People v. Coleman

• Citation: 80 Cal.Rptr. 920,71 Cal.2d 1159,459 P.2d 248
• Decision Date: 03 October 1969
• Docket Number: Cr. 12369,13437
• Parties: , 459 P.2d 248 The PEOPLE, Plaintiff and Respondent, v. Otis Ronald COLEMAN, Defendant and Appellant. In re Otis Ronald COLEMAN on Habeas Corpus.
• Court: United States State Supreme Court (California)

Page 920

80 Cal.Rptr. 920

71 Cal.2d 1159, 459 P.2d 248

The PEOPLE, Plaintiff and Respondent, v. Otis Ronald COLEMAN, Defendant and Appellant In re Otis Ronald COLEMAN on Habeas Corpus.

Cr. 12369, 13437.

Supreme Court of California,

In Bank.

Oct. 3, 1969.

Gerald Z. Marer, under appointment by the Supreme Court, and Keogh & Lundgren, Palo Alto, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, John T. Murphy and Horace Wheatley, Deputy Attys. Gen., for plaintiff and respondent.

TRAYNOR, Chief Justice.

A jury found defendant guilty of the first degree murder of Vincent Sulezich and fixed the penalty at death. The trial court denied a motion for a new trial or to reduce the penalty to life imprisonment and entered judgment on the verdict. This appeal is automatic. (Pen.Code, § 1239, subd. (b).) We also have before us a petition for habeas corpus challenging the judgment.

Vincent Sulezich operated a cocktail bar in Newark, California. He borrowed money every week from a bank to cash paychecks of his customers, and it was 'common gossip' that he carried large amounts of money on his person. He was fatally shot and robbed when he returned to his home in Oakland after work about 3:30 a.m. on Sunday, November 20, 1966. A witness who was in a nearby apartment heard the gunshots, went to the window, and saw two persons run to a car in the street and drive off.

In February 1967, more than two months after the crime was committed, James Stevenson went to the Oakland police station and confessed to being one of the participants. He named defendant as the other. He pleaded guilty to first degree murder and was sentenced to prison for life. Thereafter he testified against defendant at defendant's trial.

Stevenson testified that he had known defendant for from six to eight weeks before the crime was committed and that he had been with him many times in bars in the Newark area. They discussed the gossip that Mr. Sulezich carried large sums of money and developed a plan to rob him when he returned home from work. Their first attempt failed, and they returned the next night when the crime was committed. They went in Stevenson's car.

Stevenson testified that he did not have a weapon and did not know that defendant had a gun until they parked near the Sulezich home to wait for Mr. Sulezich to return. When they got out of the car Stevenson saw that defendant had a gun, and defendant said, 'don't worry about the gun, it will just scare the hell out of him.' After waiting under a tree for about 45 to 60 minutes, they saw Mr. Sulezich's car approaching, and defendant ran toward the house while Stevenson stayed under the tree. Mr. Sulezich drove into the garage, got out of his car, and walked back onto the driveway. Defendant appeared behind Mr. Sulezich and either knocked or pushed him down. Stevenson saw a flash and heard two shots. He began running to his car and after five seconds he heard a third shot. Defendant returned to the car and told Stevenson to drive away without turning on the headlights.

Stevenson testified that he and defendant returned to defendant's home where they divided the loot, about $1,100. En route defendant had thrown away the gun, a gun clip, bullets, and a wallet. They stayed at defendant's home for about two hours, and defendant took a shower and changed his clothes because the clothes he had been wearing were bloody. They then drove to Niles Canyon and threw the bloody clothes in a creek. About 7 a.m. they went to a bar in Newark. Stevenson and his wife both testified that later in the morning Stevenson's wife, who had been looking for him to tell him he could not come home, came to the bar and confronted Stevenson. Defendant said to her, 'now Brenda, don't be mad at Jim. He hasn't done anything wrong. He's been with me all night.'

Later in the day Stevenson drove defendant to San Jose and thereafter to the San Francisco airport. Defendant flew to Baltimore and then went to Virginia, where he stayed in various places until his arrest in February. There was evidence that he had several hundred dollars while he was in Virginia.

Police officers found the gun where Stevenson told them defendant had abandoned it. There was ballistic evidence that the bullets found at the scene of the crime had been fired from that gun. There was also evidence that defendant bought the gun and had it in his possession before the crime was committed.

