People v. Blair

• Decision Date: 21 November 1969
• Docket Number: Cr. 3611
• Citation: 2 Cal.App.3d 249,82 Cal.Rptr. 673
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Douglas Eugene BLAIR, Defendant and Appellant.

Page 673

82 Cal.Rptr. 673

2 Cal.App.3d 249

The PEOPLE of the State of California, Plaintiff and Respondent, v. Douglas Eugene BLAIR, Defendant and Appellant.

Cr. 3611.

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

Nov. 21, 1969.

[2 Cal.App.3d 252] Joseph J. Storto, Riverside, for defendant and appellant.

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

OPINION

MITCHELL, Associate Justice pro tem. ^*

The defendant was charged with: (a) robbery (Penal Code, section 211), Count I; (b) kidnaping (Penal Code, section 209) for the purpose of robbery, Count II; (c) kidnaping (Penal Code, section 209) for the purpose of robbery, Count III; and (d) receiving stolen property (Penal Code, section 496), Count IV. In a jury trial, defendant was found guilty on all four counts. The defendant appeals from the judgment and from the order denying his motion for a new trial. However, the order denying a new trial is nonappealable. (People v. DeLeon, 236 Cal.App.2d 530, 533, 46 Cal.Rptr. 241; Penal Code, section 1237.)

The evidence disclosed that Mr. and Mrs. Susman were robbed, at their home, of currency and other valuables by an armed, masked man. The Susmans could not identify the robber. The stolen property was found by police in defendant's home or place of employment. Also found at defendant's place of employment, were clothes matching the description of those worn by the robber.

Sergeant Wall, of the Palm Springs Police Department, testified to a conversation with defendant in which the latter stated that he had 'thought about pulling it, (the robbery) but didn't,' and that he knew about the robbery.

The defendant testified that he told Sergeant Wall that he thought about committing the robbery and talked to his brother about it but abandoned the idea after he got a job. Defendant stated he knew nothing of the stolen money and valuables found at his home and place of employment.

Defendant's brother, who had previously plead guilty to the crime, testified that he had committed the robbery and his brother had not participated in it. He explained that he placed the contraband in his brother's house and place of employment without his brother's knowledge. Apparently he was living in defendant's house at the time of the robbery.

A tape recording of a conversation between defendant and his brother, at the police station, was introduced into evidence. In the conversation defendant's brother indicated that he pulled the job to help defendant, who at the time of the robbery had his arm in a case. Defendant made statements indicating his knowledge of the robbery. Most of his statements were an attempt to get his brother to take full blame for the robbery.

There was testimony of other witnesses that defendant had inquired regarding the amount of money Susmans kept around the house.

There was testimony that defendant had his right arm in a cast at the time of the robbery. Mr. Susman testified that the robber held the gun in a 'peculiar fashion'; that '(h)e was holding his arm without vibration, holding it real firm.' Mrs. Susman also testified as to how 'rigid' the robber held the gun.

Defendant's main argument is that the trial court erroneously admitted into evidence the tape recording of the conversation between his brother and himself.

The uncontradicted testimony of Sergeant Wall of the Palm Springs Police Department was that the defendant expressed a desire to talk to him; that upon being brought to his office the Sergeant informed the defendant of his Miranda rights; and that he asked defendant if he understood his rights. Defendant's counsel stipulated the officer gave a proper advisement.

The defendant then told the Sergeant that he knew about the robbery of which he and his brother had been charged--who had committed it and the location of the stolen property. He wished to tell Sergeant Wall about it but wanted to first talk to his brother, who was also in custody. He was told that their conversation would be recorded. He was asked more than one time if his brother, knowing this, would talk to him about the robbery at all. The defendant replied that 'he didn't know, all he could do was try (to get him to tell about it).'

The two brothers were ushered into an interrogation room in the police building where they talked. Their conversation was recorded. The defendant previously had asked Sergeant Wall about the existence of an attorney's room and was told that there was one. No request for the use of this room was made nor was defendant told that the interrogation room was an attorney's room. Defendant told his brother that the room where they were conversing was the attorney's room.

At the conclusion of the conference the defendant told Sergeant Wall that his brother had refused to cooperate and he (defendant) was going to deny the robbery.

During the presentation of the People's case, the tape was offered in evidence. The defendant objected on Fourth Amendment grounds, but the ruling thereon was deferred. After the defense had rested, the tape was received in evidence as a part of the prosecution's rebuttal and defendant's previous objection, which he renewed, was overruled. After the tape had been played and heard by the jury, the court instructed the jury as follows:

'The tape recording admitted into evidence in this trial, and the conversation contained therein, were offered into evidence and received for the sole purpose of impeaching witnesses and is not to be considered by you as proof of any fact alluded to therein by either party to the conversation. I do not mean to imply by anything I have said that any witness was, in fact, impeached by such recording, but you are instructed that statements contained therein were offered and received only for that purpose.'

CONFIDENTIAL COMMUNICATION

Defendant argues that the receipt, in evidence, of the tape and its contents was prejudicially erroneous and violative of section 653j of the Penal Code. Although this section had been repealed prior to commission of the offense charged, in substance it was reenacted in Penal Code, section 632. Accordingly, we will treat defendant's argument as if it were based on section 632. That section, subdivision (d), provides:

'* * * no evidence obtained as a result of eavesdropping upon or recording a confidential communication In violation of this section shall be admissible in any judicial * * * proceeding.' (Emphasis added.)

Subdivision (c) of section 632 of the Penal Code describes and defines 'confidential communication' and specifically Excludes a communication made under 'circumstance(s) in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.'

Before admitting the tape in evidence the trial court satisfied itself that the circumstances were such that at least the defendant expected that the same was being recorded. This finding is supported by the uncontradicted testimony of Sergeant Wall that twice he told the defendant that any conversation between the defendant and his brother would be recorded.

Although the defendant indicated to his brother that the room where they conversed was an attorney's room, arguably implying their conversation would not be recorded, his brother is not challenging the admission of the tape recording. Moreover, Penal Code, section 633 exempts law enforcement officers from the operation of section 632 to the extent that they could lawfully overhear conversation prior to the enactment of section 632. This type of conversation could have been recorded prior to section 632. (People v. Chandler, 262 Cal.App.2d 350, 68 Cal.Rptr. 645; People v. Apodaca, 252 Cal.App.2d 656, 60 Cal.Rptr. 782; People v. Morgan, 197 Cal.App.2d 90, 16 Cal.Rptr. 838.) We find there was no violation of Penal Code, section 632.

DECEPTIVE PRACTICE

Defendant suggests in issue of 'deceptive practice' on the part of Sergeant Wall. This issue was presented to the trial court which found against the defendant. The finding is supported by the evidence.

Defendant argues that by not specifically telling him the room was not an attorney's room, Sergeant Wall illegally obtained the statements made by defendant. Where police are engaged in a process of interrogation lending itself to eliciting incriminating statements, the use of deception which induces confessions or admissions cannot be condoned. However, here the uncontradicted record shows that the defendant sought out the officer; expressed an intention of disclosing his information of the alleged robbery; requested permission to talk to his brother; and was twice told by the officer that all rooms in the jail are 'bugged.'

The officer was not 'involved' in any effort to procure or induce any statement by the defendant. The fact that the defendant inquired about the existence of an attorney's room does not compel an inference that he was induced to believe that, in spite of the warning to the contrary, his conversation with his brother would not be monitored....