People v. Beivelman

• Decision Date: 23 December 1968
• Docket Number: Cr. 11332
• Court: California Supreme Court
• Parties: , 447 P.2d 913 The PEOPLE, Plaintiff and Respondent, v. Gerald Albert BEIVELMAN, Defendant and Appellant.

Page 521

73 Cal.Rptr. 521

70 Cal.2d 60, 447 P.2d 913

The PEOPLE, Plaintiff and Respondent, v. Gerald Albert BEIVELMAN, Defendant and Appellant.

Cr. 11332.

Supreme Court of California In Bank.

Dec. 23, 1968.

Gerald Albert Beivelman, in pro. per., and Howard A. Potts, Sacramento, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Charles P. Just, Deputy Atty. Gen., for plaintiff and respondent.

McCOMB, Justice.

A jury found defendant guilty of first degree robbery, first degree burglary, and first degree murder of Sylvera Marie McGraw. It fixed the penalty for murder at death. Sentences on the robbery and burglary counts were stayed pending final determination of this automatic appeal (Pen.Code, § 1239, subd. (b)).

Facts: The victim and her husband owned and operated a liquor store known as the Bank Bottle Shop, located in a shopping center in Sacramento. Mr. McGraw operated the store on week days and it was customary for Mrs. McGraw to operate the store alone on Sundays, as she did on Sunday, March 12, 1967, the day of her death. She was alive and alone in the store a few minutes before 3 p.m. when a customer, Mr. Nyquist, made a purchase.

Shortly after 3 p.m. Mr. Wendell C. Olson passed the Bank Bottle Shop on his way to the premises next door. He saw an unoccupied, cream-colored Thunder-bird automobile parked in front of the bottle shop with the engine running. Mr. Olson did not look into the bottle shop and heard no noises coming therefrom.

Francesca Lee, 11 years of age, went to a grocery store in the shopping center on March 12 on an errand for her mother. As she walked past the Bank Bottle Shop she saw 'a pair of legs lying down on the floor' with blood on them. Returning from the grocery store approximately five minutes later, she again passed the bottle shop on her way home. At that time she saw a man in front of the bottle shop coming from the direction of the door, get into a car parked in front of the shop and drive away. He had blood on him and was carrying a hammer. He appeared to have an injured leg, as he was limping and almost fell as he got into the car. The car accelerated rapidly as it drove away and scraped the curb.

Francesca looked into the store and saw the same pair of legs in the same place that she had observed earlier. She thought it was about 3:25 p.m. when she left her home to go to the store. She subsequently reported what she had seen to the police on that same day. She told the officers she did not think she could recognize the man she had seen because of the amount of blood on his face. The man was described to the officers by Francesca as having dark brown hair, about 5 feet 8 or 5 feet 10 inches tall, weighing about 150 pounds, having narrow shoulders and a medium build. She identified defendant at a police lineup and at the trial.

At approximately 3:15 p.m. on March 12, Donald E. Haskin, an employee of a grocery store in the shopping center, having been informed by a neighborhood boy that something was wrong at the bottle shop, went to the shop. Through the glass door he observed someone on the floor covered with blood. The person appeared to to be badly hurt and was rocking back and forth. Haskin called the police, who arrived in approximately five minutes. There was no automobile in front of the shop when Haskin was there.

At 3:21 p.m. on March 12, 1967, Officer Spurgin of the Sacramento Police Department received a radio call in his patrol car to proceed to the bottle shop, and arrived there at 3:25 p.m. He made a preliminary examination of the premises, determined that the victim was dead, observed deep wounds on the victim's head and a great amount of blood on and surrounding the body. There was considerable evidence of a struggle having taken place, including broken wine bottles and a pair of broken glasses. A man's white rain hat was on the floor; blood, type O, was found on it, and also, human hair that could not be distinguished from defendant's hair. The drawer of the cash register was open, with blood on the front and top of the cash register.

