People v. Aikens

• Decision Date: 18 February 1969
• Docket Number: Cr. 10118
• Citation: 74 Cal.Rptr. 882,450 P.2d 258,70 Cal.2d 369
• Court: California Supreme Court
• Parties: , 450 P.2d 258 The PEOPLE, Plaintiff and Respondent, v. Earnest James AIKENS, Jr., Defendant and Appellant.

Page 882

74 Cal.Rptr. 882

70 Cal.2d 369, 450 P.2d 258

The PEOPLE, Plaintiff and Respondent, v. Earnest James AIKENS, Jr., Defendant and Appellant.

Cr. 10118.

Supreme Court of California,

In Bank.

Feb. 18, 1969.

Barbara Goldeen, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas Kerrigan, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

Defendant was indicted for the murders of Kathleen Nell Dodd and Mary Winifred Eaton. The superior court first certified the Dodd case to the juvenile court, because defendant was less than 18 years old when Mrs. Dodd was killed. (See Welf. & Inst.Code, § 604.) The juvenile court declined to take jurisdiction of the case. (See Welf. & Inst. Code, §§ 603; 604, subd. (c); 606.) Defendant was over 18 when Mary Eaton was killed.

Defendant pleaded not guilty to both charges. He, his counsel, and the district attorney stipulated that the two cases could be consolidated and tried by a judge. Judge Berenson found defendant guilty of the first degree murder of both women. As to the Eaton murder the penalty was fixed as death. ¹ The appeal is automatic (Pen.Code, § 1239, subd. (b)).

During the penalty trial, evidence was admitted that the defendant had committed a third murder and a rape. Although defendant had not been charged with or convicted of these crimes, the admission of this evidence was proper. (People v. Mitchell, 63 Cal.2d 805, 815, 816, 48 Cal.Rptr. 371, 409 P.2d 211, cert. den. 384 U.S. 1007, 86 S.Ct. 1985, 16 L.Ed.2d 1021.)

The facts are as follows: On the evening of April 3, 1962, Kathleen Dodd was at home with her two young children. Her husband was out for the evening. Shortly before midnight someone entered the Dodd home, apparently through an unlocked door. The intruder forced Mrs. Dodd to a railway embankment about 1,000 feet from the house. There he raped her. She managed to escape and ran toward some nearby houses. Her assailant caught her in the driveway of one of these houses and inflicted savage wounds with a knife he had taken from the Dodd kitchen. Mrs. Dodd was found in the driveway by a woman who heard screams and by the woman's son. Mrs. Dodd died as a result of her wounds.

Mr. Dodd returned home about 1:30 a.m. on April 4. He was concerned because the television was on and his wife was not in the house. Mr. Dodd decided to call some of Mrs. Dodd's friends. While looking for the phone book, he discovered that $60 in cash was missing.

Some circumstantial evidence connects defendant with this murder. A package of Salem cigarettes was found in the driveway where Mrs. Dodd died. The defendant smoked Salems. The murder weapon was found on an almost direct path between the murder scene and the defendant's home, three blocks away. Defendant wore a green car coat on the evening of April 3, but the coat was never seen after that. On April 4 the defendant's face bore a fresh scratch that had not been there the day before. Two witnesses also testified that shortly after the murder they attended a crap game where the defendant, who was unemployed, had more than $60.

In addition to this circumstantial evidence, defendant made certain statements that tended to implicate him in Mrs. Dodd's murder. The day after the crime defendant confessed to Mike Dixon, a friend of his. For much of the time between April 1962 and April 1965 the defendant was imprisoned for other offenses. During this period he confessed to three fellow prisoners and made substantial admissions to a fourth. Defendant also made damaging admissions to a deputy sheriff who guarded him during the trial. When Mr. Dodd was on the stand, defendant said 'He wouldn't know that unless someone told him.' While the woman who found Mrs. Dodd was testifying, the defendant said, 'She is saying things that only I know.' And later he said that the woman and her son, who had carried a rifle, were 'out there to kill me.'

Defendant's mother testified that the defendant was at home when the murder was committed. Her testimony was impeached, however, and the judge stated that he did not believe her.

Mary Eaton was raped and stabbed to death on April 26, 1965. The murder occurred in the Eaton home, probably between 11 a.m. and 1 p.m.

Mr. Eaton testified, with admitted uncertainty, that before he left for work the Eaton's grocery purse contained a five-dollar bill, another dollar or two, and some change. He also believed that Mrs. Eaton had two five-dollar bills in her wallet. After the murder neither the purse nor the wallet contained any money.

