioner.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., and Robert R. Granucci, Deputy Atty. Gen., for respondent.

SULLIVAN, Justice.

Petitioner seeks a writ of habeas corpus on the ground that he is unlawfully imprisoned under a judgment of conviction of two counts of first degree murder. In 1962, a jury convicted petitioner of the first degree murder of his mother and sister and fixed the punishment on each count at death. ¹ On his automatic appeal (Pen.Code, § 1239, subd. (b)) we reversed the judgment insofar as it related to the penalty and affirmed it in all other respects. (People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810.) Retrial of the penalty issue resulted in verdicts of life imprisonment. Sentence upon those verdicts was imposed on August 21, 1964, and the judgment became final without appeal.

In the instant proceeding ² petitioner seeks collateral relief from the judgment insofar as it convicts him of two counts of first degree murder. (See fn. 1, Ante.) He contends that each of two extrajudicial confessions introduced against him during the trial on the issue of guilt was obtained in violation of his constitutional right to counsel and that the judgment must, therefore, be vacated.

We first observe that these contentions may now be raised for the first time on collateral attack. Although petitioner's appeal was decided adversely to him on the question of guilt more than six months prior to June 22, 1964, the date of the decision in Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, judgment on petitioner's penalty retrial was not entered until August 21, 1964. The time for taking an appeal (Cal.Rules of Court, rule 31) expired on August 31, 1964, the date of our first Dorado decision. The judgment was, therefore, not final prior to the date of Escobedo and Escobedo and Dorado are applicable (People v. Rollings (1967) 65 Cal.2d 681, 691, 56 Cal.Rptr. 293, 423 P.2d 221) to both guilt and penalty issues. (People v. Ketchel (1966) 63 Cal.2d 859, 863--866, 48 Cal.Rptr. 614, 409 P.2d 694.) Petitioner's failure to raise his present contentions by appeal from the judgment entered after his penalty retrial is excusable for two reasons. First, petitioner, unlike the defendant in Escobedo, did not request counsel prior to the obtaining of the two extrajudicial statements here in question. He was not required to anticipate that the Escobedo rationale would be applied in our Dorado decision (People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361--decided on rehearing on January 29, 1965) to include cases wherein counsel was not requested. ³ Second, petitioner was not required to anticipate our Ketchel decision permitting the consideration of Escobedo-Dorado errors in his guilt trial on appeal following the penalty retrial. We therefore conclude that petitioner may presently raise such errors on collateral attack. (See In re Shipp (1966) 66 Cal.2d 721, 723--724, 59 Cal.Rptr. 97, 427 P.2d 761; In re Spencer (1965) 63 Cal.2d 400, 404--406, 46 Cal.Rptr. 753, 406 P.2d 33.)

Two extrajudicial statements were introduced against petitioner during the trial on the issue of guilt. The first of these was given in a police car enroute to the Chula Vista police station. Petitioner had earlier in the day informed the mother of his sister-in-law that he had found his mother and sister dead at his home. Police were contacted and they escorted petitioner to his home, where they found the bodies and commenced an investigation. Approximately two hours later, after blood-stained shoes and clothing had been found in petitioner's bedroom, he was placed in a police car for transportation to the station. At this time petitioner asked whether he was under arrest, and he was told that he was not. The first statement, as related at trial by Officer Rowland, is set forth in the footnote. ⁴

After petitioner was arrested he was placed in the interrogation room at the police station. There Officers Morrison and Kohls elicited from him a detailed account of events leading up to the murders, of the murders themselves, and of events following the murders. ⁵ In the course of this second statement petitioner with chilling aplomb discussed his reasons (or rather lack of reasons) for the killings; admitted that he had planned the killings before he executed them; reviewed plans that he had considered and rejected for disposing of the bodies; described his emotions as he was carrying out the killings; expressed his lack of remorse at the time of the statement; and explained that he had taken no narcotics during the period of the crimes. ⁶

