People v. Bazaure

• Decision Date: 10 June 1965
• Docket Number: Cr. 3624
• Citation: 44 Cal.Rptr. 831,235 Cal.App.2d 21
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. David BAZAURE, Defendant and Appellant.

Page 831

44 Cal.Rptr. 831

235 Cal.App.2d 21

The PEOPLE of the State of California, Plaintiff and Respondent, v. David BAZAURE, Defendant and Appellant.

Cr. 3624.

District Court of Appeal, Third District, California.

June 10, 1965.

Rehearing Denied July 2, 1965.

Hearing Denied Aug. 4, 1965.

Scott & Balocco, by Robert Gordon Scott, San Francisco, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Raymond M. Momboisse and Richard K. Turner, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

PIERCE, Presiding Justice.

On June 26, 1963, at approximately 6:40 p. m., at Deuel Vocational Institution, two inmates with knives stabbed an officer. The officer was Connie Wendell Prock, 23 years of age, a novice-guard at the institution. He died that night of the wounds inflicted. Within 20 seconds after the attack he described defendant David Bazaure as an assailant. Suspicion was also cast upon codefendant Doreteo C. Betancourt almost immediately through the discovery by investigating officers of poorly hidden bloodstained trousers which Betancourt admitted were his. That same night the two defendants were placed in separate cells in an isolation unit. They conversed freely between themselves and with other Mexican inmates of the unit. They talked loudly (so their voices would carry from cell to cell). Spanish-speaking officers, assigned in relays to listen, overheard the conversations which continued sporadically most of the night and the next day. The statements of both defendants, related on the witness stand by these officers, demonstrate unequivocally that both had participated in the murder. From time to time one or the other of the two defendants was removed from the unit for questioning by investigating officers. Part of the overheard conversations between the two related to the story each had told or would thereafter tell when called for further questioning.

The two defendants, interrogated separately, gave statements to the investigating officers both before and after their conversations in the isolation unit. Those statements were received in evidence at the trial.

Also, at the trial seven inmates, eyewitnesses to the stabbing, testified for the People. All of them identified Betancourt as an assailant. One, Lacey, identified Bazaure as standing with a knife near the victim. This witness also saw Bazaure depart into a shower room.

The jury convicted both defendants of second degree murder. Only Bazaure has appealed.

Defendant's numerous assignments of error will be considered at length below. With one exception we disallow them. One contention--that extrajudicial statements by the defendant were improperly admitted in evidence under the rules of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361--must be sustained.

Unlike the statements considered in Dorado and Escobedo, those in the case at bench were neither confessions nor incriminating statements. On the contrary, they were, if believed, exculpatory. In the recent case of People v. Hillery, 62 A.C. 726, 44 Cal.Rptr. 30, 401 P.2d 382, filed May 3, 1965, our Supreme Court held that the Dorado rule applies to the prosecution's offer of exculpatory statements obtained under the conditions proscribed as well as to confessions and incriminating statements. Therefore admission of defendant's statements was error. But Hillery also holds (on p. 746, 44 Cal.Rptr. 30, 401 P.2d 382) that the admission of exculpatory statements is not prejudicial per se and that an examination of the record must be made to determine whether under article VI, section 4 1/2 of the California Constitution actual prejudice has occurred. We are convinced that under the facts of this case no prejudice has resulted. Explanation of our reasons will require a detailed treatment of the evidence in the record.

Unit D at Deuel (in which the murder was committed) is a three-tiered unit of a compound of cell blocks; each tier therein having a row of cells running along the east and west sides of the building fronting inward onto four-foot-wide catwalks. These catwalks are separated by an open area from the first floor to the roof. The distance across this area between the outer rails of the east and west catwalks is approximately 10 feet. A catwalk also runs along the north wall of the third tier, connecting the east and west catwalks. In the northwest corner of the building a stairway with a landing midway between each tier runs from the third tier to the first. This leads to the entrance door of the unit (kept locked) located in the center of the north wall (first tier).

