People v. Ketchel

• Citation: 59 Cal.2d 503,381 P.2d 394,30 Cal.Rptr. 538
• Decision Date: 07 May 1963
• Docket Number: Cr. 7070
• Parties: , 381 P.2d 394 The PEOPLE, Plaintiff and Respondent, v. Donald Floyd KETCHEL, H. B. Sears, and Thomas Edward Sears, Defendants and Appellants.
• Court: United States State Supreme Court (California)

Page 538

30 Cal.Rptr. 538

59 Cal.2d 503, 381 P.2d 394

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

Cr. 7070.

Supreme Court of California.

May 7, 1963.

Rehearing Denied June 4, 1963.

Christian E. Markey, Jr., Los Angeles, Thomas M. McGurrin, Beverly Hills, and Benjamin Dreyfus, San Francisco, under appointment by the Supreme Court Garry Dreyfus & McTernan and Fay Stender, san Francisco, for defendants and appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and N. Gregory Taylor, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

Donald Ketchel, aged 24, Thomas Edward Sears, aged 19, and his brother H. B. Sears, aged 26, were found guilty of robbery in the first degree and murder in the first degree. The jury imposed the death penalty on Ketchel and Thomas Sears; H. B. Sears was sentenced to life imprisonment. The appeals of Ketchel and Thomas Sears are automatic (Pen.Code, § 1239, subd. (b)); H. B. Sears appeals from the judgment, the order denying his motion for a new trial and the order denying his motion for dismissal under Penal Code, section 995. The latter's appeal may properly be considered with the automatic appeals of the joint defendants. (People v. Turville (1959) 51 Cal.2d 620, 335 P.2d 678.)

We shall explain the reasons for our ruling that the judgment on the issue of guilt of all defendants should be affirmed; that the judgment of conviction as to H. B. Sears should be affirmed, but that the judgment as to the death penalty as to Ketchel and Thomas Sears should be reversed because of the prejudicial error of the prosecution in urging the deterrent effect of such penalty.

We consider the issues tendered by appellants under the basic divisions of, first, the points urged for reversal as to the main trial on the issue of guilt; second, the points urged for reversal as to the trial on the issue of penalty; third, the contention that the court improperly refused to grant a continuance of the hearing of appellants' motions for a new trial. Since we have concluded that prejudicial error occurred in the trial on the issue of the death penalty imposed upon Ketchel and Thomas Sears, we see no reason to discuss the arguments that this court should reduce that penalty and that such penalty constitutes cruel and unusual punishment in violation of the California and United States Constitutions.

On Friday, June 9, 1961, about 8:45 p. m., Ketchel and Thomas Sears entered the Star Market in Monterey Park. Each held up a cashier at her respective checkstand near the market's entrance. Each stood with his gun in hand as he waited for the cashier to take the money from the cash drawer and put it in a brown paper bag. The two robbers left the market, each carrying his bag of money. They put their guns in their belts, apparently walked rapidly or ran through the parking lot of the market down a public alley leading into Alhambra Street. Both wore slacks, hip-length sports coats, drak glasses and hats. Meanwhile, as soon as the robbers left the checkstands, the cashiers pressed hidden emergency alarm buttons.

George Elder, a policeman of Monterey Park who was off duty and dressed in levis and T-shirt, drove into the parking lot at about the time Ketchel and Thomas Sears were approaching a shed at the end of the parking lot facing Alhambra Street. Elder parked his car, apparently saw the two robbers at some distance under suspicious circumstances, and began chasing them. As he pursued the fleeing robbers, he called out 'Hold it' or 'Halt,' and then, when the two robbers ran between the parked cars and behind the shed, he started firing.

In the melee Ketchel and Thomas Sears separated, darting between the cars. Both were trying to reach the car they had left parked on Alhambra Street some 75 feet distant from the intersection with the alley. Ketchel fired one shot, which struck Elder and caused him to fall to the street. As he lay there, Elder continued to fire his gun, direction his shot toward the waiting car and the two robbers who were running in that general direction. Ketchel turned into the alley, escaped down the street, and ultimately, on his own, took a cab to the town of Whittier. Thomas Sears reached the waiting car, turned and fired several shots at Elder, and then made his 'getaway' in the car.

Elder was struck by two bullets, one from Ketchel's gun and one from Thomas Sears' gun; either shot was sufficient to have brought about his death. One bullet entered Elder's left cheek, cut into his tongue and produced a massive hemorrhage; the other pierced the right lung, proceeded toward the heart and also produced a hemorrhage. The autopsy surgeon testified that in his opinion Elder did not die immediately from the bullet wounds but remained alive for a short time until the ensuing hemorrhages precluded the continuance of vital body functions. During the interval Elder retained the ability to see, hear and speak.

