People v. Adams

• Decision Date: 20 June 1960
• Docket Number: Cr. 6756
• Citation: 182 Cal.App.2d 27,5 Cal.Rptr. 795
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Frank L. ADAMS and Elva L. Straw, Defendants, Frank L. Adams, Defendant and Appellant.

Page 795

5 Cal.Rptr. 795

182 Cal.App.2d 27

PEOPLE of the State of California, Plaintiff and Respondent, v. Frank L. ADAMS and Elva L. Straw, Defendants Frank L. Adams, Defendant and Appellant.

Cr. 6756.

District Court of Appeal, Second District, Division 2, California.

June 20, 1960.

Richard A. Haley, Hollywood, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Philip C. Griffin, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Both defendants were convicted of three counts of kidnapping (Penal Code, § 209) and of two counts of robbery (Penal Code, § 211). They appealed from the judgment of conviction and from the order denying their motion for a new trial. On February 10, 1960, this court granted defendant Straw's request to dismiss his appeal. We therefore consider only the appeal of Adams, the remaining appellant.

The record sufficiently supports the following facts: During the early morning hours of August 22, 1958, the Mayfair Market, located at 8725 South Broadway, in the city of Los Angeles, was robbed of a large sum of money. Defendant Adams was observed in the parking lot of the market at about 9:15 p. m. the previous evening (August 21) by Clifford F. Olmstead, a security officer for the Mayfair Market Company. Adams was accompanied by another person whom Olmstead identified as the other defendant, Straw. Olmstead testified that he watched the pair through binoculars and that he was able to closely observe Adams when he later alighted from the vehicle in which he had been seated. At the trial, Olmstead made a positive identification of Adams as the person he observed in the parking lot. He had also noted the license number of the car in which the defendants were seated and it proved to be registered to Adams.

Also, on the evening of the 21st of August, Robert Miller, assistant grocery manager of the Mayfair Market, closed the store at 8:00 p. m. and proceeded to collect all the cash from the check stands and lock it in a safe in an upstairs office. Alice Louise McKenna and her two children were in the store from about 7:30 p. m., until, in the company of Miller, they left some time after the store was closed. While Mrs. McKenna was waiting for Miller to finish closing the store for the night, she noticed a man who came to the front door. She later identified Adams as the person she saw at the door.

Miller, Mrs. McKenna and her two children left the market and drove to a restaurant in Miller's car. After eating, they drove to Mrs. McKenna's home. As they stopped in front of the house, two men, masked with nylon stockings and armed with revolvers, came upon them from the rear. Miller was forced out of the car at gunpoint and searched for weapons and was then instructed to re-enter the vehicle and lie face down on the floor of the rear seat. Before lying down, Miller observed the features of one of the men, who had taken the driver's seat and who had removed his mask. He positively identified Adams as the person he observed.

The man, later identified as Adams, drove the car about a half block and stopped under a street light. Upon demand, Miller wrote out the combination of the store safe and gave it to the second man, who was riding in the rear seat. The combination was written on a check-cashing courtesy card of Mayfair Markets which Miller had in his pocket. This card was introduced in evidence. After driving several more blocks, Miller again observed the facial features of the driver and at the trial identified Adams as the driver.

The driver returned the car to Mrs. McKenna's house. She and her children were forced into a bedroom where they remained while the following events transpired. Miller was taken into the house, blindfolded and tied with clothes line and made to lie on the floor of the living room. At this time, both assailants were masked. Later the blindfold was removed and Miller was seated in front of a television set which was on and which provided the only illumination in the room. At this time he saw both men without their masks and identified Adams as one of the two men. He was questioned about keys to the market office and it appeared to him that the assailants knew that an alarm would be activated if the wrong key were used in opening the door. The men obtained the keys, blindfolded Miller, engaged in some conversation and then, after a period of time, Miller heard a horn honk and the house became quiet. After a while, the freed himself of his bonds and telephoned the police.

