People v. Butcher, Cr. 2872

• Decision Date: 23 October 1959
• Docket Number: Cr. 2872
• Citation: 345 P.2d 127,174 Cal.App.2d 722
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of State of California, Plaintiff and Respondent, v. James Charles BUTCHER, Defendant and Appellant.

Page 127

345 P.2d 127

174 Cal.App.2d 722

PEOPLE of State of California, Plaintiff and Respondent, v. James Charles BUTCHER, Defendant and Appellant.

Cr. 2872.

District Court of Appeal, Third District, California.

Oct. 23, 1959.

James B. Thompson, Sacramento, for appellant.

The Attorney General by Doris H. Maier and G. A. Strader, Deputy Attys. Gen., for respondent.

SCHOTTKY, Justice.

James Charles Butcher was found guilty of a violation of section 211 of the Penal Code, robbery (in the second degree); section 459, burglary (in the second degree); and section 261, subd. 4, rape. The court ordered the sentences on the counts of rape and burglary to run concurrently with each other and the two to run consecutively with the judgment of conviction of robbery. Butcher has appealed from the judgment entered and from the order of the court denying his motion for a new trial.

The evidence stated in the light most favorable to the respondent discloses that about 2:30 p. m. on December 5, 1957, Butcher knocked on the door of the residence of the victim. When she answered, he told her that he would like to see her house which was for sale. Butcher was shown through the home and the patio. After he returned to the house from the patio, he turned, stuck his hand in his pocket and said, 'Lady, this is a stick-up! * * * do as I say or you'll get hurt? * * *' In reply to her question, 'What do you want?', he said, 'I want your money.' The victim did not see what Butcher had in his pocket. She was 'so nervous * * * [her] legs wouldn't hardly hold * * * [her] up.' Because she was so 'afraid of him,' she went into a bedroom where she obtained her purse and gave him between three and four dollars. Butcher then ordered her into the bathroom, and when she asked why he said, 'Lady, if you don't want to get hurt or killed, get in that bathroom!' He told her that he was going to molest her. The victim disrobed. She was ordered into one of the bedrooms. Butcher in the meantime had removed a camera from a box which was in a plastic bag he had been carrying. He took several pictures of the victim. These were revolting in their implications. After he took the pictures, he asked her to perform an unnatural sexual act, and after she refused he performed an act of sexual intercourse.

After committing the offenses, Butcher called a cab and when it arrived he left. But before he left he told the victim, 'I wasn't supposed to rape you, this house was picked out for robbery, only.' The victim called the police. She was taken to a hospital where an examination disclosed that she had had an act of sexual intercourse. Butcher was arrested several days later by the police. The victim identified him as the man who had committed the acts. Butcher represented himself at the trial. He did not take the stand. The defense consisted of character witnesses.

Appellant's first contention is that he did not properly or legally waive his right to counsel. The record discloses that appellant had five years of schooling. He was described by psychiatrists who examined him as being an alert person, somewhat grandiose in believing that he had considerable knowledge of law 'because he had been around, in his younger days, with a boy and his brother, both of whom were now lawyers, and had read some of their books on law; * * *' The record also discloses that appellant waived counsel at the time of the arraignment, though counsel was appointed to represent him at that time; and that when the case was called for trial the court said, 'Just so we'll have no mistaken idea about this, I want to be cautious enough to be sure you understand, Mr. Butcher, you have been already informed of your rights and you have indicated to the Court that you wish to defend yourself in this matter.' Appellant replied, 'That is true, * * *.' The court also said, 'So I just want to have you understand * * *, if you desire, you had a right to counsel, you could have employed counsel, if you were in a position to do so, or if you were not in a position to do so, the Court would have appointed counsel. Now, with that understanding, you wish to proceed without an attorney.' Appellant indicated that he did. The cause then proceeded to trial. Roscoe Oldman, not an attorney, at appellant's request, also sat at the counsel table during the trial to assist appellant.

