People v. Jacobson

• Decision Date: 17 September 1965
• Docket Number: Cr. 8250
• Court: California Supreme Court
• Parties: , 405 P.2d 555 The PEOPLE, Plaintiff and Respondent, v. Earnest LeRoy JACOBSON, Defendant and Appellant.

Page 515

46 Cal.Rptr. 515

63 Cal.2d 319, 405 P.2d 555

The PEOPLE, Plaintiff and Respondent, v. Earnest LeRoy JACOBSON, Defendant and Appellant.

Cr. 8250.

Supreme Court of California.

Sept. 17, 1965.

Rehearing Denied Oct. 13, 1965.

Frank C. Morales, Los Angeles, under appointment by Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Justice.

A jury found defendant, Earnest LeRoy Jacobson, guilty of murder in the first degree, determined that he was sane at the time of the killing, and fixed the penalty at death. The trial court denied motions for new trial and for reduction of the penalty. The appeal is automatic. (Pen. Code, § 1239, subd. (b).)

Defendant lived in Signal Hill, Los Angeles County, with Mrs. Grace Babcock and her four children. The youngest child, Kelly, age 21 months, was the daughter of defendant and Mrs. Babcock. Mrs. Babcock supported defendant, who was unemployed, and all the children. She left for work at 7:30 a. m. on January 23, 1964, and shortly afterwards the three oldest children departed for school, leaving defendant at home to care for Kelly.

About 2:15 p. m. that afternoon, Martin J. Peterson, a social caseworker who had assisted Mrs. Babcock in obtaining support payments for her children, received a phone call from a man whose voice he recognized as defendant's. Defendant told Peterson he had just killed his child and asked Peterson to bring him $20 so he could buy cigarettes when the police took him to jail. Peterson told defendant he would come right over to the Babcock house and asked him to wait there. He then called the police.

Signal Hill Police Sergeant Arthur G. LeBlanc was the first person to arrive at the scene in response to Peterson's call. He was unable to gain entry to the Babcock residence and went next door where he found defendant sitting in the living room. LeBlanc observed that defendant's clothes were wet from chest to waist. He asked defendant what he had done, and the latter replied that he had done nothing. LeBlanc then said, 'Let's go next door,' whereupon defendant got up and began filling his pockets with candy and cigarettes. LeBlanc said, 'You don't have to do that. You will be coming back,' and defendant replied, 'No, I won't. You are going to take me to jail.' In response to LeBlanc's question as to why this was so, defendant answered, 'I have not done anything, but you will see. But just remember this, I am not crazy. I am not drunk. I have had two beers. I knew what I was doing when I did it, and I know what I am doing right now.'

LeBlanc, Jacobson, and Officer Kenneth Ryall then went to Mrs. Babcock's house. Upon entering the house defendant sat down in the living room and told LeBlanc he would 'find her in the bedroom where I put her.' When LeBlanc asked, 'Who?' defendant said, 'My daughter.' He then volunteered that he had drowned her in the bathtub, that she had been asleep and 'didn't feel a thing,' and that 'it was painless.'

LeBlanc dispatched two officers to the bedroom where they found Kelly lying face down on a bed, her body covered by a blanket. Drops or puddles of water were found on the bathroom floor, in the hallway leading from the bathroom to the bedroom, and on the top part of the bathtub. The tub was empty but appeared to be damp.

A fire department ambulance was called, and two attendants came to take the body to the hospital where Kelly was pronounced dead on arrival. The two ambulance attendants testified that while they were passing through the house they heard defendant tell Sergeant LeBlanc, 'I killed the little bastard.'

Defendant was then placed under arrest by LeBlanc and taken to the police station in a police car accompanied by Officer Ryall and the Signal Hill chief of police. Ryall testified that defendant continued to discuss the incident on the trip to the station, saying he was not drunk, he was glad she was dead because the child was nothing but a bastard, he wished it had been her mother, and he had picked up the sleeping child and put her in the tub.

Upon arriving at the police station defendant was placed in the 'booking cell' where another officer, Donald J. Anderson, questioned him. Defendant continued to make statements similar to those made in the presence of LeBlanc and Ryall. An hour or two later LeBlanc arrived at the station after completing the investigation at the Babcock house. He interrogated defendant further, obtaining responses similar to those given earlier. During this questioning period defendant told LeBlanc that Kelly actually 'kicked up quite a fuss' and splashed water on him. Sergeant LeBlanc and Officers Ryall and Anderson all testified to the statements made by defendant. The conversations which took place in the detention cell were tape-recorded, but the recordings were not introduced into evidence at the guilt phase of the trial.

