People v. Huston

• Decision Date: 19 April 1989
• Docket Number: G006508,Nos. G003813,s. G003813
• Citation: 258 Cal.Rptr. 393,210 Cal.App.3d 192
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Terry Lee HUSTON, Defendant and Appellant. In re Terry Lee HUSTON, On Habeas Corpus.

Page 393

258 Cal.Rptr. 393

210 Cal.App.3d 192

The PEOPLE, Plaintiff and Respondent, v. Terry Lee HUSTON, Defendant and Appellant In re Terry Lee HUSTON, On Habeas Corpus.

Nos. G003813, G006508.

Court of Appeal, Fourth District, Division 3, California.

April 19, 1989.

Review Denied Aug. 9, 1989.

Terry L. Huston, in pro. per

Patrick J. Hennessey, Jr., San Diego, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Janelle B. Davis and Jeffrey J. Koch, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

SCOVILLE, Presiding Justice.

Defendant Terry Lee Huston appeals his conviction and sentencing for 10 counts of robbery, on 8 of which he was found to have used a firearm. Consolidated with this appeal is his petition for a writ of habeas corpus, based on supposed collateral estoppel from the dismissal of similar robbery charges in Los Angeles County following his conviction for the Orange County robberies at issue here. In connection with his appeal, defendant asks us to make certain factual determinations the trial court declined to make as to defense documents allegedly lost or destroyed by the police.

FACTS

The Robberies

Between April 27 and November 23, 1983, robberies took place at two Lucky Store supermarkets, three Albertson's grocery stores, and five Alpha Beta supermarkets in Orange County. The victims' accounts of the robber's appearance and modus operandi suggested a single perpetrator. The similarities included the following: nine victims said the robber had a bushy and/or "Fu Manchu" moustache (a tenth mentioned a "light moustache"). Nine described the robber's hair or moustache as some shade of red (ranging from "strawberry blond" to "reddish brownish"). Eight said he wore some sort of cap. In the first two or three robberies, the robber brought his own bag to put the money in; thereafter, he ordered the victims to get a bag for the money. Six of the robberies ended with the robber ordering or suggesting that the victim go call the police. In five cases, the robber called attention to a gun, or a concealed object possibly a gun, by words to the effect of "Do you see this?" or "Do you see what I have in my pocket?" In the first six robberies, the robber was wearing a corduroy jacket or coat, variously described as beige, brown, gold or rust in color. Four victims said the robber had a bad or pock-marked complexion. In four of the later robberies, the robber displayed some sophistication as to where money can be hidden in a safe. Four of the robberies began with the robber's asking if the victim was the store manager.

In two cases, the robber wore sunglasses; in another, he wore what appeared to be prescription glasses.

Defendant has reddish hair and a rough complexion. At the time of his arrest, he had a moustache. Defendant's brother Richard has similar hair, and had a bad complexion at times during 1983 due to amphetamine use. During much of 1983, Richard wore a moustache. At defendant's trial, Richard admitted owning a brown corduroy jacket and about a dozen baseball caps.

The dates of the robberies were: April 27, May 1, May 28, June 3, June 15, July 11, July 25, August 15, November 14, and November 23.

Victims in all 10 robberies identified defendant at trial as the man who robbed them.

Search of Residence and Subsequent Arrest

On November 23, 1983, San Diego police contacted the Orange County sheriff's department with the news that a confidential informant had named defendant as involved in market robberies in the San Clemente or Orange County area. The Orange County authorities also learned defendant was on parole for armed robberies committed in San Diego County, and that he lived in the area of Julian, California. On November 28, 1983, the Orange County authorities obtained an arrest warrant for the May 28 robbery, based in part on photographic identifications of defendant by two witnesses (including one victim) to that robbery.

Orange County and San Diego officers attempted to serve the warrant at the residence of J. Clark in Julian, California. They had obtained the address by connecting it with a phone number supplied by the informant. When they arrived at the residence, the owner Joyce Clark said defendant was out for the evening. The officers asked and obtained permission to search the house for defendant. In the course of the search they found articles of clothing matching those worn by the robber in some of the robberies. They also found two checks on a Bank of America account in Julian. The checks bore the imprint of defendant's business, Back Country Services. As is discussed in more detail below, the search of this residence was later held illegal and all items found in the search were ordered suppressed.

