People v. Hillery

• Decision Date: 10 February 1967
• Docket Number: Cr. 9801
• Citation: 65 Cal.2d 795,423 P.2d 208,56 Cal.Rptr. 280
• Court: California Supreme Court
• Parties: , 423 P.2d 208 The PEOPLE, Plaintiff and Respondent, v. Booker T. HILLERY, Jr., Defendant and Appellant. In Bank

Page 280

56 Cal.Rptr. 280

65 Cal.2d 795, 423 P.2d 208

The PEOPLE, Plaintiff and Respondent, v. Booker T. HILLERY, Jr., Defendant and Appellant.

Cr. 9801.

Supreme Court of California,

In Bank.

Feb. 10, 1967.

Certiorari Denied Feb. 20, 1967.

See 87 S.Ct. 958.

As Modified on Denial of Rehearing March 8, 1967.

Marvin W. Friedman, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Edsel W. Haws, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

In the original trial of this case the jury found defendant guilty of first degree murder and fixed the penalty at death. Upon appeal this court, pursuant to People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33, reversed the verdict as to penalty but affirmed the conviction of guilt, holding that the use of statements obtained in violation of People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, did not work prejudice under article VI, section 13, of the Constitution of California. At a subsequent trial, commencing September 28, 1965, the jury again fixed the penalty at death. The court denied defendant's motion for a new trial and entered judgment on the verdict. This appeal comes to us automatically under Penal Code section 1239, subdivision (b).

Defendant asserts that the trial court committed seven prejudicial errors in that: (1) the court permitted the introduction of evidence obtained by illegal search and seizure; (2) the court permitted the introduction of evidence of defendant's prior offenses and failed to caution the jury as to the use of such evidence; (3) the court allowed defendant to be present in court dressed in prison garb and manacled; (4) the court rejected two instructions requested by defendant; (5) the court denied defendant's motion for a mistrial on grounds of misconduct of jurors; (6) the court discussed legal issues with counsel in the presence of the jury; and (7) the court disparaged defendant and defense counsel.

Briefly recapitulating the facts, we note that the evidence at the penalty trial disclosed that on the night of the murder, March 21, 1962, the victim, Marlene Miller, age 15, was alone in her rural home near Hanford with the doors unlocked, the shades up, and lights burning. Her parents and brother left for the evening at 6:15 p.m.; the parents returned at 9:55 p.m. to find Marlene missing, and the television, sewing machine, and iron turned on. A friend who spoke with Marlene by telephone placed her at home at 8:30 p.m. On the floor of the master bedroom Mr. Miller found a coat and blanket, and a sleeping bag normally stored away; outside on the grass he discovered the screen to Marlene's bedroom window. He thereupon called police.

Chief Deputy Thomas supervised the investigation. He found a gloved handprint intruding inward on the television set near the open window in Marlene's bedroom. Officer Webb observed scuff marks outside the window, seemingly caused by a shoe being dragged across the ground; he likewise discovered a trail of bloodspots, as well as footprints and prints of a small tennis shoe, which led to the bank of a nearby deep irrigation ditch. Here, at dawn, a news reporter called Webb's attention to Marlene's partially nude body, submerged in the water, a pair of sewing shears deeply embedded in her chest. Her wrists were tied behind her back with cord similar to that found missing from the sleeping bag; one of her tennis shoes was missing; a towel and Marlene's slip were knotted about her neck. Her blouse was pulled down around her arms and her brassiere was pulled above her breasts; her jeans and underpants were torn open at the crotch. Her legs were drawn up and spread apart, although there was no other sign of sexual assault.

Two witnesses observed an automobile similar to the defendant's uniquely painted black and turquoise 1952 Plymouth parked in Tome Lane, two-tenths of a mile from the Miller home. Chief Deputy Thomas observed tire tread marks in Tome Lane, and bootprints leading from Tome Lane toward the Miller house and footprints leading back. Informed that a car registered to defendant and similar to the one observed in Tome Lane earlier had been cited for illegal parking in front of defendant's hotel, Thomas observed the car after 3 a.m. without entering it. He noted the similarity between the tire treads and the marks found in Tome Lane, as well as the comparability of prints of the boots and the soles of the hip boots visible on the floor of the car. Thomas knew of defendant's prior conviction for rape as well as of his employment at the Ferreira ranch, one-half mile from the Miller house, where Marlene had worked as a babysitter. Shortly after finding Marlene's body, therefore, Thomas ordered defendant's arrest.

