People v. Isby

• Decision Date: 19 November 1968
• Docket Number: Cr. 3153
• Citation: 267 Cal.App.2d 484,73 Cal.Rptr. 294
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James Otis ISBY, Defendant and Appellant.

Page 294

73 Cal.Rptr. 294

267 Cal.App.2d 484

PEOPLE of the State of California, Plaintiff and Respondent, v. James Otis ISBY, Defendant and Appellant.

Cr. 3153.

Court of Appeal, Fourth District, Division 2, California.

Nov. 19, 1968.

Ronald R. Heumann, Riverside, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Mark L. Christiansen, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

McCABE, Presiding Justice.

By an information filed in Riverside County on May 1, 1967, defendant was charged with a violation of Penal Code, § 211, (Robbery). We was arraigned and entered a plea of not guilty. A jury was waived, and after trial by the court, defendant was found guilty as charged. A motion for a new trial was denied, probation was denied, and defendant was committed to the California Youth Authority. Defendant appeals from the judgment.

At 1:00 o'clock on the afternoon of January 19, 1967, three persons entered the real estate office of James Rodger, located in the City of Perris, Riverside County. One of these persons was later identified by Mr. Rodger as the defendant, James Otis Isby. The defendant was accompanied by another man and a woman. Mr. Rodger was informed that the defendant and his companions were interested in purchasing some land. Mr. Rodger offered the trio coffee and cigarettes which they accepted. After conversing for a period of 20--25 minutes, the defendant and the woman stood up. The other man pulled out a gun and ordered Mr. Rodger to put his arms on his chair. The defendant proceeded to secure Mr. Rodger to the chair by applying adhesive tape around his arms and chest. The man with the gun then asked where the office money was kept. Mr. Rodger replied that it was in his wallet, whereupon defendant removed the wallet from Mr. Rodger's left hip pocket. The defendant and the woman took the wallet, containing $290--$300 in currency and some checks, to the car. After removing the cash and checks, they returned the wallet. Meanwhile, the man with the gun searched through the desk and files looking for more cash. After returning the wallet, the defendant joined in the search, however, nothing more of value was found.

Before leaving, the suspects pulled Mr. Rodger into a position where he would be unable to see the license plate of their car. He had observed the side, roof and front of the car as it drove in; he noticed that it was dark green with a sloping hood with dents in the rear fender.

Less than a week after the robbery, Mr. Rodger, who was 65 years of age, was taken to the Riverside Sheriff's Office where he was shown 15--20 photographs of people believed active in the Perris and Riverside areas. After looking through them, he picked out one of the defendant. None of the other photographs resembled the man with the gun. Later Mr. Rodger was taken to a vehicle wrecking yard which contained approximately 30--35 cars. He identified one vehicle located in the middle of the lot as the car used in the robbery. There was an in-court identification of defendant by Mr. Rodger. At the trial defendant admitted the car was his.

On April 20, 1967, defendant appeared for arraignment, counsel was appointed, and the preliminary hearing was set for April 27, 1967. ¹

On April 21, 1967 at approximately 9:30 p.m., defendant was questioned in the county jail by Detective Tornberg of the Perris Police Department. Prior to the questioning, he advised defendant by reading a 'Specific Warning and Waiver' form and had defendant read it. The defendant signed the form and, after being asked if he understood it, indicated that he did and that he would talk to Detective Tornberg. The waiver ² which was signed by defendant was admitted into evidence.

At the commencement of the interrogation, defendant stated, 'Well, I guess I am caught. I guess you got me on this one; you have got the guy that identified me,' and 'I don't believe I can beat this one.' Also, during the conversation which consumed approximately 45 minutes, the detective testified defendant was speaking about half the time. The conversation covered a broad spectrum of subjects little of which concerned the offense with which defendant was charged. The detective testified that at the time of the conversation defendant, was aware, by means unknown to him, that someone had identified defendant as being at the scene of the robbery. For proper perspective, it may be stated that when defendant took the witness stand, he testified that as early as February 1967, he had heard from a friend he was wanted for robbing a real estate office and taking a man's watch and wallet. Defendant testified that he did not tell the detective who committed the robbery. He admitted, however, that the car identified by Mr. Rodger was his car.

