People v. Leach
| Decision Date | 23 October 1975 |
| Docket Number | Cr. 18361 |
| Citation | 124 Cal.Rptr. 752,15 Cal.3d 419,541 P.2d 296 |
| Court | California Supreme Court |
| Parties | , 541 P.2d 296 The PEOPLE, Plaintiff and Respondent, v. Donald Robin LEACH et al., Defendants and Appellants. |
Richard H. Levin, Los Angeles, and John J. Schimmenti, El Segundo, under appointments by the Supreme Court, for defendants and appellants.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.
Joseph P. Busch, Dist. Atty., Harry B. Sondheim and Daniel L. Bershin, Deputy District Attys. as amici curiae for plaintiff and respondent.
We hold herein that if hearsay evidence of the declarations of coconspirators uttered after the attainment or abandonment of the principal objective of a conspiracy is to be admitted for the truth of the matters asserted on the ground that the declarations were made during and in furtherance of a 'continuing' conspiracy, there must be adduced otherwise admissible evidence which is sufficient to establish prima facie, independently of the hearsay evidence in issue, that the conspiracy continued in existence through the time the declarations were made. Under this holding we find that hearsay evidence of certain coconspirators' declarations was erroneously admitted at the trial of these causes. We also find, however, that such error was not prejudicial to either of the defendants and accordingly affirm the judgments of conviction.
During the evening of December 24, 1970, a sporting goods store salesman in Los Angeles County was robbed of a .38 caliber revolver by a pair of men. One of the robbers had asked to see the revolver, then loaded it and ran off, brandishing the weapon at the protesting salesman. Later that evening attendants of two liquor stores and a gas station were robbed, apparently by the same two men. One of the robbers was identified as Jerry Morrison, and officers of the Los Angeles Sheriff's Department accordingly made inquiries at an apartment building which Morrison was known to frequent. One resident of that building, Bonnie Sue Mayo, identified Morrison and appellant Donald Leach as having been present earlier that evening, in possession of a gun. The apartment building was placed under surveillance in anticipation of Morrison's return.
About five miles away from the stakedout apartment building, Howard Kramer was murdered in his home early in the morning of Christmas day, 1970. The police were called by the victim's wife, Edith Kramer, and arrived to find the victim dead from multiple gunshot wounds. Mrs. Kramer informed the police that she had been awakened by loud male voices and then had heard shots. There were no signs of a forced entry.
Shortly after the time of the murder, Morrison and Leach arrived at the apartment building and were arrested by the waiting officers. A .38 caliber revolver was found in Leach's jacket pocket at the time of his arrest; a booking search later revealed a key and a cash register receipt in Leach's pants pockets. The revolver was the one stolen from the sporting goods store and had fired the bullets and shell casings found at the scene of the murder. The key was one of two keys originally given to the victim by the realtor through whom he had rented his house. The cash register receipt was from the Go Room, a bar at which were employed both Bonnie Sue Mayo and the victim's daughter appellant Lorraine Kramer. The receipt bore handwriting giving the name, age, address, and description of the victim.
In addition to the foregoing evidence linking Morrison and Leach to the murder, there was evidence that the two had been seen with a gun on the night of the murder not only at Bonnie Sue Mayo's apartment but also at the Go Room. Morrison was duly tried and convicted of first degree murder for the death of Mr. Kramer. Leach, who was 17 years old at the time of the crime, had his trial delayed, first while it was determined that he was not a fit subject for juvenile court proceedings (Welf. & Inst.Code, §§ 602--606, 650 et seq., 707; see People v. Lara (1967) 67 Cal.2d 365, 380, 62 Cal.Rptr. 586, 432 P.2d 202), and then while he pursued appellate review of the trial court's refusal to set aside the information upon which he had been committed (Pen.Code, §§ 995, 999a).
While confined in the Los Angeles County jail during the summer of 1971, Leach struck up a friendship with a trusty named Hagler. Hagler believed he was soon to be released. Upon learning of this, Leach recruited Hagler to collect upon his release $10,000 which Leach claimed was owed him for the murder for which he had been arrested. Upon obtaining payment of this sum Hagler was to keep half for himself. There were various plans for disposing of the other half: at first, he was to give it to Leach's mother; later he was to hire an attorney for Leach; a third alternative was to use it to set up an escape attempt by Leach. In order to facilitate Hagler's collection of the money, Leach confided in him the details of the murder.
