People v. Hill, Cr. 9126

• Court: United States State Supreme Court (California)
• Writing for the Court: SULLIVAN; TRAYNOR
• Citation: 66 Cal.2d 536,58 Cal.Rptr. 340
• Parties: , 426 P.2d 908 The PEOPLE, Plaintiff and Respondent, v. Joshua Nicholas HILL and James William Saunders, Defendants and Appellants. In Bank
• Docket Number: Cr. 9126
• Decision Date: 27 April 1967

Page 340

58 Cal.Rptr. 340 66 Cal.2d 536, 426 P.2d 908 The PEOPLE, Plaintiff and Respondent,
v.
Joshua Nicholas HILL and James William Saunders, Defendants and Appellants. Cr. 9126. Supreme Court of California, In Bank. April 27, 1967.
Rehearing Denied May 24, 1967.

Page 344

[426 P.2d 912] [66 Cal.2d 542] Burton Marks and Richard G. Sherman, Beverly Hills, under appointment by the Supreme Court, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendants Joshua Nicholas Hill, James William Saunders and Ben Madorid were charged in count one of an information with murder (Pen.Code, § 187) ¹, in [66 Cal.2d 543] count two with assault with intent to commit murder (§ 217) and in count three with robbery (§ 211). ² A jury found all three defendants guilty as charged and further found the murder and robbery to be of the first degree. (§§ 189, 211a.) Following the penalty trial on the murder count, Hill and Saunders were sentenced to death and Madorid to life imprisonment. The appeals of Hill and Saunders are automatic (§ 1239, subd. (b)). Madorid had not appealed.

About 11 p.m. on September 16, 1964 (Wednesday) Adolph Rothman, a clerk, was in charge of the Laurbank Liquor Store in North Hollywood. With him at the time was a friend, Harry Wosk, who frequently visited Rothman at the store when the latter was on duty. The two were engaged in a card game on the counter when defendants Hill and Madorid entered the store. Rothman came forward to wait on them and defendants asked for a bottle of whiskey and a six-pack of beer. At this point another customer came into the store, whereupon defendants told Rothman to wait on him first.

After the customer left, Rothman brought the whiskey and beer to the counter and asked defendants for an identification. Hill produced a draft card, but Rothman said 'It is no good,' and winked at Wosk, indicating that the latter should come over and take the beer back to the refrigerator. Wosk did so and Rothman turned around to put the whiskey back on a shelf. While Rothman's back was turned, Hill pulled a gun from under his sweater and shot Rothman in the back of the head, killing him. Wosk turned to see what had happened and was hit in the cheek by Hill's second shot. He fell to the floor severely wounded as Hill and Madorid turned to the cash register. The took $152 in bills and coins, walked from the store to a waiting car, and were driven away by defendant Saunders.

On the next evening (Thursday) Hill and Saunders showed Madorid's roommate, one John Niehoff, ³ the newspaper account of the robbery, said that Hill and Madorid were the persons being sought and forced Niehoff to drive the group, including Madorid, to Las Vegas. The four arrived in Las Vegas about 8 a.m. Friday, September 18, and parked near a [66 Cal.2d 544] casino. Pretending to look for a friend, Niehoff was successful in separating from the others

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[426 P.2d 913] and informed a security guard at the casino of the situation, who in turn called the police. Within a short time Niehoff and the three defendants were arrested by Las Vegas police.

The three defendants were placed in separate interrogation rooms at the police station about 9 a.m. and were seen in turn by Detective Sergeant Manning of the Las Vegas Police Department. They were then being held for 'fugitive California.' Sergeant Manning informed each man that he was under arrest as a fugitive from California in regard to a robbery-murder occurring at a Hollywood liquor store. Each was advised that he had a right to contact an attorney prior to making any statement, that he did not have to make a statement and that any statement he did make could be used in court against him. Each was then asked to make a statement and each refused. None of them requested an attorney. They were then taken to the city jail, located in the same building, and booked on a charge of 'fugitive California.' Las Vegas police officers made no further attempts to interrogate them.

On Friday evening (September 18) Los Angeles Police Sergeants Smith and Gerber arrived in Las Vegas to continue the investigation of the case. They questioned Niehoff that night but made no attempt to talk with the three defendants.

On Saturday morning (September 19) they spoke with each of defendants separately, starting with Madorid. In Smith's presence Gerber advised Madorid that he was entitled to an attorney, that he need not make any statement and that if he did, it could be used against him in court. Madorid then made a full disclosure of the facts of the case within his knowledge, which in substance were as already detailed herein. The statement was tape-recorded and a transcript of the recording was read into evidence at the trial.

