People v. Kelley
| Decision Date | 02 March 1966 |
| Docket Number | Cr. 2296 |
| Citation | 49 Cal.Rptr. 751 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Edward KELLEY, Defendant and Appellant. |
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.
Defendant has appealed after being granted probation following his conviction by a The act denounced by section 288a was performed upon the body of David, defendant's stepson, a boy of eight years, during the mother's absence from the home. Defendant solicited reciprocal action from the child, which was refused, although the boy was prevailed upon to masturbate defendant.
jury of violations of sections 288 and 288a, Penal Code.
The foregoing took place between January 1 and 27, 1964, while defendant, a member of the United States Navy, was at home on leave. During that period the boy complained to his mother that his penis was sore; he did not relate what had happened until October 16, 1964, because he had been promised a certain kind of watch by defendant. When defendant brought home a watch to the boy that was not the kind promised, the boy considered he was released from his promise to defendant.
The boy told his story to his mother while defendant was away for a week. After defendant's return his parents were at the house. Upon their departure and some 10 days after the boy had told his story, the mother repeated it to defendant, who said nothing and 'seemed shocked.' In testifying defendant said that he was 'speechless': that he had neither admitted nor denied the truth of David's story. The next morning defendant left the house and did not return except to pick up his belongings.
Two days later defendant called his wife by telephone and in the conversation said, In testifying defendant did not deny having made the statement; said that he didn't remember whether he said it or not. The boy's mother reported the incident to the police by telephone; after several days a statement was taken from her by a police officer, Morse. She told Morse, among other things, that her attorney had advised her either to file for divorce or file a complaint (criminal); she had filed an action for divorce on November 2; she would go ahead with the divorce and not sign a criminal complaint; she wanted her son to forget about it.
On December 10 some unidentified person at the Naval Station, defendant's post of duty, told defendant to report to the security office where he was interviewed by Officer Morse at 8:45 a. m. Morse 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.' He told defendant of what the boy accused him; defendant denied the act, then stated that he drank considerably and often blacked out and it was possible that he might have done it but he could not recall.
After Morse had left, defendant, at 9:30, was interviewed by Kerr, a civilian detective employed by the Navy to investigate crimes, who advised defendant of his rights under Article 31 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, that anything he said orally or in writing could be used against him in court martial or otherwise.
Kerr told defendant also that he was suspected of committing sodomy, told him what sodomy was and had defendant read and sign a printed form on which defendant's signature appears twice.
One signature appears under the following language:
from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.
The second signature appears under the following language:
'I hereby acknowledge that in accordance with the provisions of Article 31 of the uniform Code of Military Justice, I have been advised this date that I am accused or suspected of having committed the offense(s) of: Sodomy
'I also understand that I am not required to make a statement regarding the offense(s) of which I am accused or suspected; and that any statement made by me may be used against me in a trial by court-martial.'
Kerr then questioned defendant, made handwritten notes of defendant's statements, dictated from his notes into a recording machine within defendant's hearing, had the dictation typewritten, had the defendant read what had been typed and asked defendant to sign it, which defendant did. The statement substantially corroborated the boy's testimony as to the commission of the offenses charged.
A mechanical sound reproduction was attempted, without defendant's knowledge, of a part of the interview, but the reproduction was so poor that it could not be used as evidence. Defendant suspected that the conversation was being recorded.
The typewritten statement signed by defendant was received in evidence over his objection. Previously, a hearing was had out of the presence of the jury to determine the admissibility of the confession. In that hearing Kerr testified that he did not inform defendant that he had a right to be represented by counsel; that defendant did not request the use of the telephone to call an attorney, did request to and did use the telephone at least once; Kerr did not get the impression from defendant's side of the telephone conversation that defendant was talking to an attorney; that defendant was not under arrest and was free to leave at any time.
Defendant, in the voir dire proceeding, testified that he made a request of Kerr that he be permitted to call his lawyer and was told it was not necessary; when second and third requests were made, Kerr said 'no' to each; that he said to Kerr ; that he wished also to consult an attorney with respect to Kerr's interrogation; that he used the telephone only once, to cancel an 11:00 o'clock dental appointment; that Kerr told him he was not in custody, but would not let him go although requested several times to do so; in answer to the question 'You were aware then that you were entitled to an attorney, if you wanted to talk to one about this event?' answered
In passing upon the question of the admissibility of the confession, the court expressly accepted Kerr's testimony that no request for an attorney had been made or refused.
The statement admitted into evidence included admissions of prior acts of oral copulation with a male adult in 1940, with defendant's first wife, and with the mother of the boy.
As a witness on his own behalf defendant testified substantially as in the voir dire proceedings concerning his interview with Kerr whose office defendant left at twenty
minutes to one o'clock. In his examination in chief, he told of the length of his naval service (19 years and 8 months); that after having been confronted with David's story and having told his wife that he would consult a psychiatrist, he did not do so; ); he was not asked whether he had done the acts charged against him. On cross-examination defendant said that in his interview with Kerr he was only interested in getting away so that he could be in court at 2:00 o'clock; that he told Kerr all of the things set out in the statement at Kerr's suggestion; that Kerr made suggestions with which defendant either agreed or disagreed; finally, in answer to the court's question: 'Do you deny all of them?' ('the things in the statement'), defendant testified 'Yes, sir.'
1. The receipt into evidence of the confession was a violation of defendant's constitutional rights because he was not informed of his right to counsel and was denied that right.
2. The reception of the written admissions of defendant to occurrences in 1940, 1943 and 1952 was error because those occurrences were too remote and the evidence concerning them was prejudicial and degrading to defendant; that the admissions concerning them should have been eliminated from the confession. Incidental to this point, defendant contends that proof of prior acts cannot be based upon a confession alone but requires independent testimony as well.
3. The court erred in admitting the testimony of the defendant's wife, regarding her conversation with him relating to the alleged offenses.
The third contention is based upon the theory that Penal Code, section 1322, destroys the privilege only when the child...
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People v. Kelley
...(dissenting). I dissent. I would affirm the order. See opinion prepared by Mr. Justice Whelan for the Court of Appeal in People v. Kelley (Cal.App.) 49 Cal.Rptr. 751. Rehearing denied; McCOMB, J., 1 The relevant part of section 602 (9 U.L.A.) provides as follows:'(a) No person subject to th......
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...to bring out admissions or declarations which the defendant had allegedly made at that time. (Cf. People v. Kelley (1966) 240 A.C.A. 593, 600--603 (mod. 240 A.C.A. 890), 49 Cal.Rptr. 751.) The court properly instructed the jury that the foregoing evidence was received for a limited purpose ......
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