Between 3:30 and 4:30 p.m. on March 12, Mr. and Mrs. Albert J. Shuman were driving on Freeport Boulevard near Florin Road. As the Shumans turned off Florin Road and headed north on Freeport Boulevard they saw a 1962 Thunderbird automobile, white or cream-colored, stopped on the right-hand side of the road. They recognized the make and model of the car because they own one like it. The sole occupant of this car was pushing or throwing articles out the window on the passenger's side toward a ditch alongside the road. Mr. and Mrs. Shuman were disturbed by this 'litterbugging' activity and memorized the license number of the car, JRX 522. Mrs. Shuman, who was driving, glanced at the occupant of the Thunderbird as she passed it and noticed that he had dark hair and looked pale, as if he were ill. Mr. Shuman paid particular attention to the driver of the Thunderbird, who appeared to be 'awfully pale,' and it was Mr. Shuman's impression that the man was ill. After seeing a television news broadcast concerning the murder and robbery, the Shumans reported their observations to the police. Mr. Shuman subsequently identified defendant at a police lineup and made an in-court identification.

At approximately 4 p.m. on March 12, Betty Barham was standing at the doorway of her apartment at 2520 S Street, Sacramento, talking with a neighbor when a light colored car drove up and a young man got out. He appeared to have an injured leg and was hopping on one foot. He fell down, and when Mrs. Barham asked if she could be of help he asked her to call his brother-in-law, Ron Silva. Mr. Silva arrived and carried the man to the Silva's apartment at 2530 S Street.

In the early morning of March 14 officers of the Sacramento Police Department went to the location on Freeport Boulevard given them by Mr. and Mrs. Shuman, near a golf course, and recovered various items of clothing, including a shirt, a blue jacket, trousers, socks, a hammer, ¹ some blue paper towels, and a paper sack. There was blood on all the clothing except the socks, the blood being classified as human, type O. The hammer was identified by Francesca Lee as being like the one carried by defendant as he left the front of the bottle shop. Human hair was discovered on the hammer that could not be distinguished from the hair of the victim, Mrs. McGraw. Hair discovered on the shirt was the same as, and could not be distinguished from, defendant's hair. Hair discovered on the pants was similar to defendant's hair; additional hair on the pants was similar to the victim's hair. There was a strong odor of wine about the clothing, particularly the shirt. The shirt, pants, and blue jacket were identified as being the same in appearance as clothing worn by defendant during February 1967.

The clothing worn by the victim at the time of the murder was saturated with with blood, which was determined to be type O, and there was an odor of wine about her clothing.

An autopsy performed by Dr. MacDonald, autopsy surgeon for the coroner's office, revealed that Mrs. McGraw had suffered approximately 50 to 70 wounds about the head, arms and legs. All wounds of medical significance were in the area of the scalp. There was a major wound across the forehead at the hairline that penetrated through the skull, an explosion type wound on the right side of the head behind the ear, and a similar wound on the back of the skull. At the left end of the forehead wound there was an unusual puncture type wound. There were three general types of wounds, jagged lacerations, small punctures and explosion-type wounds.

After the hammer was recovered by the police, Dr. MacDonald re-examined the deceased to compare the size and shape of her wounds with the projections on the hammer. The shapes of the various protuberances and surfaces of the hammer fitted precisely the wounds inflicted upon the victim. Dr. MacDonald testified that the cause of death was 'a combination of blood loss, externally, and concussion, secondary to multiple wounds about the head.' The victim had bled profusely, with the result that there was very little blood left in her body; the heart and major vessels were essentially empty. Some wounds had been inflicted after the victim had ceased to struggle.

The day after Mrs. McGraw was murdered, Dr. Max D. Shaffrath treated defendant for a fractured right knee. Defendant was on crutches, and there was considerable swelling about the knee. The doctor diagnosed his condition as a fracture of the thigh bone, extending into the knee; there was no displacement of the bone. There was no wound or laceration on the leg, and a cast extending from the grion to the ankle was applied. It was Dr. Shaffrath's opinion that the fracture could have been the result of a fall from a standing position onto a hard surface. Defendant told the doctor that he had fallen on his leg while in a service station on Florin Road.

The following day at approximately 9:15 a.m. Officer Redney L. Johnsen of the Sacramento Police Department was notified that an ambulance had been requested at apartment 1, 2530 S Street. He proceeded to that address and was admitted by Mrs. Bonni Silva, defendant's sister. Defendant was unconscious on a mattress on the living room floor. The officer identified defendant and took him into custody. The ambulance arrived, and defendant was transported to the hospital. Officer Johnsen followed the ambulance in his patrol car, remained with defendant at the hospital, and was present when a blood sample was taken from defendant. Defendant was examined by doctors at the hospital, and no wounds or lacerations other than some minor scratches were discovered.

A 1962 Thunderbird automobile with California license plate JRX 522 was located in the parking lot at 2530 S Street (the parking lot adjacent to...