People v. Hannon

Decision Date08 June 1977
Docket NumberCr. 19500
Citation19 Cal.3d 588,564 P.2d 1203,138 Cal.Rptr. 885
Parties, 564 P.2d 1203 The PEOPLE, Plaintiff and Respondent, v. Lee Roy HANNON, Defendant and Appellant.
CourtCalifornia Supreme Court

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg and John H. Sugiyama, Deputy Attys. Gen., for plaintiff and respondent.

Barry Adler, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

WRIGHT, Justice (Retired Chief Justice of the Supreme Court sitting under assignment by the Acting Chairman of the Judicial Council).

Lee Roy Hannon appeals from a judgment following convictions by jury of attempted robbery (Pen.Code, §§ 211, 664) and assault with a deadly weapon (Pen.Code, § 245, subd. (a)). He contends initially that he was denied his constitutional right to a speedy trial and also argues that the trial court committed prejudicial error by instructing the jurors that they could consider certain evidence as a circumstance tending to show a consciousness of guilt. Although we reject the speedy trial claim, we hold, for the reasons which follow, that the disputed jury instruction constituted prejudicial error in the circumstances prevailing at trial and accordingly we reverse the judgment.

After closing their restaurant on the night of January 27, 1974, manager Hugh Smith and his assistant, Robert Nalette, left the building through the rear-side door about 10:45. The men separated and each moved towards his vehicle in the parking lot adjoining the restaurant. As Smith reached his pickup truck and unlocked it he heard a voice which directed that he return to the restaurant. Smith saw no one but turned and began to obey the command. As he reached the building he was accosted by a stranger who demanded that he open the rear-side door. When Smith stated that the door could not be opened from the outside, he was told by the stranger to face away from him. As Smith turned, his shoulder was seized and the barrel of a gun was thrust into his back. His assailant once again demanded that the rear-side door be opened. Smith explained that only the front door, which was well lit in contrast to the area in which they stood, could be unlocked from the outside.

The assailant next ordered Smith to advise the other man in the parking lot to join them. After Nalette heard Smith's call, he turned around, observing the profiles of both Smith and the stranger. He walked towards them and, when he was about six feet away, the stranger shot Smith in the back. The assailant ordered Smith and Nalette to open the rear-side door of the building, threatening to shoot the latter also if he did not comply. When Nalette repeated that the door could not be unlocked from outside the building, the assailant said, 'I'm giving you five to get out of here,' and released his hold on Smith. As Smith moved away the assailant's full face was revealed to Nalette. The assailant disappeared in the darkness before either Smith or Nalette were able to obtain another view of him.

During the encounter Smith saw his assailant's full face for about two or three seconds and also viewed his profile for three to five seconds. He was, however, unable to identify him from 'mug' shots exhibited by the police. After defendant's arrest Smith observed a lineup of persons including defendant. He initially identified a man other than defendant, indicating that such person bore a 'close resemblance' to his assailant. Because it had been dark on the night of the assault, Smith had been unable to 'get a definite reading on the person.' He requested that each of the men in the lineup be asked to say, 'Open up the door or I will kill you.' After hearing all of the men repeat the threat, Smith changed his mind and wrote a note indicating that the man he had tentatively identified was not his assailant. At trial Smith was unable to identify defendant as his attacker.

Nalette, on the other hand, identified defendant as the assailant on four separate occasions. He testified that he saw the assailant face to face on the night of the incident for about 30 to 45 seconds and viewed his profile for about one and one-half to two minutes, thus accounting for his ability to make the identification. After viewing 200 photographs at the Oakland Police Department two days after the incident occurred, he selected a photograph of defendant. Following defendant's apprehension almost eight months later, Nalette identified him at a lineup. He later identified defendant at the courthouse and again during trial. Although defense counsel questioned Nalette concerning the inconsistencies in his description of the assailant, Nalette was 'absolutely sure' of his incourt identification of defendant as that man.

