People v. Gardner

• Decision Date: 20 August 1969
• Docket Number: Cr. 12034
• Court: California Supreme Court
• Parties: , 457 P.2d 575 The PEOPLE, Plaintiff and Respondent, v. Charles GARDNER, Defendant and Appellant.

Page 743

79 Cal.Rptr. 743

71 Cal.2d 843, 457 P.2d 575

The PEOPLE, Plaintiff and Respondent, v. Charles GARDNER, Defendant and Appellant.

Cr. 12034.

Supreme Court of California,

In Bank.

Aug. 20, 1969.

Richard Gladstein, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., and Derald E. Granberg, Deputy Atty. Gen., for plaintiff and respondent.

BURKE, Justice.

A jury found defendant guilty of first degree murder and fixed the penalty at death. Motions for a new trial and reduction of penalty were denied, and defendant's automatic appeal is now before us. (Pen.Code, § 1239, subd. (b).)

We have now concluded that the judgment as to guilt should be affirmed but that under the compulsion of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, the death penalty must be set aside and defendant remanded to the trial court for a new trial limited to the issue of penalty.

Gerald Bispo left his home in Oakland about 7:45 a.m., July 31, 1967, carrying a brief case containing a key case and a wallet containing about $20. He was seen entering his clothing store located on 23d Avenue near East 14th about 8:10 a.m. He was later seen sweeping the front sidewalk about 8:30 a.m. Two men, Henry Desynek and Ray Miller, were sitting in a car about 50 feet back from the store at the time. Desynek testified that he saw two persons leave the store 'carrying a paper bag like, you know, like when clothing or something on that order.' The only description he could give was that they were both Negro and appeared to be in their early 20's. About ten minutes later Desnynek saw a mailman enter the store and, shortly thereafter, the police arrived. The mailman testified that he entered the store about 9:10 a.m., that he did not see anyone in the store, that he heard someone groaning behind the counter, and that he found Bispo lying on the floor in a pool of blood. He noticed glass and a paper bag on the floor. He called the police.

Officer Burns found Bispo trying to get up but unable to talk. He had the ambulance attendants immediately take him to the hospital. He noticed a large pool of blood on the floor, some shattered glass, a small brown sack in a torn condition, and a broken Pepsi-Cola bottle. The cash register was open, with only a few pennies in the drawer. Officer Sims collected the pieces of glass, which he said were scattered over an area about ten feet in length. He used a pair of forceps to pick up the glass and the paper bag and to place them in a shoe box. Mrs. Bispo testified that her husband did not have Pepsi-Cola in his lunch and that none of the debris on the foor had been there when the store closed on Saturday night. She testified that it was her husband's custom to keep $150 in the money box and upon his arrival at the store to place half of it in the cash register and the remaining $75 in a compartment in the safe. The money in the safe was found intact. The victim's wallet, brief case and key case were never found.

That evening Bispo died. The autopsy surgeon testified that death was due to multiple blunt injuries of the head, with cardiac arrest. He gave as his opinion that the injuries received were consistent with having been caused by blows from a Pepsi-Cola bottle. The bottle appeared to have been inside the paper bag at the time it was used as a lethal weapon. The victim sustained a fractured skull and nose and from the appearance of the hands and eyes he had apparently tried to protect his eyes with his hands during a brutal attack.

Davis, director of the police criminalistics laboratory, and his assistant Tellesbo, a fingerprint expert, visited the store the day after the crime. Tellesbo lifted six latent fingerprints and later tested these and some 15 prints which had been lifted by the police. No identification was ever made of the prints lifted from surfaces inside the store. Davis observed widespread splatters of blood and broken glass. He picked up more glass and other items, including a loose button, for examination.

Fingerprints were found by Davis on the paper bag. Davis identified one of the prints on the bag as that of the defendant, by comparison with prints taken from the police master file. At the request of Inspector Roehl, defendant went to the police station for an interview. He was questioned as to his whereabouts on July 31st but without specific reference to the murder. He stated that he was out late the night before, that his mother was home when he came in, and that he did not go out again until 4 or 5 p.m. that afternoon. Roehl wrote down the statements and defendant signed them. He was refinger-printed. On the basis of the similarity of a print on the bag with his, defendant was subsequently arrested. A search was made of his home and numerous articles of clothing were taken. These were given to Davis for inspection. The button was not traced to any of his clothes. The only item introduced in evidence at the trial was a pair of shoes in which glass was found imbedded in the soles of each shoe. Three particles in one shoe were found by Davis to match particles of glass found in Bispo's store. None of the victim's belongings were traced to defendant.

