People v. Gould

• Decision Date: 23 August 1960
• Docket Number: Cr. 6617
• Citation: 54 Cal.2d 621,354 P.2d 865,7 Cal.Rptr. 273
• Parties: , 354 P.2d 865 PEOPLE, Respondent, v. Jewell Ashby GOULD et al., Appellants.
• Court: California Supreme Court

Page 273

7 Cal.Rptr. 273

54 Cal.2d 621, 354 P.2d 865

PEOPLE, Respondent, v. Jewell Ashby GOULD et al., Appellants.

Cr. 6617.

Supreme Court of California, In Bank.

Aug. 23, 1960.

Rehearing Denied Sept. 20, 1960.

George Stahlman, Fallbrook, Earle K. Stanton, Max Solomon, John J. Bradley, Palmer & Long, and Dermot R. Long, Los Angeles, for appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Ernest E. Sanchez, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

A jury found defendants Jewell Ashby Gould and Andrew Peter Marudas guilty of burglary in the second degree. Each defendant appeals from the judgment of conviction and from the denial of his motion for a new trial.

At the trial Mrs. Marguerite Fenwick testified that at noon on August 26, 1958 she left her apartment on Shoreham Drive and went to the swimming pool. When she returned about six minutes later for suntan oil, she saw a man standing on the steps outside her door and found the door slightly ajar. She saw a second man in her apartment who shouted: 'Go into the bedroom and stay there.' She walked towards the bedroom and heard the front door close behind her. Looking out the window she saw the same two men running away. She subsequently noticed some coins on the floor and discovered that about $15 was missing from her purse.

About 1:00 p. m. Officer Brewer arrived and showed Mrs. Fenwick seven to ten small photographs. She selected two one of Marudas as the man on the steps and one of Gould as the man inside her apartment. On several subsequent occasions she identified the same two photographs or enlargements thereof.

Officer Cataldi testified that when arrested Gould as first denied knowledge of any burglary on Shoreham Drive. On being told that an eyewitness had identified him Gould said: 'I know what you are talking about.' He admitted taking 'a few dollars' from the location and stated: 'I don't recall whether I shimmed the door or the door was legally unlocked.' When asked about his accomplice he said: 'Why don't you check Pete? * * * Pete Lombardi.' Marudas at all times denied having any knowledge of the burglary.

At the trial Mrs. Fenwick pointed out Gould as having 'some features but not all of the features' of the man she saw inside her apartment, and added that he seemed thinner than the burglar. She stated that she was unable to point out anyone in the courtroom as the man she saw on the steps. She also said that the pictures she selected shortly after the crime 'looked similar to the men who were in my apartment but not all the features were the same.' Officer Brewer testified on cross-emamination, however, that Mrs. Fenwick was sure of her identifications of the photographs at the time she first selected them.

Gould's Appeal

Gould contends that the evidence was insufficient to sustain the verdict in that he was not adequately identified as the man Mrs. Fenwick saw in her apartment. It is true that Mrs. Fenwick's identification of Gould was inconclusive. Her testimony, however, adequately established that a burglary had been committed. Gould's admissions after his arest could therefore be used to identify him as one of the burglars (People v. Amaya, 40 Cal.2d 70, 75-76, 251 P.2d 324; People v. Mehaffey, 32 Cal.2d 535, 544-545, 197 P.2d 12; People v. Griffin, 98 Cal.App.2d 1, 46-47, 219 P.2d 519) and sustain the jury's finding that he participated in the crime.

Gould contends that the trial court erred in admitting evidence that Mrs. Fenwick identified his photograph shortly after the crime. He asserts that Mrs. Fenwick did not identify him at the trial and that evidence of an extra-judicial identification is admissible only to corroborate an identification made at the trial by the same witness.

Mrs. Fenwick testified that Gould had 'some features but not all of the features' of the burglar. She stated that 'the man who was in my apartment seemed to have he was a heavy man; he had rather fat cheeks and this man is very thin.' Gould testified that after his arrest he became 'very ill' and that he had 'hernia trouble,' but he denied that he had lost weight. Mrs. Fenwick also testified that '* * * it is awfully hard for me to point to someone after all of this time, saying that that is the person who looks like that person because my memory is rather vague about it now.' Although her testimony did not amount to an identification, the evidence of her extrajudicial identification was nevertheless admissible.