In addition to the testimony of Smith, Nalette and Smith's physician, the People's only other witness was William Leach, an investigator with the district attorney's office. His testimony concerned a brief encounter which he had prior to trial with an individual named Elton Brown, the only witness subsequently called by the defense. A major issue raised on this appeal revolves around the incident with Brown.

Brown, a friend and former roommate of defendant, supplied an alibi for him. Brown testified that he was constantly in the company of defendant on the day and night on which the assault and robbery attempt took place. According to Brown he moved into defendant's apartment about a month before the date of the commission of the alleged crime and resided there about two months. He testified that he had not been asked to recall what occurred on the day of the alleged crime until almost a year later, but was nevertheless able to remember the events of the day in question because it was a Sunday several days before the birthday of his girlfriend and the planning for a birthday celebration had taken place on that particular day. In addition, it was the last Sunday in January and Brown recalled that he had had difficulty about that time concerning the receipt of his income tax withholding statement.

According to Brown, on the day in question he and defendant awoke about 11 a.m. They ate breakfast and spent the afternoon playing chess and dominoes with two friends who came by. After dinner the four watched television. They spent part of the evening in conversation and Brown testified that he was with defendant in the apartment at 10:45 p.m., the time at which the assault and attempted robbery occurred. Brown further testified that he was constantly in the company of defendant during the crucial day and did not leave defendant's presence until about 1:30 a.m. the next morning.

The prosecutor attempted to impeach Brown's testimony by asking him to recount what occurred on the day preceding January 27. He asked Brown the address of the apartment but Brown was unable to recall the street number, although he indicated the nearest intersection and described the building as pink in color. Near the end of his cross-examination, the prosecutor asked Brown if he had refused to speak to William Leach, the investigator, the previous morning at the courthouse. Brown confirmed that he had so refused. Brown was asked if he had told Leach that an attorney had ordered him (Brown) not to speak to Leach. Brown denied that he had been so ordered, stating that he told Leach that he had talked to 'the lawyer' and that he would remain silent until he testified in court. The prosecutor asked a number of other questions all aimed at establishing that defendant's counsel, a public defender, had attempted to suppress evidence by 'ordering' Brown not to speak with anyone representing the People. On redirect examination, defendant's counsel attempted to show that Brown's refusal to speak with Leach was a personal decision and was not 'ordered' by anyone. 1 When Brown finished his testimony, the defense rested.

The People called William Leach as a rebuttal witness. Leach testified that he had spoken with Brown in the courtroom hallway the previous morning. After he had identified his relationship as an investigator with the district attorney's office, Leach had asked Brown if he would answer several questions. Brown had refused, stating that 'a(n) attorney' or 'his attorney' had ordered him not to speak to representatives of the People. Leach had tried to question Brown once more before Brown testified, this time after Brown was arrested on an outstanding traffic warrant. (See fn. 1, supra.) The prosecutor's questions pointedly brought out the fact that Leach had spoken to Brown on the second occasion shortly after Brown had finished speaking with defendant's attorney. Thereafter Brown had again refused to speak with Leach. On cross-examination, defendant's counsel elicited the concession from Leach that he had not asked Brown if he, defense counsel, had ordered Brown not to speak to Leach. 2

Based on Leach's testimony, the People sought to have the jurors instructed that they could infer a consciousness of guilt on the part of defendant based on defense efforts to suppress evidence if they believed that defendant's counsel had ordered Brown not to speak to Leach. Over defendant's objection the court instructed the jury on efforts to suppress evidence as showing a consciousness of guilt in the language of a modified CALJIC No. 2.06 instruction. 3 Defendant contends that the giving of such an instruction in this or in any other form on the basis of the record in the instant case constitutes prejudicial error.

Analysis of defendant's jury instruction contention involves consideration of several separate but related sub-issues. First, we deem it necessary to comment on the form of the instruction given to the jury. Second, we conclude that the record fails to support the giving of even a properly formulated instruction on inferring consciousness of guilt from suppression of...

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