Defendant did not testify at the guilt trial. His mother testified that defendant was at home when she got in on the morning of July 31st, about 6:30 or 7:30; that he left home between 8:30 and 9 a.m.; and that she next saw him about 5 p.m. near Foothill and 23d. George Gardner (no relation) testified that he picked up defendant and another person at Foothill and Fairfax about 9:30 or 10 a.m. and left them at Foothill and 23d. No evidence was given as to the distances between these locations.

Also called as witnesses for the defense were Inspector Roehl and Officer Garrison. Roehl testified that he had arrested one Houston Cartright for the murder of Bispo but had released him for insufficient evidence. Other suspects had been released. Garrison testified that in a conversation with Houston's mother she had told him that her son had admitted being involved in a scuffle with Bispo in his store and that he and another boy had gone to her house seeking refuge from the police. She appeared to be under the influence of alcohol at the time. She did not identify the other boy. She did not testify at the trial.

It was stipulated that evidence received at the guilt trial might be considered by the jury at the penalty trial, and both sides introduced additional evidence.

1. THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE CONVICTION

The paper sack which covered the bottle used as the lethal weapon had two of defendant's fingerprints on it; one of his shoes had glass fragments which were found to correspond with glass found at the scene of the crime; he was within the age and racial description given by an eyewitness; he gave false statements to the police as to his whereabouts and activities on that date. The evidence, while circumstantial, was sufficient to convict.

(a) The fingerprint evidence.

Davis's qualifications as an expert were conceded by both counsel and are not attacked on this appeal. He testified that he utilized a chemical process to develop the fingerprints on the paper sack and that he photographed and rephotographed them for study and comparison. In his opinion there were at least 16 comparable characteristics between the bag fingerprints shown on People's exhibit 14 ¹ and defendant's left middle fingerprint, and 19 with those on People's exhibit 13 ² and defendant's right thumb print. He stated that it was his opinion that these two prints on the bag were defendant's. He further testified that different departments have different requirements as to the number of points of similarity required to make a positive identification; that the Federal Bureau of Identification requires 12; and that the Oakland Police Department prefers 10 to 12. On cross-examination he stated that there was blood but no bloody prints on the bag, that the prints found were from the oil on the skin, and that they could have been on the bag before it was used with the bottle in the crime.

Appellate counsel for defendant argues that this is weak and insufficient evidence; that there are inconsistencies in the testimony of Davis at the trial; ³ that there are discrepancies between the testimony of Tellesbo at the preliminary hearing and the testimony of Davis at the trial, and between the laboratory reports of Davis and the testimony of Davis at the trial. Neither the transcript of the preliminary hearing nor the laboratory reports were introduced in evidence at the trial and they are not of record on this appeal. Matters not presented by the record cannot be considered on the suggestion of counsel in the briefs. (People v. Merriam, 66 Cal.2d 390, 396--397, 58 Cal.Rptr. 1, 426 P.2d 161.)

Fingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant. (People v. Riser, 47 Cal.2d 566, 589, 305 P.2d 1 (app. dism. Riser v. Warden, 358 U.S. 646, 79 S.Ct. 537, 3 L.Ed.2d 568); Witkin, Cal. Evidence, Circumstantial Evidence, § 370.) The jury is entitled to draw its own inferences as to how the defendant's prints came to be on the bag and when (see People v. Wise, 199 Cal.App.2d 57, 59--60, 18 Cal.Rptr. 343) and to weigh the evidence and opinion of the fingerprint experts.

(b) The glass particles in the defendant's left shoe.

The evidence showed that there were glass fragments and a broken Pepsi-Cola bottle on the floor near the victim. The floor had a hard surface and Davis testified that a person walking over glass could pick up glass in this shoes. In examining this pair of shoes he found that there were glass particles in the soles of each. He removed seven from the left and three from the right. After testing he discarded all of these except three from the...