As a witness on his own behalf and to explain the statements which he made to the detective at the start of the interrogation on April 21, defendant testified he was on probation at that time and had received several traffic tickets, at least one of which was under an assumed name, and knew of an outstanding warrant from Riverside County on one of the tickets. He therefore assumed that the detective was referring to these matters and not his participation in a robbery. ³

From the record, including the testimony of defendant, it is clear that prior to and during the conversation with Detective Tornberg, there was no duress, force or violence used or threatened, no fear or apprehension on the part of defendant, and no promises of leniency or immunity given. Defendant's testimony regarding the atmosphere under which it took place obviates any claim of custodial interrogation pressures.

The evidence for the defense was in the nature of an alibi covering the time prior to and during the day of the robbery and a denial of participation in the robbery. The testimony from defendant and other witnesses was that defendant did not drink coffee or smoke cigarettes, did not wear a hat or the type of clothes described by Mr. Rodger, owned only one white shirt which had not been worn for a long time, and was staying in Los Angeles at a friend's home during the period in question.

Mr. and Mrs. John Boyatin testified that defendant stayed at their home in Los Angeles on January 17, 18 and 19, and did not leave until the early a.m. hours of the 20th of January. These witnesses further testified that defendant did not normally wear the type of clothing which Mr. Rodger alleged defendant to be wearing at the time of the robbery, and that defendant did not smoke and did not drink coffee. The defendant's mother testified that she had never seen her son drink coffee or smoke, and that he did not wear hats or sport coats. Two inmates of the Riverside County Jail testified that during the time they had seen the defendant in jail, he did not drink coffee or smoke, but rather gave his cigarettes and coffee to other inmates.

In order to cast doubt on Mr. Rodger's identification of defendant as one of the robbers, defendant called Officer Loyd, the officer who first responded to Mr. Rodger's call that he had been held up. Officer Loyd testified that when he first arrived at the real estate office, Mr. Rodger 'was rather excited.' He asked Mr. Rodger for a description of the vehicle and the subjects. He was informed that the subject later identified as the defendant was a male Negro approximately 26 to 27 years of age, weighing about 125 to 126 pounds and approximately 5 feet to 5 feet, 3 inches in height. Mr. Rodger had previously described the defendant in court as being about 5 feet, 9 inches or 9 1/2 inches, 124 to 128 pounds and about 20 or 21 years of age. The defendant testified that he was 5 feet, 7 1/2 inches, weighed 133 pounds and was 20 years old.

On appeal, defendant raises the following issues: (1) the officer's interrogating him after counsel was appointed and without giving notice to his counsel violated his constitutional right to assistance of counsel; (2) the identification testimony of Mr. Rodger should be excluded because the court erred and deprived defendant of due process when it did not inquire about the presence of defendant's counsel at the showup, and Mr. Rodger's identification of defendant at the showup and the possible 'tainting' of his subsequent in-court identification; and (3) excluding the illegally obtained statement testified to by Detective Tornberg and the possible tainted identification of Mr. Rodger, there is insufficient evidence to support the conviction.

Initially, defendant contends that the admission of his damaging statements to Detective Tornberg constitutes reversible error on the authority of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and People v. Brice, 239 Cal.App.2d 181, 48 Cal.Rptr. 562, because it appears that Tornberg, in the absence of defendant's counsel, was attempting to elicit incriminating statements from him. The Attorney General concedes that defendant was in custody and that the interrogation was conducted for the purpose of eliciting incriminating statements, but contends that defendant waived his right to have counsel present.

People v. Brice, supra, is the first case in California to consider the impact of the decision of the United States Supreme Court in Massiah v. United States, supra, as it applies to the admissibility of incriminating statements secured after indictment in the absence of defendant's counsel. The court in Brice quotes from the Massiah opinion itself, the New York decisions upon which the court in Massiah relied and several law review commentaries appraising the essence of the Massiah holding and concludes: (at p. 191, 48 Cal.Rptr. at p 569.) 'As we read Massiah, it articulates and applies this central principle: that incriminating statements made by a defendant after he has been formally charged by indictment or information and while ...