People v. Brice

Decision Date06 January 1966
Docket NumberCr. 4868
Citation239 Cal.App.2d 181,48 Cal.Rptr. 562
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Selman BRICE, Defendant and Appellant.

Winslow O. Small, of Eisner & Titchell, San Francisco, for appellant (Under appointment of District Court of Appeal).

Thomas C. Lynch, Atty. Gen. of State of California, Robert R. Granucci, Clifton R. Jeffers, Deputy Attys. Gen., San Francisco, for respondent.

SULLIVAN, Presiding Justice.

A jury found defendant guilty of first degree burglary. (Pen.Code, §§ 459, 460.) He appeals from the judgment of conviction.

Leon Fields was the proprietor of the Louisiana Market, a small grocery store in North Richmond. On April 9, 1963 at 9:30 p. m. he closed his store for the day and retired to his living quarters in the rear of the store. He locked the front door on the inside, also padlocked it on the outside and put out all the lights except a beer sign. He went to bed at about 9:45 p. m. and shortly thereafter fell asleep.

Fields testified that at about 2:00 a. m. he was awakened by a noise in the store. He jumped out of bed, armed himself with a pistol and 'eased' himself into the store. He saw two men moving and called to them to 'Halt.' When they kept moving he fired two shots. One of the strangers came towards Fields, saying that he had been hit. Fields saw that he was a Negro. He then marched the intruder at gunpoint to the front of the store where Fields called the Richmond Police Department from a pay telephone. At that point he was able to see the face of the intruder by the light of the beer sign. Later he identified him as defendant.

After Fields completed the call, defendant asked the grocer to let him to and showed him his arm which had 'a little blood' on it. Fields added that the intruder asked him to shoot him again and 'Kill me because they are going to send me to jail.' During this interlude Fields uncocked the hammer on his pistol and defendant immediately 'jumped' him. Fields' hand and the gun were knocked upward, crashing against the front store window and breaking it. The two men then engaged in a struggle in the store and eventually outdoors to the front sidewalk. A young man came across the street and, in response to Fields' plea for help, said that he would telephone the police if Fields would give him a dime. Fields, however, was still attempting to keep defendant from gaining control of the gun, whereupon the newcomer, for no apparent reason, ran from the sidwalk yelling 'Turn the boy loose.' At this point the second intruder emerged from the store and Fields was hit with a two-by-four on the back of the neck. The grocer never saw his assailant so that he could identify him. Fields 'charged toward the street and * * * got loose from' defendant, who along with the second intruder immediately began to flee. Fields called to them to halt and fired a shot at each of the fleeing figures. One man fell; the other, defendant, escaped. Fields then reentered his store to get a drink of water and to put on some clothes. 1

Shortly thereafter Deputies Young and Burton of the Contra Costa County Sheriff's Department arrived. 2 Their investigation lasted three or four hours during which time they took Fields to the Kaiser Foundation Hospital where the latter identified defendant as his assailant.

Defendant's sister testified that she received a telephone call from him in the early hours of the morning of April 10, 1963. At his request she met him and took him to the Kaiser Foundation Hospital. 3 He told her that he had been shot by Fields. Records of the hospital established that he was admitted as an emergency case at 2:32 a.m.

Shortly thereafter, Richmond Police Officer Patrick Boyle arrived at the hospital in response to a radio call and interviewed defendant in the emergency treatment room about a bullet wound in defendant's right arm. At the trial the officer testified that defendant gave him the following oral statement: That defendant was walking in the vicinity of 23rd and Cutting when two cars drove up, each occupied by about three Negro youths; that the cars were a grey Dodge and a blue Chevrolet; that one of the boys leaned out of a car and said 'There he is' whereupon defendant took off, running through back streets to get away; that, thinking he had lost his pursuers, defendant came out on Cutting Street at a liquor store at which time the two cars again drove up, shooting at him; that they shot at least three times, one shot hitting him in the upper arm; that after walking to a 'pay-phone' at a nearby service station, opposite the Kaiser Hospital, he telephoned his sister, requesting the latter to take him to the hospital because he was afraid to go in by himself.

