People v. Furnish

• Decision Date: 12 November 1965
• Docket Number: Cr. 8314
• Citation: 63 Cal.2d 511,407 P.2d 299,47 Cal.Rptr. 387
• Court: California Supreme Court
• Parties: , 407 P.2d 299 The PEOPLE, Plaintiff and Respondent, v. Charles Wesley FURNISH, Defendant and Appellant.

Page 387

47 Cal.Rptr. 387

63 Cal.2d 511, 407 P.2d 299

The PEOPLE, Plaintiff and Respondent, v. Charles Wesley FURNISH, Defendant and Appellant.

Cr. 8314.

Supreme Court of California, In Bank.

Nov. 12, 1965.

Mark F. Joseff, Downey, Arnold P. Mordkin, Max Hara, Hara & Mordkin, Fullerton, and Don Harper Mills, Los Angeles, for defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.

PEEK, Justice.

A jury found defendant guilty of murder of the second degree, and he has appealed from the ensuing judgment.

The decedent, Star Furnish, was the twenty-month old daughter of defendant and his wife Nancy. On the morning of May 10, 1962, as was his custom, defendant left the house for work at 6:30. After serving breakfast to three older children later that morning Nancy looked briefly into Star's room on two occasions. Thinking that the child was asleep and, assuming that she might not feel well, Nancy concluded it best not to awaken her.

Shortly before 1:00 p. m. Nancy again went into the room and found Star with a plastic bag over her head. She ripped the bag from Star's face, and immediately telephoned a doctor and the defendant.

The doctor noticed that rigor mortis had set in, and although he formed an opinion that Star had died at least six to twelve hours earlier, he mistakenly told police officers that she had died two to six hours earlier. At about 2:00 p. m. defendant and Nancy were taken to the police station and questioned by officers. At 5:00 p. m. Nancy was arrested and booked on a charge of homicide, and defendant was released.

In the Furnish kitchen police officers found a second plastic bag of the same size and texture as the one removed by Nancy, and an officer attempted to place it over the child's head. Because of the close fit he was able to do so only when the child's body was placed in an upright position and the bag was worked sideways. Based on the foregoing experiment the officer formed the opinion that Star could not have put the bag over her own head.

A pathologist who performed an autopsy was of the opinion that Star died two to four hours after her last meal and that it consisted of hamburger meat, bun, and leafy vegetable. Star had had such a meal about 6:00 p. m. on May 9 according to defendant and Nancy.

After the police officers learned that Star could have died on the evening of May 9 when defendant was at home rather than the morning of May 10 when defendant was at work, they requested him to come to the police station. Defendant did so and talked with Officer Carberry from about 12:15 p. m. to 3:00 p. m. on May 11. According to defendant the officer denied his request to see Nancy, said that the police had information Nancy hated the child and had threatened to kill her two weeks earlier, and that the autopsy showed Star died one-half hour to two hours following her last meal. Carberry conceded that the foregoing discussion took place, but denied defendant's further claim that he said that Nancy was not entitled to the public defender and that an attorney would cost $1,700.

Defendant was next questioned for approximately four hours by Officer O'Donovan. About fifteen minutes of the questioning occurred in a patio near the police station and the remainder in an interrogation room. The officer had suspected on the prior afternoon that defendant might be implicated in Star's death, and he sought to elicit any facts which defendant might have concerning the death. According to the officer, they discussed known facts concerning Star's death and hypothetical situations which would demonstrate the 'good and bad evidence.' In this latter connection O'Donovan testified that he informed defendant as to the value of different evidence because he did not want defendant to say something which he thought could clear his wife but which, upon closer examination, could be disproved. According to defendant, Officer O'Donovan said Nancy would spend the rest of her life in jail; that the children would become wards of the court, but that Nancy would be released if defendant could prove he killed Star. O'Donovan denied making any of such statements.

At the conclusion of the questioning the defendant admitted that he killed Star. Thereafter, between 7:15 and 7:45 p. m. he made a further statement in Captain Martin's office amounting to a confession of murder, a confession in the office of the Chief of Police between 7:45 p. m. and 8:45 p. m. which was tape recorded, and another confession between 9:00 p. m. and 11:00 p. m. which was taken down by a stenographic reporter. The latter statement was transcribed, and defendant signed the transcription. Between 11:00 p. m. and midnight, defendant took part in an alleged reenactment of the crime at his home, and during this period he was arrested. Between 12:30 a. m. and 1:15 a. m. on May 13, he had a conversation with his wife which, unknown to them, was tape recorded. Nancy was thereafter released by the officers.

At the trial testimony as to each of the statements made by defendant was introduced over objection. The tape recording of defendant's conversation with his wife was played to the jury, and the jury was given copies of the written statement. The other tape recording and the movies of the alleged reenactment were not offered into evidence.

Defendant testified in his own behalf as to his conversations with Officers Carberry and O'Donovan as noted, and further testified that at the time of his wife's arrest on May 10 Lieutenant Jamison told him 'somebody would have to pay for this' due to public opinion; that by 7:00 p. m. on May 11 he believed that if he confessed his wife would be released; that his sole purpose in confessing was to obtain his wife's release; that before confessing he told O'Donovan he would confess so that his wife could be released from jail, and that O'Donovan said, 'This is all right, let's do it.'

Lieutenant Jamison testified that he was not on duty on May 10 and was not at the police station at any time on that day.

In his confessions defendant stated that Star, who had been unwanted, had come between him and his wife; that his wife hated Star and did not learn to love her as he hoped she would; that the ensuing dissension had caused him to hate the child also and to begin considering means of doing away with Star; that on May 9 he had purchased hamburgers which the family ate at about 6:00 p. m. and that sometime between 7:00 p. m. and 8:00 p. m. when he put Star to bed, he knew that 'something had to be done.' Defendant said he went to the kitchen, took a plastic bag from the drawer, and after returning to Star's room pulled the bag over her head.

It is now established that an accused has a right to counsel at the prearraignment, accusatory stage and that a confession, where there has been a failure to observe that right, must be excluded. (Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361) Our decision in Dorado, which was predicated upon the prior decisions of the United States Supreme Court in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d...