Defendant Saunders, after being similarly advised as to his constitutional rights, said that he wanted to see an attorney before answering certain questions that had been put to him. He was asked whether he had an attorney and, when he replied in the negative, he was told to make his request to Las Vegas Police Lieutenant Handlon who was then present. According to Smith, instead of making a request Saunders asked for California law books, explaining 'I just want to know what the law is.' He was informed that there were no California law books available. Gerber offered to explain the [66 Cal.2d 545] California law to him but defendant persisted in his request. Gerber and Handlon then left the room to look for Nevada law books which might be similar and 'that ended the attorney discussion.' Finally, an old copy of the California Penal Code was produced. Defendant did not examine it.

At this point Sergeant Smith told Saunders that they had certain infomation which 'he was entitled to know' and proceeded to outline to the latter the essential facts of the liquor store robbery and homicide. In so doing he used in part information acquired from both Niehoff and Madorid. He did not, however, tell Saunders that Madorid had given a statement.

At the conclusion of this narrative, Saunders said that he wanted to make a statement. Smith again advised him of his constitutional rights. The sergeant then printed the following on a piece of paper and had Saunders read it aloud: 'Las Vegas Police Department, 400 North First Street, Las Vegas, Nevada. September the 19th, 1964, 12:20 p.m. Prior to this statement I was advised of my Constitutional rights by Sergeant R. T. Smith, Los Angeles Police Department in the presence of Sergeant Gerber and Lieutenant B. J. Handlon of the Las Vegas Police Department. These rights are, namely, that I am entitled to an attorney prior to giving any statement. A right to remain silent and, with the knowledge that anything I may say can be used against me in a court of law. I make this statement freely and voluntarily in order that the truth be known. No one has used any force or threats of force to induce this statement,

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[426 P.2d 914] nor has anyone made me any promises of reward or lesser sentence.' After Saunders had finished reading he wrote out the following statement on the same piece of paper under the portion printed by Smith: 'On the night of Wednesday, 16, September, I, James W. Saunders, drove the two said parties, Vito (defendant Hill) and Ben to a liquor store on Laurel Canyon Boulevard with the intent of purchasing beer. I parked around the corner. Ben and Vito went in and came out. We then went back to Ben's apartment. There was shown a considerable amount of small bills. At this point, I learned the store had been robbed. I was offered a small amount.' The document was signed: 'James W. Saunders, September the 19th, 1964, 12:45 p.m.' Smith, Gerber and Handlon all signed their names as witnesses. The above statement was obtained about 15 to 30 minutes after Saunders first asked for an attorney.

[66 Cal.2d 546] That afternoon (Saturday) Smith questioned defendant Hill in the presence of Officer Gerber and Lieutenant Handlon, first informing Hill as to his constitutional rights in substantially the same manner as he had advised Madorid and Saunders. Hill spoke freely and voluntarily but made no confession or admission during the interview although Smith overheard Hill say to Gerber, 'I believe I have committed a heinous crime.' Hill at no time said that he did not want to talk about the case.

On Saturday evening (September 19) Sergeants Smith and Gerber returned to Los Angeles taking Niehoff with them. The latter was released on Monday, September 21. On Monday the officers obtained a warrant for defendants' arrest, and returned to Las Vegas on Tuesday (September 22). That afternoon the Los Angeles officers brought all three defendants together at the Las Vegas jail for a 'group conversation.' Sergeant Smith then had Madorid repeat the statement he had already related to the officers. Saunders' response was a reiteration of his earlier written statement. Hill's response was 'It sounds like Grimm's fairy tales to me.' ⁴

That night (Tuesday) all three defendants were brought to Los Angeles and taken to the North Hollywood Police Station where they were booked about 11 p.m. Sergeant Smith asked Hill whether he wished to call or notify anyone but the latter said that he did not. Smith then left. Two other officers, Sergeants Melendey and Sandoval, began an interrogation of Hill as to an unsolved murder of one William Virjin. This interrogation continued until after 5 a.m., extending over a period of approximately six hours, and included the voluntary taking of a polygraph examination by Hill. The latter testified at trial that he finally confessed to the Virjin murder because the interrogating officers promised him immunity from prosecution in regard to it; Sergeant Melendey contradicted this. In any event, it is clear that some time during the course of the long...