People v. Kelley, Cr. 10028

CourtUnited States State Supreme Court (California)
Citation424 P.2d 947,57 Cal.Rptr. 363,66 Cal.2d 232
Decision Date22 March 1967
Docket NumberCr. 10028
Parties, 424 P.2d 947 The PEOPLE, Plaintiff and Respondent, v. Robert Edward KELLEY, Defendant and Appellant. In Bank

Page 363

57 Cal.Rptr. 363
66 Cal.2d 232, 424 P.2d 947
The PEOPLE, Plaintiff and Respondent,
Robert Edward KELLEY, Defendant and Appellant.
Cr. 10028.
Supreme Court of California,
In Bank.
March 22, 1967.
Rehearing Denied April 19, 1967.

Page 367

[424 P.2d 951] [66 Cal.2d 235] Harry Ellman, San Diego, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Gerald H. Genard, Deputy Atty. Gen., for plaintiff and respondent.

[66 Cal.2d 236] PETERS, Justice.

Defendant appeals from an order granting probation after convictions of violations of sections 288 and 288a of the Penal Code (lewd or lascivious act against a child under the age of 14 and sex perversion).

Defendant, while at home on leave from the Navy in January of 1964, resided with his wife and 8-year-old stepson David. David testified that one night while his mother was absent from the house, defendant[424 P.2d 952]

Page 368

came into his bedroom and copulated his mouth with David's penis after handling David's penis with his hands, and that upon defendant's request, David masturbated defendant but refused to copulate him. He also testified that defendant promised him a particular type watch if he would not tell anyone what happened, and that he did not say anything to his mother until October 16, 1964, after defendant had failed to bring home the kind of watch promised.

Defendant's wife testified that when she told defendant in October what David had said, defendant 'seemed shocked' and did not reply, and that two days later he said in a telephone conversation, 'I believe Davie. This must have happened, but I know I do have blackouts and do not remember it.' She thereafter related these events to Officer Morse of the San Diego Police Department.

Officer Morse testified that at approximately 8:45 a.m. on December 10, 1964, he spoke to defendant at the security office of the San Diego Naval Station where defendant was then stationed, and that he told defendant 'that he didn't have to make any statement To me regarding the case that I was inquiring about, that anything that he said could be used against him in court, and that he was entitled to an attorney now and at any time That I talked to him.' (Italics added.) When he told defendant that he had been accused of sexually molesting his stepson, defendant said, according to the officer, that he drank considerably and often blacked out and that it was possible he could have done it but that he could not recall having done so.

At 9:30 the same morning, after Officer Morse had departed, Charles Kerr, who was employed by the San Diego Naval Station as a criminal investigator, interviewed defendant in Kerr's office at the Naval Station. Kerr testified that he informed defendant that he was accused of sodomy in violation of the Uniform Code of Military Justice, that he had the right to remain silent, that he could not be compelled to answer any questions that might incriminate him, and that anything he [66 Cal.2d 237] said orally or in writing could be used against him in a court martial. Nothing was said about the right to counsel. Defendant read and signed a form containing the provisions of 9 Uniform Laws Annotated section 602 which provides that every accused shall be informed of his privilege against self-incrimination but is silent concerning the right to counsel. 1

Kerr testified that during the course of the interrogation which lasted nearly four hours defendant made statements the substance of which Kerr dictated into a recording machine. The recording was reduced to writing and read and signed by defendant later that morning. In that statement defendant confessed to having committed the acts with David and also admitted certain prior sexual activities with other people. In the latter connection, it is stated that when defendant was in the Navy in 1940 (24 years previously at age 19) he accepted a ride from a man and was taken to his apartment, that the man committed an oral act upon him, and that defendant became sick and did not himself participate orally. The statement also disclosed that defendant was taught how to perform acts of oral copulation by his first wife and participated in such acts with his first wife from 1943 to 1945 and with his second wife, David's mother, from 1952 to 1964.

