People v. James

• Decision Date: 31 March 1976
• Docket Number: Cr. 27273
• Citation: 128 Cal.Rptr. 733,56 Cal.App.3d 876
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Decatur JAMES, Jr., Defendant and Appellant.

Page 733

128 Cal.Rptr. 733

56 Cal.App.3d 876

The PEOPLE of the State of California, Plaintiff and Respondent, v. Decatur JAMES, Jr., Defendant and Appellant.

Cr. 27273.

Court of Appeal, Second District, Division 4, California.

March 31, 1976.

Hal F. Baron, Encino, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., and Russell Iungerich and John R. Gorey, Deputy Attys. Gen., for plaintiff and respondent.

JEFFERSON, Associate Justice.

Defendant Decatur James, Jr. was charged, in Count I of an information, with burglary, in violation of Penal Code section 459; in Count II, with robbery, in violation of Penal Code section 211; and in Count III, with rape, in violation of Penal Code section 261, subsection 2. Defendant's In limine motion to preclude the use, for impeachment purposes, of three prior convictions (pursuant to People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 and Evid.Code § 352) was granted. By amendment to the information, three prior felony convictions were alleged; defendant admitted the priors. He entered a plea of not guilty. Trial was by jury. ¹

Defendant was found guilty on all three counts; the burglary and robbery were found to be of the first degree. His motion for a new trial was denied. Probation was denied. Defendant was sentenced to state prison for the term prescribed by law; Count I and Count II were merged into Count II; the sentences on Count II and III were ordered to run concurrently. The court struck the prior felony convictions in the interest of justice. Defendant appeals from the judgment of conviction.

On May 18, 1974, Mrs. Violet Nunnelley and John Watkins were awakened in the bedroom of Mrs. Nunnelley's Glendale apartment at 3:00 a.m. by their barking dog. Mrs. Nunnelley was the owner and manager of the apartment motel in which she was living. While the windows were covered by a light bedspread, there was some light from a street lamp entering the room. Nunnelley and Watkins saw an intruder, a large Negro man wearing white coveralls, who demanded money. Mrs. Nunnelley gave him all she had in her purse, to wit, $13, to which he responded: 'Well, where's the rest of it?'

The intruder tied up Mr. Watkins with strips of a towel. He stated to the victims, respectively: 'I am going to kill you, and I'm going to kill you, too.' A second man, somewhat smaller, also Negro, came into the room. The larger man told him to '(g)et outside and stay where I told you to stay.' After about five seconds, the smaller man disappeared.

The big man was holding what appeared to Mrs. Nunnelley to be the blade of a carpet knife, or a razor. He started to disrobe Mrs. Nunnelley, saying: 'I think I see something valuable.'

Mr. Watkins suggested that she give the man the pennies the couple had been saving. Mrs. Nunnelley was led into the kitchen, to get the pennies; she turned on the overhead light. She was able to observe the intruder for a few seconds as he stood in the kitchen doorway, but he said: 'I didn't tell you to turn that light on,' and she then turned the light off.

The intruder then took Mrs. Nunnelley to the bathroom where he attempted to have sexual relations with her. He asked her for some lotion, and she gave him a bottle of lotion. He disrobed her, forced her to lie down on the bathroom floor, and commenced sexual intercourse. He was interrupted by Mrs. Nunnelley's elderly mother, who had been sleeping in the apartment's other bedroom, and who opened her door, thereby causing the light from her room to shine into the bathroom. When she saw the intruder, she slammed her door and began to scream. Mrs. Nunnelley said to the intruder: 'You had better get out of here while you have a chance,' and he then ran out the front door, taking with him the $13 and the jar of pennies.

Mrs. Nunnelley untied John Watkins, who called the police. Glendale Police Officer Desario responded to the call, was given physical descriptions of the two suspects, and investigated the scene. He determined that the kitchen window over the sink was probably the point of entry; outside was a parked vehicle covered with dust except for the left fender, where the dust had been rubbed off. He was of the opinion that access to the window had been achieved by standing on the fender of the car; the window was approximately ten feet above the ground. He also found under the window a wallet that contained a California driver's license issued to Walter Bowie as well as miscellaneous identification papers. Mrs. Nunnelley testified that other items of possibly relevant evidence, I.e., the strips of towel used to tie Mr. Watkins, and the bottle of lotion, were thrown away.

