People v. Clark

• Decision Date: 17 June 1965
• Docket Number: Cr. 7610,7615
• Citation: 44 Cal.Rptr. 784,402 P.2d 856,62 Cal.2d 870
• Court: California Supreme Court
• Parties: , 402 P.2d 856 The PEOPLE, Plaintiff and Respondent, v. Fred M. CLARK, Leroy Coulverson, Jr., and Lionel Davis, Defendants and Appellants. to 7617.

Page 784

44 Cal.Rptr. 784

62 Cal.2d 870, 402 P.2d 856

The PEOPLE, Plaintiff and Respondent, v. Fred M. CLARK, Leroy Coulverson, Jr., and Lionel Davis, Defendants and Appellants.

Cr. 7610, 7615 to 7617.

Supreme Court of California, In Bank.

June 17, 1965.

As Modified on Denial of Rehearing July 14, 1965.

Thomas W. LeSage, Pasadena, and James B. Cooney, under appointment by the Supreme Court, Erling J. Hovden, Public Defender, James L. McCormick and Paul G. Breckenridge, Jr., Deputy Public Defenders, for defendants and appellants.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

A jury found defendants guilty of the first degree murder of Roberto Jordan, and of the first degree robbery of Robert Crosley. Coulverson and Davis submitted the question of penalty to the court, and were sentenced to life imprisonment. ¹ The penalty issue as to Clark was tried before the jury which determined that he should suffer death. Motions for new trial on behalf of all defendants were made and denied. Clark made a motion to reduce the penalty, which was also denied.

Clark's appeal from the judgment imposing the death penalty (Crim. 7610) is automatic (Pen.Code, § 1239, subd. (b)). With it have been joined the appeals which Coulverson and Davis took from their convictions (Crim. 7615 and 7616), as well as the appeal taken by Davis from the judgment in regard to the prior offense mentioned in footnote 1 (Crim. 7617).

Appeal Crim. 7617 may be disposed of summarily. Although Davis presents no arguments in reference to this appeal, it appears that the sentence was imposed to run concurrently with that imposed in Crim. 7616. Inasmuch as the proceedings in Crim. 7616 must be dismissed for reasons hereafter set forth, Crim. 7617 must be remanded for imposition of corrected sentence and rendition of judgment.

The Facts:

The prosecution contends that Clark shot and killed Jordan in the course of robbing the Safeway Market at 3887 Crenshaw Boulevard, Los Angeles, on November 29, 1962. According to several witnesses, each of whom positively identified Clark, he entered the market alone, required Crosley (the manager) and several other persons to accompany him, at gun point, to the office safe, where Crosley handed the money over to him. The money was placed in a brown paper bag. Clark then required those present to accompany him to the back door. En route they came upon Jordan, the victim of the murder, who was also a market employee. Clark pointed his pistol at Jordan, ordering him to proceed with the others to the back door. At this moment the pistol was fired, the bullet entering Jordan's head. ²

It is also undisputed that Coulverson and Davis had ridden with Clark, in Davis' car, to where Clark parked it in an alley behind the market, but Coulverson and Davis did not leave the car during the perpetration of the crime, and were unarmed. Although no witness testified to having seen either of them, each admitted the foregoing facts, both in their extrajudicial statements to the police, and in their testimony on their own behalf. They further admitted that when Clark came out of the market he placed the described paper bag on the front seat of the car, got into the driver's seat, and drove the three men to his house. They also admitted that en route he told them that he had killed a man, but each claimed to have disbelieved him.

The prosecution's theory of the case, based primarily upon the various extrajudicial admissions given to the police, was that both Coulverson and Davis knew that Clark intended to perpetrate an armed robbery, and voluntarily accompanied him; that after being advised that Clark had committed murder in the course of the robbery, they accepted a share of the loot; and that they were guilty of both crimes by reason of being accomplices.

