People v. Dinkins

Decision Date21 June 1966
Docket NumberCr. 11480
Citation242 Cal.App.2d 892,52 Cal.Rptr. 134
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Andrew Monroe DINKINS, Defendant and Appellant.

Raymond H. Miller, Los Angeles, under appointment by the District Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Richard D. Huffman, Deputy Atty. Gen., for respondent.

FORD, Justice.

In a trial without a jury, at which he was represented by a deputy public defender, the defendant was found to be guilty of the crime of assault with a deadly weapon. (Pen.Code, § 245.) His motion for a new trial was denied. Probation was denied and he was sentenced to be punished by imprisonment in the state prison for the term prescribed by law. He has appealed from the judgment and has attempted to appeal from the order denying his motion for a new trial, but that order is not separately appealable. (People v. Bernhardt, 222 Cal.App.2d 567, 571, 35 Cal.Rptr. 401.)

The contentions made on behalf of the defendant are that the evidence was insufficient to support the conviction, that the testimony given at the preliminary hearing by the person alleged to have been assaulted, Ulysses S. Oliver, who was not present at the trial, should not have been received in evidence at the trial, and that certain exhibits were introduced in violation of the defendant's constitutional rights. Reference will be made to pertinent portions of the record.

With respect to the absence of Mr. Oliver at the time of the trial, the People called as a witness James Gossett, an investigator and process server for the office of the district attorney. On June 9, 1965, having received a subpoena to be served on Mr. Oliver for his attendance at the trial on June 24, Mr. Gossett went to 1343 South Curson in Los Angeles. No one was there and Mr. Gossett left his card. Later that day he talked to Susie Oliver who was at 3641 Sixth Avenue. Mrs. Oliver stated that she was Mr. Oliver's wife and that Mr. Oliver was probably in Alabama at an address which, Mr. Gossett said, was the 'secondary' address listed on the subpoena. That address was 1264 Cleveland Avenue, Montgomery, Alabama. Mr. Gossett drafted a telegram. The message, dated June 14, 1965, was charged to the office of the district attorney and was in part as follows: 'Urgent, please wire collect advising if you will be in Los Angeles Superior Court Department 106, 6/24/65, to appear as witness in Andrew Monroe Dinkins case.' A reply, dated June 17, 1965, was received through Western Union, a portion thereof being: 'pursuant to the advice of my doctors it is not advisable because of my physical and emotional condition to return at this time. If I can be of assistance without the necessity of a long travel I will be happy to do so. Ulysses S. Oliver.'

On cross-examination Mr. Gossett testified that he made no inquiry of the telephone company or at the jails. He did not communicate with Mr. Oliver and tell him that funds would be provided for his transportation to Los Angeles by air. The witness had no knowledge as to whether the district attorney's office had funds for the transportation of witnesses.

The position of the People was that the testimony of Mr. Oliver given at the preliminary hearing was admissible under the provisions of section 686 of the Penal Code. 1 On behalf of the defendant, however, it was contended that such testimony was inadmissible under the reasoning of Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, with respect to the constitutional right of an accused to confront the witnesses against him. In support of that position the defendant was permitted to call as a witness Thomas Patterson, the deputy public defender who had represented him at the preliminary hearing.

Mr. Patterson testified that he saw the defendant for the first time in the thirty-minute period immediately prior to the time set for the opening of the court session for the conduct of the preliminary hearing. Mr. Patterson knew nothing about the case before that time. In such an interview his practice is to find out the defendant's version of the particular offense charged and to write it down on an interview sheet which is taken to the division of the municipal court where the matter is heard. He had a further discussion with the defendant Dinkins in the division of the municipal court to which his case was assigned. His only information about any of the witnesses was what the defendant told him. He made no investigation. No defense was presented at the preliminary hearing.

On cross-examination Mr. Patterson testified that he had the opportunity of cross-examining Mr. Oliver and was not limited as to the extent of his cross-examination. He felt that what he did by way of cross- examination was what should be done under the circumstances.

The direct examination of Mr. Oliver was embodied in five pages and the cross-examination in three pages of the reporter's transcript of the preliminary hearing.

