People v. Kendrick
| Citation | 14 Cal.Rptr. 13,363 P.2d 13,56 Cal.2d 71 |
| Decision Date | 08 June 1961 |
| Docket Number | Cr. 6716 |
| Court | United States State Supreme Court (California) |
| Parties | , 363 P.2d 13 PEOPLE, Respondent, v. James KENDRICK, Appellant. |
Edward P. Foley, Public Defender, San Bernardino, for appellant.
Stanley Mosk, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.
A jury found defendant guilty of burglary in the second degree (count one), robbery in the first degree (count two), and murder in the first degree (count three); and fixed the penalty on the murder count at death. This is an appeal (pursuant to Pen.Code, § 1239, subd. (b)) from the ensuing judgment and from an order denying defendant's motion for a new trial.
At the trial the evidence included admissions and confessions which defendant claims were involuntarily made and induced by promises and psychological coercion. Defendant's further contentions concern: (1) rulings on the admission of evidence; (2) limitation of the cross-examination of certain prosecution witnesses; (3) giving of two instructions; (4) denial of defendant's request to be taken on a location trip; (5) alleged misconduct of the prosecuting attorney; and (6) alleged misconduct of the trial court.
The convictions were based on evidence of the following facts:
Count One
On February 16, 1960, the Budget King Market in Grand Terrace, San Bernardino, was closed by the manager about 11 p. m. He was the last person to leave. Before leaving he put the cash in the office safe. The vault contained an upper partition which had a combination lock and a lower partition which required two keys to open. About 7 o'clock the next morning when the manager returned, the front door of the market was still locked and so was the safe. Upon opening the safe, the manager discovered that the cash, some $600, which had been in the upper portion of the vault, was missing. There was no evidence of a break-in no door or windows broken and apparently entry had been made through use of a key.
Sherilyn Young had worked as a checker in the market in 1958-1959, during which time she was married to Orlyn Young, the son of the owner of the market. In December, 1959, after separating from her husband, Sherilyn was in possession of his keys for a time. Without telling her husband, she had a duplicate key made to the front door of the market before returning the keys to him.
On February 3, 1960, while Sherlyn was riding with defendant and Arnold Ray Reese in a car from the San Bernardino area en route to Las Vegas, Sherilyn gave the duplicate market key to Reese. Defendant took the key from Reese. The latter was a friend of Orlyn Young, knew the combination of the market safe, and gave it to defendant. On February 17 about 1:30 a. m. defendant and Reese drove to the Budget King Market. Reese remained in the car while defendant went into the market. Some 10 minutes later defendant returned to the car and gave Reese about $250 of the $600 he had stolen. They then drove back to Lake Tahoe, where they and Sherilyn Young had been staying in the home of Betty and Boyd Frame, Reese's sister and brother-in-law.
On February 23, 1960, upon closing the same Budget King Market the manager prepared to leave about 9:30 p. m. Before leaving he placed the money on hand in the lower partition of the vault and locked it. As he walked to his car and started to enter it, a man apparently armed with a gun (later identified as defendant) approached and ordered him to return to the market. Following defendant's orders, the manager unlocked the front door of the market and also opened the safe, where there was some $800 in cash. Defendant then took the manager to a back room, ordered him to lie on the floor and tied his hands and feet with a small nylon white cord. Defendant removed the money from the safe. He then returned to the room where he had left the manager and took the latter's wallet containing about $25 and a pay check. Defendant was carrying a sawed-off shotgun, which he wore under his coat in a sling to which it was tied with the same type of white nylon cord as was used to tie the manager's hands and feet. Defendant wore a blue glove on his left hand. Reese testified that defendant bought a shotgun and some 12 gauge shells at Lake Tahoe on February 17; that defendant also purchased a hacksaw that day; and that he and defendant sawed off the shotgun. Reese further testified that the next day he saw defendant with the shotgun slung over his shoulder and a white nylon cord was attached to it; and that he also saw defendant with some blue gloves.
