People v. Brawley

• Decision Date: 21 November 1969
• Docket Number: Cr. 10838
• Citation: 461 P.2d 361,1 Cal.3d 277,82 Cal.Rptr. 161
• Court: California Supreme Court
• Parties: , 461 P.2d 361 The PEOPLE, Plaintiff and Respondent, v. Kenneth Lloyd BRAWLEY and Larry Andrew Baker, Defendants and Appellants.

Page 161

82 Cal.Rptr. 161

1 Cal.3d 277, 461 P.2d 361

The PEOPLE, Plaintiff and Respondent, v. Kenneth Lloyd BRAWLEY and Larry Andrew Baker, Defendants and Appellants.

Cr. 10838.

Supreme Court of California In Bank.

Nov. 21, 1969.

Larry Andrew Baker, in pro. per., Frank G. Prantil, San Diego, and Hubert C. Cavanagh, under appointments by the Supreme Court, for defendants and appellants.

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

BURKE, Justice.

An indictment was filed charging Kenneth Brawley and Larry Baker with the murder and robbery of Edwin Brewer. A jury found both defendants guilty of first degree murder and first degree robbery and fixed their penalty at death for the murder. The jury also found that Brawley but not Baker was armed with a deadly weapon at the time of the robbery. Motions for a new trial and for reduction of the death penalty were denied, and defendants' automatic appeal is now before us (Pen.Code, § 1239, subd. (b)).

Defendants attack the judgment on various grounds hereafter discussed. We have concluded that the judgments as to guilt should be affirmed but that under the compulsion of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 776 the death penalties must be set aside because the jury was chosen by excluding veniremen for cause on a basis that was not permissible under Witherspoon. It is therefore necessary that defendants be remanded to the trial court for a new trial limited to the issue of penalty for the murder.

About 3 a.m. on July 23, 1966, the body of Edwin Brewer, a 35-year-old cabdriver, was discovered by the police near his cab behind an apartment house in National City. The police were called by a resident of the apartment house, who found the cab in his parking space about 12:30 a.m. and upon seeing the cab still there a little over an hour later looked inside it and saw a knife and blood.

Decedent worked a 5 p.m. to 3:30 a.m. shift for a cab company and reported for work at his usual time on Friday, July 22. His friend, Mrs. Concetta Floridi, testified that she last saw him about 8:45 p.m. on July 22 when he brought her a few groceries. Evidence was introduced of prior statements by her placing the time she last saw him around an hour later. The last entry in his 'trip sheet' showed that he picked up two passengers at 9 p.m., and the space for the time of the completion of the trip was blank.

The autopsy surgeon testified that the cause of the victim's death was multiple stab wounds of the chest, lungs and heart, and thoracic hemorrhages; that there were 18 lacerations, many of which were in the back; and that all of the lacerations 'could' have been inflicted by the knife found in the cab. A chemical examination revealed that blood on the knife blade was type O human blood, the same type as that of the decedent.

Fingerprints and a palm print on the cab were identified as those of Brawley, and there was blood 'in the fingerprint area' of one of the fingerprints. A footprint a few inches from the victim's body was made by a shoe having the same shape and length of sole and heel as that of a shoe belonging to Brawley, and a witness testified that Brawley was wearing such shoes on the afternoon of July 22.

Brawley and Baker were confined in the disciplinary barracks of the United States Naval Station in San Diego immediately before the time decedent was killed. During the morning of July 21, Brawley asked Stephen Glaze, a sailor confined at the barracks, if he knew where some wire and gloves could be found. (This will be referred to as the first statement.) Glaze replied that he did not but later that same morning upon finding some wire gave it to Brawley and asked what he wanted it for. Brawley answered that 'they' were going to choke and kill a cabdriver and take his money; that Brawley and two other men planned to go 'AWOL' the following Saturday but 'they' decided to go Friday after the 4:45 muster because 'they' did not want one member to go along; that 'they' were going to go downtown and catch a cab and, after killing the driver and taking his money, go east to Brawley's home. Glaze first testified that during this conversation Brawley did not inform him who the other men were, then testified that he did not remember whether Brawley mentioned Baker's name, and thereafter stated that he recalled it was during the conversation Brawley mentioned Baker's name in connection with going 'AWOL.' At the same conversation Brawley told Glaze that he would consider 'taking (Glaze) along if (Glaze) wanted to go AWOL with them.' (The statements at the second conversation will be referred to as the second statement.) When Glaze gave the wire to Brawley, Brawley displayed two pairs of gloves he had obtained.

