People v. Epps

• Decision Date: 05 September 1973
• Docket Number: Cr. 10767
• Citation: 109 Cal.Rptr. 733,34 Cal.App.3d 146
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Dennis Dale EPPS, Defendant and Appellant.

Page 733

109 Cal.Rptr. 733

34 Cal.App.3d 146

PEOPLE of the State of California, Plaintiff and Respondent, v. Dennis Dale EPPS, Defendant and Appellant.

Cr. 10767.

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

Sept. 5, 1973.

Francis L. Wood, Santa Rosa, for appellant (under Appointment of the Court of Appeal.).

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen. Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Derald E. Granberg, April P. Kestell, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Appellant has appealed from a judgment of conviction which, subject to the provisions of Penal Code section 1168, sentenced him to state prison following jury verdicts that found him and a co-defendant each guilty of burglary in the second degree. He contends: (1) that in violation of principles set down in Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, he was denied due process of law and confrontation of witnesses because his co-defendant's out-of-court statement implicating him was admitted in evidence at a trial where his co-defendant did not take the stand; (2) that insofar as his separately appointed counsel failed to raise the foregoing objection at trial, he was denied the effective assistance of counsel; and (3) that the instructions given by the trial court were contradictory, confusing and misleading to the jury and contained a misstatement of the law.

Appellant's contentions must be viewed within the framework of the following facts which were established by evidence in the record.

On March 27, 1971, at approximately 2:17 a.m. a burglary report came in to the Berkeley Police Department for the Bryant Laboratories, a company which stores and distributes some three of four thousand chemicals to pharmacies, hospitals and manufacturing laboratories. Officer Joseph Sanchez, testified that he was already crusing in the area on patrol, and arrived at the scene within seconds of the call. Before arriving, he had turned off his car lights when about three blocks away, however, he emphasized that the building involved and surrounding area were extremely well lighted.

As he drove up approximately one-half block away from the laboratory, he saw a 1963 green Pontiac Grand Prix with its hood up in a vacant lot next to the laboratory warehouse and one man standing near the hood. As Sanchez entered the lighted intersection, the man at the hood looked up at him. He then turned his head towards the laboratory, and Sanchez heard a voice, seemingly coming from the area of the car, utter indistinguishable words in a manner similar to a shout.

At this point a man peered out from the laboratory door, whereupon Sanchez accelerated toward the vicinity of the Pontiac, exited his car with a shotgun, and ordered the men into plain view. The suspect in the doorway went back into the building and Sanchez told him again to come into view. The man at the car, whom Sanchez identified as appellant Epps, also did not halt, but proceeded toward the hood of the car as if to close it, then stopped upon a second command. The man in the doorway, identified as co-defendant Freeland, came out of the building but proceeded behind a van parked near the door, whereupon Officer Sanchez shouted that if he did not come out, the officer would assume he was armed and open fire. Freeland then came out into the open and Sanchez kept both of them covered until Officers Wright and Emberton arrived to assist.

Officer Emberton testified that within two minutes of his arrival, he asked Epps to whom the green car belonged. ¹ Epps replied that it was his, although he then produced a registration listing the car to a female with the last name of Epps. Freeland was also questioned, but since Epps is challenging the admission of What Freeland said, the content of Freeland's statements will be set forth below.

Both defendants were transported to jail, then the officers called the president of Bryant Laboratories, and he proceeded to examine the building about 3:30 or 4 a.m. to see if anything had been taken. He noticed that two doors, which had been locked when he left the night before, had been forced open, one by jimmying the lock and the other by kicking in the door's lower panel. He also noticed that lights which had been off when he closed the building that night were on.

The various officers testified that at one doorway there were muddy footprints with an imprinted design similar to that made by the muddy boots Freeland was wearing that night. Also, some boxes were found near one door, and several were scattered on the floor of a storage room which had other boxes neatly stacked on shelves. A pat search of Freeland disclosed a screwdriver, and a search of the car produced a book entitled 'Medical and Public Health Laboratory Methods.'

