People v. Hughes

Decision Date14 December 1961
Docket NumberCr. 6897
Citation367 P.2d 33,57 Cal.2d 89,17 Cal.Rptr. 617
Parties, 367 P.2d 33 PEOPLE of the State of Callfernla, Plaintiff and Respondent, v. Robert Green HUGHES, Defendant and Appellant.
CourtCalifornia Supreme Court

Gregory S. Stout, San Francisco, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for plaintiff and respondent.

SCHAUER, Justice.

Defendant appeals (by operation of Pen.Code, § 1239, subd. (b)) from judgments of death and of imprisonment imposed pursuant to jury verdicts finding him guilty of murder in the First degree, assault with a deadly weapon, and three counts of armed murder in the first degree, assault with a the murder conviction at death, and the trial court denied defendant's motions for a new trial and for reduction of the penalty to life imprisonment.

Defendant contends that his counsel's right to question the prospective jurors on voir dire concerning their views on imposing the death penalty was unduly restricted; that defendant was denied his constitutional right to be represented by counsel when the trial court refused to appoint a private attorney in place of the Public Defender of Los Angeles County; and that the deputy public defender's conduct of the defense was such that he was denied the right to competent and effective aid of counsel. We have concluded that defendant's contentions are without merit, that the record discloses no prejudicial error or unfairness to defendant at any stage of the proceedings, and hence that the judgments of conviction should be affirmed.

Defendant was charged by information with commission of the following crimes: Armed robbery of Clifton Moye on October 18, 1960 (Count I); armed robbery of Burl Jackson on October 21, 1960 (Count II); assault with a deadly weapon on Burl Jackson during the second armed robbery (Count III); armed robberies of Winston Thibodeaux, Ray Stivers, Weddie McCarty, and Roy Brooks on November 15, 1960 (Counts V, VI, and VII), and the murder of Winston Thibodeaux during the latter robberies (Count IV). The Public Defender was appointed as counsel for defendant and a plea of not guilty was entered to each count.

The crimes took place at or in the vicinity of three gasoline service stations in the Los Angeles area. At the trial the various robbery victims, all service station attendants or their friends, testified to substantially the same sequence of events: Defendant had approached each service station at night and had made an inquiry implying either that he wished to purchase a tire or to have one repaired; he then displayed one or two guns and announced a holdup, saying, 'This is for real' or 'This is the real thing'; after taking money or other valuables from his victims he marched them at gun point some 200 to 250 yards from the service station and ordered them to run.

The principal victim of the October 21 robbery, Burl Jackson, was also the victim of the assault with a deadly weapon on that date. He testified that during the robbery, and without any threat or provocation on his part, defendant shot him in the leg at close range; and that after he fell to the ground defendant bent down and put the gun next to his ear, saying 'If you say a word or open your mouth the next one will be through your head.' The witness further testified that when two other service station attendants entered soon afterwards defendant held them at gun point and warned, 'I shot one, I will kill the next one.'

The murder victim, Winston Thibodeaux, was the sole attendant on duty at the Pathfinder Service Station at 1 a. m. on November 15, 1960. Two friends of his, McCarty and Brooks, were visiting him at that time when defendant appeared and robbed all three at gun point. McCarty and Brooks testified that defendant then marched his three victims some 200 to 250 yards away from the service station. When they stopped defendant pulled a pair of gloves from Brooks' pocket (Brooks worked as an attendant at another service station) and said to Thibodeaux, 'I thought you told me that this guy didn't work at the station.' Thibodeaux answered, 'No, they don't work at the station.' Defendant then said, 'You just telling me a God damn lie,' and shot Thibodeaux in the chest. The latter fell, crying for help. The other two men pleaded with defendant not to shoot them and he ordered them to turn and run. Thibodeaux was found dead shortly afterwards by the service station owner.

The autopsy surgeon testified that Thibodeaux's death was caused by a gunshot wound of the chest, which penetrated 'the heart, the stomach, the spleen and the left lung with massive hemorrhage.' A ballistics expert testified that the bullet which the autopsy surgeon extracted from the body had been fired by a .25 caliber automatic pistol. The victim of the first robbery testified that defendant took a pistol of that type from his service station, and the victims of the subsequent robberies testified that defendant carried and used such a weapon.

