People v. Frierson

Decision Date31 August 1979
Docket NumberC,Cr. 20263
Citation158 Cal.Rptr. 281,25 Cal.3d 142,599 P.2d 587
CourtCalifornia Supreme Court
Parties, 599 P.2d 587 The PEOPLE, Plaintiff and Respondent, v. Lavelle FRIERSON, Defendant and Appellant. In re Lavelle FRIERSON on Habeas Corpus. r. 20882.

Michael R. Snedeker, Paul W. Comiskey and Smith, Snedeker & Comiskey, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins

and Alvin J. Knudson, Deputy Attys. Gen., for plaintiff and respondent.

Rufus L. Edmisten, Atty. Gen., Jacob L. Safron, Deputy Atty. Gen., Raleigh, N. C., Frank J. Kelley, Atty. Gen., Lansing, Mich., William J. Mullaney, Asst. Atty. Gen., Detroit, Mich., Wayne L. Kidwell, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Mark Thompson, Boise, Idaho, Ronald Y. Amemiya, Atty. Gen., Michael A. Lilly, Deputy Atty. Gen., Honolulu, Hawaii, Mike Greely, Atty. Gen., Mike McCarter, Asst. Atty. Gen., Helena, Mont., Slade Gorton, Atty. Gen., William C. Collins, Asst. Atty. Gen., Olympia, Wash., Marshall Coleman, Atty. Gen., Burnett Miller III, Asst. Atty. Gen., Richmond, Va., Robert L. Shevin, Atty. Gen., Tallahassee, Fla., John D. Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., James C. Martin, Jefferson City, Mo., Daniel R. McLeod, Atty. Gen., Columbia, S. C., Robert B. Hansen, Atty. Gen., Michael L. Deamer, Deputy Atty. Gen., Salt Lake City, Utah, Richard C. Turner, Atty. Gen., Gary L. Hayward, Asst. Atty. Gen., Des Moines, Iowa, Robert T. Stephan, Atty. Gen., Roger N. Walter, Asst. Atty. Gen., Topeka, Kan., Toney Anaya, Atty. Gen., Ralph W. Muxlow II, Asst. Atty. Gen., Santa Fe, N. M., Lee Carl Bromberg, Sp. Asst. Atty. Gen., Boston, Mass., John L. Hill, Atty. Gen., Richel Rivers, Asst. Atty. Gen., Robert E. DeLong, Jr., Austin, Tex., William J. Brown, Atty. Gen., Richard Farrin, Asst. Atty. Gen., Columbus, Ohio, Julius C. Michaelson, Atty. Gen., William G. Brody, Asst. Atty. Gen., Providence, R. I., Richard R. Wier, Jr., Atty. Gen., and John A. Parkins, Jr., Asst. Atty. Gen., Wilmington, Del., as amici curiae on behalf of plaintiff and respondent.


Defendant Lavelle Frierson appeals from a judgment imposing the death penalty following his conviction of first degree murder and other lesser offenses. He also seeks a writ of habeas corpus based on his claim that he was ineffectively represented by his trial counsel. These proceedings have been consolidated so that they may be reviewed together. We have concluded that, while the contentions raised on defendant's appeal lack merit, the uncontradicted facts presented in his habeas corpus pleadings disclose that defendant was deprived of adequate and effective representation during both the guilt and penalty phases of his trial, and accordingly, we will reverse his conviction. We also will discuss those additional issues which are likely to arise on retrial including the constitutionality of the 1977 capital punishment legislation under which defendant was tried, convicted, and sentenced, and will uphold the death penalty statute.

We trace the procedural posture of the case, recite the factual circumstances surrounding defendant's offenses, and examine his successive contentions in the light of the applicable law.

In February 1978, defendant and codefendant Zondre Wooley were charged with murder (Pen.Code, § 187; all further statutory references are to that code unless otherwise cited), robbery ( § 211), kidnaping for purposes of robbery ( § 209), and assault with a deadly weapon ( § 245, subd.(a)). The information, as amended, alleged that the foregoing offenses were aggravated by firearm use ( §§ 12022.5, 1203.06,subd. (a)(1)), and great bodily injury ( § 12022.7), and further charged that the kidnaped victims suffered bodily harm ( § 209, subd. (a)). In addition, the information alleged that the murder was wilful, deliberate and premeditated and was physically committed by defendant Frierson during the commission of both a robbery (former § 190.2, subd. (c)(3)(i)) and a kidnaping (Id., subd. (c)(3)(ii)). In passing, we note that although the people, at the November 7, 1978, General Election adopted an initiative measure (Proposition 7) which broadened the application of the death penalty provisions (present §§ 190-190.5) we are concerned solely with the 1977 legislation (former § 190 et seq.; Stats.1977, ch. 316).

