People v. Chapman

• Decision Date: 25 August 1975
• Docket Number: Cr. 26294
• Citation: 50 Cal.App.3d 872,123 Cal.Rptr. 862
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Willie Clarence CHAPMAN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 862

123 Cal.Rptr. 862

50 Cal.App.3d 872

The PEOPLE of the State of California, Plaintiff and Respondent, v. Willie Clarence CHAPMAN, Defendant and Appellant.

Cr. 26294.

Court of Appeal, Second District, Division 2, California.

Aug. 25, 1975.

Hearing Denied Oct. 23, 1975.

Ronald V. Skyers, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant

Evelle J. Younger, atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Cynthia S. Waldman and Kent M. Bridwell, Deputy Attys. Gen., for plaintiff and respondent.

COMPTON, Associate Justice.

Appeal from a judgment of conviction entered on a jury verdict finding defendant guilty of murder in the second degree.

FACTS

Sometime after 10:00 p.m. on December 6, 1971, a Mr. Tyler who resided at 4166 South Wall Street in Los Angeles, observed three men in the street outside of his residence. One of the three was Jerry Moreland, the victim in this case.

When Mr. Tyler first saw the three, one was holding Moreland while the other was administering a physical beating to him. When Moreland went to the ground, the assailant commenced to kick him in the head and face. Both men were hollering at Moreland to 'Get up,' or 'Give it up.'

Subsequently his two attackers lifted Moreland to his feet and forced him to a location between two houses from where the sound of a gunshot emanated, after which the two ran from the location. Moreland later staggered out onto the street where he collapsed and died.

An autopsy revealed that the cause of death was a gunshot wound in the heart, the location and direction of which indicated that it had been fired while the victim was lying on the ground and the slayer standing over him. The fatal bullet was a .22 caliber long rifle bullet, the nose of which had been previously flattened or filed to fit a gun chambered for a short cartridge.

Police investigation at the scene of the incident revealed blood on the rain gutter of a home next to the point where the fatal shot was apparently fired. A palm print was lifted from that rain gutter at a point about five feet above the ground.

Three impartial witnesses who observed various phases of the incident all verified the fact that there were only two persons involved in the crime. Mr. Tyler, who had an excellent opportunity to observe the perpetrators positively identified defendant as the individual who had done the initial striking and kicking of Moreland.

The defendant was arrested on January 12, 1972, on an unrelated charge. At the time of his arrest he was at the home of his uncle Seth Graves, approximately two blocks from the scene of the homicide.

In conjunction with the arrest the officers recovered 21 rounds of .22 caliber long-rifle ammunition, four of which had their noses filed or flattened in a manner similar to the fatal bullet. The officers also recovered a jacket belonging to defendant, which jacket contained traces of dried blood of the same blood type as Moreland. Defendant's blood is of another type. Finally the palm print lifted from the rain gutter was established to be that of the defendant.

Defendant testified at the trial and gave his version of what had occurred. According to defendant, at about 10:00 p.m. on December 6, 1971, he was at the home of one Charlotte Goodwill on 40th Place between Main and Broadway. Among those present at that location were his brother Robert and one Napoleon Banks. Later defendant, Robert and Banks were walking in the direction of Seth Graves' residence when they were accosted by Moreland, the victim, who sought to purchase some drugs. Subsequently, a fight broke out between Defendant claimed that the jacket which had the victim's blood on it belonged to his brother Robert and that Banks was wearing it on the night of the killing. Defendant proclaimed that he had never carried a gun.

Banks and Moreland, which eventually moved to the side of the house where defendant's palm print had been found. Defendant contended that he had hold of Moreland in an attempt to break up the fight and in so doing placed his hand against the side of the building.