Defendant left the Los Angeles area on November 17, 1960, and went to Milwaukee, Wisconsin. While there, he sent a letter to a friend in Los Angeles asking for money. The mother of his correspondent went to the police. Defendant was arrested in Milwaukee on December 29, 1960, and was turned over to California authorities. One of the police officers who brought defendant back to California testified that during the return flight defendant said that he would tell them 'who the other man (involved in robberies with him) was and about all the robberies that he knew about if we could guarantee him that he would not go to the gas chamber.' The officers answered that they could not make such a promise.

Defendant took the stand, denied committing any of the crimes charged, and produced his brother as an alibi witness. He admitted, however, that when he left for Milwaukee on November 17 he knew that a murder had been committed two nights previously during a service station robbery; that while he was in Milwaukee he was told by friends in Los Angeles that a composite sketch of the robber published in the newspapers resembled him; and that on the return trip in custody to Los Angeles he told the police officers 'about the robberies that I did commit,' but that they were not the ones with which he was charged; i. e., did not include one in which murder was committed.

The principal factual issue on the trial was that of identification of the robber-murderer. Three or four days after the events of November 15 the victims of each of the robberies were asked to describe their assailant's features to a police department artist, who prepared the above mentioned sketch for newspaper publication. Several of the victims thereafter selected defendant's photograph from among hundreds of 'mug shots' shown to them. Upon defendant's return to Los Angeles he was identified in police lineups by a number of the victims. At the trial each victim pointed out defendant as the robber and, in the case of witnesses McCarty and Brooks, as the murderer of Thibodeaux. The jury returned verdicts finding defendant guilty of each of the crimes charged.

Defendant does not question the sufficiency of the evidence to support the verdicts and judgments; nor does he complain of errors in the admission or exclusion of evidence or the giving or refusing of instructions. After an independent review of the record we are convinced that no such challenge could in any event be sustained. Defendant's counsel on appeal is commendably frank in recognizing that the errors at defendant's trial, if any, were errors of omission rather than commission and at most are susceptible of a number of differing inferences.

Defendant's first contention is that his trial counsel's right to examine the prospective jurors on voir dire with respect to their views on imposing the death penalty was unduly restricted. In particular, defendant asserts that in sustaining an objection by the People the trial court prevented his counsel's questioning the jurors to determine whether any might be 'bloodthirsty' or 'particularly for the death penalty.' The relevant questions, objection, and ruling are set out in the margin. 1 It is clear, as the People acknowledge, that counsel for a defendant in a capital case has the right to question the prospective jurors on voir dire for the purpose of ascertaining whether any would vote to impose the death penalty without regard to the evidence in the event of a conviction. While a challenge on that ground is not specifically provided for in section 1074 of the Penal Code (implied bias), section 1073 permits a challenge for actual bias 'For the existence of a state of mind on the part of the juror in reference to the case, or to either of the parties, which will prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party, * * *' The entertaining of an immutably established opinion in favor of invariably selecting the death penalty in any case where the offense charged is punishable at the discretion of the jury either by death or imprisonment is such a 'state of mind * * * which will prevent (the juror) from acting with entire impartiality and without prejudice * * *.' (Cf. People v. Duncan (1960) 53 Cal.2d 803, 812-816(4), 3 Cal.Rptr. 351, 350 P.2d 103.) There can be no doubt that "The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury guaranteed by the constitution." (People v. Elliott (1960) 54 Cal.2d 498, 504(9), 6 Cal.Rptr. 753, 354 P.2d 225 quoting from Lombardi v. California St. Ry. Co. (1899) 124 Cal. 311, 317, 57 P. 66.) In order to intelligently exercise the right to challenge for cause defendant's counsel must be accorded reasonable opportunity to lay a foundation for the challenge by questioning the prospective jurors on voir dire to learn...

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