People v. Green

• Decision Date: 21 July 1965
• Docket Number: Cr. 4529
• Citation: 236 Cal.App.2d 1,45 Cal.Rptr. 744
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Roy GREEN, Defendant and Appellant.

Page 744

45 Cal.Rptr. 744

236 Cal.App.2d 1

PEOPLE of the State of California, Plaintiff and Respondent, v. Roy GREEN, Defendant and Appellant.

Cr. 4529.

District Court of Appeal, First District, Division 1, California.

July 21, 1965.

Rehearing Denied Aug. 11, 1965.

Arnold H. Mentz, San Francisco (under appointment of the District Court of Appeal), for appellant.

Thomas C. Lynch, Atty. Gen., Derald E. Gransberg, Michael J. Phelan, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

On this appeal from a judgment after conviction by a jury of murder in the first degree (Pen.Code, § 187) and a jury verdict determining that the penalty be life imprisonment, defendant raises several issues. We shall discuss the facts particularly pertinent to each of these issues in our separate consideration of the points raised on this appeal. Preliminarily, however, we set out the following basic facts as disclosed by the record:

1. Events Prior to the Homicide:

At around 3 o'clock in the afternoon on December 7, 1962, defendant and Eartis Beck, then defendant's brother-in-law, were sitting and conversing in the latter's automobile, which was parked in a supermarket parking lot on 98th Avenue and Edes Avenue in Oakland. Defendant had with him a musical instrument case. While they were sitting in the car, the victim, Leroy Scott, walked by. Defendant left the car to talk to Scott, and then the two returned to the car and told Beck that they were going to the cleaners. Beck noted that at this time defendant and Scott were 'talking friendly and everything * * *.' Awhile later, after defendant picked up the musical instrument case which he had left in Beck's car, he and Scott went into the Nifty Doughnut Shop. Shortly thereafter, Beck entered the coffee shop to tell defendant and Scott that he was leaving. At this time Beck noted that defendant and Scott did not appear to be arguing or to have been arguing. Beck did testify, however, that he recalled defendant's having said to him in the automobile that 'self-satisfaction was to him the greatest thing in the world' and that 'if it would satisfy him to take Scott's life, he would do it.'

Louise Marie Higgins, an employee of the Nifty Doughnut Shop, testified that defendant and Scott had been in the doughnut shop at about 5 p. m. on December 7; that defendant left the shop and returned shortly thereafter; that defendant and Scott left together at about 5 p. m.; and that while the two men were in the shop they appeared to be carrying on a friendly conversation without argument.

2. The Homicide:

Two eyewitnesses testified at the trial as to their observations at the time of the homicide. Julius M. Bankston, a friend of the victim, testified that between 4:30 and 5 p. m. on December 7, 1962 he encountered Scott with defendant on 98th Avenue. Bankston testified that defendant was carrying a clarinet case and that defendant and Scott appeared to be conversing in a normal and friendly manner. After being introduced to defendant by Scott, Bankston started to walk away and Scott joined him. As they were walking up the street, Scott began to look over his shoulder and suddenly ducked behind Bankston. When Bankston turned around, he saw defendant about 8 or 10 feet away pointing a gun at him. Bankston then moved sideways, and Scott, who had been behind Bankston saying "Wait a minute. Wait a minute. Hold it. Wait a minute," moved in the other direction. Defendant then fired at Scott and hit him in the stomach. As Scott stumbled, a revolver 'fell from his possession.' Bankston, however, testified that he at no time saw a gun in Scott's hands, nor did he hear Scott threaten defendant. Scott stumbled over to a nearby fence and fell over it. Defendant went over to him and pointed the gun at him, all the while swearing at Scott. Meanwhile, Scott was repeating, "Please don't; don't shoot. Please stop. Don't" Defendant fired at Scott while he was on the other side of the fence, and Scott then 'scuffled' to the front steps of the adjacent house. Bankston testified that he saw defendant fire another shot at Scott at this time, and that after Scott had reached the porch of the house, defendant picked up Scott's revolver and ran towards the freeway.