Defendant's testimony was proven to be false in several particulars. First, it was established that Charlotte Goodwill had moved from the location on 40th Place three days before the incident. Secondly, the jacket in question had defendant's name 'Willie' written on the inside. Thirdly, it was established that defendant was arrested on December 25, 1971, carrying a loaded revolver in his waistband. At the time of that arrest he was wearing the jacket in question. Lastly, as noted, three disinterested witnesses disputed defendant's claim that there were three persons besides the victim present at the scene. In sum, the evidence of defendant's guilt as a participant in the killing of Moreland was overwhelming.

ISSUE ON APPEAL

Defendant makes only one contention of arguable merit and that is that the trial court erroneously prevented him from producing evidence that Banks had stated to other persons that he, Banks, was the one who shot Moreland and that defendant had tried to break up the fight.

Upon the defendant's proffering of this evidence the trial court conducted a hearing out of the presence of the jury. During the course of the hearing, Banks was called to the witness stand and refused to testify invoking his privilege against self-incrimination

Defendant produced one Geary Hewitt who testified that he had been in the Los Angeles County Jail from May through August of 1972, and during that period had been in a position to be in contact with Banks, the defendant's brother Robert, and defendant, all of whom were also incarcerated. During an evening's discussion of their respective cases, Banks, according to Hewitt, stated that he had shot someone named 'Melvin' or 'Moreland' and that the defendant had tried to break up the fight. Hewitt did not know the location of the incident.

One Joel Grimes testified that he was also an inmate at the county jail at the time and occupied a cell next to Banks and Hewitt. He claims to have heard Banks say he had shot someone in the chest and that 'Chapman' had been present at the time.

Seth Graves, defendant's uncle, testified that during December 1971, Banks had been in Graves' home and in the presence of Banks' girlfriend Joyce Jones stated that during an encounter with an unknown person he had '. . . let him have it in the stomach.' Joyce Jones in her testimony refuted this evidence.

The prosecution for its part indicated that it was prepared to show that Banks had stated to Grimes that 'he would take the beef because he is going to the YA and he couldn't get hurt; . . .' and that Banks had stated to a correctional counselor at Vacaville that Willie and Robert Chapman had asked him to testify falsely on their behalf and had threatened to 'get him' if he refused. We point this out at this time to indicate the complex and convoluted nature of the evidence on the point.

The trial court after hearing the testimony ruled the evidence inadmissible as untrustworthy and not meeting the requirements for admission as declarations against penal interests. The court cited Evidence Code section 352 as authority for its ruling.

DISCUSSION

The resolution of this issue involves the effect and the interrelation of Evidence Code sections 352, 403, 405 and 1230.

In People v. Spriggs, 60 Cal.2d 868, 36 Cal.Rptr. 841, 389 P.2d 377, a case which is factually much different than the case at bar, the California Supreme Court, in a break with long-standing California precedent, held that a declaration against penal interest by a declarant other than the defendant was a type of admissible hearsay because it carried an element of trustworthiness which characterized other previously admitted types of hearsay evidence.

Evidence Code section 1230, in removing the hearsay objection to declarations against penal interest, requires that the witness be unavailable (a witness who properly claims a privilege against self-incrimination is unavailable) and that the declaration be one that when made so far subjected the declarant to the risk of 'criminal liability . . . That a reasonable man in his position would not have made the statement unless he believed it to be true.' (Emphasis added.)

The emphasized portion of the above quoted statute is codification of the requirement of trustworthiness as a condition precedent to the admissibility of such declarations. (See Witkin Calif.Evidence (2d ed.) 1966, § 534, p. 507.)

Leaving aside for the moment the evidence and the role of the judge on the issue of whether Banks, the alleged declarant, in fact uttered the declaration and assuming arguendo that the declaration was uttered, we conclude that Evidence Code section 1230 creates a preliminary factual determination to be resolved by the judge pursuant to Evidence Code section 405. A preliminary fact is one upon 'the existence or nonexistence of which depends the admissibility or inadmissibility of evidence.' (Evid.Code, § 400.) Evidence Code...