People v. Alverson

• Decision Date: 04 February 1964
• Docket Number: Cr. 7479
• Citation: 60 Cal.2d 803,388 P.2d 711,36 Cal.Rptr. 479
• Court: California Supreme Court
• Parties: , 388 P.2d 711 The PEOPLE, Plaintiff and Respondent, v. James William ALVERSON, Defendant and Appellant.

Page 479

36 Cal.Rptr. 479

60 Cal.2d 803, 388 P.2d 711

The PEOPLE, Plaintiff and Respondent, v. James William ALVERSON, Defendant and Appellant.

Cr. 7479.

Supreme Court of California, In Bank.

Feb. 4, 1964.

Daniel J. Jaffe, Beverly Hills, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

Alverson, Stoner and Williamson were jointly charged with and tried for burglary. Five prior convictions were charged against and admitted by Alverson, and one prior was charged against and admitted by Williamson. The jury found Alverson and Stoner guilty of second degree burglary, and acquitted Williamson. Alverson alone appeals.

The charged burglary was of a radio store in Los Angeles. There is no need to recite the evidence in detail. For the purposes of this appeal all that need be stated is that at the close of the evidence the prosecution's case against Williamson was strong, and, comparatively, was weak against the two other defendants, except for the testimony of Williamson. The latter had been positively identified as the driver of the getaway car, and when stopped by the police, had fled the scene. When arrested he had given extrajudicial statements to the police which were recorded and introduced against him. In those statements, not admitted against his codefendants, he admitted driving the getaway car and fleeing the scene, but claimed that he did not know of the burglary until the other two defendants got into the car, told him that they had burglarized the radio store, and advised him to drive away. He gave as his reason for fleeing the scene when accosted by the police that he was afraid to be found with the other defendants because of his prior conviction. At the trial he took the stand in his own defense and testified to the same story, including a positive identification of the two codefendants as the perpetrators of the crime. This judicial statement was, properly, admitted, not only against Williamson, but against Alverson and Stoner as well.

As already pointed out, except for this testimony of Williamson, the case against appellant and Stoner was comparatively weak. The prosecution had been unable to produce any direct evidence of identification of these two defendants as participants in the crime. It had introduced circumstantial evidence of certain suspicious facts that tended to connect them with the crime, but this evidence was of such a character that, while it may have sustained a conviction, such a conviction would have been doubtful. Both Stoner and appellant had taken the stand, denied any participation in the crime, and offered alibis. These alibis were supported by independent testimony.

This was the position of the case at the close of the evidence. If the jury believed Williamson's testimony identifying the two codefendants as the perpetrators of the crime, but disbelieved him, as it could well have done, as to his testimony of any knowledge of the crime prior to its commission, then Williamson would, obviously, have been an accomplice, and his testimony would have to be corroborated. But if the jury could be induced to find that Williamson had no knowledge of the crime until after it was committed, then it could find that he was not an accomplice, and his testimony alone would be sufficient to convict his two codefendants. The prosecutor was faced with a difficult dilemma. If he argued that Williamson was not to be believed as to his lack of prior knowledge of the crime, but to be believed as to his identification of his two codefendants, he would not only be making Williamson an accomplice whose testimony had to be corroborated, but he would also be faced with the instruction 'That a witness false in one part of his testimony is to be distrusted in others.' (Code Civ.Proc. § 2061, subd. 3.) To make such an argument might will result in the acquittal of Alverson and Stoner, and might not result in the conviction of Williamson. But if the prosecutor could induce the jury to believe all of Williamson's testimony, then, although Williamson would be acquitted, the case against the other two defendants would be unmeasurably strengthended. If the jury disbelieved all of Williamson's testimony the case against Alverson and Stoner would almost certainly collapse.