Defendant testified on his own behalf at the trial. The version of the events he then recounted was similar to that he had earlier related on the day of his arrest. At trial, however, he claimed that after filling the tub, he had a period of 'blackness' following which he discovered Kelly lying face down in the water.

After being properly instructed on the law and degrees of homicide, the jury returned a verdict of murder in the first degree. Defendant offered no evidence at the second-phase trial on his plea of not guilty by reason of insanity. The prosecution presented a court-appointed psychiatrist who had examined defendant. He testified that defendant, although suffering from chronic alcoholism, was legally sane at the time of the killing. The jury returned a verdict that defendant was legally sane.

At the penalty phase of the trial the prosecution offered the testimony of a taxi driver, William Corbett, who had previously signed a complaint against defendant charging him with assault with a deadly weapon. Corbett was permitted to testify despite the fact that the assault charge had been dismissed upon defendant's plea of guilty to second degree burglary, a lesser charge based on the same set of facts. Since Corbett's testimony would have been competent at a trial for assault with a deadly weapon, it was proper at the penalty trial here under the rules established in People v. Terry (1964) 61 Cal.2d 137 and People v. Purvis (1961) 56 Cal.2d 93, 13 Cal.Rptr. 801, 362 P.2d 713. ¹ At the conclusion of the penalty phase the court gave the approved Morse instruction (People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33), and the jury fixed the penalty at death.

Defendant raises three issues on appeal. First, he contends he was denied a fair trial because of the location of the trial and the conduct of the court. Secondly, he contends the prosecution presented insufficient evidence of the corpus delicti. Third, he contends that some of his statements were obtained in violation of his right to counsel and that their introduction into evidence requires reversal.

Fairness of the Trial

Defendant contends he was denied a fair trial because of inflammatory news coverage of the crime. Morning and evening editions of the Long Beach newspaper had carried front page stories of the crime, featuring defendant's incriminating statements, and the front page of one edition contained a picture of defendant in a comical pose. It has been increasingly recognized that inflammatory news coverage of a crime, of the defendant's apprehension, and of the subsequent trial, can be a serious impediment to conducting proceedings fair to a defendant. As stated in the Report of the President's Commission on the Assassination of President Kennedy (1964) p. 240: 'Undoubtedly the public was interested in these disclosures, but its curiosity should not have been satisfied at the expense of the accused's right to a trial by an impartial jury. The courtroom, not the newspaper or television screen, is the appropriate forum in our system for the trial of a man accused of a crime.' (See also Estes v. State of Texas (1965) 85 S.Ct. 1628; Rideau v. State of Louisiana (1963) 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663; People v. Martin (1964) 19 A.D.2d 804, 243 N.Y.S.2d 343; People v. Brommel (1961) 56 Cal.2d 629, 15 Cal.Rptr. 909, 364 P.2d 845; see Sheppard v. Maxwell (6th Cir. 1965) 346 F.2d 707 (dissenting opinion); 51 A.B.A.J. 534.) Nevertheless, it appears that the instant case falls short of requiring reversal on this ground. The court denied without prejudice defendant's motion for a change of venue pending an attempt to select a jury. Although the process of jury selection was lengthened as a result of the need to screen out persons who had been influenced by the press coverage, a panel was finally selected which included no one who could remember reading accounts of the crime or of defendant's arrest. Several veniremen stated they did not read the newspaper in question at any time. Defendant did not renew his motion for change of venue. It was possible to select an impartial jury, not because the coverage lacked inflammatory qualities, but because the circulation of the newspaper in question was limited. As held in State v. Truman (1964) 124 Vt. 285, 204 A.2d 93, 96, '(n)ewspaper articles, even though denunciatory in character, are not in themselves in the absence of some evidence of the actual existence of a prejudice against the accused, sufficient to require the judge, in the exercise of his discretion, to conclude that a fair and impartial trial cannot be had.'

Defendant additionally complains that the court did not properly exercise its responsibility of insuring that the jury remain impartial throughout the trial. He objects to the court obtaining from both counsel a stipulation that the usual admonition against discussing the case be given only at the commencement of the trial rather than at every recess....