People v. Gould
| Decision Date | 30 December 1959 |
| Docket Number | Cr. 6673 |
| Citation | 1 Cal.Rptr. 726 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of State of Californla, Plaintiff and Respondent, v. Jewell Ashby GOULD and Andrew Peter Marudas, Defendants and Appellants. |
George Stahlman, Earle K. Stanton, Los Angeles, for appellant Jewell Ashby Gould.
Max Solomon, John J. Bradley, Los Angeles, for appellant Andrew Peter Marudas.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Ernest E. Sanchez, Deputy Atty. Gen., for respondent.
Defendants were jointly accused and convicted by a jury of second degree burglary. The indictment also charged against defendant Marudas two prior felony convictions, and three against defendant Gould, which were admitted.
The evidence viewed in a light most favorable to the judgment (People v. Daugherty, 40 Cal.2d 876, 256 P.2d 911) discloses that the apartment of one Mrs. Fenwick was entered and a sum of money taken. At noon Mrs. Fenwick left her apartment, returning a few minutes later to pick up a foregotten item, and as she approached the premises she observed a man standing on her apartment steps and that her front door was slightly ajar. She entered, closing the door behind her, and as she started toward her bathroom a second man walked out of the bedroom into the living room. She asked him what he was doing but he did not answer; when he passed her she turned around and again asked him, in response to which he shouted 'Go into the bedroom. * * *' She did so and upon hearing the front door close went to the living room and observed two men running to an automobile parked down the street. Some change and a safety deposit key lay on the floor and $15 was missing from her wallet.
Approximately an hour later Officer Brewer arrived at her apartment and showed Mrs. Fenwick a packet of photographs (Ex. 3), from which she selected two--one of Gould and one of Marudas. (Exs. 1 and 2)--as the men she saw in and near her apartment. After she described their appearance, he left and returned shortly with enlarged photographs (Exs. 4 and 5), to which she pointed 'as being similar' to the small ones she had selected.
The next day another officer, deputy Cataldi went to Mrs. Fenwick's apartment and showed her the same packet (Ex. 3) from which she again picked out the photographs of Gould and Marudas (Exs. 1 and 2).
After his arrest, Gould had four conversations with the police. During the first, when asked if he committed the burglary, he replied 'I don't know what you are talking about.' Upon being told there was an eyewitness who placed him inside the apartment, Gould then said 'I know what you are talking about'; but he did not recall whether he 'shimmed the door or the door was lawfully unlocked' in gaining entry. He said he took 'a few dollars.' Several hours later in another conversation he repeated substantially the same story. In a third, he again admitted he had been in Mrs. Fenwick's apartment and had taken some money. Later police took him to the street on which her apartment is located which he identified as the one on which he had been but was not sure which apartment he had entered.
At the trial Gould denied he committed the crime and sought to establish an alibi by testimony that at the time he was in Oakland enroute to Lake Tahoe. In connection with his confession he testified that after his arrest he became ill at the station and did not remember having any conversation with police, but denied he admitted he had been to Mrs. Fenwick's apartment and said that when taken to the street he pointed out a building an acquaintance had managed. He said he had not been with Marudas and would not go any place with him.
Marudas denied he committed the offense, testified he and Gould were not on good terms, and offered alibi testimony that he had been home taking care of his children while his wife went to pick up her unemployment check.
Appellant Marudas contends that the admission of evidence pertaining to Mrs. Fenwick's extra-judicial identification of him as the man she saw standing on her steps and subsequently run from the premises was erroneous as hearsay, and constituted a prosecution effort to impeach its own witness; and that without this evidence there is not sufficient in the record to connect him with the offense. His position finds support in the law of this state.
Mrs. Fenwick, the only eyewitness, testified at the trial that at her home, on two occasions within a day after the burglary, she identified the man on the steps and who fled the premises as Marudas from photographs displayed to her by the officers and selected his photograph as depicting that person; and asked by police to describe him she testified that she had only a very slight glance as he passed her and couldn't tell them too much but said he had wavy hair, was a short man 'probably my height' and wore a blue sport shirt. Two police officers testified that they were present in her home when she selected the photograph of Marudas and identified him.