The theory presented by both Coulverson and Davis in their testimony during the guilt phase (and in their statements to the police) was that each was an innocent victim of circumstances. That theory was that Clark had loaned Davis the money with which the latter purchased his car; a short time before November 29th Clark told Davis of his plan to commit a robbery and asked him to either join him or lend him the car for that purpose; Davis refused, and Clark became angry (on the ground that his money had purchased the car) and threatened to shoot Davis; knowing Clark to be dangerous, Davis became frightened and suggested that Clark accompany him on the 29th in an effort to sell the car so that Davis could refund the money; after leaving Clark, Davis was apprehended for driving without a license; as a result of the latter circumstance, he asked Coulverson to drive him to Clark's residence; Coulverson, who had worked all night, expected to be driven back to his home, in order to go to bed; Davis expected Clark to accompany him in an attempt to sell the car; although both knew that Clark was armed, and had been talking as if he intended a robbery in the near future, neither had any idea that he planned the same for that day; Clark took over the driving of the car, but did not tell the others where he was going; as Coulverson and Davis were carrying on a conversation regarding possible work for Davis at the club where Coulverson was employed, neither noted where Clark was driving; neither knew where they were when Clark stopped the car in an alley, and against the back wall of a building; at that point Clark asked Coulverson for some change to purchase something, and Coulverson obliged; Clark left them and the two remained in the car; a short time later Clark returned with the brown paper sack; neither knew what it contained; as stated above, neither believed Clark when he stated that he had killed a man; he said nothing about having committed a robbery at that time; after he had driven the car back to his home, Clark went in, taking the car keys with him; after talking outside for some time, the two entered the house, expecting to get the keys and return to their respective homes; in the house they saw the money on Clark's bed; he admitted the robbery, and tried to give each of them a small part of the loot, but each refused; ³ he told them that he was leaving town immediately, and that they should do likewise; he advised Davis to report his car as stolen; ⁴ he told them that if either reported the matter to the police, he would return to town and kill them.

Admittedly, there were certain inconsistencies in the testimony on which these two defendants based the foregoing theory. ⁵ But such inconsistencies, standing alone, were hardly sufficient to sustain a conviction. On the other hand, their extrajudicial statements were of such nature that, if the same were properly admitted, the jury could well have found them to have accompanied Clark with full knowledge and consent. For that reason, it becomes necessary to review the procedures both prior to and during the trial, in order intelligently to assess the issues presented by the claim that the extrajudicial statements should not have been admitted, as well as the other assignments of error. In such review, the chronology is of particular importance.

November 29, 1962: The robbery and murder were committed. Only Clark fled the state.

December 3, 1962: Davis was arrested, at his home, and taken to the police station. There, according to the testimony of Officer Fusilier, Davis gave free and voluntary statements. The nature and manner of taking those statements (as well as the extrajudicial statements of the other defendants) are more fully set forth below.

December 4, 1962: Coulverson was arrested at his place of employment and taken to the police station, where he was interviewed and gave a statement. On the same date a complaint was filed in the municipal court charging Clark with murder and robbery, and a warrant was issued for his arrest.

December 6, 1962: A complaint was filed in the municipal court charging Coulverson and Davis with murder and robbery.

January 7, 1963: Preliminary hearing was held as to Coulverson and Davis, and each was held to answer.

January 21, 1963: An information was filed against Coulverson and Davis, and each arrainged. On the same day, Clark held up a market in St. Louis, Missouri, was shot in the arm, and within a very few days was apprehended by the St. Louis police and taken into custody.

January 29, 1963: Coulverson and Davis were in court to plead. Davis pleaded not guilty, and Coulverson moved for dismissal under Penal Code, section 995. That motion was continued until February 7th, and trial set for March 7th.

February 1, 1963: Clark gave a statement to the St. Louis authorities, while under arrest. This statement did not name Coulverson and Davis as his accomplices.

February 26, 1963: Coulverson, Davis and Clark were jointly indicted by the grand jury for the same offenses with which they were charged in the prior complaints and information. That indictment was predicated, in part, on the testimony of Officer Fusilier given against all three defendants.

March 1, 1963: Coulverson and Davis were arraigned on the indictment and pleaded not guilty. Trial was set for March 7th, the same date as had been set for trial under the information.

March 7, 1963: Over the objection of Coulverson and Davis, who claimed that they were ready for trial, the prosecution's motion to dismiss the information was granted, and further over the objection of Coulverson and Davis, the prosecution's motion to continue the trial to March 20th, for the purpose of attempting extradition of Clark, was granted.

March 9, 1963: Officer Fusilier, in St. Louis for the purpose of Clark's extradition, had an interview with Clark during which the obtained the latter's signature to a typed copy of the interview given to the St. Louis authorities on February 1st, but only after obtaining...