People v. Ketchel

• Decision Date: 24 January 1966
• Docket Number: Cr. 7907
• Citation: 48 Cal.Rptr. 614,409 P.2d 694,63 Cal.2d 859
• Court: California Supreme Court
• Parties: , 409 P.2d 694 The PEOPLE, Plaintiff and Respondent, v. Donald Floyd KETCHEL and Thomas Edward Sears, Defendants and Appellants.

Page 614

48 Cal.Rptr. 614

63 Cal.2d 859, 409 P.2d 694

The PEOPLE, Plaintiff and Respondent, v. Donald Floyd KETCHEL and Thomas Edward Sears, Defendants and Appellants.

Cr. 7907.

Supreme Court of California, In Bank.

Jan. 24, 1966.

Rehearing Denied Feb. 23, 1966.

Christian E. Markey, Jr., Los Angeles, and Benjamin Dreyfus, San Francisco, under appointment by the Supreme Court, Munger, Tolles, Hills & Olson, Garry, Dreyfus & McTernan, Fay Stender and Donald L. A. Kerson, San Francisco, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for plaintiff and respondent.

By the Court:

Donald Floyd Ketchel and Thomas Edward Sears were found guilty of first degree murder and first degree robbery, and the jury imposed the death penalty for the murder. On appeal we reversed the judgments insofar as they related to the death penalty but affirmed them in all other respects. (People v. Ketchel, 59 Cal.2d 503, 30 Cal.Rptr. 538, 381 P.2d 394.) ¹ Upon retrial the jury again returned verdicts of death. This appeal is now before us automatically under subdivision (b) of section 1239 of the Penal Code.

Appellants, in addition to making claims of error with respect to the second penalty trial, seek to have the remittitur recalled and the judgments as to guilt vacated. They contend, among other things, that confessions inadmissible under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, were admitted into evidence at their trial on guilt.

The evidence at the guilt trial is summarized in our prior opinion and need not be repeated here in detail. (People v. Ketchel, supra, 59 Cal.2d 503, 30 Cal.Rptr. 538, 381 P.2d 394.) In brief, appellants were convicted of the robbery of employees at the Star Market in Monterey Park and of the murder of George Elder, a police officer who pursued them as they fled from the market.

The crimes were committed on June 9, 1961, and on June 15, 1961, Ketchel was arrested. Following his arrest he was interrogated by officers at police headquarters. The officers began the interrogation about 6:15 p. m. on the day of the arrest, and shortly after midnight Ketchel confessed to the robbery and the murder. The confession was made in response to questions such as whether he went to the Star Market to commit robbery, whether he displayed his gun to the cashier, and whether he fired at the man who pursued him. No attorney for Ketchel was present when he confessed. Evidence of the confession was admitted at the trial on guilt, as well as at the second penalty trial.

At the time Ketchel made the confession the two conditions prescribed in People v. Stewart, 62 Cal.2d 571, 577, 43 Cal.Rptr. 201, 400 P.2d 97, were met: Ketchel was under arrest, and a process of interrogations that lent itself to eliciting incriminating statements was undertaken. Under the doctrine in Stewart the accusatory stage had been reached, and since it does not appear that Ketchel had been advised of his rights to counsel and to remain silent before he confessed, or that he had otherwise waived those rights, we must conclude that the confession should not have been admitted into evidence. (People v. Dorado, 62 Cal.2d 338, 353-354, 42 Cal.Rptr. 169, 398 P.2d 361; People v. Sears, 62 Cal.2d 737, 741-743, 44 Cal.Rptr. 330, 401 P.2d 938.)

Thomas Sears was apprehended in Phoenix, Arizona, and on June 17, 1961, three California law enforcement officers interrogated him at the jail there. At the outset of the questioning the officers asked him whether he was willing to relate his part in the robbery and the shooting of the police officer in Monterey Park, and he replied that he was. He was asked questions such as whether a gun shown him was the one he used and why he fired at 'the man in the street.' During the interrogation he confessed to the robbery and the murder. No attorney for Sears was present when he confessed. Evidence of the confession was introduced at the trial on guilt, as well as at the second penalty trial.

Sears was advised at the interrogation that anything he said might be used against him in court, but it does not appear that he was advised of his rights to counsel and to remain silent. ² Since the accusatory stage had been reached under the doctrine in People v. Stewart, supra, 62 Cal.2d 571, 577, 43 Cal.Rptr. 201, 400 P.2d 97, and the record does not show that he had been advised of his rights to counsel and to remain silent, or that he had otherwise waived those rights, the confession should not have been admitted into evidence. (People v. Dorado, supra, 62 Cal.2d 338, 353-354, 42 Cal.Rptr. 169, 398 P.2d 361; People v. Sears, supra, 62 Cal.2d 737, 741-743, 44 Cal.Rptr. 330, 401 P.2d 938.)

