People v. Davis

• Decision Date: 12 December 1962
• Docket Number: Cr. 3350
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur DAVIS and Robert De Louize, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 903

26 Cal.Rptr. 903

210 Cal.App.2d 721

The PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur DAVIS and Robert De Louize, Defendants and Appellants.

Cr. 3350.

District Court of Appeal, Third District, California.

Dec. 12, 1962.

Rehearing Denied Dec. 28, 1962.

Hearing Denied Feb. 6, 1963.

[210 Cal.App.2d 724] Ronald F. Sypnicki, Sacramento (under appointment by Third District Court of Appeal), for appellant Davis.

Joseph A. DeCristoforo, Sacramento (under appointment by Third District Court of Appeal), for appellant De Louize.

Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Edward Hinz, Deputy Atty. Gen., Sacramento, for respondent.

PIERCE, Justice.

At between 12:25 and 12:30 A.M. on the morning of November 15, 1961, Ernie's place was robbed. Ernie's is a tavern on the main ('Second') street of the little river town of Isleton. The robbery was committed by two hooded bandits. One of them was a 17-year-old youth, Harold 'Buddy' Freeman. Taken into custody later, he turned state's evidence, was granted immunity, and made a full confession. In this confession, and later in testifying, he named as his accomplice in the robbery itself defendant Robert De Louize, and as another accomplice, defendant Arthur Davis, an Isleton police officer on duty on the night of the robbery, whose function in the plot was said to be to keep an eye on Ernie's while cruising in his patrol car, inform the other two when there were no patrons in the tavern, then to be at the other end of town while the robbery was being perpetrated.

Davis and De Louize were charged with robbery, indicted by the Grand Jury and tried before a jury. Convicted, they moved for a new trial. They appeal separately from the orders denying their motions for a new trial and from the judgments.

Neither defendant contends there was insufficiency of evidence to sustain his conviction. Defendant Davis rests his appeal upon the contention that testimony (including a transcript) of an electronically-intercepted conversation between Davis and one Dean Thompson was improperly admitted in evidence. De Louize bases his appeal upon three grounds, principal of

which is that said appellant, who did not testify on his own behalf, was convicted solely on the uncorroborated testimony of an accomplice, to-wit, the said Buddy Freeman. Because of this we will state the corroborating testimony before stating Freeman's.

THE APPEAL OF ROBERT DE LOUIZE

Other than Freeman, the People's principal witness was the said Dean Thompson, who, although not a party to the conspiracy to rob Ernie's, seems to have been so completely in the confidence of Freeman and the two defendants that their statements and activities in his presence both on the night of the robbery and afterwards were quite uninhibited. Appellants refer to him as a 'stool pigeon;' we will call him an informer.

Thompson testified that on the night of the robbery he returned from Stockton to Isleton with a friend in the latter's car, observed officer Davis sitting in his patrol car in front of the Bank of America, two doors away from Ernie's; also on Isleton's main street. This was a point where Davis usually stationed himself when on duty but not patrolling. Thompson's friend dropped him off there and Thompson, as he frequently did, joined Davis in the patrol car, purposing to ride around with him. The time was 11:15-11:30 P.M.

While sitting there, a car owned and driven by Freeman, with defendant De Louize riding in the front seat, drove up. Officer Davis got out of his car and engaged Freeman and De Louize in conversation for a few minutes; then they drove off. Davis then drove around to make a check of the Isleton bars. It was on a Tuesday night, all of the bars closed early; there appears to have been no activity on the streets by the time this check was completed.

Thompson then asked defendant Davis to drive him to a cafe called Pineapple's to deliver some pictures to a woman employee named Rita. Davis obliged, driving past Ernie's on the way. Pineapple's is in Chinatown on a street which is an extension of the main street of Isleton. It is several blocks away from Ernie's. The two arrived at 12:20. This precise time, stated by Thompson, was corroborated by Davis and was also confirmed by a defense witness, Trinidad Ablog, proprietress of the place. The place was closed. Davis remained in his car; Thompson knocked; Rita came to the door and Thompson talked with her for about ten minutes. (Davis also confirmed this.) During their conversation Thompson saw Freeman and De Louize drive up in Freeman's car (as they had done in front of the bank an hour before). There was a conversation between them which Thompson did not overhear. Freeman and De Louize drove off. Thompson got back in the car, and he and Davis sat there for a few minutes, Davis writing something on a clipboard. Davis then drove down towards the end of Chinatown. (From the map, this appears to be as far away as one can get from Ernie's and still be in Isleton.)