As to any further identification of Marudas as a participant in the burglary, none appears in the record. Mrs. Fenwick could not, and did not, identify him at the trial. Referring to the person she saw standing on her steps, when asked by the prosecution 'do you see this man' in the courtroom she answered 'I can make no positive identification.' Then asked: '* * * do you see anybody that resembles that person? she said: 'I am sorry, I can't point out anyone who would be that person.' Then the following occurred:
'The witness: The person standing at the door?
'Mr. Antram: Yes.
'A (by the witness): I don't know.'
Three facts are apparent from the People's case: (1) Mrs. Fenwick not only made no identification of Marudas at the trial, but made no attempt to do so--unable to identify anyone in the courtroom as, or who even resembled, the man who stood outside her apartment; (2) the only evidence connecting Marudas with the offense was her testimony that shortly after the burglary she identified him from photographs displayed to her by police; and the officers' testimony they were present in her home when she made the identification; and (3) Marudas, not implicated in any other way, made no confession or admission. Hence, the only evidence connecting Marudas with the offense is Mrs. Fenwick's extra-judicial identification of him long before the trial. Both parties rely upon People v. Slobodion, 31 Cal.2d 555, 191 P.2d 1--the respondent, to justify the admission of the evidence 'to corroborate the story of the identifying witness'; and appellant Marudas, to demonstrate that before a nonjudicial identification is admissible identity of the defendant must first be made in the courtroom.
Recognizing that the identification of the accused at the trial is of little real testimonial force because '(a)fter all that has intervened, it would seldom happen that a witness would not come to believe in the person's identify,' the author in IV Wigmore, Evidence (3d Ed.) pointed out at page 208: 'To corroborate the witness, therefore, it is entirely proper * * * to prove that at a former time, when the suggestions of others could not have intervened to create a fancied recognition in the witness' mind, he recognized and declared the present accused to be the person.' This rule, now established by the weight of authority in California, obviously contemplates that such evidence, hearsay by nature, would be admissible only after the witness at the trial identified the accused and for the sole purpose of corroborating his identification in the courtroom. Hence, it has been applied to admit extra-judicial identification under certain circumstances (People v. Sieber, 201 Cal. 341, 257 P. 64; People v. Slobodion, supra, 31 Cal.2d 555, 191 P.2d 1; People v. Aguirre, 158 Cal.App.2d 304, 322 P.2d 478; People v. Hood, 140 Cal.App.2d 585, 295 P.2d 525; People v. Richardson, 74 Cal.App.2d 528, 169 P.2d 44), but in each instance, before it was received, an identification of the accused as the one who participated in the offense was made by the witness in open court, and it was admitted to 'supplement' the latter (People v. Bennett, 119 Cal.App.2d 224, 226, 259 P.2d 476) or 'to corroborate' it and rebut any suggestion that it 'was the result of recent contrivance.' People v. Slobodion, supra, 31 Cal.2d 555, 560, 191 P.2d 1, 4. It is clear that the rule permits evidence of extra-judicial identification to be admitted only 'after a culprit has been identified in the courtroom', People v. Savage, 66 Cal.App.2d 237, 245, 152 P.2d 240, 244, 'to 'bolster up' the testimony of the witness', People v. Sieber, 201 Cal. 341, 349, 257 P. 64, 67, to corroborate the testimony of 'eye-witnesses who identify the defendant in the courtroom', People v. Richardson, 74 Cal.App.2d 528, 542, 169 P.2d 44, 54, or 'to assist the jury in weighing the evidence of identification', People v. Hood, 140 Cal.App.2d 585, 589, 295 P.2d 525, 528.
Inasmuch as there was no courtroom identification of Marudas, there appears to be nothing in the record for evidence of nonjudicial identification to corroborate and nothing creating any inference of recent fabrication to rebut. The reason for the rule does not exist in the People's case against Marudas and its absence makes the admission of Mrs. Fenwick's testimony relative to her out of court identification erroneous--as hearsay, for which no exception for its admissibility is found in the record; and as impeaching testimony actually inconsistent with the testimony of the prosecution's witness relative to the identity of the accused at the time of the trial. The same considerations apply to the testimony of the police officers who were present in her home...
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