People v. Hillery

• Decision Date: 03 May 1965
• Docket Number: Cr. 7320
• Citation: 62 Cal.2d 692,44 Cal.Rptr. 30,401 P.2d 382
• Court: California Supreme Court
• Parties: , 401 P.2d 382 The PEOPLE, Plaintiff and Respondent, v. Booker T. HILLERY, Jr., Defendant and Appellant. . In Bank

Page 30

44 Cal.Rptr. 30

62 Cal.2d 692, 401 P.2d 382

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

Cr. 7320.

Supreme Court of California. In Bank.

May 3, 1965.

Booker T. Hillery, Jr., in pro. per.

Hugh Wesley Goodwin and Tom Okawara, Fresno, under appointment by Supreme Court, for defendant and appellant.

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

TOBRINER, Justice.

The jury found defendant guilty of first degree murder and 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).

On November 14, 1963, we unanimously affirmed the judgment of death entered upon the conviction of murder in the first degree. ^* We granted a rehearing to consider this case in light of our recent decision in People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33. Subsequently we requested counsel to file briefs as to what effect, if any, the recent decision of the United States Supreme Court in Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, has upon the disposition of this case.

Although the failure of the police to inform the defendant of his right to counsel and his right to remain silent constitutes error under the holdings of Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado (1965) 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, we find that the introduction of statements elicited during the interrogation was not, under the facts of this case, prejudicial. With reference to the penalty phase of the trial, however, we find that the rendition of instructions identical to those condemned in People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33, coupled with the presentation of certain arguments to the jury necessarily worked prejudicial error. (People v. Hines (1964) 61 Cal.2d 164, 37 Cal.Rptr. 622, 390 P.2d 398.)

Before discussing the above issues it is appropriate to answer each of the contentions made by defendant in his original appeal and reiterated in his petition for rehearing. These contentions are that the evidence did not sufficiently connect defendant with the crime or support the verdict of murder in the first degree; that the prosecuting attorney was guilty of prejudicial misconduct; that the court erred in refusing to allow testimony of a grand jury witness to be read at the trial; and that the indictment should have been quashed on the ground that members of defendant's race (Negro) were systematically excluded from the grand jury which indicted him. By supplemental brief defendant also contends that illegally obtained evidence was introduced against him.

The above points were fully briefed, carefully considered by the court, and resolved against the defendant by a unanimous court in an opinion filed prior to the granting of the rehearing. We find nothing in the petition to compel a revision of the views we expressed at that time. Accordingly, that portion of the opinion dealing with these issues, as written by Justice Schauer, is incorporated herein and reads as follows:

Defendant entered a plea of not guilty to an indictment charging him with the murder of Marlene Miller on March 21, 1962. The victim, a 15-year-old girl, lived with her parents and brother in a rural area some five miles from Hanford. On the evening of the crime Marlene's brother was at work and her parents left at 6:15 to attend night classes. Manlene remained at home alone to do some sewing. The lights were on, the window shades were up, and the doors were unlocked. At approximately 8:30 p. m. Bev Honegger telephoned the Miller home and conversed briefly with Marlene. When Mr. and Mrs. Miller returned at 9:55 p. m. they found Marlene missing. The television set was playing loudly, the sewing machine light was on, an ironing board was set up and the iron was hot. In the master bedroom a sleeping bag that was normally stored on a cedar chest was on the floor, as were a coat and a blanket. A window in the exterior wall of Marlene's room was raised, and the window screen had been removed and was lying outside on the grass.

The police arrived five or ten minutes later in response to Mr. Miller's call and undertook an examination of the entire area. A mashed leaf was found on a trellis near the open window of Marlene's bedroom; and a gloved handprint was detected on the top of a television set in front of that window, showing the hand intruding toward the interior of the house. There were scuff marks on the ground outside, which appeared to have been made by the side of a shoe being dragged over the earth. A trail of blood spots led to the bank of a nearby irrigation ditch. Partial footprints were found, and prints of a small tennis shoe.