When the victims described the suspects to Desario, suspect no. 1 was described as a very large Negro man in white coveralls, of middle age, six-feet three inches tall, weighing approximately 230 pounds. The second man was smaller, weighing about 160 pounds. On cross-examination, defense counsel elicited from Mrs. Nunnelley that she thought defendant and co-defendant Bowie were the men who had robbed her in a prior robbery on March 2, although she had failed to identify either of them at the preliminary hearing concerning the March 2 robbery.

Watkins also told the police that earlier in the evening of the crime, at about 11:30 p.m., May 17, he had gone out to get some cigarettes, and had gone to a bar called 'The Scene,' located near the Nunnelley apartment. He was having a drink with a friend at this bar when he observed among those present a large Negro male, dressed in white coveralls. Watkins testified that this was the same man who appeared in the Nunnelley bedroom. Watkins was contradicted by the police report which indicated that Watkins had told the police that it was Bowie he had seen at the bar and later in the apartment; Watkins explained at trial that the police report was a mistake; that it was defendant he saw at the bar and later in the apartment as the larger of the two intruders.

On May 28, 1974, eleven days after the date of the offense, Officer Edwards showed Mrs. Nunnelley six photographs; within thirty seconds, she selected a picture of defendant, but did not identify Bowie. On the same occasion, but separately, Watkins was shown two cards containing six to eight photographs each, and he selected Bowie's picture, but not that of defendant. Mrs. Nunnelley identified defendant at trial as the robber who raped her, but did not identify Bowie as the second intruder. Watkins identified both defendants at trial. It developed that he had seen defendant James, appellant herein, at a preliminary hearing the previous December, when he looked through a courtroom door.

Cross-examination of Nunnelley and Watkins on the subject of identification revealed that both victims wore glasses for reading; and that Nunnelley had, at best, perhaps four seconds of observation of the larger suspect in the kitchen with an overhead light.

Defendant, who testified in his own behalf, presented an alibi defense. He stated that he was sleeping with his wife in Pomona at the time of the crime. Upon cross-examination, defendant was questioned about his activities from May 18, 1974, to November, 1974, when he was arrested in New York. He denied that he had fled to Mexico after the crime and had lived there with another fugitive, Simon Staples. He admitted that he might have seen Simon Staples in Mexico during this period. He stated that he had found out sometime during the summer that the police were looking for him, but did not contact the police. He denied that his wife, Loretta, and Simon Staples' mother had made trips to Mexico to give Staples and himself money to live on.

Defendant's wife, Loretta, also testified in defendant's defense. She stated that on May 17, 1974, defendant came home about 7:30 p.m.; that she, defendant and Mrs. Staples spent the evening moving furniture from Hollywood to Pomona, where she and defendant had just purchased a home; and that at about 1:00 or 2:00 a.m., she and defendant had gone to sleep in Pomona.

Mrs. Loretta James was also cross-examined at length about her husband's activities between May 18, 1974, and November, 1974. She stated that defendant was in Pomona in late May and June, except for a few days he spent in Indio. She testified that in early June, she and Mrs. Staples visited Police Officer Edwards at the Glendale Police Department; that she asked Edwards if defendant was wanted by the police, and why; and she was told why. She denied using Mrs. Staples' telephone during the early summer months to receive long-distance collect calls from Mexico and Montana. She also testified on cross-examination that during July, 1974, defendant was in Pomona; that she stayed with Mrs. Staples for a short time in July because she and defendant were not getting along; that in August, she and defendant went to Indio, where they stayed until October, 1974; that they then travelled east and defendant was arrested in New York. Mrs. James denied that defendant had stayed in Mexico with Simon Staples after the May 18 incident, and further denied that she had taken money to defendant in Mexico during this period.

Mrs. Lillian Staples testified on defendant's behalf and corroborated defendant's account of the activities of defendant, his wife, and her on the evening of May 17. She was cross-examined about trips to Mexico and long-distance phone calls, but denied any knowledge of these matters.

Co-defendant Walter Bowie, testifying in his own defense, stated that he had lost his wallet about May 9 or 10, 1974. ² He related this account of his activities on the evening of May 17, 1974: he, defendant, and one Jesse Strong had visited three crap games; Bowie had done considerable drinking. He fell asleep at the last game at about 1:00 a.m. and did not awaken until 6:00 a.m. Defend...