People v. Grace, Cr. N

• Decision Date: 11 December 1958
• Docket Number: Cr. N
• Citation: 332 P.2d 811,166 Cal.App.2d 68
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Benjamin GRACE, Joe Willie Johnson and Thomas Joseph Mathews, Defendants and Appellants. The PEOPLE of the State of California, Plaintiff and Respondent, v. Morris Gerald STRAIN, Defendant and Appellant. os. 6189, 6190.
• Court: California Court of Appeals Court of Appeals

Page 811

332 P.2d 811

166 Cal.App.2d 68

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Benjamin GRACE, Joe Willie Johnson and Thomas Joseph Mathews, Defendants and Appellants.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Morris Gerald STRAIN, Defendant and Appellant.

Cr. Nos. 6189, 6190.

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

Dec. 11, 1958.

Hearing Denied Feb. 4, 1959.

Thomas M. McGurrin, Beverly Hills, for appellants.

Edmund G. Brown, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

In a jury trial defendant Grace was convicted on six counts; defendant Johnson, on two counts; defendant Mathews, on two counts; all, of armed robbery. (No. 6189.) Defendant Strain was convicted by the same jury on three counts of armed robbery in a separate action. (No. 6190.) The actions were consolidated for trial. All defendants have appealed from orders denying them probation, from the judgments, and from orders denying their motions for new trials. The orders denying defendants probation are not appealable (People v. Winston, 46 Cal.2d 151, 153-154, 293 P.2d 40) and the appeals therefrom will be dismissed.

There is no contention on the part of defendants Grace, Mathews, or Strain that the evidence is insufficient to support the verdicts. Johnson so contends.

Defendants Grace, Johnson, and Strain confessed to the police orally and in writing. It is contended the confessions were involuntary, and that their admission in evidence was prejudicial error and a denial of due process.

The officers to whom Grace confessed testified they used no force, made no threats or promises to him, and the confession was voluntary. Grace testified he was in custody five days before he was taken before a magistrate, he was struck every day, and he signed the confession only because he had been questioned continuously and beaten.

Where there is a conflict in the evidence as to the circumstances under which a confession was made, the court may properly submit the issue to the jury for their independent judgment as to its free and voluntary character. People v. Crooker, 47 Cal.2d 348, 353-354, 303 P.2d 753; People v. Hahn, 147 Cal.App.2d 308, 313, 305 P.2d 192. ¹ If the defendant testifies that the confession was involuntary, his credibility is a matter for the jury's determination. People v. Gomez, 41 Cal.2d 150, 162-163, 258 P.2d 825. Where the issue is submitted to the jury they are the exclusive judges and determine whether the confession was free and voluntary, and the jury's finding against the defendant's contentions is binding on review. People v. Crooker, 47 Cal.2d 348, 352, 303 P.2d 753; People v. Soto, 155 Cal.App.2d 344, 346, 317 P.2d 1005. The jury's determination in the present case that Grace's confession was free and voluntary, based, as it was, on conflicting evidence, cannot be upset on review.

Grace also says it was error to admit his confession because of the fact he was held in custody five days before he was taken before a magistrate. Violation of the mandate that a defendant must be taken before a magistrate within the time prescribed by section 825 of the Penal Code without coercion does not render a confession inadmissible. People v. Speaks, 156 Cal.App.2d 25, 37, 319 P.2d 709. In the recent case of Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 1290, 2 L.Ed.2d 1448, 1452, the Supreme Court of the United States said:

'The bare fact of police 'detention and police examination in private of one in official state custody' does not render involuntary a confession by the one so detained. Brown v. Allen, 1953, 344 U.S. 443, 476, 73 S.Ct. 397, 97 L.Ed. 469, 499. Neither does an admonition by the police to tell the truth, Sparf v. United States, 1895, 156 U.S. 51, 55-56, 15 S.Ct. 273, 39 L.Ed. 343, 345, nor the failure of state authorities to comply with local statutes requiring that an accused promptly be brought before a magistrate. Fikes v. State of Alabama, 1957, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246.'

Johnson asserts his written confession was obtained during a period of illegal detention; that it was admitted in evidence without a showing that it was voluntary and that it was made as a result of his having been kicked by a police officer.