Marlene's body was discovered the following morning, submerged in an irrigation ditch some 75 to 100 yards west of the Miller home. Evidencing a source for the trail of blood spots, a pair of large sewing shears bearing the name 'Marlene M.' was embedded up to the handles in her chest. The pointed blades had been thrust downward into her body at a point immediately above the sternal notch, puncturing a lung and causing death by massive hemorrhaging and shock. The points of the scissors were lodged in the posterior wall of the chest cavity. A towel and a half-slip were found knotted around her neck. Her wrists were securely tied behind her back with a piece of cord similar to that on the Miller sleeping bag, which had apparently been cut. On one foot she wore a tennis shoe; the other foot was bare. Her blouse was pulled down around her shoulders, pinning her arms to her body. Her brassiere was pulled upwards, exposing her breasts. Her jeans were ripped open down the back and through the crotch. There were several stab marks on the body where attempts were made to rip the jeans before the final rip was made down the seam. Her underpants were torn, exposing her private parts. Her legs were drawn up and her knees were spread apart. There were bruises on her chin, back, and knees. Marlene was dead, but apparently she had won part of her battle: the external genitalia showed no bruises or other trauma and the hymen was intact.

The Miller home is situated on the corner of Elder Avenue and 10th Avenue, and there is a stop sign on Elder at this intersection. Approximately two-tenths of a mile to the east on Elder is a dirt road known as Tome Lane. One-half mile to the west of the Miller home on Elder is the Ferreira ranch, where defendant was employed on the date of the murder, March 21, 1962 (and had been so employed since June 1961). Marlene had worked as a baby-sitter for the Ferreira family on a number of occasions during the spring of 1962, one of which was shortly before March 21.

At 8:45 p. m. on the day of the crime a high school student noticed defendant's automobile, a 1952 Plymouth with an unusual paint combination, parked in Tome Lane just off Elder. A second witness saw defendant's car in that location at about the same time. Tire marks were found in the lane after the murder; they were photographed, and ink impressions were made of the tires on defendant's car. Expert testimony established that the marks in the lane had been made by defendant's tires.

A right and a left boot print were found in Tome Lane near the tire marks. The position of the prints indicated that the wearer had been walking in the direction of the Miller home. Expert testimony established that the prints were made by defendant's boots. There were also stockinged footprints nearby, leading back towards the place where the car was parked.

A pair of mismatched black gloves was found in the weeds 'at the edge of the road' along Elder Avenue, to the east of Tome Lane. When found, they were soaking wet. The gloves were traced to defendant By the following evidence:

The right-hand glove (People's Exhibit 34) was black with a red orlon lining, and was similar in appearance and size to a pair sold to defendant sometime before Christmas 1961 by Correll Hicks. Defendant paid for the gloves in the presence of Allean Stallworth, defendant's girlfriend. The latter corroborated Hicks' testimony, and stated that defendant later showed her the gloves and said they were the pair he had bought from Hicks. She further testified that she knew of no other gloves with a red lining owned by defendant; that about a week before March 21, 1962, defendant told her that he had lost one of a pair of gloves; and that the remaining glove, which he showed her, looked like People's Exhibit 34.

The left-hand glove found on Elder Avenue (People's Exhibit 33), a leather outer glove suitable for wearing over a lining, was identified as similar in appearance to those sold by an army surplus store in Hanford. The manager of that store testified that defendant had been a customer of his; that on January 22, 1962, he wrote out a sales slip in the amount of $1.29 plus tax; and that gloves similar to People's Exhibit 33 were on sale at that time in his store for $1.29 a pair. The sales slip (People's Exhibit 67) was found in the back seat of defendant's car after his arrest.

Defendant's employer, Joe Ferreira, testified that some two weeks prior to March 21 defendant complained of losing a glove; that the remaining one, which defendant showed him, was similar to Exhibit 34; and that defendant thereafter wore the latter in a mismatched pair with a glove similar to Exhibit 33. A narrow brown belt (People's Exhibit 35) was also found in the weeds on Elder, near the gloves. By contrast with the latter, the belt was not wet. Mr. Ferreira testified that the belt looked just like one used by defendant to hold up hip boots that the wore at work. Among other...