People v. Cannady

Decision Date29 November 1972
Docket NumberCr. 14214
Citation8 Cal.3d 379,105 Cal.Rptr. 129,503 P.2d 585
CourtCalifornia Supreme Court
Parties, 503 P.2d 585 The PEOPLE, Plaintiff and Respondent, v. Robert Sterling CANNADY and Bufford Lee Beard, Defendants and Appellants. In Bank

Robert N. Harris, Jr., Los Angeles, and Ralph D. Drayton, Sacramento, under appointments by the Supreme Court, for defendants and appellants.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Edsel W. Haws and Arnold O. Overoye, Deputy Attys. Gen., for plaintiff and respondent.

BURKE, Justice.

Robert Sterling Cannady and Bufford Lee Beard, life prisoners, were indicted for an assault with malice aforethought and with a deadly weapon upon another inmate, Leonard Shiekscon Thompson (Pen.Code, § 4500). A jury found defendants guilty as charged and fixed Cannady's penalty at death and Beard's at life imprisonment. Cannady's automatic appeal is now before us (Pen.Code, § 1239, subd. (b)), and Beard's appeal from the judgment has been consolidated therewith.

Defendants contend that the court erred in admitting at the guilt trial prior consistent statements of witnesses as substantive evidence, defendants were denied a fair trial as a result of specified matters, the court erred in failing to give instructions on manslaughter and defense of another, and the court improperly gave an instruction on flight and misread an instruction in a manner prejudicial to defendants. We have concluded that none of the contentions can be upheld but that, since the death penalty cannot constitutionally be imposed here, the judgment entered against Cannady should be modified in accordance with People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880. 1 (See also Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.) We affirm that judgment as so modified and the judgment entered against Beard.

On the morning of April 29, 1969, Lloyd Kelley (known as Coach Kelley), the Supervisor of Recreation at Folsom Prison, had a conversation in his office with the alleged victim, 'Shiek' Thompson, and another inmate named Howard Cooper. Before the conversation terminated, Cooper left to go to the restroom after having noticed Cannady beckoning outside the office. En route Cooper asked Cannady what he wanted. Cannady replied that he did not want Cooper but was beckoning 'for the snitch inside,' apparently referring to Thompson. Cooper saw Cannady was holding an aluminum baseball bat behind him. Such bats are never properly at any location other than the athletic office or the baseball field without authorization by the coach. Cooper also observed Beard standing near the coach's office and saw him in the same spot upon Cooper's return from the restroom.

After the conversation between Coach Kelley and Thompson ended, Thompson went into an adjacent room called the 'issue room,' in which athletic equipment was handed out. Less than a minute later Kelley heard loud voices in the 'issue room.' He looked out, saw Thompson in the 'issue room' and Cannady outside the room, and heard Thompson say 'What the heck's the matter with you?' As the coach went into the 'issue room,' he saw Cannady pick up an aluminum baseball bat, which was leaning against the exterior wall of the 'issue room,' and make a thrusting motion with the bat toward Thompson. Thompson at first tried to ward off the bat and then took hold of its opposite end. After Cannady entered the 'issue room,' Kelley attempted to grab the bat but was unsuccessful. Thompson managed to push Cannady to a point where the bat protruded out the door and hollered 'Take the bat,' apparently to someone outside. Beard stepped up as if to take the bat but instead pushed it aside and shoved a knife into Thompson's chest. Beard and Cannady thereupon pushed Thompson over to a desk. Cannady and Thompson both still held the bat, but Thompson released it when Beard tried to stab him again. Beard stabbed Thompson twice, and Cannady beat Thompson on the head with the bat and also beat Thompson's leg with the bat until a bone was 'sticking out.'

Kelley left to summon aid. Upon his return with two officers, he saw defendants going in the general direction of a guard post. Thompson was lying on the floor of the 'issue room' and near him were the bat and knife.

Thompson died a few minutes after being brought to a physician immediately after the alleged assault. The physician and the autopsy surgeon testified concerning Thompson's extensive injuries, including head wounds, a fractured leg, and stab wounds in his chest. According to the physician, the cause of death was the stab wounds, which involved the heart and both lungs, and contributory causes were possible concussion and fracture of both bones in one leg. The autopsy surgeon testified that the cause of death was stab wounds to the lungs.