According to Leach, he had been staying at the apartment of Bonnie Sue Mayo, who had approached him about whether he would kill somebody for a fee. He had agreed to do so for $10,000. Mayo had brought Lorraine Kramer to her apartment to meet Leach: Lorraine had said her mother was also involved. Leach had received only a few hundred dollars in advance; the balance was to have been paid through Mayo in installments of $1,000 or $2,000 after the Kramers had collected insurance for the death of the victim. Mayo herself was to receive $2,000. Lorraine had given Leach a key to the front door and a piece of paper with her father's description on it. Leach had first gone to the victim's home to carry out the murder with a knife, but had found only Mrs. Kramer at home. He had checked with Lorraine for her father's hours at home. By then he had stolen the revolver from the sporting goods store and had driven to the Kramer house with Morrison. He had let himself in, been accosted by Mr. Kramer, and had shot him.
At times Leach instructed Hagler to go to Mayo to get the money. At other times, however, he maintained that he was being 'burnt' by Mayo and that Hagler should instead go directly to the Kramers, collecting the entire $12,000 on behalf of Leach, with nothing to go to Mayo.
Leach confided in Hagler from June through October 1971. Hagler began informing authorities of Leach's admissions in September of 1971. The investigating officers had had suspicions about a murder-for-hire plot based on the materials found on Leach at the time of his arrest, and in light of Leach's admissions sought to cement their case.
A sheriff's deputy represented himself to Edith and Lorraine Kramer as a jailhouse friend of Leach, who had asked him to tell the Kramers that Leach would implicate them if they did not get Leach a lawyer with the money owed him. In the course of these conversations, which were tape recorded, Lorraine and Edith Kramer both made a series of extremely incriminatory, express and reciprocally adoptive admissions. 1 (See People v. Osuna (1969) 70 Cal.2d 759, 765, 76 Cal.Rptr. 462, 452 P.2d 678.)
Leach, Lorraine and Edith Kramer, and Bonnie Sue Mayo were subsequently tried jointly for the murder of Howard Kramer. Mayo testified that she had introduced Leach to Lorraine Kramer as a person who might be willing to do 'a job' for Lorraine concerning her father. Mayo maintained that she had understood this to involve a beating or vandalism. Lorraine Kramer admitted plotting to kill her father in her trial testimony, which was mainly directed towards exonerating her mother and depicting her father's many monstrous misdeeds against his family. 2 Edith Kramer testified that she had had no advance knowledge of her daughter's plan to have Howard Kramer killed, and joined several other witnesses in corroborating Lorraine's account of the decedent's brutality. Leach admitted through counsel that he had 'pulled the trigger' and conceded guilt of second degree murder. 3 Leach himself did not testify, but sought to establish through the direct testimony of two witnesses and by cross-examination of others that he had been intoxicated by drugs at the time of the killing and hence had lacked the mental capacity to commit first degree murder.
Mayo was acquitted and the Kramers were each convicted of second degree murder (Pen.Code, §§ 187, 189). Leach was convicted of first degree murder (Pen.Code, §§ 187, 189) and of the armed robbery (Pen.Code, § 211) by which he had acquired the murder weapon, and was found to have used a firearm in the commission of each crime. (Pen.Code, § 12022.5.) Leach 4 and Lorraine Kramer 5 were sentenced to state prison for the terms prescribed by law and have appealed their judgments of conviction; Edith Kramer 6 was granted probation and has not appealed.
Both Leach and Lorraine Kramer claim that the coconspirator exception to the hearsay rule (Evid.Code, § 1223) was improperly invoked to admit against each of them evidence of the extrajudicial declarations of their ostensible coconspirators. Leach complains of the admission against him of the tape recordings of Edith and Lorraine Kramer's conversations with the undercover deputy sheriff. Lorraine Kramer objects to the admission against her of Hagler's testimony reciting Leach's jailhouse narrative of the facts of the murder conspiracy.
The gravamen of these objections is that any conspiracy which might have existed between the Kramers and Leach was solely a conspiracy to commit the murder of Howard Kramer, and so ended with the successful perpetration of that murder. All the parties to this appeal appear to agree that the controlling law ont he time of termination of murder-for-hire conspiracies...
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