People v. Carter

• Decision Date: 31 August 1961
• Docket Number: Cr. 6811
• Citation: 15 Cal.Rptr. 645,364 P.2d 477,56 Cal.2d 549
• Court: California Supreme Court
• Parties: , 364 P.2d 477 PEOPLE of the State of Callfornia, Plaintiff and Respondent, v. Elbert Lyndon CARTER, Defendant and Appellant.

Page 645

15 Cal.Rptr. 645

56 Cal.2d 549, 364 P.2d 477

PEOPLE of the State of Callfornia, Plaintiff and Respondent, v. Elbert Lyndon CARTER, Defendant and Appellant.

Cr. 6811.

Supreme Court of California, In Bank.

Aug. 31, 1961.

Charles A. James, Stockton, and Nathaniel S. Colley, Sacramento, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Edsel W. Haws, Deputy Atty. Gen., for plaintiff and respondent.

SCHAUER, Justice.

Defendant appeals (under Pen.Code, § 1239, subd. (b)) from a judgment which imposes two death sentences, and from an order denying his motion for new trial or reduction of the offenses or penalties. He was tried by jury on charges of kidnaping George Woehrle for the purpose of robbery (Pen.Code, § 209) and murder of the same victim (Pen.Code, § 187). The jury found him guilty of each count; it further found as to count one that the victim suffered bodily harm and as to count two that the murder was of the first degree, and fixed the penalty as to each count at death. Defendant complains of the denials of his motion for change of venue and his challenges to the jury panel and to certain individual jurors. He objects to the trial court's refusal to order a daily transcript. He argues that the evidence does not support the verdicts, and that there was prejudicial error in the receipt of evidence of confessions and admissions, in argument of the district attorney, and in the giving and refusal of instructions. And defendant contends that the imposition of two death penalties, on the facts, constitutes double punishment for one act. We have concluded that there was no prejudicial error (Cal.Const., art. VI, § 4 1/2), that the trial was fair substantively and procedurally, and that the judgment and order should be affirmed.

Evidence (Apart from Defendant's Extrajudicial Admissions or Confessions) of Objective Facts of the Crimes. At the time of the offenses (April 22, 1960) defendant, then 23 years of age, lived with his parents in Stockton. He was seeking employment, had obtained placement on the eligibility list for appointment as psychiatric technician trainee at Stockton State Hospital, and had taken examinations for probationary patrolman on the Stockton police force. He had had an affair with a Stockton girl and as a result she had just had a baby.

About 11:20 a. m. on April 22 Officer Woehrle of the Stockton police juvenile detail told his superior officer thalt he was going to serve defendant with a warrant for his arrest on a charge of statutory rape of the girl. Woehrle was wearing slacks and a sport jacket and driving a station wagon without police markings. He wore his .38 special Smith & Wesson revolver in a belt holster.

Defendant's mother, Mrs. Carter, testified as follows: At about 11:30 a. m. she looked into her living room and saw defendant with 'a white person' whom she did not recognize. Shortly thereafter she started to enter the living room but defendant said, 'Mother, mother, mother, don't come in.' He spoke in 'a crying voice. I have never heard him sound like that before.' '(T)he tone of his voice confused me.' Mrs. Carter went out the back door of the house, walked to the front, and saw defendant and 'this other man that was with him.' In front of the house were two cars, defendant's and another automobile which perhaps was a station wagon. Defendant and the other man 'were in or about this other car.'

Mrs. Carter re-entered the house and attempted to telephone another son and her sister-in-law but she was so upset that she was unable to complete either call. She then telephoned the police department, gave her name and address, 'and told them that my son, Elbert (defendant), and someone had gone some place and I didn't know where, it might not be anything wrong but I would like for somebody to come out and at least find out what it was.'

At about noon police officers came to the Carter home and found Officer Woehrle's jacket in the living room. In the jacket pockets were the warrant of arrest and Woehrle's badge and identification card.