Under these circumstances the prosecutor decided to salvage what he could. He decided to ask the jury to acquit Williamson and to believe his entire story, and so, by necessary implication, to disbelieve Alverson and Stoner. He waited until his closing argument, that period in the trial referred to in People v. Perez, 58 Cal.2d 229, 245, 23 Cal.Rptr. 569, 373 P.2d 617, as 'that especially critical period,' and then told the jury that he found himself in a most unusual but 'delightful' situation: 'A man here, Mr. Williamson, has been charged along with two others, Mr. Alverson and Mr. Stoner, and quite frankly in my own mind I think Mr. Williamson is telling you the truth, and quite frankly I do not think he is guilty of this charge.

'The defendant here, Williamson, has taken the stand. He has told what I consider is a plausible, honest, forthright story. * * *

'All right, the testimony you have heard, it's up to you to determine whether, in fact, he is telling the truth; whether, in fact, he is guilty or innocent of the charge. I express to you my own opinion, i express to you what I think the evidence has shown, and I wouldn't make the statement until all of the evidence is in. * * *

'I am beginning to sound like a defense counsel, but this is the duty of a District Attorney, of the prosecutor, not to convict innocent people, it's to convict the guilty, and I will leave it very simply, very plainly with you here.'

It was, of course, quite praiseworthy for the prosecutor to tell the jury that he did not want to convict an innocent man. But in a trial in which other defendants are involved the prosecutor must be scrupulous not to affect, adversely and improperly, the rights of the other defendants. Of course, when he stated that he wanted the jury to acquit Williamson because he personally thought he was innocent, and when he stated that he would not want to convict a man he personally thought was innocent, he, necessarily, by continuing to prosecute the other two defendants, was stating that he personally believed them to be guilty.

There were other procedures available to the prosecutor by which he could have protected Williamson without adversely affecting the other two defendants. Once he became convinced of Williamson's innocence, he could have moved for a mistrial. But we agree with respondent that such a remedy would have been cumbersome, expensive and dilatory. He could have also moved, prior to the defendants starting their case, to dismiss against Williamson under section 1099 of the Penal Code, and then called him as a witness for the prosecution. That section provides: 'When two or more defendants are included in the same accusatory pleading, the court may, at any time before the defendants have gone into their defense, on the application of the prosecuting attorney, direct any defendant to be discharged, that he may be a witness for the people.' It is true that a motion under this section must be made before the defendants start their defense, but the prosecutor knew how Williamson was going to testify. This is so because, as already pointed out, after his arrest Williamson had given several recorded statements to the police that were available to the prosecutor. These statements were substantially in accord with his subsequent testimony. But, understandably, the prosecutor, who could not use the recorded statements of Williamson against Alverson and Stoner because, as to them, they were hearsay, wanted to wait and see how Williamson's testimony affected the jury. At any rate he decided to wait to make his move until after Williamson had testified.

But, after Williamson and the other defendants had taken the stand, the prosecutor had still another possibility open to him. He could have moved to dismiss under section 1385 of the Penal Code. That section, in its pertinent part, provides: 'The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes.' This section, unlike section 1099, permits such a motion to be made at any time during the trial, even after the defense has started. In a trial involving several defendants, it would appear that the argument on such a motion should be made outside the presence of the jury so as to not adversely affect the other defendants.

The prosecuting attorney did not see fit to use any of these alternatives. As already pointed out, he waited until Williamson had testified, and then, not in his opening but in his closing argument, asked the jury to believe Williamson, to acquit him and to convict the other two defendants. He did this on the representation that he personally believed Williamson's testimony exonerating himself and implicating the other two defendants. Thus he necessarily implied that he personally believed that Alverson and Stoner and their alibi witnesses were lying. The Attorney General concedes that by such tactics the prosecuting attorney in this fashion gained an advantage over the other two defendants. He states: 'It is certainly true that the District Attorney gains an advantage of sorts. He appears before the jury as a man who has demonstrated in a striking instance how fair he is, and the jurors may regard the rest of what he says and does in a more favorable light.' But, the Attorney General then argues, that 'our solicitude for the defendant who receives the benefit of the recommendation should...