People v. Darling

• Citation: 58 Cal.2d 15,372 P.2d 316,22 Cal.Rptr. 484
• Decision Date: 20 June 1962
• Docket Number: Cr. 7093
• Court: California Supreme Court
• Parties: , 372 P.2d 316 The PEOPLE, Plaintiff and Respondent, v. Melvin T. DARLING, Defendant and Appellant.

Page 484

22 Cal.Rptr. 484

58 Cal.2d 15, 372 P.2d 316

The PEOPLE, Plaintiff and Respondent, v. Melvin T. DARLING, Defendant and Appellant.

Cr. 7093.

Supreme Court of California, In Bank.

June 20, 1962.

Edward T. Mancuso, Public Defender, under appointment by the Supreme Court, and Joseph I. McNamara, Deputy Public Defender, for defendant and appellant.

Stanley Mosk, Atty. Gen., John S. McInerny and Derald E. Granberg, Deputy Attys. Gen., for plaintiff and respondent.

WHITE, Justice.

Defendant was found guilty by a jury of first degree murder of Alex T. Malcomson. The penalty was fixed at death and the jury further found that the defendant was sane at the time the crime was committed. Defendant's motion for a new trial was thereafter denied. From the ensuing judgment this appeal is automatic pursuant to the provisions of section 1239, subdivision (b) of the Penal Code.

Notwithstanding defendant's protestations in communications addressed to this court that he received a fair trial, was guilty of the offense charged against him and wanted no review whatsoever of his conviction, this court nevertheless, in conformity with the purpose and intent of the aforesaid section, appointed Edward T. Mancuso, Public Defender of the City and County of San Francisco, whose office represented defendant at his trial, to also represent the latter on this automatic appeal, and appointed counsel has filed briefs and orally argued that cause before us.

As to the factual background surrounding this prosecution, the record reveals that defendant arrived in San Francisco from Seattle in possession of a pilot's license, wallet, credit and identification cards and blank checks stolen from one Bruce Leer. He registered first at the Gates Hotel, then purchased new luggage and registered at the St .francis Hotel as Bruce Leer. He twice attempted to cash checks as Bruce Leer and was refused on each occasion. In a bar at the hotel he met the deceased and had some drinks with him. The latter agreed to show some place of interest in San Francisco to defendant, who invited the deceased to the former's room for the stated purpose of freshening up but with the intent of robbing him. Drinks were ordered and served while the men were in the room. Thereafter defendant took a gun from a holster on his belt, pointed it at the deceased and demanded his wallet. The victim, disregarding the gun, attempted to escape from the room whereupon defendant struck him and pushed him back. When the deceased again attempted to escape defendant shot him twice in the head, struck him with the gun about the head and held him to the floor in a choking position until deceased was dead. Defendant then removed the deceased's wallet, credentials, a wrist watch and a ring, washed blood from his hands, placed a 'Do Not Disturb' sign on the outer door of the room and left the hotel. He returned to the Gates Hotel where he picked up the luggage he had left there, returned to the St. Francis Hotel, picked up his and the deceased's belongings and finally departed.

Defendant registered that night at the Commodore Hotel in San Francisco, under the name of his victim, Alex Y. Malcomson, and using the latter's credentials. The following day, after defendant cashed checks again using the deceased's credentials, he rented an automobile and drove to Las Vegas where he again posed as his victim. He went from there to Palm Springs and from the latter city to Long Beach where he first registered in a hotel under an assumed name but later transferred to another hotel and registered as Axex Y. Malcomson. That evening, what was the fourth day following the homicide, defendant made two recordings which contained a complete confession and mailed then to the San Francisco police. He was apprehended the following day by officers of the Long Beach Police Department.

Defendant has given detailed statements of his activities to both the Long Beach and the San Francisco police. The voluntary or involuntary nature of these statements has not been put in issue, and it does not appear from an examination of the record that there was any impropriety in either procuring the statements or in offering them into evidence. Other independent evidence corroborated the defendant's statements in large part. Defendant did not take the stand in his own behalf during the trial.