Johnson confessed almost immediately after his arrest and gave the police a written confession shortly thereafter. There was no proof, before Johnson's confession was admitted in evidence, that it was freely and voluntarily given. He asserts that for this reason it was prejudicial error to admit it. No objection was made to the admission of the confession on this ground. Of course, preliminary proof that the accused made the confession freely and voluntarily, without coercion, threats, or undue pressure, and without promises of reward, immunity from punishment, or leniency, real or apparent, by those in authority, must be made by the prosecution to lay a foundation for the admission of the confession. However, Sergeant Eastenson testified in rebuttal that he was present when Johnson confessed and that the statement was freely and voluntarily made. The failure to require the laying of a proper foundation for a confession is without prejudice if the proof is later introduced. People v. Northcott, 209 Cal. 639, 652, 289 P. 634, 70 A.L.R. 806; People v. Skinner, 123 Cal.App.2d 741, 749, 267 P.2d 875; 8 Cal.Jur. 116, § 205. Since the jury impliedly found on conflicting evidence that Johnson's confession was voluntary, we are bound by that finding.

What we have said with respect to Grace's claim that his confession was involuntary because of his claimed illegal detention applies to Johnson's claim to the same effect.

Strain asserts he was denied due process in that the uncontradicted evidence shows his confession was obtained by coercion; he asked for a lawyer and was denied one; and he was not taken before a magistrate promptly.

Strain testified to facts which would have warranted the jury in finding that his confession was not free and voluntary. However, the officers to whom the confession was made contradicted Strain's testimony and testified he made the statement to them freely and voluntarily. The conflict was for the jury, not this court, to resolve.

While in custody and before he was taken before a magistrate, Strain asked the officers for permission to see a lawyer. He was told he would have plenty of time to see one. He was not permitted to see one. The refusal of a request to see a lawyer by a person under arrest and before he is taken before a magistrate is not, in itself, ground for denying admission of such person's confession in evidence. Nor does it result in a denial of his fundamental rights. It is a factor to be considered by the jury in determining whether the confession was voluntary. People v. Crooker, supra, 47 Cal.2d 348, 352-353, 303 P.2d 753; Crooker v. State of California, supra, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, 1453.

On direct examination Strain testified he had told the police he did not know anything about the robberies with respect to which they were questioning him, and he had signed the confession although it was false when hit by one of the officers. On cross-examination he reiterated this testimony. He said he guessed that after he signed the statement the officers had a conversation with him but he did not recall what was said; he did not think he ever told the officers he participated in the three robberies. The deputy district attorney then said: 'Q. And you indicated formerly that you deny each and every charge that you are accused of? A. That's correct. Q. And I will now play a recording for your benefit and I will ask you this question after listening to the recording: whether or not you recognized your voice as being one of the three voices on this tape recording. Now, will you please listen carefully?' A recording was then played, following which Strain denied that any one of the three voices he heard was his. In rebuttal Officer Eastenson testified he and Officer Leonard had a conversation with Strain which was recorded. The recording was played again. Eastenson then testified the recording correctly reflected the conversation between Strain, Officer Leonard, and himself on August 9, 1957; pointing out, as the recording was played, which voice was his, which Leonard's, and which Strain's. On cross-examination of Eastenson, defendants' then counsel sought to show that the recording did not accurately reflect the conversation; that the voice attributed to Strain probably was not his; and implied that some of the conversation had been omitted. Sergeant East, assigned to the sound laboratories of the police department, was then called and testified concerning the method used in making and preserving the recording in question. On cross-examination of East, counsel for defendant sought to show there may have been 'dubbing' of voices which the jury might not detect. On redirect examination of East, without objection, the recording was played again. East testified it was exactly the same recording he took on August 9, 1957.

It is contended the introduction and playing of the recording on cross-examination of Strain and again in rebuttal was prejudicial error. It is argued no foundation was laid for impeaching Strain by playing the recording. Code Civ.Proc. § 2052. There was no error. The procedure followed differed from the ordinary in that instead of the cross-examiner relating the prior statements to the witness as a foundation, he presented the statements by the voices from the recording. See People v. Young, 70 Cal.App.2d 28, 33-35, 160 P.2d 132. When Strain denied having had the conversation and denied his voice was one of those on the recording, it was of course proper to replay the recording to Eastenson for impeachment. People v. Sherman, 97 Cal.App.2d 245, 254-255, 217 P.2d 715....