People v. Fitzgerald

• Decision Date: 11 December 1972
• Docket Number: Cr. 22228
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Romaine FITZGERALD, Defendant and Appellant.

Page 458

105 Cal.Rptr. 458

29 Cal.App.3d 296

The PEOPLE of the State of California, Plaintiff and Respondent, v. Romaine FITZGERALD, Defendant and Appellant.

Cr. 22228.

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

Dec. 11, 1972.

Hearing Denied Feb. 8, 1973.

Ben Margolis, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.

FEINERMAN, ^* Justice.

A jury found defendant Romaine Fitzgerald guilty of first degree murder of Barge Miller and fixed the penalty at death for that offense. A motion for a new trial was denied by the court.

Defendant contends that (1) the evidence was insufficient to sustain the conviction; (2) the trial court violated his constitutional rights by denying his motion for a change of counsel and for a continuance in connection therewith; (3) he was denied the effective assistance of counsel; (4) the trial court abused its discretion in denying his motion for pro se privileges at the jail pending and during trial; (5) the prosecutor committed prejudicial misconduct; (6) the trial judge committed prejudicial error in his comments regarding burden of proof; (7) his identification by witness James Coleman was the result of the deprivation of his constitutional rights to counsel and was impermissibly suggestive; (8) the trial court's denial of his pretrial motion to suppress a fingerprint examplar violated his constitutional rights; (9) the court erred in permitting the use of a manikin made in the likeness of the victim to illustrate the medical testimony.

A number of additional contentions are raised with regard to the penalty phase of the trial. It is unnecessary to reach these contentions in view of the holding in People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (see also Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346), that the death penalty is unconstitutional.

We have concluded that the contentions of the defendant set forth above cannot be sustained. The judgment should be modified to provide for life imprisonment, and as so modified, it is affirmed.

FACTS

On the evening of September 28, 1969, Barge Miller was employed as a security guard by Land Johnson Security at Vons Shopping Center located at El Segundo and Avalon Boulevards in Los Angeles. He was in uniform, carried a revolver and wore a wrist watch. He had driven to work in a white Ford station wagon which he owned.

Shortly before 1:42 a.m. James Coleman, a service station attendant, heard what sounded to him like four gunshots coming from the direction of the Vons Shopping Center parking lot across the street from the service station. He asked a co-worker to call the police and ran across the street where he could see Miller's car parked in the lot. There were fluorescent lights at the parking lot. As he ran towards the car, Coleman saw two men standing near Miller's car. One of the two had the top half of his body inside the open right front door of the car and the other person stood behind him near the back door of the car. As Coleman approached, the man standing near the back door ran away. The other man came out of the car and went back inside and appeared to take something from inside the car. When he came out of the car again, he was holding what appeared to be a gun in his right hand. During the time he was inside the car, the man was bracing himself with his left hand outside the car. Coleman saw the right profile of the man as he came out of the car. He identified this person as being the defendant. The man then turned and ran toward an alleyway.

Coleman testified he did not get a good look at the front of the man's face, but he was sure of his identification of the defendant. He stated that the defendant looked different in court than when he had seen him during the early morning hours of September 29, 1969. The difference was that the defendant's hair was more closely cut than it had been on September 29. However, the facial features were the same. Coleman did not notice any bandages or anything wrong with the defendant's head on September 29, 1969.

When sheriff's deputies arrived on the scene, they found Barge Miller dead in his car. There were four bullet holes in the right front window. Miller's gun was not found and his wrist watch was missing. The car was dusted for fingerprints. A latent fingerprint was lifted from the chrome strip of the right rear door of the car. This was a print of a left thumb facing downward toward the ground. Deputy Sheriff John J. O'Neill, a fingerprint expert, testified that this print matched a fingerprint examplar of the defendant taken on October 16, 1969. Deputy O'Neill opined that this latent thumbprint was fresh, meaning one day, because a fresh print usually grabs and powder readily. He further stated that the location of the latent thumbprint, which was waist high and pointing downwards, was consistent with someone leaning into the Ford with his hand on the chrome strip. No other prints were found except 'some pieces of palm, and whatnot,' which were not identified. The victim's fingerprints were not found in the car. Deputy Sheriff Howard A. Speaks, another fingerprint expert, also testified that the latent thumbprint and defendant's fingerprint examplar were made by the same thumb.

