People v. Linden

Citation52 Cal.2d 1,338 P.2d 397
Decision Date22 April 1959
Docket NumberCr. 6191
CourtUnited States State Supreme Court (California)
PartiesPEOPLE of the State of California, Respondent, v. Marion James LINDEN, Appellant.

Frank Heller and Lester M. Fleischner, Los Angeles, for appellant. Additional briefs were filed by appellant pro se.

Edmund G. Brown, Atty. Gen., William E. James and Herschel T. Elkins, Deputy Attys. Gen., for respondent.

SCHAUER, Justice.

This is an appeal (Pen.Code, § 1239, subd. (b)) from a judgment which, pursuant to jury verdict, imposes the death penalty for the first degree murder of Leo Wise, and from an order denying defendant's motion for new trial. Most of the problems here presented arise because defendant, from the inception of this lawsuit, has taken the position that the right to counsel includes the rights to be furnished a court-appointed attorney to act in such varying capacities as defendant may from time to time see fit to require as attorney of record yet subject to defendant's direction, or as legal advisor, or as a mere clerk and to be furnished a new court-appointed attorney when defendant becomes dissatisfied with counsel who have been assigned. We have concluded that defendant has been denied no essential aspect of any constitutional right, and that his claims of prejudicial error are without merit.

The Substance of the People's Case. On Saturday night, March 16, 1957, defendant became involved in a fight in a Los Angeles bar. Summoned by the bartender's shout, Police Officer Leo Wise, in uniform, entered the bar. He took defendant to the sidewalk, searched him for weapons and found none. The officer said, 'I should arrest all of them, but I don't want to see you on the street any more. Go home.' Defendant walked away in one direction and Officer Wise in another. Later that night Officer Wise encountered defendant outside the bar and said, 'I thought I told you to go home.' The officer 'patted him on the sides again' in a search for weapons, then went to a nearby police call box. As Wise started to place a call defendant, at about 12:20 a. m. on March 17, stepped to the officer's side, shot him twice at very close range, and ran away. Officer Wise fired twice at the fleeing defendant; defendant fired once more at the officer; and Wise placed a call and collapsed.

Defendant ran to his parked car and drove away. Luis Alatorre, an alert and courageous man who was driving by with three companions, saw the shooting and drove after the defendant. Motorcycle officers, encountered and alerted by Alatorre and his companions, pursued and halted defendant's car. One of the officers took defendant's gun from his belt. Alatorre and his companions shouted, 'Be careful, he has a gun. He just shot a policeman.' Defendant said to the officers, 'you took me, but I got one * * * of the bunch. I would like to shoot some more, just like I did not last copper. I'll bet he is dead.' (This statement and subsequent statements of defendant to police officers were interspersed with obscenities.) Defendant spat in the face of the officer who was handcuffing him. Other officers arrived and one of them said, 'Let me have him for a while and I will fix him.' The arresting officer replied that defendant 'was under arrest and in my custody and to leave him alone.' Defendant said to the latter officer. 'Thank you, buddy, for stopping these (obscenities) from beating me up. I'll beat this in court. You are a good guy.' Aside from the foregoing incident no officer threatened defendant. No force was used against him except to handcuff him and to hold him when he attempted to kick the officers. No hope of immunity or reward was extended, and in the officers' opinion defendant's statements were voluntary.

Lt. Gebhart and other officers in a police car took defendant to the Homicide Division. As they drove, defendant made the following statements: 'I hope you have me for murder. I shot that * * * cop and I intended to kill him. If I had an opportunity I would kill all of you. * * * I tried to shoot him in the heart. * * * I shot him with a .32 and I didn't think it would do that much damage, but I hoped it would.'