An accused may waived the assistance of counsel, but before there can be an effective waiver the defendant must have an intelligent understanding of his act. People v. Chesser, 29 Cal.2d 815, 178 P.2d 761. One purpose of the constitutional right of a defendant in a criminal case to be represented by counsel is to protect him from his own ignorance of his legal and constitutional rights. The determination of whether or not there has been an intelligent waiver involves a consideration of the nature of the charge, the facts and circumstances of the case, and the education, experience, mental competence, and conduct of the accused. In order for a trial judge to determine whether there has been a competent and intelligent waiver of counsel, he must first ascertain whether the defendant clearly understands the nature and effect of his waiver. People v. Chesser, supra, 29 Cal.2d at page 822, 178 P.2d at page 765.

In the instant case the record discloses that the appellant is a man of normal intelligence who had had several previous brushes with the law. The record shows that immediately prior to the selection of the jury the court again advised appellant of his right to counsel, and appellant stated that he wished to defend himself. The record shows that he not only cross-examined the prosecution's witnesses but that he made an argument to the jury that occupies 49 pages of the record.

In view of the record it cannot be said that appellant was not fully aware of his right to counsel, and in view of his insistence that he wished to defend himself the court was not required to appoint counsel to defend him. The following quotation from People v. Linden, 52 Cal.2d 1, at page 16, 338 P.2d 397, at page 404, is applicable:

'Defendant's appeal counsel assert that the trial court did not determine that defendant understood the issues and available defenses and had capacity to effectively waive counsel, as required by Johnson v. Zerbst, 1938, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 82 L.Ed. 1461 ; In re James, 1952, 38 Cal.2d 302, 313, 240 P.2d 596; and People v. Chesser, 1947, 29 Cal.2d 815, 822-825[4-6], 178 P.2d 761 * * *

* * *

* * *

'Before the trial court allowed defendant to represent himself, it held lengthy discussions with him and had ample opportunity to observe his abilities and disabilities. As in People v. Mattson, 1959, supra [51 Cal.2d 777, at pages 788, 789, 336 P.2d 937, at pages 945, 949], the entire record establishes that defendant was fully aware of his situation when he insisted upon representing himself, and the court was not required to demand that defendant, as a prerequisite to appearing in person, demonstrate either the acumen or the learning of a skilled lawyer. No abuse of discretion is shown.'

Appellant next contends that the court committed prejudicial error in permitting the introduction in evidence of People's Exhibit No. 15. Following the appellant's arrest he was interviewed by the district attorney on December 19, 1957. A stenographic reporter who took down the conversation verbatim was produced as a witness to testify concerning the contents of such statement or conversation. The reporter subsequently transcribed his notes and reduced the same to a typewritten report of the conversation. The appellant asserts that this typewritten statement was introduced in evidence as People's Exhibit No. 15. The Clerk's Transcript at page, 23, line 19, indicates that the typewritten statement was introduced in evidence. However, an examination of the Reporter's Transcript does not show that it was ever offered in evidence or received in evidence by the court. The prosecution asked that it be marked for identification, but it was never introduced in evidence.

The reporter testified that the transcript was a true and correct transcription of his shorthand notes. He testified concerning the conversation by reading his original notes into evidence in the presence of the jury. The appellant contends that this procedure was erroneous and that the reporter should have been permitted to only refer to his notes for the purpose of refreshing his recollection and should not have read the statement into evidence directly from his notes or the typewritten transcription.

The witness who made the transcript could testify as to his recollection, or he could use the document to refresh his memory, or he could testify as to the correctness of the statement and then testify from it, though he had no present recollection of the facts. This latter method is commonly referred to as past recollection recorded. In the instant case the reporter read his notes. This would be proper. People v. Gardner, 147 Cal.App.2d 530, 538, 305 P.2d 614. But before this may be done a proper foundation must be laid. Here the witness testified he was present and that he transcribed the conversation, and then the conversation was read from the original notes. The witness should have been asked if he retained a recollection of the conversation, for the Code of Civil Procedure, sec. 2047, provides that a witness may testify from such a writing though he retains no recollection of the particular facts. This means that he must testify first that he is unable to refresh his memory or testify independently therefrom. People v. Keelin, 136 Cal.App.2d 860, 289 P.2d 520, 56 A.L.R.2d 355.

Appellant concedes that 'if the reporter had no independent recollection of what was said, then his notes could have been qualified as past recollection recorded, and * * * admitted in evidence (CCP 2047; People v. Keelin, supra [136 Cal.App.2d 860, 877, 289 P.2d 520])...