Coleman talked to several officers concerning the events that had transpired. Sometime later he was shown a group of photographs. He did not pick out a photograph of defendant, although there was a photograph of defendant among the photographs he was shown. He testified that the reason he failed to pick out the photograph of defendant was that he did not want to identify anyone by a picture and preferred to see the suspect in person. Coleman denied telling an officer that he would be unable to identify either suspect. When called as a defense witness, Deputy Sheriff Donald Hopkins testified that when he and his partner, Deputy Charles Anderson, talked to Coleman on September 29, 1969, Coleman had said either, 'I do not think I can identify,' or 'I am not sure I can identify' the suspect.

On cross-examination the defense attorney had Coleman describe the appearance of the trial judge without looking at him. Coleman described the judge as having a moustache and 'lightish hair.' He stated that the trial judge did not wear glasses and was of 'settled age.' It was later stipulated that the trial judge did not have a moustache, did wear glasses, and that his hair was light in color.

The defendant testified in his own behalf. He stated that on September 7, 1969, he received a head injury and kept a two inch wide gauze bandage on the wound for about three or four weeks. He had removed the bandage about three to five days prior to his arrest on October 9, 1969. He denied being in the vicinity of the Vons parking lot during the early morning hours of September 29, 1969, and denied participating in any way in the shooting or robbing of Barge Miller. He testified that he never went outside at night before October 9, 1969, because he did not want to infect his head injury. When he did go outside during the daytime, he covered his head with a hat.

The defendant was wearing a hat when he was arrested on October 9, 1969. At that time he had no identification on his person and gave Joe Burton as his name to the police. The defendant testified that the reason why he gave a false name to the police was that he felt that they had no basis for stopping him. He stated that he had no identification because other officers had taken his driver's license at the time of a prior arrest.

Doris Haughton and her sister, Janice Sadler, testified in behalf of the defendant. They shared an apartment with him and stated that he had not left the apartment on the evening of September 28, 1969. They both indicated that the defendant was in the apartment when they went to bed at approximately midnight and was in the apartment when they awoke on the morning of September 29, 1969. Doris Haughton stated that the defendant never went out at night without being accompanied by either herself or her sister and he was never left alone at home at night. Janice Sadler did not recall whether or not the defendant ever went out at night unaccompanied by either her or her sister.

Sufficiency of the Evidence

Our function is not to reweigh or reinterpret the evidence but simply to determine whether there is sufficient evidence in the record to warrant the inference of guilt drawn by the trier of fact. (People v. Perry, 7 Cal.3d 756, 785, 103 Cal.Rptr. 161, 499 P.2d 129.) We must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Reilly, 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649; People v. Mosher, 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659.)

Measured by the benchmarks set forth above, the evidence in this case clearly is sufficient to sustain the conviction. The identification testimony of James Coleman is corroborated by the fingerprint evidence. Coleman testified that as the defendant was leaning inside the passenger side of Miller's car, the defendant braced himself with his left hand outside the car. The latent left thumbprint of the defendant was found on the chrome stip of the right rear door. Deputy Sheriff O'Neill, a fingerprint expert, testified that this thumberprint was fresh. The print was obtained within hours of the shooting of Barge Miller.

The defendant attacks the credibility of witness Coleman and the weight to be given to his testimony. On the record before us, Coleman's testimony was not so inherently improbable and impossible of belief as in effect to constitute no evidence at all. Therefore, it becomes the exclusive province of the jury in this case to determine the credibility...