Woodrow Fleming, a janitor, was engaged in cleaning the Mayfair Market when, at about 2:45 a. m., on the morning of August 22d, he was accosted by an armed man. Fleming identified the man as Adams. Fleming was forced to lie down on the floor while his assailant opened the office door. He was then ordered into the office and told to lie on the floor of an anteroom. When he entered the office, the safe was closed. Later, he heard the buzzer go off and then heard someone run down the stairs. When he next looked, the safe was open.

Over $13,000 was missing from the safe and the check cashing card bearing the combination was found next to the open safe door.

In seeking a reversal Adams argues that the deputy district attorney was guilty of prejudicial misconduct in his argument to the jury: (1) in calling the jury's attention to the fact that witnesses Miller and Mrs. McKenna had taken lie detector tests and by inferring that had they not passed those tests, they would not have been witnesses for the prosecution but would have been principals instead; (2) by referring to facts not in evidence; and (3) by referring to his prior convictions as proof of the charge of his having robbed the market.

We first consider Adams' argument that reference by the deputy district attorney to the fact that Miller and Mrs. McKeena had taken a lie detector test coupled with language strongly suggestive of the fact that they had succesfully passed that test, was prejudicial error. The opening argument made by the deputy district attorney was, in part, as follows:

'Mrs. McKenna testified to one other factor, that I feel is important. It was brought out by the defense. It was brought out not only as to her testimony, but it was brought out concerning Mr. Miller, and that is that each of these individuals was subjected to a polygraphic examination. That is a lie detector test. It was brought out in this case to cast some aspersions upon them, but under these circumstances, I am quite certain that each of you appreciates the fact that these individuals would be suspects in this case. There is no legitimate investigator in Los Angeles who would not suspect these persons of participating in the offense. But these persons were then subjected to a polygraphic examination and thereafter, they are called in here as witnesses.

'Now, you may ask, or perhaps you may be curious as to why we did not put on evidence as to the results of the polygraphic examination. * * * It is just not admissible in evidence. * * * That is the answer, clear and simple, but you know one thing. You know one thing for certain. They were subjected to that test. They were interrogated concerning that test, and they are here as witnesses. I am asking you merely to do this. You just have to have some faith in the police officers who represent you, and also in your District Attorney's office. You must have some faith in their interpretation,----'

Mr. Haley: 'Just a moment. The personal thoughts and the personal ideas of the District Attorney are no part of this case, and I ask the Court to admonish the jury.'

Mr. Snyder: 'I will withdraw the question.'

The Court: 'I didn't think your statement went far, but you have withdrawn it anyway.'

The prosecutor, in closing, further argued:

'* * * I also mentioned to you when I first spoke to you that you must necessarily have some faith in the Police Department; also in the District Attorney's Office. I made that statement for a particular purpose. I didn't mean to set up the District Attorney's office or the Police Department as being any gods, that you must necessarily follow what they do or what they may say. I merely brought that to your attention to more or less rebut the inference that Mr. Haley has come up with, this inference that Mr. Haley has of collusion, this inference of a giant conspiracy here on the part of these persons to rob from the Mayfair Market.

'Don't you think Mr. Tidyman who testified from the stand is an experienced police officer? Don't you think that everything Mr. Haley said also came to the attention of this officer and to other officers, and don't you think that these officers interrogated these witnesses and then put them through the ropes, so to speak, in determining whether these persons were principals in this case?

'Mr. Haley by his interpretation and by his argument to you has inferred that what we are using here are accomplices as witnesses and that is a direct attack on the integrity of the District Attorney's Office and also the Police Department.'

Mr. Haley: 'Again he is--'

The Court: 'He is merely answering the argument.'

Again, the deputy district attorney said:

'Mr. Haley has also gone through the testimony of the various persons, Mr. Miller and Mrs. McKenna. He has gone through their testimony with a view to establish the fact that this was conspiracy.

'As you all recall, Mr. Haley brought out the fact that there was a gun. Mrs. McKenna testified that this particular gun that was in the hands of one of these persons was a snub nose .38. He brought to your attention that Mrs. McKenna's ex-husband had a snub nose .38 revolver, and this was brought to your attention for one purpose. You were to conclude from that that the particular man who entered this market was the ex-husband of Mrs. McKenna. Just how stupid do you think the police officers are? Don't you think they went all through that? Don't you think they...