The Attorney General contends that the judgments on the issue of guilt were final before the decision in Escobedo v. State of Illinois, supra, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, thereby precluding reversal on the ground of that decision. The judgments as to guilt were affirmed in May 1963, and after appellants' second penalty trial the United States Supreme Court rendered its decision in Escobedo on June 22, 1964.

Escobedo or Dorado may not be applied 'to cases which have become final prior to the date that the United States Supreme Court rendered the Escobedo decision.' (In re Lopez, 62 Cal.2d 368, 372, 42 Cal.Rptr. 188, 191, 398 P.2d 380, 383; In re Shipp, 62 Cal.2d 547, 549, 43 Cal.Rptr. 3, 399 P.2d 571; In re .lessard, 62 Cal.2d 497, 512, 42 Cal.Rptr. 583, 399 P.2d 39.) In In re Spencer, 63 A.C. 418, 423- 424, 46 Cal.Rptr. 753, 756, 406 P.2d 33, 36, we further delineated when a case becomes final within the meaning of the rule in cases such as Lopez. Spencer states, 'In Linkletter v. Walker (1965) 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, when faced with the retroactivity of Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, the United States Supreme Court made clear that judgments not final at the time of the Mapp decision were reviewable by a writ of habeas corpus. * * * The United States Supreme Court, in Linkletter, defines 'final judgment'; it states, 'By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in Mapp v. Ohio.' (Linkletter v. Walker, supra, 381 U.S. 618, 622, 85 S.Ct. 1734, fn. 5.) * * * Thus the Supreme Court has in substance defined finality as denoting that point at which the courts can no longer provide a remedy to a defendant on direct review.' Spencer and People v. Polk, 63 A.C. 461, 465-467, 47 Cal.Rptr. 1, 406 P.2d 641, applied the Linkletter test as to finality in determining whether the judgments were final before Escobedo.

Under the Linkletter test of finality, the judgments as to appellants' guilt were not final unless 'the time for petition for certiorari had elapsed' before Escobedo. Upon our affirmance of the judgments as to guilt appellants could have sought certiorari. (Cf. Brady v. State of Maryland, 373 U.S. 83, 85, fn. 1, 83 S.Ct 1194, 10 L.Ed.2d 215.) They had 90 days thereafter within which to file such a petition. (See 28 U.S.C. § 2101(d); rule 22, Rules of the United States Supreme Court.) No authority has been found, however, establishing that appellants could not await affirmance of the judgments as to penalty before filing a petition for certiorari in which they raise federal questions relating to their trial on guilt.

To the contrary, language in several cases gives support to the view that certiorari may still be available here with respect to matters relating to the trial on guilt. Corey v. United States, 375 U.S. 169, 175, 84 S.Ct. 298, 303, 11 L.Ed.2d 229, which involved a federal statute pursuant to which the defendant was sentenced twice for a crime, held that the defendant had the option of appealing within the prescribed time after either the first or the second sentence. The court stated that 'Long-accepted and conventional principles of federal appellate procedure require recognition of the defendant's right to await the imposition of final sentence before seeking review of the conviction. That is the general rule.' It was recognized that as a practical matter the severity of the sentence imposed might be a major factor in determining whether to seek review. Similarly in a case such as the present one-whether death or life imprisonment were imposed might be a major factor in the defendant's determination whether to seek certiorari.

In Reece v. State of Georgia, 350 U.S. 85, 87, 76 S.Ct. 167, 100 L.Ed. 77, the defendant was convicted of rape and was sentenced to death. On appeal the Georgia Supreme Court decided a constitutional question against the defendant but reversed on another ground. On retrial the defendant was again convicted and sentenced to death, and the Georgia Supreme Court affirmed. The defendant then sought certiorari, raising the constitutional question decided on his first appeal. It was urged that the case was not properly before the United States Supreme Court because the defendant had not applied for certiorari within 90 days after the first judgment of the Georgia Supreme Court, and the United States Supreme Court stated, 'This contention is clearly without substance. A timely application for certiorari to review the second judgment was made, and the case is properly here. 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. We have jurisdiction to consider all of the substantial federal questions determined in the earlier stages of the litigation * * *.' Although in Reece the defendant may have sought certiorari at his first opportunity to do so, it seems unlikely that in a case such as the present one, if the death penalty were affirmed and certiorari then sought, the failure to seek certiorari immediately after...