Beard and Cannady were apprehended shortly after the incident. At the time of their apprehension Beard was outside the 'issue room' and Cannady was in the prison recreation yard. The two men were then examined for injuries. No injuries were found on Cannady, and Beard had only a superficial scratch on his knee apart from a scratch treated before the alleged assault.

It was stipulated that each defendant was undergoing a life sentence in a California prison at the time of the alleged assault.

The defense presented was self-defense. Both defendants took the stand in their own behalf. Cannady testified: In the morning, before the incident, he had an argument with Thompson. He did not see Thompson again until the early afternoon when Cannady was near the 'issue room' and heard someone yell 'Look out.' Cannady turned and saw Thompson coming toward him with a knife. Thompson lunged at him, Cannady caught Thompson's hand, and Thompson grabbed Cannady's jacket and pulled him into the 'issue room.' After trying unsuccessfully to get away, Cannady took a bat from a rack in the 'issue room' and hit Thompson with it. Thompson eventually got the bat from him. Cannady was part way down when Beard entered the affray. Beard pulled Thompson off Cannady, at which point Cannady left. Cannady acted in self-defense at all times. He was originally committed to prison for second degree robbery and assault and was convicted in 1963 of possession of a deadly weapon by an inmate and in 1964 of assault of another inmate in violation of section 4500.

Beard testified: He saw a group of inmates near the 'issue room' and knew something was wrong. He went inside and saw Thompson holding someone (who he later found was Cannady) on the ground. At first Beard thought they were playing but realized they were fighting when he saw they were wrestling for the bat. Beard was then unarmed. He grabbed Thompson and pulled him up. Beard saw that Thompson had a knife in one hand and the bat in his other hand. Beard grabbed Thompson's hand that held the knife and following a struggle Thompson dropped the knife and Beard obtained it. Thompson tried to hit Beard with the bat and Beard stabbed Thompson, who then fell. Beard heard people saying that he 'better leave,' and he did so. So far as Beard knew Cannady was gone when Beard obtained the knife.

Several inmates, called as defense witnesses, testified that they saw Thompson grab Cannady and saw a knife in Thompson's hand. The defense also presented evidence of Thompson's aggressive nature.

The recited evidence manifestly is sufficient to support the convictions, and no claim is made to the contrary. As heretofore stated, however, defendants seek to have the judgments set aside on the following grounds:

I. Receipt of Prior Consistent Statements as Substantive Evidence

Defendants contend that the admission into evidence of two prosecution witnesses' prior consistent statements as substantive evidence under Evidence Code section 1236 2 violated their right of confrontation guaranteed by the Sixth Amendment of the federal Constitution.

The first prosecution witness, Coach Kelley, testified that he saw Cannady pick up a bat, which was against the exterior wall of the 'issue room,' before thrusting it at Thompson. To impeach Kelley, defense counsel asked him on cross-examination whether he had not made a report in April 1969 containing a specified description of the incident, which description did not mention having seen Cannady pick up the bat, and Kelley responded in the affirmative. Thereafter the prosecutor on redirect examination of Kelley elicited the statement that he had testified before the grand jury in May 1969 that '. . . Cannady picked up the bat. . . .'

The second prosecution witness, Cooper, testified on direct examination to his version of the alleged assault. To impeach him, defense counsel asked him on cross-examination whether he had stated that he did not know anything about the incident when he talked to (1) the public defender's investigator a week before the trial and (2) the district attorney's investigator shortly after the alleged assault. Cooper replied that he had told the investigators that he did not have anything to say to them. Defense counsel also cross-examined Cooper concerning representations made to him by the prosecutor on October 1, 1969, the day before Cooper testified, and Cooper stated that the prosecutor had told him 'the judge can rehear your case.' For the purpose of rehabilitating Cooper, the prosecutor on cross-examination of the district attorney's investigator elicited testimony that when he had interviewed Cooper a second time, in June 1969, Cooper gave a narration concerning the alleged assault, which narration was substantially in accord with his testimony at trial.

No instructions were given limiting the purpose for which the prior consistent statements were admitted.

In support of their contention that the receipt of the prior consistent statements as substantive evidence under section 1236 violated their Sixth Amendment right of confrontation, defendants rely upon People v. Washington (1969) 71...

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