People v. Dillinger

• Decision Date: 13 December 1968
• Docket Number: Cr. 6194
• Citation: 268 Cal.App.2d 140,73 Cal.Rptr. 720
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Michael J. DILLINGER, Defendant and Appellant.

Page 720

73 Cal.Rptr. 720

268 Cal.App.2d 140

PEOPLE of the State of California, Plaintiff and Respondent, v. Michael J. DILLINGER, Defendant and Appellant.

Cr. 6194.

Court of Appeal, First District, Division 1, California.

Dec. 13, 1968.

Salle S. Soladay (Under appointment of the Court of Appeal), San Rafael, for defendant and appellant.

Thomas C. Lynch, Atty. Gen. of the State of California, John T. Murphy, and Charles R. B. Kirk, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment entered upon a jury verdict finding him guilty of violating Penal Code section 4532, subdivision (b) (escape, or attempt to escape, by a prisoner charged with a felony). Defendant makes several assignments of error, each of which will be hereinafter discussed together with the pertinent facts, under the headings which follow the preliminary statements of facts.

Preliminary Statement of Facts

While awaiting trial on robbery charges in a county jail, defendant, accompanied by other prisoners, was transported to the courthouse to answer for an earlier traffic offense. Outside the first floor courtroom the deputy sheriff in charge left his prisoners for a moment while he handled some paper work with a police clerk. The deputy testified that he told the prisoners, 'Remain here while I go to the window, in a single file line.' When he returned, defendant had disappeared through a back door of the building. A short time later defendant was captured in the bushes outside.

Alleged Misconduct of Prosecutor

The principal assignment of error relates to claimed misconduct of the deputy district attorney during his argument to the jury when he stated: 'Even assuming for the moment that this particular man on this day in question had done what he said he did, got sick, came out the back door and vomited, do you think he'd be here today? I mean, do you think he would be here at all today if that were the circumstance, he is standing here, gets sick out the back door. Do you think the Sheriff would charge him, or we would be trying him, even the way he tells the facts. It didn't happen that way.' Defendant claims that this statement was an expression of personal belief by the prosecutor of defendant's guilt and that it constituted prejudicial error notwithstanding defendant's failure to object at trial. The Attorney General argues that the prosecutor's comment, 'though perhaps injudicious and 'mild misconduct," was not prejudicial since defendant had admitted all elements of the charged offense.

Since a review of the record indicates to us that the jury's verdict was supported by the evidence, we relate the evidence, in view of the People's contention, in a light most favorable to defendant, and as it could have been believed by the jury.

Defendant 'had been extremely ill for the last two days' preceding the alleged escape; it was 'possibly pneumonia, or stomach flu.' He had been 'coughing and heaving and spitting up' that morning. He had eaten no breakfast, having given it to a cellmate because he didn't believe he could hold it down. He had asked to go on the doctor's list, but his request was refused. When taken to the courthouse defendant and six other prisoners were placed in a small enclosed truck with seats on the side. Outside the temperature was about 90 degrees; inside it was approximately 100. The truck 'was joggling quite a bit and so on', and it reached speeds of 75 miles per hour. As he stood outside the courtroom defendant appeared ill; his face was pale. Defendant testified that he was violently ill at that point. While the officer was away defendant unsuccessfully tried to ascertain the location of a restroom. He then put his hand over his mouth and stepped out the back door of the building. As he did, the door, which had a hydraulic apparatus, 'clicked.' He vomited in the bushes. In doing so he soiled his shirt, and therefore he removed it. Defendant assumed that the door had locked itself; because of his 15 months in jail 'I had it in my mind that when the door closes it locks.' Hurrying around the building to enter its front door and return to the prisoner's line, he again felt the need to relieve himself. While doing so he was apprehended by the officer.

Defendant insisted that he was not trying to escape; his intent was only to avoid vomiting on the courthouse floor. He stated: 'I didn't ask authorization to leave, but I didn't feel in (those) circumstances there that it was really necessary.' He explained that when jail prisoners are found in a place where they should not be, they are not usually charged with an escape, but instead with being in an unauthorized place and given jail discipline.