On February 23 about 10 p. m. upon completing the robbery, defendant left the market and drove down the Barstow Freeway toward Victorville. He was driving about 70-75 miles per hour. As he neared Victorville he was stopped by Richard Duvall, a traffic officer. Carrying a flashlight and his citation book, the officer ordered defendant to get out of his car. Defendant picked up a .32 automatic gun which he had on the seat beside him, injected shells into the gun chamber, and as he got out of his car, he turned and fired at the officer. The first shot went through the officer's heart and lodged in the back cavity; then a second shot was fired, which pierced the officer's head near his eye.
Lyle Wagner, a passing motorist, saw defendant's car 'pull out fast' from the side of the road, leaving the red light of the California Highway Patrol car blinking and an object lying on the road. Wagner stopped his car, saw that the object on the road was the officer's body, and started to investigate. Joel Jamison, another motorist, then came upon the scene and joined in the investigation. They noted that the officer was in uniform, his pistol was in its holster, and the flashlight was on the ground near his right leg. They called for help on the radio in the highway patrol car, and Officer Louis McNeill, who was on duty in that area, proceeded to the scene. Meanwhile he radioed the Highway Patrol Headquarters. Lt. Barton Keene of the San Bernardino County Sheriff's Office, Homicide Division, received the summons about 11:15 p. m. and he, with Detective Jones, immediately drove to the scene. Duvall's body was still lying on the road, and Lt. Keene picked up two .32 shells some 12 feet from Duvall's head. No other shells or slugs were found. The next day Lt. Keene turned over the two shells to Anthony Longhetti, criminalist for the Sheriff's Office. On February 24 an autopsy was performed. The doctor gave his opinion that the cause of death was a gunshot wound in the heart; he also observed both an entrance and exit bullet wound in the head; and he removed a copper clad bullet from the soft tissues of Duvall's back and gave it to Longhetti for examination.
On March 1 Longhetti, with Detective Jones, another officer, and Sherilyn Young, drove to a point about 20 miles east of Baker, California. This was the location where Sherilyn said that defendant did some target firing, four to six shots, at a yucca tree when they stopped their car on February 3 on their trip en route to Las Vegas. She said that defendant used an automatic gun which he designated a .32 caliber automatic. The officers and Longhetti found there four empty .32 shell cases, a .32 slug and a .32 live bullet. Longhetti made a microscopic examination of the slug so found, comparing it with the slug removed from Duvall's body, and gave his opinion that they were fired from the same gun. Longhetti also compared the two empty shells found near Duvall's body with the shells found near the yucca tree; and likewise designated them as all fired from the same gun.
On February 29, 1960, defendant was apprehended in a motel at Shell Beach near San Luis Obispo. He resisted arrest, firing four or five shots from his room, and the arresting officers had to use tear gas before they could subdue him. He was placed in jail about 10 p. m.
On March 2, 1960, defendant confessed to the three offenses to Deputy District Attorney Pike in the presence of Lt. Keene and Detective Jones. The confessions were transcribed and admitted in evidence. Also on March 2 defendant re-enacted for colored sound movies the circumstances of the homicide at the place where it occurred, and this movie recording was admitted in evidence. On March 3 defendant was taken to the scene of the target-firing 20 miles east of Baker, and he admitted that he had fired his .32 automatic gun there while in the company of Ray Reese and Sherilyn Young in the course of their February 3 Las Vegas trip. Later on March 3 defendant also identified at the Victorville Substation an automobile, a Chevrolet which he had stolen from Gardena, as the car which he used and abandoned after he had committed the homicide. On March 4 Dr. Otto Gericke, Superintendent of Patton State Hospital, at the request of the district attorney's office, questioned defendant in jail about his family background and history and the charges against him. Defendant made certain admissions as to the robbery of the market and his subsequent shooting of the highway officer in the belief that the latter had received word as to the robbery and intended to arrest defendant for that offense. Among other things, defendant stated that if he had not believed that the officer was armed, he would merely have held up the officer and then tied him with a rope which he carried in his car. Defendant contends that these 'admissions and confessions' were improperly obtained and should not have been admitted in evidence.
On February 29 from 11 p. m. to 3 a. m. the next morning, March 1, defendant was interrogated in San Luis Obispo County by a deputy sheriff and other officers. The interrogation was recorded. He was then returned to jail. About 9 a. m. March 1 defendant was taken by two officers to San Bernardino. During the trip defendant wore...
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