Page 369

[424 P.2d 953] A hearing in reference to the admissibility of the Kerr statement was held out of the presence of the jury. Kerr testified that he did not inform defendant that he had a right to counsel, that although defendant did request to use and did use the telephone once, he did not request to use the telephone to call an attorney, and that defendant was not under arrest and was free to leave at any time during the examination. Defendant testified that he requested permission to call his attorney to cancel an appointment scheduled for that afternoon relating to his pending divorce and to consult with him regarding the present interrogation, that Kerr refused such permission but allowed him to make a call canceling a dental appointment, and that although he was told he was not in custody, he [66 Cal.2d 238] requested and was refused permission to leave. Upon being asked by the judge whether he was aware that he was entitled to talk to an attorney, defendant answered that he was but that Kerr would not let him. The defense introduced portions of the transcript of the prior trial in which Kerr had stated that he was unable to remember whether defendant requested an attorney. The judge ruled that the entire statement was admissible, and it was introduced over defendant's objections as part of the prosecution's case in chief.

Defendant testified in his own behalf and denied having committed the acts with David. He stated that he had signed a statement so that he would be permitted to leave and keep the appointment with his attorney; he denied having committed any of the acts contained in the statement.

This is the second trial of defendant for the same acts. In the first trial the court admitted the confession as to the acts charged but excluded the parts relating to the admission of prior crimes. The jury was unable to agree on a verdict in that trial. As already indicated, the entire statement was admitted in this trial, and defendant was convicted.

Defendant urges that those portions of the Kerr statement relating to the admission of the commission of other crimes were inadmissible, and that their admission was prejudicial. It is also contended that the entire statement given to Kerr was inadmissible because secured in violation of the rules announced in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. A contention is also made that the testimony given by defendant's wife falls within the spousal privilege, and should have been excluded.

So far as the first contention is concerned, we are of the opinion that the admission of the evidence showing the commission of other sex offenses was error, and that such error was prejudicial and requires a reversal.

The general rule is that evidence of other crimes is inadmissible when it is offered solely to prove criminal disposition or propensity on the part of the accused to commit the crime charged, because the probative value of such evidence is outweighed by its prejudicial effect. (People v. Westek, 31 Cal.2d 469, 476, 190 P.2d 9; People v. Dabb, 32 Cal.2d 491, 499--500, 197 P.2d 1; People v. Peete, 28 Cal.2d 306, 314--315, 169 P.2d 924; People v. Albertson, 23 Cal.2d 550, 576, 145 P.2d 7.) The purpose of the rule is to avoid placing the accused in a position of having to defend against crimes for which he has not been charged and to guard against the [66 Cal.2d 239] probability that evidence of other criminal acts having little bearing on the question whether defendant actually committed the crime charged would assume undue proportions and unnecessarily prejudice defendant in the minds of the jury, as well as promote judicial efficiency by restricting proof of extraneous crimes. (People v. Albertson, supra, at pp. 577--578, 145 P.2d 7; People v. Sykes, 44 Cal.2d 166, 173, 174--175, 280 P.2d 769, dissenting opinion of Traynor, J.; People v. Molineux, 168 N.Y. 264, 291--293, 61 N.E. 286, 62 L.R.A. 193.)

Page 370

[424 P.2d 954] However, under certain limited circumstances, when the evidence is sufficiently relevant, it may be admitted even though it embraces evidence of the commission of another crime. In People v. Peete, supra, 28 Cal.2d 306, 169 P.2d 924, this court pointed out that 'except when it shows merely criminal disposition (citations), evidence that is relevant is not excluded because it reveals the commission of an offense other than that charged,' and noted that the general test of admissibility of evidence in a criminal case is whether it tends logically, naturally, and by reasonable inference, to establich any fact material for the people or to overcome any material matter sought to be proved by the defense. (28 Cal.2d at pp. 314--315, 169 P.2d 924.) It has frequently been recognized, however, that because of the sound reasons behind the general rule of exclusion, the relevancy of evidence of other crimes, and therefore its admissibility, must be examined with care. (People v. Peete, supra, 28 Cal.2d 306, 316, 169 P.2d 924.) The evidence should be received with 'extreme caution,' and if its connection with the crime charged is not clearly perceived, the doubt should be resolved in favor of the accused. (People v. Albertson, supra, 23 Cal.2d 550, 577, 145 P.2d 7; People v. Sykes, supra, 44 Cal.2d 166, 175, 280 P.2d 769, dissenting opinion.) In every case the possibility of severing relevant from irrelevant portions of evidence should be considered to protect the accused from undue prejudice. (People v. Dabb, supra, 32 Cal.2d 491, 500, 197 P.2d 1.)

In determining the question of relevancy, certain guidelines have been recognized. It is...

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