People v. Kerfoot

• Decision Date: 16 September 1960
• Docket Number: Cr. 7056
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Vernon Charles KERFOOT, Defendant, Walter Raymond Demes, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 674

7 Cal.Rptr. 674

184 Cal.App.2d 622

PEOPLE of the State of California, Plaintiff and Respondent, v. Vernon Charles KERFOOT, Defendant Walter Raymond Demes, Defendant and Appellant.

Cr. 7056.

District Court of Appeal, Second District, Division 1, California.

Sept. 16, 1960.

Hearing Denied Nov. 10, 1960.

Harold J. Ackerman, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.

FOURT, Acting Presiding Justice.

This is an appeal from a judgment wherein appellant Demes was convicted of murdering Leland Browse and of assault with a deadly weapon with intent to murder Adam Safian.

In an information filed in Los Angeles County on February 18, 1959, the defendants were charged in Count I with violating the provisions of Section 187, Penal Code (Murder) and in Count II with violating the provisions of Section 217, Penal Code (assault with a deadly weapon with intent to commit murder). Kerfoot, the codefendant, was charged with prior convictions of burglary in 1936, rape in 1940 and burglary in 1949. Demes, the appellant, was charged with prior convictions of robbery in 1939 in Los Angeles County and robbery in 1947 in San Francisco with terms served in the state prison for each of such offenses. Each defendant pleaded not guilty.

At the first trial it was claimed and represented to the Judge that there was a conflict of interest between the defendants and thereupon the court appointed Andrew R. Edwards, a private practicing attorney, to represent Demes and Thomas LeSage, a private practicing attorney, to represent Kerfoot. The first trial was commenced before a jury on June 25, 1959. Before the start of the trial and outside the hearing of the prospective jurors the defendants admitted the prior convictions as charged in the information.

The minutes of June 8, 1959 with reference to the first trial recite in part as follows:

'Deputy district attorney W. E. McGinley and defendants with counsel, deputy public defender R. S. Buckley present. At the request of each defendant and due to a conflict of interest attorney Thomas LeSage is appointed, pursuant to Section 987(a), Penal Code, as to defendant Kerfoot and attorney Andrew R. Edwards is appointed, pursuant to Section 987(a), Penal Code, as to defendant Demes. On motion of each defendant, trial is continued to June 22, 1959 at 9:00 a. m. Time waived. Defendant is remanded.'

A jury was completed and sworn in to try the case (first trial) on July 1, 1959. Testimony was taken for several days and on Friday, July 24, 1959, the jury started to deliberate. They were locked up over the weekend and started deliberations again on Monday, July 27, and continued through Monday, Tuesday, Wednesday, Thursday, Friday and Saturday. On Saturday, August 1, 1959 at about 12:40 p. m. the jury stated that it could not arrive at a verdict. The jury stood seven for not guilty and five for guilty. The case was set for further proceedings on August 3, 1959.

When the case was called on calendar on August 3, 1959, Mr. LeSage moved for a dismissal of the case against Kerfoot upon the ground that the jury stood seven for acquittal and five for guilty. Mr. Edwards made the same motion on behalf of Demes. The motions were denied. Mr. LeSage then made a motion to be relieved as counsel for Kerfoot, stating:

'Mr. Le Sage: At this time, if your Honor please, I would like to make a motion to be relieved as counsel in view of the fact that the trial took approximately two months of my time and my other trial commitments, my physical condition is such I don't believe, if your Honor please, I could at this time undertake the responsibility of again representing Mr. Kerfoot. I respectfully ask the Court to be relieved as counsel at this time.' (Emphasis added.)

The Court then immediately said:

'The Court: Very well. Upon request of the defense counsel for Mr. Kerfoot the Court will relieve you from the responsibility of again representing Mr. Kerfoot.'

Mr. Edwards then said:

'Mr. Edwards: As to the defendant Walter Demes, if your Honor please, I should like to make a motion to be relieved. From June 8th when I was appointed in this case almost all of my time has been devoted to this case. I too have had matters back up on me and my present schedule is such, plus the emotional and physical exhaustion of this matter that I feel I couldn't do a proper job in going further with this and I request that I also be relieved.' (Emphasis added.)

The Court immediately said:

'The Court: Very well, the Court will grant your motion to be relieved likewise, Mr. Edwards.'