Later that same day, April 10, at a time not disclosed in the record, 4 Detective Sergeant Scott of the Contra Costa County Sheriff's Office took a tape-recorded statement from defendant at the County Hospital in Martinez. At the time defendant was in a large hospital ward, in which there were several other people but no police officers. At the trial, the sergeant, after having refreshed his recollection from the recording, 5 testified in substance ot the following conversation with defendant: That Scott went over to defendant's bed and questioned him about his activities around the time when the burglary at the Louisiana Market occurred and about his wound; that defendant said that earlier that night he had gone to his mother's house and borrowed some money from her; that around 12:00 o'clock he left his mother's house and went to his girl friend's house in Richmond to return a class ring of hers; that after staying there a short time, he went to his sister's home in Richmond but she was not there; that he then walked over to 21st and Cutting where he waited to catch a bus; hat he where he waited to catch a bus; that he the people in them; that he refused to identify the people for Sergeant Scott but that one of the occupants had caused him some trouble, had demanded $800 for 'a buring car' and had previously pulled a gun on defendant; that on the approach of the cars defendant became afraid and ran down Cutting; that he came back onto Cutting and was again seen by the above person and his companions who shouted 'There he is, the fellow that burned the car'; that he fled, at one point falling off a curb and hurting his ankle; that as he ran to the Sonny Boy Market he heard two or three shots; that he got to a phone at 14th or 15th and Cutting and called his sister; that as he was talking to her, he saw that his right arm was bleeding and thought that he had been shot; that his sister came and took him across the street to the Kaiser Hospital; that defendant had stated at the beginning of the interview that he wanted to go to Los Angeles because he had been in trouble with he Richmond Police Department 'earlier in the day' and had resisted attempts to arrest him.

On July 16, 1963, Sergeant Scott took a second tape-recorded statement from defendant at the sheriff's office in Martinez to which Scott had brought defendant from the county jail. At this time defendant was being held in the county jail 6 awaiting trial 7 and was represented by counsel. Scott admitted that he was aware of the fact that defendant had an attorney of record. Over defendant's objection, 8 Sergeant Scott testified 9 concerning defendant's statement substantially as follows:

Defendant 'had changed his story' from that given Scott at the hospital, the difference being in regard to the events after defendant left his home. Defendant related the same incident of officers coming to his home to arrest him and of his leaving without being arrested. However defendant then went to North Richmond where he played pool at a place called 'Fred's,' betting on pool games and winning $4 from Sloan, who was later killed in front of the Louisiana Market. This group 'of six or so' then went across the street to a cafe. Later Sloan told defendant that he wanted to go see Fields, the grocer, who owned him some money and defendant agreed to go with him.

Sometime after midnight defendant, Sloan and two others drove to the Louisiana Market, parking across the street. Sloan got out and went across to the market, disappearning along the side of the store. Upon reappearing, Sloan picked up a rock and threw it at the window of the market, breaking the window. At this point defendant and the others alighted from the car and Fields emerged from his store.

A discussion ensued between Fields, defendant and Sloan concerning some money, culminating in an argument between Sloan and Fields about some money the later owed the former. At this point Sloan reached for Fields, who evasively moved aside and then returned into the store. Upon the announcement by Sloan that Fields had gone to get a gun the two unidentified men disappeared. Upon Fields' return the argument again erupted between all three men. Suddenly defendant grabbed the gun and he and Fields began to wrestle. Defendant was able to pull the trigger of the gun held by Fields, discharging the gun three times. At this point one Powell 10 appeared on the scene and inquired 'what was going on?' Upon Fields' reply that defendant was trying to burglarize him, Powell asked if he should call the police--Fields said that he would take care of it himself.

While the struggle for the gun continued between defendant and Fields, Sloan had gotten a stick, striking Fields over the shoulders. The latter fell to the ground but held onto the gun as both defendant and Sloan started to flee. Looking back over his shoulder defendant saw Fields getting up--moments later he heard two shots ring out and Sloan fell, mortally wounded. Defendant continued to run, from North Richmond to South Richmond to the area of 14th and Cutting where he placed a telephone call to his sister. He noticed that his...

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12 cases
  • People v. Spencer
    • United States
    • California Supreme Court
    • March 14, 1967
    ...which erroneously admitted Exculpatory statements were followed by damaging testimonial admissions. (See, e.g., People v. Brice (1966) 239 Cal.App.2d 181, 194, 48 Cal.Rptr. 562; People v. Anderson, supra, 236 Cal.App.2d 419, 429--430, 46 Cal.Rptr. 1; cf. People v. Green (1965) 236 Cal.App.2......
  • People v. Moore
    • United States
    • California Court of Appeals Court of Appeals
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    ...have been deliberately elicited from him by enforcement agents or the police in the absence of his counsel." (People v. Brice (1966) 239 Cal.App.2d 181, 191, 48 Cal.Rptr. 562.) (Emphasis in original.) In this case, the statements in question were made by appellant to White while both were i......
  • People v. Bowman
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    • February 24, 1966
    ...statements from the indicted accused, in the absence of his counsel, either indirectly or directly. (See People v. Brice (1966) 239 A.C.A. 196, 204-208, 48 Cal.Rptr. 562.) In fact, Massiah is encompassed by the principles of Escobedo (see People v. Boulad, supra, 235 A.C.A. 138, 145-146, 45......
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