The attack occurred at a point along the catwalk in the northeast portion of the third tier. We describe the rooms of this area on the east side running from north to south: The most northerly is a locked storeroom. Adjoining the storeroom is a tiled shower room, the north portion of which is a dressing area, separated from the showers (with four shower heads) by a low tiled step-over partition. An open entrance 42 1/2 inches wide gives access to the shower dressing room from the catwalk. The length of the catwalk from the north end of the shower entrance to the north wall of the building is 8 feet 6 inches. To the south of the shower room is the east side stairway similar to that on the west side described above. The distance separating the south end of the shower entrance and the north end of the stairway entrance is 8 feet. Built into the wall approximately midway between the shower entrance and the east side stairway is a lock control called a lock-box or bar-box, by which the cells of the third tier east are opened and locked as described below.

From the blood on the floor of the catwalk and the description of the attack given by the witnesses, the stabbing occurred on the catwalk of the third tier east at a point near the shower entrance.

At approximately 6:30 p. m., June 26, 1963, the victim, Connie Prock, entered the D Unit north entrance to supervise a shower call. Each boy in the unit had previously been locked in his cell. The practice is to release the boys wishing to take showers one tier at a time. Each side of each tier has a separate lock-box. By manipulating its mechanism all cells on the side of the tier served can be unlocked simultaneously. The guard calls out, e. g., 'shower call west side first tier,' etc. and unlocks all the cell doors of that side and tier. They remain so only for a brief interval during which an inmate wishing to shower steps out, carrying his towel and change of clothing, if any, and proceeds to the showers. The cell doors are then relocked. Thus those intending to take showers are locked out; the others are locked in. There are showers on the east side of each tier excepting the first, where it is on the west side and the boys are permitted to select any of the three regardless of the tier in which their cell is located.

On the day in question, June 26th, Prock opened the lock-boxes progressively from west side to the east side, starting from the first tier upward. Altogether thirty-five inmates answered the shower call and were locked out. When he reached the third tier he opened the west cells first. Bazaure occupied cell 302, Betancourt, 304 (both on the west side). Both were among those who answered the shower call. Both passed Brock on their way to the east side shower on the third tier. They joined other inmates at, near or in the shower room. Prock, having locked the west side cells, proceeded to the east side lock-box. Before the stabbing he had unlocked the east side third-tier cell doors and had locked them again.

None of the eyewitnesses described the commencement of the attack. Inmate Michael Lacey's testimony seems to cover its earliest phase. He was standing on the third-tier catwalk at the top of the third-tier stairs when he heard a thump 'like someone falling.' He looked and saw Betancourt kneeling over the prostrate officer, stabbing him with a knife. Bazaure was standing beside the victim about a foot away. He also had a knife in his hand. The distance separating Lacey from the affray was 6 to 12 feet. Lacey heard Officer Prock scream. Betancourt stabbed Prock a 'half a dozen' times. Lacey did not see Bazaure stab the victim. While Betancourt was stabbing Prock and the officer was struggling to get away, Bazaure went into the shower room. Lacey, moving his position, saw Bazaure go to the open window of the shower room. The witness said: 'I seen him stick his hand out the window like he was dropping something.' (There is a ledge along the window.) Lacey then observed Prock break away from Betancourt and run along the north catwalk and down the west side stairs--still screaming. Betancourt followed a short way and then threw his knife at Prock as the latter ran down the stairs. This knife was later found on the stair landing of the second tier.

Since Betancourt's bloodstained trousers were found soon thereafter stuffed under his locked cell door, it is inferable that Betancourt, before returning to the east side shower to join Bazaure and the other boys there, had removed his trousers, seeking to dispose of them.

There is no point in summarizing in detail the accounts given by the six other inmate eyewitnesses. Their testimony, although differing in detail, is not substantially inconsistent with Lacey's. Bazaure's counsel, pointing out that none of the other witnesses saw Bazaure present or participating in the stabbing, argues this as proof that Lacey was lying. However, the attention of all witnesses was directed to the murderous assault by Prock's screams, by which time, according to Lacey, Bazaure had left the catwalk and had gone into the shower room. Also the point at which the other witnesses fixed Betancourt and the victim when they first saw them was near the northeast corner where counsel...