In the afternoon of the same day Glaze saw Brawley take a knife from the commissary and heard him say, 'This would be better than the wire. We could stab him, slit his throat.' (This will be referred to as the third statement.) According to Glaze, the knife Brawley took was the one later found in the cab, and a meat cutter at the commissary testified that the knife found in the cab was one that was missing from the commissary--that he recognized the knife by the way it was sharpened and its general characteristics.

On the evening of July 21 Brawley and Baker were seen talking together at the barracks. Shortly before 4:45 p.m. on July 22 Brawley took the knife and wire from his locker and handed the wire to Baker, and Baker stated, 'We won't need this now.' Brawley also took gloves from his locker, and he and Baker each put a pair under his clothing. Brawley and Baker were seen together heading toward a bus stop at the base after the 4:45 muster on July 22.

One week after the deceased's body was found Brawley and Baker were arrested together in Illinois. After the arrest an officer took an empty wallet from Baker. Mrs. Floridi identified the wallet as one the decedent carried on the night of his death. She further testified that she had given the wallet to decedent as a gift, that it was an inexpensive one she had purchased at a drugstore, that the distinctive things about the wallet which enabled her to identify it were that it was black and had specified pockets, and that she was 'positive' the wallet taken from Baker was the one she gave decedent. The words 'buffalo calf' were on the wallet taken from Baker. Mr. Floridi told an officer that the decedent had a pigskin wallet.

No wallet was found on the decedent's body nor were there any coins on the body except a silver dollar that was part of a belt. There was $12 in bills in his pocket. Mrs. Floridi testified that he had over $30 in his wallet after paying for their dinner between 7:15 and 8:15 p.m. on July 22. She further testified that he carried a changer in which he kept small change and that a changer found in a year a few blocks from the cab on the morning of July 23, 1966, was the decedent's. No changer was near the decedent.

The only defense witness at the guilt trial was a police officer, who was questioned regarding prior statements of prosecution witnesses. The defense arguments at the guilt trial concerned whether the prosecution had proved guilt beyond a reasonable doubt.

The court granted the prosecution's motion that evidence received at the guilt trial be admitted at the penalty trial, and additional evidence was introduced by the prosecution and Brawley.

Asserted Error (1) in Denying Motion for Severance Made on the Ground that the Prosecution Would Introduce Evidence of Brawley's Statements to Glaze, (2) in Admitting that Evidence, and (3) in Failing to Give on the Court's Own Motion an Instruction Relating Thereto

Before the trial Baker made a motion for severance on the ground that the prosecution would introduce testimony by Glaze regarding extrajudicial statements of Brawley that implicated Baker. The motion was opposed by the prosecutor, who indicated that the statements were admissible against both defendants under the coconspirators' exception to the hearsay rule. The court denied the motion, and at the trial the previously recited statements of Brawley to Glaze were testified to by Glaze over objection by Baker.

Baker contends that the court erred in denying the motion for severance and admitting the evidence of the extrajudicial statements without deleting all parts implicating him because, assertedly, there was insufficient proof of the existence of a conspiracy apart from the evidence of the extrajudicial statements and the rules in People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265, were therefore applicable. Under the Aranda rules the court must adopt one of three alternative procedures (namely, effectively delete parts of extrajudicial statement implicating codefendant without prejudice to the declarant, grant severance or exclude extrajudicial statement) when the prosecution proposes to introduce into evidence an extrajudicial statement of one defendant that implicates a codefendant. Those rules were adopted to obviate the risk that the jury would be incapable of following instructions to disregard the statement of a defendant in determining the guilt or innocence of his codefendant. The Aranda rules, however, have been held inapplicable if the extrajudicial statements come within the coconspirators' exception to the hearsay rule. (People v. Morales, 263 Cal.App.2d 368, 374, 69 Cal.Rptr. 402, cert. den. 393 U.S. 1104, 89 S.Ct. 907, 21 L.Ed.2d 798; People v. Gant, 252 Cal.App.2d 101, 111, 60 Cal.Rptr. 15 4; see In re Domingo, 268 A.C.A. 698, 706, 74 Cal.Rptr. 161.)

Under California authorities at the time of the trial the rule was that where there is prima facie proof of the existence of a conspiracy, testimony regarding a coconspirator's statements made during the conspiracy and in furtherance thereof is admissible against the...