People v. Foote

• Decision Date: 15 February 1957
• Docket Number: Cr. 5855
• Citation: 306 P.2d 803,48 Cal.2d 20
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Michael FOOTE, Raymond De Forest Johnson, William E. Curtis, Defendants and Appellants.

Page 803

306 P.2d 803

48 Cal.2d 20

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Michael FOOTE, Raymond De Forest Johnson, William E. Curtis, Defendants and Appellants.

Cr. 5855.

Supreme Court of California, In Bank.

Feb. 15, 1957.

Raymond De Forest Johnson, in pro. per.

Charles E. Karpinski, San Diego, under appointment by the Dist. Ct. of App., Richard E. Adams, San Diego, under appointment by the Supreme Ct., Edgar G. Langford, J. Perry Langford, J. Robert O'Connor, and Barton C. Sheela, Jr., San Diego, for appellants.

Edmund G. Brown, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

GIBSON, Chief Justice.

After a jury trial, defendants Foote, Johnson and Curtis were found guilty of robbery in the first degree and of conspiracy to commit robbery. Each defendant appeals separately from the judgment of conviction and from the order denying his motion for a new trial.

On July 31, 1955, near 10 p. m., two men, whose faces were masked by silk stockings, threatened the cashier of a drive-in movie theater with guns and took about $800 from him. About 15 minutes afterwards, and some three miles from the theater, two police officers who had heard of the robbery stopped a 1950 Mercury automobile which contained three men. The owner, Foote, stepped out of the car and walked over to the officers, who ordered the other two men to step out with their hands in view. Instead the car was put in gear and sped away. The officers fired several shots at the automobile and, after getting Foote into their car, attempted pursuit. They were unable to overtake the Mercury automobile, but they found it unoccupied a few minutes later near Foote's home. Several rolls of coin had been left in the car, and one of them was marked 'St. Brigid's Church,' the same marking as that on some of the rolls taken from the theater.

Several hours before commission of the crime, the three defendants were together at the Foote residence. Foote's mother testified that her son left about 9 p. m. but that she did not know if anyone left with him. Later that evening, she heard a car door slam and a man's voice, which seemed to come from the car, call something like 'Terry, hurry up or I am going to leave you,' and she saw Johnson come into the entry hall and then leave. A few minutes afterward the police officers arrived with her son.

Johnson was apprehended on August 29, 1955. At first he denied that he had any part in the robbery but later, during lengthy questioning by police officers, he confessed, saying that he and Foote held up the cashier while Curtis, who was 'part of the operation,' waited in the car. The purpose of the robbery, according to Johnson, was to obtain money to finance the smuggling of narcotics from Mexico. He admitted being with the other defendants in the automobile when it was stopped by the police officers and said that, after escaping from the officers, he and Curtis went to the Foote residence where he hid the two guns used in the robbery.

Unknown to Johnson, his statements to the police officers were recorded, and a portion of the recordings, lasting over four hours, was played to the jury. Before the recordings were offered in evidence defendants asked permission to review them. The court rejected the request but ordered the district attorney to delete any objectionable matter. Defendants were not permitted to make objections until after the recorded conversations were in evidence. They then made motions for mistrial which were denied. The jury was instructed, however, that the conversations were not binding on Foote and Curtis and were to be disregarded in considering the case against them.

Johnson repudiated the statements made in his confession which connected him with the robbery. He testified that he and Foote parted about 9 p. m., which was approximately an hour before the robbery was committed, and that he did not commit the robbery and was not in the automobile when it was stopped by the police. According to his testimony, he told the police officers that he robbed the theater because they promised that, if he made such a statement, his wife, who was then in jail, would not be prosecuted for having aided him to escape capture. The police officers testified that, although Johnson made numerous attempts to secure such an agreement, they repeatedly refused to deal with him, and their testimony is borne out by the recordings of the conversations.

Foote testified that he had been with Curtis and Johnson on the night of the robbery and that they were with him in the automobile when it was stopped by the police, but he denied that he participated in the robbery.

Curtis did not take the witness stand.

There is substantial evidence to support the determination that Johnson's confession was given voluntarily. He contends, however, that it was error to admit in evidence portions of the recordings containing statements pertaining to his parole violations, the...