Evidence of an extra-judicial identification is admissible, not only to corroborate an identification made at the trial (People v. Slobodion, 31 Cal.2d 555, 560, 191 P.2d 1), but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached (People v. Hardenbrook, 48 Cal.2d 345, 351, 309 P.2d 424; People v. Kynette, 15 Cal.2d 731, 753-754, 104 P.2d 794), evidence of an extra-judicial identification is admitted regardless of whether the testimonital identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind. People v. Slobodion, 31 Cal.2d 555, 559-560, 191 P.2d 1; United States v. Forzano, 2 Cir., 190 F.2d 687, 689; see People v. Hood, 140 Cal.App.2d 585, 588, 295 P.2d 525; People v. Bennett, 119 Cal.App.2d 224, 226, 259 P.2d 476; 4 Wigmore, Evidence (3d ed. 1940) § 1130, p. 208. The failure of the witness to repeat the extra-judicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. The extra-judicial identification tends to connect the defendant with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination. See Judy v. State, 218 Md. 168, 174-175, 146 A.2d 29, 32-33; McCormick, Evidence § 39, p. 74; Morgan, Hearsay Dangers, 62 Harv.L.Rev. 177, 192-193; 3 Migmore, Evidence (3d ed. 1940) § 1018, pp. 687-688. See also State v. Wilson, 38 Wash.2d 593, 617-618, 231 P.2d 288, 300-301; People v. Spinello, 303 N.Y. 193, 201-202, 101 N.E.2d 457, 460-461.

Gould contends that the trial court erred in denying his motion to declare a mistrial. Officer Cataldi testified that he and other officers arrested Gould at his home on September 5, 1958 at approximately 10:00 p. m. On cross-examination defense counsel brought out that Gould's wife and her four-teen-year-old son were taken into custody at the same time, that they were not-released until 5:00 a. m. the next morning, and that no charges were filed against them. By his questions counsel suggested that Gould was aware of their detention and was disturbed by it during the period in which he allegedly admitted committing the burglary. On redircted examination the assistant district attorney asked if there was any reason for arresting Gould's wife and her son. Over defendant's objection the officer replied that a search of Gould's home following his arrest revealed 'numerous fur pieces.' Defendant's motion to strike this answer was granted and the jury was admonished to disregard the answer and any inference to be drawn therefrom. Defendant then moved to declare a mistrial, contending that the prejudicial effect of the officer's testimony could not be cured by a mere admonition.

The testimony elicited by defense counsel on corss-examination gave rise to an inference that Gould's wife and her son were improperly detained for the purpose of inducing Gould to confess. ¹ The prosecution was entitled to rebut this inference by eliciting a different explanation for their arrest. We assume that the proffered evidence was struck because the trial court found that its prejudicial effect exceeded its probative value. Even on this assumption, however, it does not follow that a mistrial should have been declared. The reference to 'fur pieces' was brief and vague in its implications; it was struck immediately; the jury was admonished to disregard it; and further argument on the point took place out of the jury's hearing. It must be assumed that ordinarily admonitions to the jury are heeded. People v. Foote, 48 Cal.2d 20, 23, 306 P.2d 803; People v. Tarantino, 45 Cal.2d 590, 597-598, 290 P.2d 505; People v. Dabb, 32 Cal.2d 491, 499, 197 P.2d 1. A trial court's decision that an error or impropriety can be cured by admonition will not be reversed unless exceptional circumstances make it improbable that the jury obeyed the admonition. See People v. Foote, 48 Cal.2d 20, 24, 306 P.2d 803; People v. Zammora, 66 Cal.App.2d 166, 212, 152 P.2d 180. No such circumstances appear in the present case.

Gould asserts that two days before giving the testimony as to fur pieces Officer Cataldi gave similar testimony and that the same trial judge at that time granted defendants' motion to declare a mistrial. Gould contends that the trial court's rulings were inconsistent and that the prosecution committed wilful misconduct in reintroducing testimony previously held inadmissible. At the second trial, however, the testimony was arguably admissible to rebut the inference of impropriety raised by defense counsel. The record of the first trial is not before us and we are not aware of the circumstances preceding the earlier ruling. The trial judge stated that the two situations were not 'in the same category' and did not have 'the same seriousness.' Accordingly, no inconsistency or wilful misconduct appears.

Gould contends that his identification as one of the burglars depended chiefly on circumstantial evidence and that the trial court therefore erred in refusing to give certain standard instructions on circumstantial evidence. ² Since Mrs. Fenwick's identification of Gould was equivocal, proof of his...