Several persons witnessed the shooting and surrounding events. One testified that as he stopped to help Elder who was lying in the middle of the street, Elder said, 'Star Market hold-up. I have been shot. Three suspects in a '49 Ford. Call the police, call the police, call the police, call the police.' Another witness said that when he approached Elder about the same time, Elder mumbled, 'I'm okay. Tell them it was a * * * blue and white Ford.'

Other witnesses, driving from the market, heard the exchange of gunshot, turned around and saw a car speed by them through the approaching darkness without any headlights. Meanwhile the police had received the robbery alarm and began checking cars answering the general description given in the radio call. About 9:30 p. m. that evening the police stopped a maroon-colored 1949 Ford sedan, which was being driven by H. B. Sears and occupied by Thomas Sears. This interception took place two miles from the Star Market and a half mile from Sear's apartment. The police searched the car and interrogated the men as to their possession of concealed money or weapons; finding neither, the police, after a 10-minute check, released them both.

The record reveals some conflict as to who, at the time of the crime, June 9, 1961, owned this 1949 Ford car. According to the pink slip, Ketchel, the owner, transferred the car to H. B. Sears on June 8, 1961, but in subsequent talks with the police H. B. Sears maintained that he did not buy the car from Ketchel until June 11, 1961. On Monday, June 12, 1961, H. B. Sears took the slip to the department of motor vehicles for transfer.

This 1949 car apparently was damaged at the scene of the shooting; one bullet pierced the windshield and another struck and dented the left rear door. The police officers who, on the night of the crime, stopped the car, did not notice the damage to the windshield but did see the dented rear door. H. B. Sears admitted that on Saturday, June 10, he and Ketchel changed the windshield and that, a few days later, he painted the car with a white primer.

Ketchel and H. B. Sears were arrested in Whittier on June 15, 1961. Ketchel voluntarily confessed his part in the crimes but H. B. Sears denied all involvement, maintaining that during the entire evening of June 9 he had been with his girl friend or with his brother Tommy, and had spent a good deal of the time at a bowling alley.

Thomas Sears was apprehended in Phoenix, Arizona, and on June 17, 1961, three California police officers visited him in jail there. At that time he voluntarily made a confession setting forth in some detail the circumstances of the robbery and murder. He stated that H. B. Sears, Ketchel and he had decided on the afternoon of June 9, 1961, to rob a small market. They 'cased' the area near their apartment and finally selected the Star Market. H. B. Sears drove the car and about 8:30 p. m. parked on Alhambra Street near the market. Thomas Sears and Ketchel, both carrying guns, left the car, entered and robber the market. While walking through the parking lot toward the alley leading into Alhambra Street, they heard the shots fired in their direction; they started running. In the fracas Thomas Sears saw Ketchel lean against a tree and thought that he had been shot. Meanwhile Thomas Sears saw a bullet strike the waiting 1949 car, and, thinking that the man firing was trying to shoot his brother, H. B. Sears, in the car, Thomas Sears returned the gunfire, emptying his gun. Thomas Sears then entered the car with his brother H. B. Sears, and they drove from the scene, leaving Ketchel on his own in the street. Later the three met and divided the money (some $954).

The Los Angeles police officers returned with Thomas Sears to Los Angeles. On June 18, 1961, Ketchel, Thomas Sears and H. B. Sears were brought together in a room of the Los Angeles Sheriff's substation. Three police officers interviewed them for about 20 minutes and then left them alone in the room. The three men discussed the crime; a tape recording was made of their conversation; one of the police officers heard their talk through a loud speaker which was part of the recording equipment. In the conversation, Ketchel said, 'I copped out to my part. I copped out to nothing else. They got me cold.' H. B. Sears then said, 'I've been holding out * * * I didn't know what the hell this was all about. I been holding out on account of you guys. I don't know what this is all about.' Ketchel retorted, 'I'm dead * * * Somebody's going to get gassed.' H. B. Sears replied, 'All right. You guys go on. Sign your statement. Get gas. But I've been holding out because I don't know what's going on. They said you killed a man. Well, I didn't kill nobody.' As the conversation progressed, Thomas Sears said, 'I know you didn't. I told them the truth. I did it man.'

At the trial H. B. Sears testified in his own defense. He stated that in the evening of ...