People v. Glover

• Decision Date: 25 June 1985
• Citation: 215 Cal.Rptr. 456,169 Cal.App.3d 689
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Rocky Lee GLOVER, Defendant and Appellant. Crim. 44449.

Page 456

215 Cal.Rptr. 456

169 Cal.App.3d 689

The PEOPLE of the State of California, Plaintiff and Respondent, v. Rocky Lee GLOVER, Defendant and Appellant.

Crim. 44449.

Court of Appeal, Second District, Division 3, California.

June 25, 1985.

[169 Cal.App.3d 691] Russell Iungerich, Los Angeles, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Carol Wendelin Pollack, Supervising Deputy Atty. Gen., and Susan Lee Frierson, Deputy Atty. Gen., for plaintiff and respondent.

LUI, Associate Justice.

PROCEDURAL BACKGROUND

Appellant, Rocky Lee Glover, was charged by information with the murder of Michael John Mitchell in violation of Penal Code section 187. ¹ It was alleged that during the commission and attempted commission of the offense, the principal was armed with firearms, to wit, a rifle and a handgun, within the meaning of section 12022, subdivision (a). It was further alleged that in the commission and attempted commission of the offense, appellant personally used a deadly and dangerous weapon, to wit, a handgun and/or rifle, within the meaning of section 12022, subdivision (b).

Appellant was arraigned, pleaded not guilty, and denied the use and armed allegations. He was held to answer to the charges following the preliminary hearing. Appellant's motion to proceed in pro. per. and to retain associate counsel was denied without prejudice.

Appellant's pretrial motion to quash the search warrant (No. 18217), ² issued to search appellant's cell, was granted in part as to "any writing or other thing relating to witnesses in the killing of Michael Mitchell." Appellant's motions to dismiss and to traverse the search warrant were denied. Appellant's motion pursuant to section 1538.5 was granted in part, but denied as to items seized from his cell pertaining to the 18th Street gang and the statements of Deputy Robbins and Daisy Molina of August 12 and August 13, 1981.

However, the court ordered all items found in appellant's jail cell during the search of August 11, 1981, and all evidence relating to those seizures, as well as the interviews of Daisy Molina and any evidence relating thereto, suppressed for any purpose whatsoever as a sanction against the People for oppressive and improper conduct.

On the People's motion, the use allegation pursuant to section 12022, subdivision (b), was stricken, and the court granted appellant's motion that the prosecution not be allowed to use appellant's prior burglary conviction to impeach him should he testify. Prior to commencing deliberations, the jury was advised that the use allegation had been dismissed.

The jury found appellant guilty of murder in the first degree, and further found the allegation that a principal in the offense was armed with firearms within the meaning of section 12022, subdivision (a), to be true.

Probation was denied. Appellant was sentenced to a state prison term of 25 years to life plus one year for the enhancement. The trial court recommended to the Board of Prison Terms that appellant serve the maximum period of time allowable by law and that parole not be considered until appellant has served at least 25 years in prison. Appellant was given credit for 261 days in custody. The court ordered that his sentence run consecutively with any time currently being served.

Appellant filed a timely notice of appeal from the judgment of conviction.

FACTUAL BACKGROUND

Early in the morning of September 18, 1980, Michael Mitchell and his wife, Dora Appellant was arrested on October 24, 1980, for the murder of Michael Mitchell. A .32 caliber revolver was found in his padlocked bedroom. Ballistics reports indicated that the .32 caliber bullet recovered from the area around Mitchell's body could have been fired from the revolver found in appellant's room.

were in their second floor apartment at 2727 South Budlong. At approximately 4:00 a.m., the couple heard shots being fired from outside. Michael went onto the balcony, and Dora went into the bathroom to get dressed. When Dora came out, Michael had been shot and appeared to be dead. Autopsy reports revealed that he had been killed by a long distance gunshot wound to the head. Several .30 caliber and one .32 caliber bullets were found in the area of Mitchell's body, and six expended .30 caliber cartridge casings were found across the street from the apartment building.