Defendant, Lt. Gebhart, and other officers were in the Homicide Division from 12:45 a. m. until 3 a. m. on March 17. During this period defendant (who was handcuffed) kicked and spat at officers and knocked furniture about. Lt. Gebhart testified that during such period defendant made the following statements: In the anteroom of the Homicide Division, defendant said that three years before he had been 'framed' by two policemen on a charge of 'interfering with an officer'; 'That these officers had perjured themselves in the court, that he was convicted * * *, and that at that time while he was doing his 90-day sentence, he made up his mind he was going to kill a police officer'; 'that it took the jury eight hours of deliberation on a misdemeanor charge to convict him * * * and that he was very tough to beat, that he had beaten one other murder rap,' and 'he was going to be very hard to convict on this charge.' Immediately thereafter in the office of the captain of the Homicide Division 'the conversation * * * followed the same general outline with the exception that * * * Mr. Linden then said that he was not talking about himself; he was talking about a fictional character who had served 90 days on a bum rap, and then made up his mind to kill a police officer.'

The Tape Recordings of Defendant's statements. After the People had presented the foregoing evidence, defendant's trial counsel (a court-appointed private attorney who no longer represents defendant) and defendant personally requested and obtained the playing in evidence of a tape recording (introduced as People's Exhibit 19) of the interview in which defendant spoke of a 'fictional character.' This recording, in its intelligible portions, contains no direct admissions as to the shooting of Wise or defendant's intent to kill a police officer; it includes expressions of defendant's hatred of the police as a class and his arrogant belief that, as established by his criminal record, he was 'tough to beat'; and it contains much vicious obscenity of defendant.

Defendant and his counsel had ample warning that the tape would contain language of defendant which might prejudice the jury. 1 Nevertheless defense counsel asked that all recorded statements of defendant be produced and that it be 'stipulated' that they would be played to the jury. The prosecuting attorney asked, 'That is at the defendant's request?' Defense counsel said, 'At the defendant's request. Isn't that true, Mr. Linden?' Defendant replied, 'That is fine,' and shortly thereafter interrupted the court to say, 'Nothing cut out, sir, played in their entirety.' Defendant asked and was allowed to speak privately with his counsel and immediately thereafter counsel repeated to the court that defendant wished 'all' the tapes, 'complete.'

The prosecuting attorney produced all taped statements of defendant. Lt. Gebhart identified People's Exhibit 19 and it was played in evidence. The prosecutor said that he did not know the contents of the remaining tapes but that they were not of conversations to which the witnesses had testified and he did not feel that he could offer them in evidence. The court suggested that defendant and his counsel consult privately as to use of the additional tapes. Thereafter neither defense counsel nor defendant (who, as hereinafter related, subsequently undertook to represent himself) asked that the additional tapes be introduced in evidence.

Lt. Gebhart, further examined, reiterated his identification of People's Exhibit 19. When defense counsel concluded his cross-examination of the lieutenant, defendant himself interrupted the proceedings with a request to personally examine the witness and asserted, 'That is not my voice on that recording; that is an actor. * * * I can prove it.' There followed proceedings, hereinafter described, which led to defendant's assuming his own representation. Although defendant has since often repeated his assertion that People's Exhibit 19 is false, he has never offered any evidence in support of that claim.

The prosecuting attorney, shortly after the playing of People's Exhibit 19 and again in argument, emphasized that the tape had been put in evidence at defendant's request and that the People had not wished to place it before the jury. Defendant in argument asked the jury to listen to the tape again in order to determine whether it was of his voice. During the jury's deliberations the tape was replayed at their request.

Defendant's Waiver of Counsel During Trial. Counsel represented defendant without objection by the latter until the fifth day of trial. Defendant then twice interrupted the proceedings with requests to personally make motions and cross-examine. After he asserted, 'That is not my voice on that recording,' defendant refused to be silent and asked 'to appear and defendant myself in person.' The court excused the jury. Defendant explained that counsel 'did not want to go on with the case the way I wish' and did not believe that the tape was 'framed.' Defendant asked that his attorney be relieved 2 and that Mr. Frank Heller be assigned as counsel.

After considerable colloquy the court, with defendant's assent, reserved ruling on the questions of relieving defendant's counsel and his further representation until the People concluded their case. The jury were recalled. The People presented a little more evidence (including testimony of another officer who identified People's Exhibit 19) and rested.

Out of the presence of the jury the court fully and correctly advised defendant concerning the right to counsel, the lack of special privileges to a defendant who insists upon representing himself, and the absence of any right to advisory counsel in the capacity of 'errand boy,' all in substantial accord...

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