Adverting to the applicable law, we note, initially, that it is within the domain of legitimate argument for a prosecutor to state his deductions or conclusions drawn from the evidence adduced at trial, and, more particularly, to relate to the jury that, in his opinion, the evidence shows that the defendant is guilty of the crime charged. (People v. Rogers, 163 Cal. 476, 482, 126 P. 143; People v. Kirkes, 39 Cal.2d 719, 723, 724, 249 P.2d 1; People v. Edgar, 34 Cal.App. 459, 468, 167 p. 891.) However, statements by the prosecuting attorney, not based upon legitimate inferences from the evidence, to the effect that he has personal knowledge of the defendant's guilt and that he would not conduct the prosecution unless he believed the defendant to be guilty, constitute misconduct. (People v. Kirkes, supra, at p. 723, 249 P.2d 1; People v. Alverson, 60 Cal.2d 803, 808, 36 Cal.Rptr. 479, 388 P.2d 711; People v. Hidalgo, 78 Cal.App.2d 926, 939, 941--942, 179 P.2d 102; People v. Chilcott, 18 Cal.App.2d 583, 588--589, 64 P.2d 450; People v. Brown, 81 Cal.App. 226, 241, 253 p. 735; People v. Edgar, supra; People v. Podwys, 6 Cal.App.2d 71, 74, 44 P.2d 377.)

The cases which have articulated the rule of misconduct with respect to the declarations of the prosecutor that he believes the defendant to be guilty, have done so on the basis that the declaration was tantamount to a testimonial assertion that the prosecutor believed the defendant guilty from the inception of the prosecution, and they have condemned any such assertion because it implies that the prosecution possesses proof of guilt beyond that which the jury has examined. (People v. Modesto, 66 Cal.2d 695, 715, 59 Cal.Rptr. 124, 427 P.2d 788; People v. Kirkes, supra, 39 Cal.2d 719, 723--724, 249 P.2d 1; see People v. Edgar, supra, 34 Cal.App. 459, 468, 167 P. 891; People v. Hidalgo, supra, 78 Cal.App.2d 926, 938--942, 179 P.2d 102.)

A reading of the argument in the present case indicates that the prosecutor was stating his deductions and conclusions from the evidence given at the trial. Accordingly, we are satisfied that remarks here challenged when read, and so when heard, in the context of the evidence adduced at the trial were within the domain of legitimate argument.

The prosecutor commenced his argument with the following admonition: 'Keep in mind the argument is not evidence in the case, because anything the attorneys say, myself or Mr. Dillinger, acting as his own attorney, is not evidence in the case unless we are on the witness stand. Of course, during the argument no one is on the witness stand. The only purpose of the argument is to draw your attention to points of law and the facts as they were brought out in the case, so it will help you to decide the case so you won't overlook anything that might be a basis for your decision. * * * I just want to point out that that is the only purpose in the argument. It is not supposed to give you one side versus the other side, or prejudice you or make you sympathetic. It is to point out what, under the law and evidence, we think is important, so you won't overlook it when you decide the case.'

After reviewing the facts which showed that defendant was in fact charged with a felony, and in fact in the custody of an officer at the time of the acts which allegedly constituted the escape, the prosecutor approached the question of whether defendant did in fact escape or attempt to escape. In analyzing the testimony he stated: 'Now, what do we have in this case? What did we really argue about here, if anything? There's no question, the way everybody tells it, that the Defendant left this vicinity, where he was in custody, went around the building, and a wound up here. There's a difference in the stories as to what was going on when he was around here. There's not much guess work about that. The other prisoners, even his witnesses, were fully aware of the limits of their custody as around this vicinity, and the Defendant pretty much admitted that absent his excuse because he was sick, he wanted to (sic) outside and throw up, he indicated, I believe, the limits might be farther under those circumstances. My own feeling is in the evidence that you are not going to get into much of an argument about the fact that he left the limits of his custody and that he knew that he was supposed to stick around in this area. That really leaves, I think, in the evidence here one thing that you are going to have to consider--and don't take it my way. If you see it some other way, do it. But I'm just pointing this out as a possibility to you, that he wilfully departed the limits of his custody.'

The prosecutor, after acknowledging that a fire or explosion in a jail, or the action of an epileptic would furnish grounds for finding that a prisoner was not leaving his place of confinement deliberately, stated: 'They just simply have got to get out. It's really not a wilful departure. I think that's the element that is involved in the defense in this case.' He then proceeded to argue that even if the defendant were sick, it was a technical escape. He further stated: 'Well, the Judge is going to instruct you that physical illness is not a defense unless it has reached...