Officer Evers apprehended defendant in the morning in his car in front of his hotel. Seeing a pair of hip boots on the floor, the arresting officer had the car driven to the police garage and impounded. Subsequent search, pursuant to a warrant, revealed a sales slip for $1.29 from an Army surplus store. This discovery linked defendant to a glove found at the scene of the crime because a store manager recalled selling to defendant, for an on-sale price of $1.29, a pair of gloves which were of the same type as the discovered glove. Impressions of the boots matched bootprints found at the scene; inked tire tread impressions also corresponded with those found in Tome Lane. Officer Evers found a crisp 10-dollar bill and change including 10 nickels in defendant's pockets after his arrest; Marlene's brother testified that the bill resembled in texture and creasing one taken from his dresser the night of the murder; he further testified that a mug partially filled with nickels had been emptied.

The right glove of the mismatched pair, as well as a belt found at the scene of the crime, further implicated defendant. We previously noted the facts regarding the left glove; the right glove, black with red orlon lining, was identified by defendant's girl friend at the guilt trial as similar to a pair he had bought in December 1961. Indeed, defendant had complained to her a week before the murder that he had lost one glove. Defendant's employer also testified that defendant, two weeks before the murder, had complained about losing a glove; subsequently defendant wore a mismatched pair like the two found at the scene. When found the morning after the crime, the gloves were both soaking wet, but a belt discovered near the water-filled irrigation ditch was dry. The belt, at the sides, bore two marks of the kind made by clips which hold up hip boots; defendant's employer described the belt as similar to the one used by defendant to hold up hip boots while at work.

Prior to the commencement of the penalty trial which is the subject of this appeal, defendant, during the period between June 12, 1965, and September 13, 1965, entered six appearances in propria persona before the court for setting the date of trial, motions, petitions for writs of mandamus and prohibition, and further related proceedings. The extended colloquies between the court and defendant, which bear on the issues raised here, involved four subjects: (1) representation by counsel, (2) request for documents, (3) motion for stay of proceedings, and (4) disqualification of the judge. Upon all of the issues the trial court, as we shall explain, afforded all reasonable accommodation to defendant's demands; we can find no infringement of defendant's rights or abuse of the court's discretion.

First. Discharging the attorneys who had served him in the first trial and on appeal, defendant declined to accept the substituted attorneys appointed by the court to represent him in the second penalty trial. The court properly rejected the defendant's demand for still other attorneys but made available to him the appointed attorneys in an advisory capacity. The court also properly rejected defendant's demands that proceedings be continued until he vindicated his claimed Sixth Amendment rights. Until the second day of the trial, before the advent of the State's opening argument but after Voir dire of the jury panel, defendant continued to represent himself. At this point defendant accepted his advisory counsel in a full representative capacity. Defendant exercised no peremptory challenges, failed to question any prospective juror, and, except to object to the entire trial, declined to enter into the proceedings.

Second. Defendant presented several motions for the production of documents. Most of his requests failed to specify any particular document; those documents specifically requested appear irrelevant to any trial preparation of his own. In support of his petition for writ of certiorari to the United States Supreme Court, defendant sent the entire record to Washington, D.C. That court did not order the trial proceedings stayed. The trial court made the prosecutor's record available for copying by defendant's attorneys at county expense.

Third. Asserting that his case was pending before the United States Supreme Court, defendant, in connection with his requests for counsel and documents, moved several times for stays of proceedings. Since no other court had ordered a stay and defendant's inconvenience arose from his own making, the trial court properly denied his motions.

Fourth. The court properly denied, as not timely made and not supported by timely affidavit, defendant's motion under Code of Civil Procedure, section 170.6 to disqualify the trial judge for prejudice. Since the statute permits only one such motion, we must decide whether defendant's first motion for disqualification, which he urged orally on July 12, 1965, after the commencement of the second hearing preceding his second penalty trial, complies with the statutory provisions. ¹

Section 170.6 requires that when the...