Defendant was arrested shortly after this search in a traffic stop.

Refusal to Participate in Lineup

On the evening of November 30, Orange County sheriff's department personnel attempted to conduct a lineup including defendant at the Orange County jail. All members of the lineup were to wear baseball caps, sunglasses and white jackets. Defendant's public defender had not yet arrived on the scene. Defendant refused to take part in the lineup wearing a cap and sunglasses. The investigator in charge of the lineup read defendant a statement indicating the prosecutor would be able to comment on his refusal. The investigator also read defendant a statement informing him that a claim of unfairness was not sufficient reason to refuse to take part in a lineup, and that his attorney would be able to argue unfairness to the jury. Defendant continued to refuse to participate so long as the lineup included the cap.

The public defender, Lewis Clapp, who arrived to represent defendant was inexperienced and unfamiliar with the case. When Clapp arrived, the investigator showed him the arrangements for the lineup. In Huston's presence, Clapp said, "It appears to be a fair line-up to me. And I can see no valid reason for your refusal." Defendant and Clapp then discussed the matter privately. After this conference, Clapp first declined to advise defendant whether or not to participate, then said he advised defendant not to participate without a court order. The lineup was abandoned until a court order was obtained. By the time the court-ordered lineup was conducted, defendant had shaved off his moustache and cut his hair. Despite these alterations, seven victims and witnesses identified him as the robber at this lineup.

Loss of Alleged Alibi Documents

Defendant elected to represent himself, with an attorney as cocounsel. He asked Joyce Clark and his brother's girlfriend Barbara Bence to look for certain specific documents, and for any documents among defendant's belongings which were dated on or near the dates of the robberies.

Bence later testified she located the following documents: a ticket stub for the US Festival, dated June 3, 1983; an invoice from Lake Cuyamaca for a fishing permit, dated August 15, 1983; and a carbon copy of an all day boat rental from Lake Cuyumaca, also dated August 15, 1983. The robbery charged in count 4 of the information took place around 9:30 p.m. on June 3; the robbery in count 8 occurred around 9:00 p.m. August 15.

The festival ticket stub bore no information indicating defendant had purchased the ticket; the fishing permit and boat rental documents did bear defendant's name. Bence testified she had found the documents dated August 15, 1983 in a box she and Richard Huston had stored for Huston when he moved out of their house in March 1983.

Clark asserted she located between 50 and 75 papers relating to the dates of the robberies. From these documents and those Bence had found, defendant selected 12 he believed critical to his defense. These documents included the three described above, and the following:

(1) Regarding counts 3, 7, and 10, and generally: records from defendant's towing and hauling business, allegedly indicating he had been towing cars or hauling (2) Regarding count 1: restaurant receipt from Country Kitchen Restaurant, allegedly dated April 27, 1983;

trash on certain dates, and establishing his financial stability and consequent lack of motive [210 Cal.App.3d 203] for robbery;

(3) Regarding count 2: gasoline receipts bearing certain dates, including May 1 and 2, 1983;

(4) Regarding count 2: rental car receipt from San Diego rental agency dated May 1, 1983;

(5) Regarding count 8: invoice for road services defendant rendered to E. Talamantez, allegedly dated July 25, 1983.

Defendant, who was in custody in the Orange County jail, stored these documents in his cell.

On May 10, 1984, defendant was temporarily confined to a cell in the "punishment tank," in which prisoners were not allowed to have means of entertainment such as magazines. As a pro per prisoner, defendant was allowed to have legal materials in this cell. He had a box marked as containing legal files. Because of concern that jail deputies or prisoner informants might search his files in his absence, he had hidden the alibi documents Clark had brought him in a Playboy magazine.

Some of the inmates in the punishment tank were rattling bars and yelling. Jail personnel decided to conduct a punitive "shakedown search" of the area. Deputies Krueger and White searched defendant's cell in the punishment tank. Both of them knew of defendant's pro per status.

The deputies looked through defendant's box of legal materials for any contraband or weapons and found several Playboy magazines in brown mailing wrappers. The deputies seized these magazines. Defendant objected strenuously, saying the magazines were, or one of the magazines was, necessary to his defense. When asked to explain what was in the magazines that he needed, he refused, on the ground the information was confidential. All the testimony concerning this confrontation indicates defendant did not say the...