At the preliminary hearing on December 29, 1980, the prosecution called appellant's brother, Mark Glover, to testify against appellant. Mark testified that a few days prior to September 18, 1980, he was with appellant at their mother's house when appellant brought out an M-1 rifle loaded with .30 caliber bullets which he wrapped in a blanket and put in the back of his car. At that time appellant told Mark he intended to "get" George Salcido, the resident manager of the apartment building where Mitchell was shot. Mark further testified that appellant wanted to get Salcido because he believed he was a member of Los Harpy's westside gang and was behind a shooting that had taken place around September 6 in which Harpy's gang members had killed three 18th Street gang members. ³

On August 6, 1981, shortly before the date set for trial, appellant's cell at the Los Angeles County Jail was searched for contraband and weapons as part of a general search for such items in all of the cells on appellant's block. Prior to that search, John Ouderkirk, the Los Angeles County Deputy District Attorney in charge of prosecuting appellant's case, had asked Deputy Sheriff Christopher Robbins, who was assigned to the county jail, to look for anything in appellant's cell which related to the 18th Street gang during the next routine search for contraband and weapons. During that search, Robbins noticed writing on the wall about Mark Glover, some drawings, and newspaper clippings bearing the handwritten notations "18th Street." After the search Robbins contacted Ouderkirk and reported his findings.

Subsequently, on August 10, 1981, a search warrant for appellant's jail cell was executed by a municipal court judge at 2:05 p.m. That warrant was served upon appellant's cell the following day by Detective Larry Bird at approximately 9:30 a.m. ⁴

The search warrant was supported by the affidavit of Detective Bird, in which he stated that on October 21, 1980, he had interviewed a "confidential, reliable informant who had information on a Rocky Glover." Bird further stated that he had "direct knowledge that the aforementioned confidential, reliable informant has supplied information to Detective Derenia in the past which has resulted in the arrest and conviction of four individuals for murder. At no time has the informant supplied any information that proved to be false."

The "confidential, reliable informant" was, in fact, Mark Glover, who had testified against appellant at the preliminary hearing. Further, at the time of making Prior to serving the warrant, Robbins announced over the jail's intercom that appellant should prepare for an attorney visit. In response to this announcement, appellant gathered his papers relating to the preparation of his defense and placed them in a folder. Appellant was then handcuffed and led out of his cell by Robbins, who carried the folder. As appellant and Robbins were walking down the corridor toward the attorney room, they were met by several detectives, one of whom was Bird. The detectives showed appellant the search warrant and proceeded to appellant's cell. Appellant's file containing his defense notes was placed on a table in the cell. During the course of the search, the contents of the file containing appellant's notes were examined by officers conducting the search and the file was seized. The notes included the anticipated statement of Daisy Molina to the effect that at the time of the murder on September 18, 1980, she and appellant were in bed together and that Mark arrived later carrying a rifle and announced that he had just shot someone on Budlong.

the affidavit, Bird knew that Mark had lied either at the preliminary hearing or in a subsequent interview. He also did not have first hand personal knowledge of the information supplied by Mark Glover which led to four arrests and convictions for murder. Bird did not reveal these facts to the magistrate at the time he requested the search warrant.

Following the search, the defense documents which had been seized were turned over to Ouderkirk. Ouderkirk immediately placed the documents under seal with the court, but several days later he obtained a discovery order to recover them.

Prior to serving the search warrant, Bird obtained the visitor slips from the jail concerning people who had visited appellant. Following the search, he delivered those slips to Ouderkirk. On August 12, 1981, Morris Jones, an investigator for the District Attorney's Bureau of Investigation, was contacted by Ouderkirk and asked to interview three witnesses immediately. Ouderkirk told Jones at that time that the witnesses to be interviewed were people who had visited Rocky Glover and their names had been obtained from visitor slips collected at the jail. Among those visitors was Daisy Molina who was also mentioned in appellant's defense papers as a defense witness. Molina was interviewed on August 12 by Jones and another investigator, and again on August 13 by Jones, Bird and Ouderkirk. During those interviews, she denied being with appellant on the morning of September 18 and stated that she had only met appellant in January of 1981 through her brother. Appellant had told her to tell his lawyer that she and appellant had been in bed together at the time of the murder.

DEFENSE

Appellant testified in his own behalf at trial. He testified that early in the morning of September 18, 1980, he was awakened by his brother Mark who wanted to borrow his hydraulic floor jack to help fix a friend's car. Fearing he would not get the jack back if he loaned it to his brother, appellant...