The motive for this burglary was supplied by testimony concerning several prior incidents involving appellant Epps. Agent George Garrison of the State Bureau of Narcotics testified that in December of 1970 he had asked one of his contacts from whom she could 'score' and she mentioned Epps, among others. Consequently, on December 17, the agent and contact went to Woodland, and asked Epps for an ounce of speed. He said he could not deliver any speed right then since he wasn't 'cooking.' He said he had all the glassware and chemicals except the chemical phenly-2. ²

Also in January of 1971, Thomas Gorman, another narcotics agent, talked to Epps in the Sacramento courthouse coffee shop, and asked appellant how he had been doing. Epps replied that he hadn't been doing too much and said: 'I've got it set down; I am still missing something.' Gorman asked: 'What are you missing, $200 a pint of phenyl--2, whereas if I buy of hard to get. The Feds are making everybody register when you go to buy it and on the street it sells for somewhere around $200 a pint of phenyl--2, whereas if I buy it from a wholesaler, . . .'

On March 18, 1971, Gorman proceeded to Rio Linda, where he saw Epps and Freeland together. After the police announced themselves, Epps fled, but was caught. The officers searched a 1959 white Ford at the residence and saw two boxes, one containing chemical glassware, and the other numerous chemicals. The officers turned in reports on their discovery and three or four months later Epps was arrested for the sale of methamphetamine in proceedings unrelated to this appeal.

I

Officer Sanchez testified concerning his observations and actions up to and including the arrest of the two defendants. He then was asked if he had a conversation with the defendant Freeland, whom he had transported to the jail. Appellant's attorney objected to the relevancy of the evidence, and requested that the prosecutor make an offer of proof, and that he have an opportunity to Voir dire the officer out of the presence of the jury. The jurors were excused, and the deputy district attorney stated, '. . . This witness had a conversation with the defendant Freeland whereby the defendant Freeland admitted that he was in the laboratory for the purpose of obtaining drugs . . . he did so after being fully advised of his Miranda rights.' Thereupon the witness was examined on Voir dire by the attorney for co-defendant. Freeland, and the court, after hearing the testimony, ruled that Freeland had been properly advised of his Miranda rights and had waived them.

Sanchez then testified that the conversation was initiated by Freeland who asked Sanchez, as the officer was placing him in the patrol car, what he had been arrested for; that Sanchez told him that he was arrested for burglary; that Freeland then asked 'What about the other guy?'; that Sanchez told him that appellant was also being arrested for burglary and Freeland said he did not even know 'the other guy'; and that Freeland volunteered, 'Man, I just went in to get some tools' because he was having some problem with his car. ³ It was at this point, after Freeland was in his car, that the officer advised him of his rights.

Sanchez then asked Freeland his name and he replied that it was Epps. Sanchez said, 'Epps?' and Freeland said, 'Well, you're going to find out anyway. I better quit lying. My name is Gregory Freeland.' Sanchez asked, 'Well, who is Epps?' and Freeland said, 'Epps is the other guy.' When Sanchez pointed out to Freeland that he had earlier said he didn't know the other man, Freeland said: 'I know him.' Freeland then said, 'Man, what am I going to do?' and Sanchez told him that he should see an attorney. Freeland then said, 'Not again,' 'Got caught again,' and '. . . I went into the . . . building to look for some . . . drugs, got caught in the . . . lab, got caught again, . . . What . . . am I going to do?' The officer further testified that old needle marks were found on Freeland's arm at the time of booking.

At this time no Bruton or other objection was interposed by appellant's attorney. Both he and Freeland's attorney cross-examined the officer in a manner which revealed they were attempting to show that Freeland had been telling the truth about entering the building to secure tools to repair the car; that any admission of an attempt to take the chemicals referred to an afterthought of Freeland; and that such admission was either a result of the officer's persuasion, or was a result of a mix-up in the officer's observation, recollection and reporting.

Shortly before the conclusion of the People's case, on the day before the case was argued to the jury, appellant's attorney made a motion to strike, or in the alternative to limit the testimony given by Officer Sanchez regarding. Freeland's statements, as hearsay as to Epps, and he asked that the jury be properly admonished in that regard. He pointed out, 'Mr. Freeland admitted to participation in the burglary, that he went in to get drugs, something like that. And that is hearsay as to Mr. Epps.' When the...