The homicide was also witnessed by Mrs. Mary O'Neill, who testified that while she was walking to the grocery store about 10 minutes to 5 p. m. on December 7, 1962, she observed three men walking towards her on the same side of the street on 98th Avenue. She testified that she saw defendant holding onto Scott and pushing him against a fence. As she crossed the street, she heard what she thought was a car backfiring, turned around and saw Bankston near the corner and Scott on the other side of the fence. She next saw defendant pointing a gun toward Scott over the fence, heard defendant say to Scott, 'Get up, get up,' and heard a shot fired over the fence. She then heard defendant say, 'Get up, you dirty dog,' and heard a second shot. Next she heard defendant say to Scott, 'Jump,' whereupon defendant again fired at Scott. Scott then stumbled up the steps of an adjacent house. At no time did Mrs. O'Neill see anything in the hands of Scott. After the last shot, Mrs. O'Neill testified that defendant walked back to the spot where the shooting began and picked up a jacket. Finally, after looking up the stairs at Scott, defendant walked by Mrs. O'Neill, twirling his gun in front of her as he passed.

Mrs. Pinkie McClain, who lived at 389-98th Avenue, testified that she was at her home at around 5 p. m. on December 7, 1962, and that she heard a commotion outside and a loud bang which sounded like a car backfiring. Moments later she heard the front screen door open, and when she looked outside, she saw a man lying on the steps between the screen door and the closed front door. Mrs. McClain also testified that she observed two Negro males leaving the area, one running toward the freeway. The following morning, Mrs. McClain found, outside her house, an expended cartridge case, which she gave to the police. When Oakland Police Officer Robert Attwood arrived at the scene of the shooting, he found the victim on the front steps of Mrs. McClain's house. Scott was moaning and was unable to speak. He had blood stains on the front of his shirt. Scott died from shock and hemorrhage due to a single gunshot wound in his abdomen.

3. Defendant's Assault Upon his Wife:

In addition to the evidence relating to the shooting itself and the events which preceded it, the record also contains the testimony of various witnesses concerning an assault which defendant made upon his wife shortly after the homicide. Mrs. Annie Scott, a neighbor of defendant's wife, Mary Green, testified that around dinnertime on December 7, 1962, she went to Mrs. Green's home (actually the home of Mrs. Green's stepfather where Mrs. Green was living); that she heard Mrs. Green screaming inside; that in response to the order of a male voice, which Mrs. Scott believed to be that of defendant, Mrs. Green screamed to Mrs. Scott to 'go away'; and that Mrs. Scott then went back to her house and called the police.

Officers Upton and Bunch of the Oakland Police Department, who made the arrest of defendant at his wife's home, testified that when they arrived there and looked through the window, they saw defendant holding his wife around the neck with one arm and trying to load an automatic pistol which he held in his hand. Bunch testified that before reaching the window, he heard a male voice, which he later ascertained to be that of defendant, say, 'I just shot your [unprintable] boyfriend; what do you think of that,' or words to that effect. Defendant finally surrendered to the officers and was placed under arrest and taken to the police station. The gun which defendant was attempting to load when the officers arrived was subsequently tested by the police and determined to be the same gun from which the casings found at the scene of the homicide had been ejected.

4. The Defense:

By way of defense, defendant testified in his own behalf. His account of the events leading up to the killing of Scott was essentially the same as that presented by the prosecution, except that he testified that after he and Scott left the coffee shop, Scott began telling him about having relations with his wife in the presence of his child; that he was 'pretty angry at that time'; that when Scott walked away with Bankston, defendant pulled his gun intending to hit Scott; that he then saw Scott with a gun, so he cocked his gun and fired; and that after he fired, he was afraid and continued to fire the gun.

Applicability of the Dorado Rule

Following his arrest, defendant was taken from his wife's house by Officers Upton and Bunch and placed in the patrol wagon. While in the patrol wagon, defendant asked Bunch whether Scott was dead. Bunch replied that he did not know. Defendant then stated, 'I hope I killed the [unprintable],' En route to the police station the officers also took two written statements from defendant. The first of these statements, which was written by Bunch and read and signed by defendant, was as follows: ¹ "I looked through the window and I saw him. I broke the window, he took off. I fired once at him around the corner. He went to turn another corner, I fired again two or three times. Then I came back to the house. I crawled through the broken window. I sure as [unprintable] was trying to hit him. Did I hit him? His name is Scott. First name is Ted. I met him through a cat named Howard. I don't know how my wife got hurt. I told her I just shot her [unprinable] boy friend." ² "My reason is definitely because--this is the only reason: Of what he told me on the phone about him [unprintable] my old lady in the presence of my child and also told me that the child was no longer mine because he had everything that I once had and also I understand that I have been wondering who was [unprint...