Initially, a public defender was appointed to represent defendant, who entered a plea of not guilty. Shortly thereafter, defendant discharged his attorney and retained new private counsel to represent him. Pretrial motions to set aside the information ( § 995) to suppress evidence ( § 1538.5), and to order separate trials for each codefendant ( § 1098) were denied. The case was tried before a jury on July 20, 24, and 25, 1978, and on July 27, the jury found defendant guilty of each charged offense, and specified that the homicide was murder in the first degree and was wilful, deliberate and premeditated. The jury also found to be true all of the additional allegations of the information including the special circumstances which were alleged in connection with the murder charge.

The penalty phase was both commenced and concluded on July 31, 1978. Defense counsel called no witnesses and introduced no evidence. On August 1, after deliberating for seven hours, the jury fixed defendant's penalty at death. Defendant was thereupon sentenced to death for the murder, and to state prison for his other offenses as prescribed by law. Pursuant to section 1239 the appeal before us is automatic. As previously noted, defendant, through new counsel, also has submitted a petition for writ of habeas corpus alleging his trial counsel's ineffective representation. In response to the petition, we issued an order to show cause, and upon the filing of the People's return and defendant's traverse, the habeas corpus issues were fully joined. (See In re Lawler (1978) 23 Cal.3d 190, 194, 151 Cal.Rptr. 833, 588 P.2d 1257).

The trial transcript reveals that on January 3, 1978, the victims Edgardo Kramer and Guillermo Bulnes, two Peruvian airline employees, drove to the Holly Aire Motel in Inglewood to visit a female named Chris. Bulnes knocked on the door to room 18, and a young woman, codefendant Wooley, opened the door whereupon Bulnes explained that he was looking for Chris, and apologized for his intrusion. Wooley responded that Chris was not there, offered Bulnes a "date" for $100, and, when he declined, stated that she would call Chris for Bulnes. When Wooley walked to a nearby telephone booth Bulnes parked his car across the street from the motel driveway, and with Kramer then returned to Wooley, who informed them that Chris would arrive in one-half hour. The men thanked Wooley and reentered their car. Shortly thereafter, defendant approached the car and asked if the men were waiting for Chris. When Bulnes responded that they were, defendant removed a gun from his pocket, pointed it at Bulnes and cocked the hammer. Defendant thereupon entered the back seat of the car, ordered Bulnes to lock the door, start the car, and commence driving on a course directed by defendant.

During the ride, defendant removed the victims' wallets and watches. Although defendant told Bulnes not to look at him, Bulnes repeatedly turned and observed defendant's face. After travelling several blocks, defendant ordered Bulnes to park the vehicle, and thereupon shot both Bulnes and Kramer. Although Kramer apparently died instantly, Bulnes was able to grapple with defendant and to disarm him. Bulnes thereupon pointed the gun at defendant, opened the car door and left the vehicle.

After running a few steps Bulnes, who had been shot in the head, fell to the ground. Defendant thereupon seized him around the neck and attempted to retrieve the weapon. During the ensuing struggle Bulnes emptied the gun's chamber by firing it into the ground and then threw the firearm away. Defendant thereupon released his grip on Bulnes, who ran to a nearby street and was then driven to a hospital by a passing motorist. As Bulnes was entering the vehicle, he observed defendant walking in the general direction of the Holly Aire Motel.

Defendant and codefendant Wooley were subsequently arrested at the motel under circumstances which are described below in our discussion of defendant's contention that the officers lacked probable cause to arrest him.

The uncontradicted facts establish that defendant committed the homicide, robbery, kidnaping, and assault for which he was charged and convicted, and appellate counsel before us does not contend otherwise. Rather, on appeal (and in his habeas corpus petition) defendant makes the following claims: (1) The trial court's instructions regarding the defense of diminished capacity were inadequate and confusing; (2) his trial counsel was incompetent and ineffective; (3) certain evidence seized following defendant's arrest was inadmissible because the officers lacked probable cause to arrest; (4) gruesome photographs were improperly admitted at the penalty trial; and (5) the 1977 death penalty statute under which defendant was tried (former § 190 et seq.) is unconstitutional under both the federal and state Constitutions. As will appear, of these several contentions which we now consider only the second has merit.

1. Diminished Capacity Instructions

At trial, Joe Perkins, an acquaintance of defendant testified that on the morning of January 3, 1978, defendant had taken an unspecified amount of the drug, Quaalude, after which defendant "act(ed) kind of drowsy, or act(ed) kinda dazed in his head, staring. He look at the ceiling and like (in) a daze." Another trial witness, Janet Johnson, described having been with defendant during the afternoon of the same day, and observed him ingest "angel dust" (phencyclidine or PCP) from 2 o'clock to 6 o'clock, and act ...

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