Petitioner testified at the trial in his own behalf, claiming that he was under the influence of narcotics (a combination of barbituate and benzedrine) when he performed the acts with which he was charged. He stated that such acts had been unplanned and had been triggered by a remark of his mother to the effect that he would go back to jail if he continued to use narcotics. He testified further that he had lied to Officers Morrison and Kohls on this point during the second extrajudicial statement 'Because at that time I realized what I had done and I, too, wanted to die,' and that several other damaging statements made by him at that time were untrue and were said 'Because I wanted everyone to believe that I was a cold blooded killer and have me executed.' In general, petitioner's courtroom testimony lacked the matter-of-fact descriptive character of his second extrajudicial statement; rather it was marked by hazy recollections and equivocations. Serious doubt was cast upon petitioner's story by cross-examination and subsequent evidence in rebuttal.

It appears that petitioner was not advised of his constitutional rights to counsel and to remain silent prior to either of the extrajudicial statements admitted against him. The Attorney General contends that the first extrajudicial statement was nevertheless admissible because petitioner was not in custody and the investigation had not reached the accusatory stage when the statement was given. He concedes that the second extrajudicial statement was erroneously admitted but urges that it was simply cumulative of the first statement and that its admission therefore did not prejudice petitioner.

We need not consider whether petitioner's first extrajudicial statement was obtained in violation of his constitutional rights for it appears that, even if we assume the first statement to have been admissible, the reception of the second extrajudicial statement (which the Attorney General concedes to have been error) was prejudicial and requires that the judgment be reversed insofar as it convicts petitioner of the two murders.

The Attorney General's contention, that the erroneous admission of petitioner's second extrajudicial statement was nonprejudicial because it was merely cumulative of the first statement, is based upon People v. Jacobson (1965) 63 Cal.2d 319, 46 Cal.Rptr. 515, 405 P.2d 555, and subsequent cases applying the rationale of that decision. In Jacobson defendant made a series of extrajudicial statements, all of which were admitted against him at trial, to the effect that he had killed the daughter of his common law wife. The last two of these statements were obtained in violation of defendant's constitutional rights to have counsel and to remain silent. We concluded that, although the statements in question were clearly 'confessions' rather than 'admissions,' and that the rule of automatic reversal (see People v. Dorado, Supra, 62 Cal.2d 338, 356, 42 Cal.Rptr. 169, 398 P.2d 361) would normally be applicable, the peculiar circumstances there at bench required an inquiry into 'the impact, if any, of the confession on the verdict * * *.' (63 Cal.2d at p. 330, 46 Cal.Rptr. at p. 522, 405 P.2d at p. 562.) That inquiry resulted in a determination that no prejudice to defendant resulted from the erroneous admission of the final two statements. 'No undue emphasis was placed on any of the confessions at the guilt phase. Each person who had witnessed defendant make an incriminating statement testified to what he had heard. No one confession contained details significantly different from the others. The two improperly obtained statements were therefore merely cumulative. Moreover, the sequence of the confessions here, where the improper statements were the last obtained, can give rise to no implication that the legally obtained confessions were 'induced' by those subsequently improperly obtained.

'The jury's task was simply to determine whether defendant spoke the truth on the day Kelly Babcock (the alleged victim) died or on the witness stand. There were approximately 10 separate admissions or confessions made by defendant, * * *. It is not plausible, having reviewed this record, to conclude that 10 statements were sufficiently more persuasive than only eight and that the elimination of two would have altered the outcome.' (Fn. omitted.) (63 Cal.2d at pp. 330--331, 46 Cal.Rptr. at p. 523, 405 P.2d at p. 563).

Similarly, in People v. Cotter (1965) 63 Cal.2d 386, 46 Cal.Rptr. 622, 405 P.2d 862 vacated on another ground in Cotter v. California (1967) 386 U.S. 274, 87 S.Ct. 1035, 18 L.Ed.2d 43, the defendant gave a series of seven statements implicating himself in the murder of the alleged victim. The last three of these statements were obtained in violation of Escobedo-Dorado principles but were admitted against the defendant along with the four statements which had been properly obtained. We held that error...