People v. Graham

Decision Date02 January 1958
Docket NumberCr. 3388
Citation319 P.2d 677,156 Cal.App.2d 525
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Antonio Elijah GRAHAM, Defendant and Appellant.

Maurice H. Hardeman, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Marvin J. Christiansen, Deputy Atty. Gen., for respondent.

DRAPER, Justice.

A jury convicted defendant of first degree robbery, first degree burglary, and rape. He was sentenced to prison for consecutive terms, and appeals from the judgment and the order denying his motion for new trial. He asserts error in the comments of the trial court to the jury.

The jury was instructed and retired at 1:57 p. m. At 2:08, the jury returned to ask for the written instructions. Upon stipulation, they were handed to the foreman and the jury again retired at 2:11. At 5:08 p. m., the jury returned. The foreman said 'We were discussing the degree * * *. We were interested in * * * the interpretation of 'deadly weapon." There was some discussion between the foreman, another juror and the court as to the wrench which had allegedly been carried by appellant. The court then said:

'Ladies and gentlemen, this case is very simple. There is no question about it. I have never in my experience as a judge, some fifteen years, heard a more simple case than this.

'Now, I can't tell you what to do. That is up to you, but I can comment on the evidence.

'Now, in any case of burglary or robbery or rape, even if there was no weapon used, it could still be rape. It could still be first degree robbery. It could still be first degree burglary. The size of the man is sufficient to create fear in a female such as the complaining witness. He didn't have to have a weapon to make it first degree burglary or first degree robbery or rape. His strength alone was sufficient to create fear, to put the woman in fear.'

After brief further discussion between court and jury, the court said:

'But, aside from the instructions, I don't see how this man can claim he didn't do what he has been accused of doing. The girl told a straightforward story and he corroborated everything she said in his written confession and in the recording.

'Of course, after he gets on the stand, he denies a lot of what he said in the recording and in the written confession over his signature.

'Now, how can you expect to believe a man like that? Although the man came in here and said, 'I am not guilty and I didn't do what she said I did on the stand,' what statement did he make to the police?'

After some further comment in similar vein, the court said: 'I can't understand it. Of course, it's up to you, but this is the most convincing case that I have ever tried. The District Attorney has produced everything except a moving picture of what happened and the reasons he didn't introduce a moving picture of what happened is because he didn't know it was going to happen. Nobody knew it was going to happen.'

The jury returned to its deliberations at 5:21 p. m. At 5:55, it returned with verdicts of guilty on all three counts, and fixed the robbery and burglary as of the first degree.

Although the constitutional amendment of 1934 (Cal.Const. Art. VI, § 19) permits the trial court to comment upon the evidence, the rule is clear that there are limits upon this right (People v. Ottey, 5 Cal.2d 714, 56 P.2d 193). The court may 'comment upon the evidence * * * providing its comment is temperately and fairly made and is not argumentative or contentions * * *' (People v. De Moss, 4 Cal.2d 469, 476-477, 50 P.2d 1031, 1034). 'The trial court, under the guise of comment, may not properly control the verdicts by a direction either directly or impliedly made' (People v. Dail, 22 Cal.2d 642, 658, 140 P.2d 828, 837). That decision reversed a judgment of conviction. Reversal has been based upon improper comment in a number of other cases (People v. Huff, 134 Cal.App.2d 182, 285 P.2d 17; People v. Crowley, 101 Cal.App.2d 71, 224 P.2d 748; People v. Hooper, 92 Cal.App.2d 524, 207 P.2d 117; People v. Mason, 72 Cal.App.2d 699, 165 P.2d 481). We are unable to distinguish the comments in the case at bar from those in the cited cases. Thus the comments were not within those permitted by the constitutional provision.

Respondent argues, however, that the court, in its remarks, adequately instructed the jury that the final decision rested with it, thus eliminating any suggestion of coercion of the jury or direction of the verdicts. Early in his remarks, the trial judge did say 'Now, I can't tell you what to do. That is up to you, but I can comment on the evidence.' Later, he said 'Of course, it's up to you, but' and then followed with even stronger statements than previously made. It is doubtful that even a full instruction upon the jury's right to exercise its independent judgment (see CALJIC 7, 7a) would dispel the harmful effect of the comments made in this case. It is clear that no such purpose was served by the perfunctory disavowals here expressed.

There remains the question whether the error 'has resulted in a miscarriage of justice' (Cal.Const. Art. VI, § 4 1/2). Our Supreme Court has ruled that this is a proper inquiry where comments of the trial judge constitute error (People v. Ottey, supra, 5 Cal.2d 714, 726, 56 P.2d 193).

The prosecutrix testified that she returned to her residence at about 9:30 p. m. As she unlocked the door, appellant pushed her inside, closed the door, chased her around the room, and caught her. He threatened to hit her with a wrench if she screamed, gagged her, tied her hands, ripped off her clothing and raped her. He then picked up her billfold from the top of the radio, threatened harm to her if she called the police, and left. The billfold contained money. Appellant signed a confession in which he admitted forcing his way into the house and forcing prosecutrix to submit to sexual intercourse with him. He also admitted taking the wallet, which he said contained some pictures but no money. Questions asked of appellant by police on another occasion, and his answers, were recorded and the recording was played to the jury. It was substantially the same as...

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11 cases
  • People v. Cook
    • United States
    • California Supreme Court
    • February 10, 1983
    ...of the jury system cannot be ignored." Improper judicial comment on the evidence presents such a situation. (See People v. Graham [1958] 156 Cal.App.2d 525, 528, 319 P.2d 677; Commonwealth v. Archambault [1972] 448 Pa. 90, 290 A.2d 72, 75.)10 This rule has since been superseded by a more fa......
  • People v. Flores
    • United States
    • California Court of Appeals Court of Appeals
    • May 17, 1971
    ...v. Ottey, Supra, 5 Cal.2d 714, 726, 56 P.2d 193; People v. Thompson, Supra, 252 Cal.App.2d 76, 93, 60 Cal.Rptr. 203; People v. Graham, 156 Cal.App.2d 525, 528, 319 P.2d 677.) In view of the overriding fact that the entire case hinged on the defendant's credibility, we cannot discount the ju......
  • People v. Hosner
    • United States
    • California Court of Appeals Court of Appeals
    • May 3, 1974
    ...Crowley, 101 Cal.App.2d 71, 73-79, 224 P.2d 748; see also People v. Crossland, 182 Cal.App.2d 117, 5 Cal.Rptr. 781; People v. Graham, 156 Cal.App.2d 525, 527, 319 P.2d 677.) But here also, because of the strong proof of guilt established by legally admissible evidence, we conclude that the ......
  • People v. Scott
    • United States
    • California Supreme Court
    • February 5, 1960
    ...the court effectively withdrew material evidence from the jury's consideration and unduly influenced the jury. Cf. People v. Graham, 156 Cal.App.2d 525, 527-528, 319 P.2d 677; People v. Mason, 72 Cal.App.2d 699, 712-713, 165 P.2d But there is 'no hard and fast rule determinative of what a t......
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