The People's motion to introduce the testimony of Mr. Oliver given at the preliminary hearing was granted over the defendant's objection, the finding of the court being that Mr. Oliver was absent from California. In the course of that testimony Mr. Oliver said that he lived at 1264 Cleveland Avenue, Montgomery, Alabama.

With respect to the incident out of which the charge against the defendant arose, Mr. Oliver testified that on April 21, 1964, he went to the house at 3641 Sixth Avenue where his wife lived. They were separated and, Mr. Oliver indicated, there had been an interlocutory decree of divorce. He arrived at about 2:00 o'clock, having been called by his ex-wife, about an hour or two before, to take his daughter, who had been out of school for about two months, to the school nurse. The door was open; he rang the doorbell and walked in. When he entered he observed Mrs. Oliver and the defendant embracing and kissing each other. The defendant ran out the back door. Mr. Oliver talked to Mrs. Oliver. In less than a minute the defendant came back, but Mr. Oliver could not remember whether the defendant fired a shot before or after Mr. Oliver saw him on his return. In his hand the defendant had a gun which was pointed at Mr. Oliver. Mrs. Oliver told the defendant to leave and he did so.

On cross-examination, Mr. Oliver testified that the divorce proceeding was pending in Los Angeles County and had reached 'an interlocutory state.' There had been no court order prohibiting him from going to Mrs. Oliver's premises. When he arrived at Mrs. Oliver's home no one invited him in. The remaining portion of his testimony was: 'Q. You just walked in? A. Well, rang the doorbell and I opened the door. The door was open. I asked where was the kid. Q. How many children do you have? A. Two kids. Q. Where were they at the time? A. I don't know. Q. Were they present in the house? A. Apparently they wasn't, because she said the nurse had picked them up and carried them to the school. Q. At the time you observed your wife and the defendant did you use any profane language? A. None whatever. Q. Did you at any time pick up a knife and attack the defendant? A. I don't even own a knife whatever. Q. Did you pick up a knife that was laying in the house? A. No. I did not. Q. Did you order the defendant to leave the premises? A. No, I did not. I didn't get a chance to say one word to him. He rushed out. Q. Did you kick him at any time? A. None whatever. Q. Had you ever seen him before? A. I have seen him before. Q. You have? A. I have seen him around in the neighborhood before. Q. But you did not know him personally? A. No, I never knew him. Q. Which arm was hit? A. In the left arm. Q. Are you left-handed or right-handed? A. I'm right-handed.'

Lionel Robert, a police officer for the City of Los Angeles, testified that, when he arrived at the Sixth Avenue address at approximately 1:30 p.m. on April 21, 1964, there was blood coming from Mr. Oliver's abdomen, upper left chest and left arm. In his opinion the wounds were gunshot wounds. Mr. Oliver was about five feet eleven inches or six feet tall and weighed about 185 or 190 pounds. The officer estimated his age to be 38 to 42 years.

Mrs. Oliver, called as a witness by the People, testified that she was the former wife of Mr. Oliver. About April 23, 1965, she received through the mail a letter in the defendant's handwriting.

Thereupon the trial court permitted the defendant to call Mrs. Oliver as his own witness, out of order. She testified that the duration of her marriage to Mr. Oliver was twenty-five years. He was six feet one and a half inches tall, weighed about 180 or 185 pounds, and was 47 years old. On April 21, 1964, she did not call Mr Oliver and did not ask him to come to her house. He had assaulted her many times over a period of approximately 15 years. When he was under the influence of liquor he had a violent temper. Twice she had received medical treatment as a result of injuries inflicted upon her by Mr. Oliver.

Mrs. Oliver further testified that on April 21, 1964, the defendant, whom she had known for approximately six or seven months, was living at 3641 1/2 Sixth Avenue with the tenants on her premises. She did not know that Mr. Oliver was coming to her house on that day. At approximately 2:00 o'clock the defendant appeared and said, 'Mrs. Oliver, I came to pay my telephone bill.' About two or three minutes later Mr. Oliver came in. She was then in the kitchen washing dishes and was approximately three feet away from the defendant. (The trial court stated that the distance in the courtroom indicated by her as being approximately the space between them was a 'good deal closer to eight feet.') She was not kissing or embracing the defendant. Mr. Oliver was 'under the influence of alcohol and he was raging, and using profane...

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