From the foregoing evidentiary narrative it is manifest that it could not be successfully urged that the evidence is insufficient to support the judgment of conviction of murder in the first degree, and such a contention is not made. (Pen.Code, § 189.)

Three contentions are made on this appeal in behalf of defendant: (1) that it was an abuse of discretion for the trial judge to refuse to allow defendant the right and privilege of addressing the jury on his own behalf; (2) that the court erred in allowing certain photographs to be introduced in evidence; and (3) that the court was guilty of misconduct which deprived defendant of a fair trial on the issue of insanity.

At an early stage in the trial proceedings defense counsel stated to the court: '* * * At this time I am going to move the Court for an order permitting Mr. Darling to propound a question or two to a witness, if he so sees fit now and then it will not occur very often and for permission also to address the jury at the appropriate time.' The court responded as follows: 'Well, I think perhaps the better way to do it, any question that Mr. Darling wants to propound, I think he should ask through you. I am perfectly willing to discuss it with you further, if there is some particular reason he wants to do it that way, but he is certainly free to consult with you, and he can advise you of any question he wants asked.' Counsel for defendant then replied: 'Very well, I will consult further on the matter, your Honor.' However, at no time thereafter did counsel renew his motion. During the jury deliberations on the penalty phase of the case the jury inquired of the court whether it was permissible for defendant to make a statement in his own behalf. The court replied that it was not permissible, that defendant had exercised his prerogative to refrain from testifying, which he had the right to do, and that should answer the jury's question.

Counsel contends that a defendant in a capital case has the right to appear other than through a single attorney. It appears that he has such a right. The Constitution provides that an accused has the right in a criminal prosecution 'to appear and defend, in person and with counsel.' (Const., art. I, § 13.) In People v. Ah. Wee, 48 Cal. 236, 238, the court held that while in a capital case each side is entitled to have two counsel address the jury, the court could in its discretion permit as many counsel as it deemed proper to argue in behalf of either the prosecution or a defendant. (See also Pen.Code, § 1095.) However, the issue in the instant case is not whether defendant has been denied the right to representation by more than one counsel, but whether he may personally participate in a trial where he is duly represented by one or more attorneys. In People v. Mattson, 51 Cal.2d 777, 336 P.2d 937, this court considered a defendant's contention that he had the right to both conduct his own defense and to be provided with the services of court-appointed counsel to advise and assist him. In denying that such a right existed we had occasion to state at page 789, 336 P.2d [372 P.2d 319] at page 946: '* * * defendant is not entitled to have his case presented in court both by himself and by counsel acting at the same time or alternating at defendant's pleasure. (Citations.) So long as defendant is represented by counsel at the trial, he has no right to be heard by himself (Citations) * * *.' And at page 797, 336 P.2d at page 951 we further statuted: 'We are not saying that the trial court may not in its discretion, upon what it may determine to be good cause shown, permit a party who is represented by counsel to participate in the conduct of the case * * *. These matters are within the sound discretion of the trial judge, who is in a position to appraise the courtroom situation and determine what procedure will best promote orderly, prompt and just disposition of the cause. The court, however, should not permit a litigant both to have counsel and to actively participate in the conduct of the case (as by conducting examination of witnesses, inperposing objections, arguing points of law or of fact, addressing the jury, etc.) unless the court on a substantial showing determines that in the circumstances of the case the cause of justice will thereby be served and that the orderly and expeditious conduct of the court's business will not thereby be substantially hindered, hampered or delayed.' (Emphasis added.) (See also People v. Jackson, 186 Cal.App.2d 308, 317, 8 Cal.Rptr. 849.)

The record fairly reveals that in the instant case the court left the matter open for counsel to make the 'substantial showing' necessary to entitle defendant to participate in the proceedings. No further effort was made by counsel to make the necessary showing, and there is nothing in the record at the present time which suggests that a substantial showing might have been made or in what manner defendant might have been particularly prejudiced by the ruling...