People v. Haston

Decision Date19 August 1968
Docket NumberCr. 11710
Citation444 P.2d 91,69 Cal.2d 233,70 Cal.Rptr. 419
CourtCalifornia Supreme Court
Parties, 444 P.2d 91 The PEOPLE, Plaintiff and Respondent, v. Odell Clarence HASTON, Defendant and Appellant.

Marks & Schneider, Beverly Hills, Gerald J. Levie, Los Angeles, Thomas W. Sneddon, Jr., Burton Marks and Harvey A. Schneider, Beverly Hills, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendant was charged by information with three counts of robbery (Pen.Code, § 211) 1 (counts 1, 3, and 5), three counts of Kidnaping for the purpose of robbery (§ 209) (counts 2, 4, and 6), and a prior felony conviction. He pleaded not guilty and admitted the prior conviction. A jury found him guilty as charged and determined (§ 1157) that the robberies were of the first degree (§ 211a). As to counts 2, 4, and 6, defendant was sentenced to the state prison for the term prescribed by law, such sentences to run concurrently with each other and with any other sentence to which he might be subject. As to counts 1, 3, and 5 defendant was also sentenced to the state prison for the term prescribed by law, such sentences to run concurrently with each other. Execution of sentence as to counts 1, 3, and 5 was suspended pending appeal and the serving of sentence as to counts 2, 4, and 6--such suspension to become permanent upon completion of the sentences as to said counts 2, 4, and 6. 2 Defendant appeals from the judgment. 3

On November 28, 1964, the J. C. Penny Co. store in Torrance was robbed of some $40,000. The robbery was accomplished by two armed and masked men who entered the store shortly after closing time by an exit door through which employees were departing. They herded the remaining employees into the cashier's office, ordered some to lie face down on the floor, forced others to assist in gathering the currency, fled with a hostage subsequently released unharmed, and eventually made their getaway with the money.

On January 30, 1965, the same store was robbed of some $25,000, again by two armed and masked men. This robbery took place in the early morning, before the store was opened, the robbers gaining entry by accosting three custodial employees in the parking lot and forcing them to open the door with a key. They then took the custodial employees to a lounge near the cashier's office where all of them waited for more than two hours until other employees began to arrive. One of the new arrivals was made to open the safe, and two others were required to assist the robbers put currency from the safe into shopping bags. The robbers fled prior to the opening time.

On April 24, 1965, the May Company store in Lakewood was robbed of some $100,000, again by two armed and masked men. After the store had closed for business and the clerks were engaged in checking their receipts and turning them in to the cashier, one of the robbers appeared at the cashier's office, informed employees there that a holdup was in progress, and demanded admission to the office. After being admitted they proceeded, with the enforced help of employees, to fill shopping bags with currency from the vault. Then, closing the vault, they took the employees to another floor, forced them to lie down, and fled.

Charges were brought against defendant Haston and one Donald McDowell. The latter, however, pleaded guilty to three counts of robbery, 4 and only defendant was brought to trial.

The primary issue at trial was that of identification. The prosecution produced employees from each of the robbed stores and elicited from them identification testimony based upon recognition of defendant in a police lineup. Then, ostensibly for the purpose of showing identity through a common Modus operandi, the prosecution introduced, over objection, evidence of two restaurant robberies perpetrated by defendant and McDowell in 1962. This evidence included defendant's extrajudicial confession to those robberies. The prosecution also introduced evidence to the effect that defendant, although unemployed at the time, had spent sums of money aggregating over $15,000 during the period between the charged robberies and his apprehension therefor.

Defendant, testifying in his own behalf, admitted his participation with McDowell in some 10 to 15 robberies in 1962, including the two restaurant robberies proved by the prosecution. However, he denied his complicity in the crimes charged and sought to establish an alibi. His wife and her cousin gave testimony in support of his alibi. Defendant also admitted that he had spent some $18,000 during the period between the May Company robbery and his arrest, but he represented that the money was the result of the 1962 robberies.

Donald McDowell testified for the defense to the effect that one Duke Edwards, who bore some physical resemblance to defendant, had assisted him in the robberies charged against defendant.