Meanwhile the station wagon, with Woehrle at the wheel and defendant beside him, proceeded erratically to a point beyond the city limits of Stockton. At approximately 11:50 a. m. it stopped near the Johns-Manville plant, about three and one half miles from defendant's home. The testimonies of five eyewitnesses (three plant employes and two persons who were passing in a car) describing various portions of the following events may be thus epitomized:

'The passenger's side door (of the station wagon) came open and two men who were fighting fell out of the car. * * * (O)ne was white and one was colored. * * *' '(T)hey both got up and * * * the colored man made a quick motion, looked like he moved his knee rather sharply. * * *' '(T)hey were still struggling out there for some object that one of the men held in his hand.' Other testimony shows that this object was defendant's revolver. 'They struggled there for a while until this man brought up his knee and kicked this other man in the groin.' 'I saw the colored guy strike the other man, which appeared to be a smaller man, twice on the head with a pistol. * * * I saw this colored man place the pistol to or right near his (the smaller man's) back and I heard the report of the pistol.' The man with the pistol reentered the station wagon and drove away.

Officers, summoned by the observers of the struggle, arrived at about noon and found Officer Woehrle dying. A subsequent autopsy and criminologic examinations disclosed that he had suffered the following wounds: gun powder burns on the right index finger; abrasions and contusions on the face; a laceration on the back of the head which could have been caused by the blow of a gun barrel; a wound from a .22 caliber bullet which entered in front of the left ear and lodged in the temporal bone; a wound from a .22 caliber bullet which entered the lower back and went up through the body into the chest; another bullet wound which followed a similar course. The two latter wounds, either of which would have been fatal, were made by bullets fired from a .22 caliber revolver owned by defendant. One of the fatal shots had been fired at a range of one inch or less, the other at a range of 20 inches or more.

At about 12:15 p. m. the same day (April 22) three officers of the California Highway Patrol, mounted on motorcycles and alerted by radio to watch for the Woehrle station wagon, saw it, driven by defendant at a normal speed, about 18 miles from the Johns-Manville plant where Woehrle was killed. The officers turned on their red lights and sirens and defendant at once accelerated. Pursued by the officers, defendant drove for about six miles at speeds sometimes exceeding one hundred miles an hour. He entered a subdivision in the City of Modesto and outdistanced the officers. They lost sight of him, then saw him driving toward them at a speed of about 25 miles an hour. One of the officers motioned for defendant to stop. Instead defendant thrust Woehrle's , 38 pistol out the window, fired at the officer and swerved toward him at an accelerating speed. The three officers began firing at defendant. One of their bullets punctured a tire of the station wagon and it skidded to a halt.

Defendant ran into a garage and then entered the house of the Harry Gormans. While two of the officers were summoning reinforcements Mr. Gorman ran from the house with his infant and said that his wife and another child were still inside. Defendant fired from the house through a closed window; the officers did not return fire because of the presence of the woman and child. One of the officers went to the rear of the house. Defendant stepped from the rear door and he and the officer fired at one another almost simultaneously. Defendant jumped back in the house, laughed derisively, and said, 'Did I get you?'

Other officers arrived and surrounded the house. The Modesto Chief of Police, through an amplifier, called to defendant, 'Come out with your hands up and you will not be harmed.' After several repetitions of the call defendant came out the front door. He had sustained a very minor bullet wound on the inner left arm at the elbow. He did not appear excited and spoke quietly. Asked why he surrendered, he replied, 'You won't believe this, I don't remember anything.'

In the Gorman home on a bedroom floor were an empty cartridge box, eight cartridges which had been fired from defendant's .22 revolver, and Woehrle's .38 revolver containing six spent cartridges. Defendant's .22 revolver was on the kitchen stove. Three spent .22 cartridges and pieces of spent lead were on the stove and floor.

In the windshield of Woehrle's station wagon were five holes apparently made by bullets fired from inside the wagon at close range and one by a bullet which had been fired from outside the windshield. There were a number of bullet holes on the outside of the wagon. On the front seat was Woehrle's holster. There was blood on the back of the front seat and fragments of a .22 caliber bullet in the car.

Extrajudicial Statements of Defendant. After his surrender in Modesto defendant was handcuffed and placed in a police car by Captain Coulson of the Modesto police. The captain testified that no threats or promises were made to defendant and that his statements to the captain were voluntary. As they sat in the police car near the Gorman home, according to the captain's testimony, 'we talked about everything in general. * * * I asked him what his father did and he told me that his father was a minister * * * in Stockton. He also stated to me that he had applied and had passed the examination and was on the list for a police officer's job. * * *' They spoke of mutual acquaintances in Stockton and Modesto. There was no talk of the crimes, except that defendant 'stated that he didn't remember anything...