Before the trial defendant claimed he was home between 10 a.m. and noon on April 26. His mother said that she phoned him there once at 10:25 and again between 10:30 and 10:50. Two prosecution and three defense witnesses placed the defendant in other locations at 10:30, about 10:30, between 10 and 11, between 10:30 and 11:30, and between 10 and 12.

Around noon defendant approached the Shinivar house, which is across the street from the Eaton house. Defendant asked Mr. Shinivar if the latter needed to have his grass cut. Mr. Shinivar said no but offered defendant a dollar to catch a gopher that was burrowing under the Shinivar lawn. Defendant left the Shinivars' and went down the block to the Lopez home. Mrs. Lopez declined to hire defendant, and he left her house at approximately 12:25 p.m. About that time Mr. Shinivar saw defendant approaching the Eaton house.

Sometime before 1 o'clock defendant returned to the Shinivars'. He was carrying a broken cultivator and a straightened coat hanger, which he had obtained at the Eatons'. Defendant poked at the gopher holes for a while. A little after one he left the Shinivars' and walked the one block to his home. His parole agent was waiting there for him.

Circumstantial evidence also connects defendant to the Eaton murder. He was acquainted with the Eaton family and could have secured entry to the Eaton house by guile. Two red wool fibers were found on one of defendant's shirts. These fibers could have come from a blanket in the room where the victim was found. Substantial, though not conclusive, evidence indicates that defendant was wearing the shirt with the fibers when the murder was committed.

On April 26 and April 27 defendant spent about $20, including three five-dollar bills. A great deal of evidence shows that defendant was broke on the morning of the 26th. However, several weeks earlier his mother had given him $46 or $56 with which to buy clothes; and his mother may also have given him a dollar or two the morning of the murder.

During the evening of April 26 defendant gave Mrs. Eaton's wedding ring to one girl friend and gave Mrs. Eaton's engagement ring to another. At different times defendant offered several explanations of how he came to possess the rings. He said that he found them in the Eaton backyard, that he had owned them for a long time, and that he bought them from a man on a street corner.

Besides defendant's many statements concerning the rings and other matters, defendant made some admissions and suggestive statements. While riding in his parole agent's car on the 26th defendant said, 'It seems like every time things start to go well for me something happens to mess it up.' Early the next morning defendant told an acquaintance with whom he was returning home, 'the police will probably be waiting for me when I gets (sic) back.' However, this statement might only reflect defendant's fear that his mother had called the police when he had not come home long after his curfew.

On April 27 defendant told Inspector King, the Ventura chief of detectives, that he had been broke on the morning of the murder. And on April 29 defendant said to Inspector King, 'it was between eleven and twelve o'clock when she was dead. I know goddamn well I was at home then.' At that time defendant had not been told that Mrs. Eaton died between 11 and 12.

Bobby Williamson, who was in the county jail with defendant, testified that on August 19, 1965, defendant said that he would kill 'someone else' if they did not get him out of jail. Mr. Williamson, however, also admitted that he had been released from jail on August 10, 1965. In October defendant told a policeman, 'Well, look, I'm a marked man.' Defendant then described some of his other arrests and said, 'And now a story about some rings, I'm doomed.'

Finally, in May of 1965 defendant told a prisoner in the county jail that he (defendant) had killed Mrs. Eaton, but had not raped her.

Defendant's appointed appellate counsel urges six grounds for reversing defendant's convictions: (1) The two cases should not have been consolidated; (2) defendant did not make a knowing and intelligent waiver of his right to a jury trial; (3) Mrs. DeLorenzo testified to a statement obtained from defendant in violation of his right to counsel; (4) the evidence would be insufficient if the testimony of certain witnesses were disregarded; (5) the court failed to consider whether a subjective mental abnormality prevented defendant from being legally guilty of first degree murder; (6) defendant had ineffective representation by counsel.

The two cases were properly consolidated. Although defendant was less than 18 when he murdered Mrs. Dodd, he was 20 when brought to trial for that murder. The juvenile court could have assumed jurisdiction of the Dodd case (see Welf. & Inst.Code, § 604), but it was not required to and refused to do so.

Nor is it relevant on the issue of consolidation that defendant could not receive the death penalty for the Dodd murder. The standards governing the penalty phase of the case could have no bearing on the separate guilt trial.

Section 954 of the Penal Code permits the joinder of two different offenses of the same class. Both the indictments against defendant were for first degree murder; and the pattern of the two crimes was similar (see ...