The original record indicates that Mr. LeSage petitioned the Court for an allowance of $9,150 for attorney's fees for the 18 days of trial, research and attendance from time to time during the jury deliberations, plus $587.17 for costs advanced. The Court awarded Mr. LeSage $6,000 in attorney's fees plus the costs advanced of $587.17. Mr. Edwards petitioned for an allowance of $8,000 for fees and for $289.44 for costs advanced. The Court awarded Mr. Edwards $5,000 as attorney's fees and $289.44 in costs advanced.

Immediately after relieving Mr. LeSage and Mr. Edwards of their duties as attorneys for the respective defendants, the Judge related with reference to the conflict of interest matter that prior to the first trial he had talked with Mr. Buckley of the Public Defender's Office and Buckley had said to him that in the conversation between the defendants Kerfoot and Demes and conversations that he had with an investigator from his office that he felt there was a conflict of interest between the two. By reason of that conflict he felt that the Public Defender's Office should not represent either one of the defendants and for that reason, by reason of that potential conflict of interest the Court allowed Mr. Buckley to withdraw from the case and the Court appointed LeSage and Edwards as heretofore set forth. The Judge then recited that he had heard the testimony in the first trial and that there was no conflict of interest between the defendants and that one attorney could represent both defendants. It was then stated by the Judge that he had talked with Mr. Cuff, the Public Defender, and that Cuff had consented to allow Mr. Littlefield of that office to represent the defendants at the next trial.

Demes stated that pursuant to Section 987a, Penal Code, 'we are entitled to private counsel' and the Court replied that it was not going to appoint private counsel. Demes during this session of Court repeatedly stated that he was entitled to independent counsel and that there was a conflict of interest. The Judge replied to Demes that he was not going to appoint private or independent counsel for Demes and Demes, under the circumstances, then said 'I accept Mr. Littlefield.' Kerfoot stated in effect at that time that he would not have the Public Defender defend him. The Judge then appointed Mr. Littlefield to represent Demes. The Judge told Kerfoot that he would take Littlefield or be without counsel--one or the other. Littlefield explained that he was then engaged in a trial and that the matter he was then engaged in would take six weeks or so to complete and he asked that the case involving the appellant go over to September 14, 1959 for trial. The case was then set for trial on September 14, 1959.

The deputy district attorney asked that the former attorneys turn over to Littlefield and Kerfoot the transcripts and Edwards answered that he would turn over the transcripts in his possession, to Littlefield for Demes. Just as the proceedings were concluding Kerfoot stated that he would accept Littlefield and the Court appointed Littlefield to represent Kerfoot also in the case.

On September 1, 1959, the cause was advanced on the calendar for the purpose of making a motion for a continuance of the trial date. Littlefield related that since the date of his appointment he had been engaged in trial and that he had not received copies of the transcripts. He stated further that LeSage had written that he had delivered the transcripts to Kerfoot personally--that that Edwards was on vacation and his office had said that the transcripts would be available if somebody would come out to pick them up--further that even if he had had the transcripts he could not have read them because of his engagement in trial. Littlefield further said in speaking for the continuance that he understood there were some out-of-state witnesses who would have to be brought to California at county expense--that he had had no time to prepare and wanted a two or three week continuance. Littlefield further stated that if a continuance was not granted the defendants would necessarily be deprived of the right to counsel guaranteed to them by the Constitution of the United States and that of California. U.S. Const. Amend. 14; Const. art. 1, § 13. Littlefield stated also that the defendants had talked to him that morning and they desired to make certain motions which would relieve the Public Defender of representing them in connection with the cause. Kerfoot then stated, 'I wish to dismiss the Public Defender.' The Judge attempted to explain the seriousness of the situation and that the prosecution was asking the death penalty[184 Cal.App.2d 628] --that there were many technicalities and further said, '* * * You fully realize the fact that you are not qualified to properly conduct the defense of your trial * * *.' (Emphasis added.) The Judge told Kerfoot that he could not possibly adequately represent himself and further said that if Kerfoot discharged the Public Defender, '* * * the Court is not going to appoint private counsel to represent you.' (Emphasis added.) Kerfoot announced, 'Then I will sit mute during the trial.' The Judge then asked Demes if he wished to retain the Public Defender to represent him and Demes answered, 'No, I don't * * *.' When asked if he wanted to make a motion to discharge the...