Meanwhile Freeman and his accomplice were entering the front entrance of Ernie's at just before 12:30.

Al Hemenover testified that no one was in the place besides himself; that he was sitting on a customer's bar stool looking at television; that the two came in wearing pillow slips and looking like the Ku Klux Klan; they were wearing gloves. One of the two men carried a pistol. There were no spoken words. By pantomine Hemenover was directed to lie down on the kitchen floor and his hands were tied together behind him. The cash register (one empty drawer) and safe were then rifled; the total stolen was less than $100. Obltaining a key from a drawer, one of the men locked the front door and both left by the back door. Before leaving one of the men struck the prone bartender with his fist. Hemenover was dazed by the blow. The only description which he could give later of the two men was that they were about 5 feet 8 or 9 inches in height, weighed about After the bandits had left, Hemenover managed, though tied, to phone the Rio Vista police radio operator, asking her to have the Isleton patrolling officer go to Ernie's. At 12:34 this call was put through to Davis.

160 pounds; ¹ that the one carrying the gun seemed to be the huskier of the two and he was wearing dark pants which Hemenover thought were 'Frisco jeans.'

It reached him, according to Thompson's testimony, when he was driving in the last block of Chinatown on the back street. Davis was in no hurry. 'He just drove down there like he was cruising around. * * * [W]e went down one block, back up the main street in Chinatown, and came back down again.' When they got opposite Ernie's they went down to the end of the block and made a U-turn to park along the curb in the right direction.

Davis entered Ernie's, untied Hemenover and heard his account of the robbery. Thompson followed him in. Shortly thereafter Buddy Freeman returned to the scene, sitting on a bar stool with, and talking to, Thompson. The owner of Enrie's arrived and an investigation was carried on. Freeman and Thompson remained during part of this inquiry.

About 30 minutes later Thompson and Buddy left Ernie's and rode around in Freeman's car. Sometime thereafter as they were riding through Chinatown they met defendant Davis driving in his patrol car.

It was dark and it is inferable that Davis, recognizing Freeman, did not recognize Thompson. The two cars stopped and Davis said to Freeman: 'I will meet you behind Brazos.' (Brazo's is a large warehouse in Isleton.) Davis started up again; then stopped; then backed up and said: 'Where's De Louize?' Freeman said, 'I'll get him.' ²

After Davis left, Freeman told Thompson: 'I have got to meet those guys.' He said, '[H]e had to meet Davis and De Louize.' Thompson told Freeman he would wait for him in De Louize's car parked in front of the house where De Louize was staying. He was dropped off there; later Freeman returned and the two spent the night in Ryde.

This account was, of course, embellished by Freeman's testimony. Freeman testified to a plan of robbery suggested by De Louize who had mentioned that Davis had told him that Ernie's would be a good place 'to hit.' Davis had also said that the bartender always went to a storeroom back of Ernie's to replenish the liquor supply at about 1:00 in the morning. The two planned to lie in wait for Hemenover, force him into the storeroom and then rob the place. Davis told him he would go to the other end of town when the robbery took place. They had made an abortive attempt the night before the actual robbery; but the bartender had not gone out for supplies.

Freeman testified to the two meetings between Freeman, De Louize and Davis on the night of the robbery; the same two meetings which Thompson had reported. He was able to fill in with the conversations which occurred out of Thompson's hearing. He also testified to an earlier meeting with Davis in which the latter had asked about the night before. Freeman and De Louize told him of their unsuccessful attempt and of their intent to repeat the attempt. Davis asked them to let him know. Freeman and De Louize drove around between 8:00 and 10:00 o'clock, decided to try the robbery again that night. Bob said: '[W]e have Before the Grand Jury, Freeman had testified about the later meeting with Davis before the robbery (and this was brought out by defendant De Louize's attorney on cross-examination): 'Q. Where were you when you were watching for customers? [at Ernie's] A. Well, Art [Davis] drove by and said there wasn't anybody in there so we went down * * *. Q. He told you that there was nobody in there, is that right? A. Yes.'

to see Art and talk to him about it first.' Later they met Davis and 'told him we was going to try it that night.' Davis asked how they were going to do it and they told him they were 'going through the front door.' 'He [Davis] said he'd stay on the other end...