Defendant testified in his own defense. He denied participating with Stevenson in any way in planning or committing the robbery and murder. He testified that he sold his gun to Stevenson about a week before the crime was committed, and that he saw it in the glove compartment of Stevenson's car a few days earlier.

Defendant testified that he first met Stevenson in October 1966 after defendant lost his job and that he was with Stevenson from 10 to 15 times, usually at bars, until he left for Virginia. A few days before the crime was committed defendant decided to return to Virginia, where he had formerly lived, because he was out of work and unable to support his family and had heard that if he left home his wife could receive welfare support for herself and the children. Defendant arranged for Stevenson to pick him up on Sunday, November 20, 1966, the day of the crime. They were to leave defendant's home about 8 a.m. and Stevenson was to drive him to Highway 101 in San Jose so that defendant could hitchhike east.

Defendant testified that on Saturday evening he was with Stevenson, another friend, and his brother-in-law at a bar in Newark. About midnight defendant, his brother-in-law, and Stevenson went to another bar where defendant and his brother-in-law had a drink. Stevenson stayed outside and met a friend whose name defendant did not remember. Defendant's brother-in-law took him home shortly before 1 a.m., and defendant stayed at home the rest of the night and did not see Stevenson again until the next morning. Stevenson arrived around 6 or 7 a.m. and took defendant to the bar where later in the morning defendant sought to placate Stevenson's wife by telling her that he had been with Stevenson all night. Thereafter Stevenson drove defendant to San Jose and then to the airport and lent him money for plane fare and the trip to Virginia. Defendant and a defense witness testified that defendant won by gambling the several hundred dollars that he had in Virginia.

Defendant contends that it was prejudicial error to admit into evidence a hearsay statement of witness Hood that defendant had approached Hood in jail and asked him to secure Stevenson's signature on a piece of paper so that defendant could fabricate a sales slip for the murder weapon. We agree with this contention.

Defendant testified that when he sold the murder weapon to Stevenson about a week before the crime was committed, he did not request or receive a receipt for the sale. On cross-examination he denied that he ever attempted to procure Stevenson's signature for the purpose of making a false receipt as evidence of the alleged sale of the gun. In rebuttal the prosecution called Hood, who had been an inmate in the same jail with defendant and Stevenson before defendant's trial. Hood testified that he had never seen defendant before he saw him at the trial. Hood also stated that a police officer, Inspector Hughes, had tried to get him to agree that defendant had asked him to procure Stevenson's signature but that he had told Inspector Hughes that no such request was made of him.

Inspector Hughes was then called and testified over objection to a conversation that he had with Hood in which Hood stated that defendant had asked Hood to secure Stevenson's signature on a piece of paper that could be used to create a false sales slip for the gun to be predated before the Sulezich murder.

Since Hood's prior statement was used to prove the truth of the matter therein asserted, defendant's constitutional right to confront the witness against him was violated. (U.S. Const.6th and 14th Amends.; People v. Johnson (1968) 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111; People v. Green (1969) 70 A.C. 696, 75 Cal.Rptr. 782, 451 P.2d 422; People v. Odom (1969) 71 A.C. 735, 740--742, 78 Cal.Rptr. 873, 456 P.2d 145.) As in Odom, the trial in this case occurred after the effective date of the Evidence Code permitting such use (Evid.Code, § 1235) and before the decision of this court in the Johnson case holding section 1235 unconstitutional as applied against a defendant in a criminal case. The jury was not instructed that the prior statement could be considered only to impeach Hood's testimony. Moreover, the prosecuting attorney forcefully argued that Hughes' testimony setting forth Hood's statement was evidence that Hood's conversation with defendant occurred.

It must also be noted that the error was not limited to the failure to restrict the jury's consideration of Hood's statement to impeachment of Hood's testimony. That statement was not admissible at all for its probative value to impeach Hood's testimony was obviously 'substantially outweighed by the probability that its admission (would) * * * create substantial danger of undue prejudice.' (Evid. Code, § 352.) Hood's testimony that he had not seen defendant before he saw him at the trial and that defendant had not asked him to secure Stevenson's signature detracted not at all from the prosecution's case before the jury. At most the prosecution was denied advantageous testimony that it may have hoped to elicit, even though it knew before it put Hood on the stand that he would not testify as the prosecution wished. Accordingly, proof that Hood was a liar was of benefit to the prosecution only if the jury were to believe the truth of Hood's prior statement. The prosecution, however, was not entitled to that benefit, and the risk that it might improperly secure that benefit by impeaching Hood far outweighed any legitimate...