I. Evidence of other offenses.

As indicated above, evidence of certain prior offenses was introduced for the alleged purpose of identifying defendant as one of the perpetrators of the charged crimes by showing a distinctive Modus operandi. 5 It consisted of (1) evidence given by witnesses to such crimes, (2) defendant's extrajudicial confession to such crimes, and (3) evidence that defendant had pleaded guilty to one of such crimes.

(1) Evidence of witnesses to prior crimes.

Jacquelin Wininger testified that on November 11, 1962, she was employed at Clancey's All-American, a drive-in restaurant near Torrance; that on that night shortly after the drive-in had closed for business, while she and two other employees were cleaning up and preparing to leave, one of said employees, upon returning from emptying the trash outside, forgot to lock the door; that soon afterward a masked man with a gun appeared and ordered her to go to the stockroom and open the safe; that she noticed another maksed man standing over the other two employees, who were lying on the floor; that after she had opened the safe, and the first man had taken some $1,300 therefrom, she was ordered to lie down on the floor with the other employees; and that the intruders then fled.

Samuel Meek testified that on November 26, 1962, he was manager of the McDonald's drive-in restaurant in Torrance; that at about midnight on that date, after the restaurant had been closed for business approximately one hour, he and three other employees were preparing to leave for home; that one of the other employees, intending to throw out some trash, started to go out through a rear door but was pushed back into the restaurant by a masked man with a gun; that the man ordered Meek to get down on the floor and threatened to kill him unless he opened the safe; that a second armed and masked man held the other employees at bay while the first man roughly forced Meek to open the safe; and that the robbers took some $2,400 and fled. Meek's testimony was corroborated by that of another employee.

(2) Evidence of defendant's extrajudicial confession to prior crimes.

Defendant's confession to the Clancey's and McDonald's robberies was introduced through the testimony of Sergeant Robert Kinsey of the Los Angeles Police Department.

On Voir dire examination outside the presence of the jury Sergeant Kinsey testified to the following effect: On December 3, 1962, defendant had been arrested in connection with the attempted robbery of Pip's Drive-In, a restaurant in Wilmington. Apparently, defendant and his friend McDowell about midnight had parked their car in front of Pip's McDowell had masked his face and had gone in alone, leaving defendant in the car, and had attempted a robbery. However, three policemen had been in the restaurant and a gun battle had ensued wherein one of the policemen was wounded. McDowell somehow escaped, but defendant, still in the car, was arrested. Sergeant Kinsey, who had been involved in investigating a series of drivein robberies which included those involving Clancey's All-American (November 11, 1962) and McDonald's (November 26, 1962), began interrogating defendant about 10 a.m. on the day of the Pip's robbery, December 3, 1962. At no time was defendant advised of his rights to have counsel and to remain silent. 6

Although Sergeant Kinsey suspected that defendant might have been involved in the series of drive-in robberies which he had been investigating, 7 it was his testimony that his initial questioning was substantially 8 confined to the attempted robbery of Pip's Drive-In, and that the primary subject of interrogation was the probable whereabouts of McDowell. Defendant denied any complicity in the attempted robbery of Pip's, saying that he was a "victim of circumstances," and told Sergeant Kinsey that his girlfriend, one Barbara Lunsford, would corroborate his story--which was essentially that McDowell had forced him to drive the car to the scene of the attempted robbery.

Sergeant Kinsey further testified on Voir dire that later in the day he had a conversation with Barbara Lunsford, and that she corroborated defendant's version of his participation in the Pip's robbery but that she also said that defendant had been participating in other unspecified 9 robberies.

In the course of further interrogation during the evening of December 3, 1962, defendant was confronted with Miss Lunsford's general statement as to his participation in other robberies. He then stated, "I didn't think she would tell you that," and "so long as she let the cat out of the bag, I might as well level with you." Thereupon, according to Sergeant Kinsey's testimony, defendant proceeded to relate the circumstances of several robberies which he and McDowell had committed, including the Clancey's 10 and McDonald's robberies.

Defendant also testified on Voir dire relative to the circumstances of the 1962 interrogation. He said in...

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