People v. Mabry

Decision Date26 June 1969
Docket NumberCr. 11510
CourtCalifornia Supreme Court
Parties, 455 P.2d 759 The PEOPLE, Plaintiff and Respondent, v. Liskie T. MABRY, Defendant and Appellant.

Dennis L. Woodman, Redwood City, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Edsel W. Haws and Daniel J. Kremer, Deputy Attys. Gen., for plaintiff and respondent.

BURKE, Justice.

In 1967 defendant was indicted for the 1954 murder of Police Officer Francis Rea. A jury found him guilty of first degree murder and fixed the penalty at death. Motions for a new trial and for reduction of the penalty were denied, and defendant's automatic appeal is now before us. (Pen.Code, § 1239, subd. (b).)

Defendant contends (1) the court erred in refusing to give instructions on manslaughter and second degree murder and committed other error in instructing the jury; (2) certain evidence was improperly admitted; (3) defendant had ineffective representation by counsel at the trial; (4) the death penalty as applied is unconstitutional; and (5) the court improperly excluded for cause certain veniremen. We have concluded that none of the contentions can be upheld and that the judgment should be affirmed.

Shortly after 8 p.m. on January 2, 1954, Police Officers Dean Jones and Joe Marvelli received a radio call regarding a burglary at the Acme Warehouse in North Sacramento and proceeded there. About the same time the decedent Francis Rea, and his partner, Percy Gassaway, also received a call directing them to the same warehouse. When Rea and Gassaway turned onto Douglas Avenue one block east of the warehouse, Gassaway saw a man carrying a container or suitcase running from the west across the intersection of Douglas Avenue and an alley that was adjacent to the warehouse. Gassaway turned into the alley, and Rea directed his attention to a man fleeing about a half block south of where Gassaway last observed the suspect. Rea left the car and pursued the man on foot. Gassaway drove through the alley and next saw the suspect over a block further south at the intersection of Douglas Avenue and El Monte Avenue. He radioed the other police car for assistance, the suspect fired at him and returned around the corner, and Gassaway then heard more shots.

Officers Jones and Marvelli, who responded to Gassaway's call, found Rea lying unconscious near where Gassaway last saw the suspect. The following day Rea died. According to the autopsy surgeon, the cause of death was a gunshot wound that penetrated the head, and the lethal bullet probably was of .22 caliber.

The morning after the shooting a .22 caliber gun was found in the yard of a house at the intersection of Douglas-Avenue and El Monte Avenue, and a pry bar was discovered a short distance farther north in the area of the path where the suspect had fled. There was circumstantial evidence that the pry bar was used to gain entrance to the Acme Warehouse and also to Livingston Cement Company and the Bowman residence, both of which were in the immediate vicinity of the Acme Warehouse. A bottle of whiskey was missing from the Livingston Cement Company, and in the Bowman residence the police discovered a similar bottle, which had not been there when the Bowmans left. Jewelry taken from the Bowman residence was discovered at a location between the places the pry bar and gun were found. Other jewelry belonging to the Bowmans was discovered in a corporation yard east of the Acme Warehouse.

On the date of the crime defendant lived in Sacramento with a woman, her son Steven Colvin, and her daughter Jerry. They left Sacramento two days after the shooting. At the time of the trial the woman was named Mrs. Jean Hodges, and the daughter had become Mrs. Jerry Long.

In March 1967, over 13 years after the crime, Mrs. Hodges contacted the district attorney and gave a report concerning the crime that implicated defendant.

At the trial Mrs. Hodges testified as follows: On January 2, 1954, defendant told her he was going some place to try to get some money or to commit a burglary and also mentioned selling some guns, and she agreed to go with him. They drove a ways and then parked. (The location she pointed out to officers as the place they parked was near Douglas Avenue in the immediate vicinity of where Gassaway saw the suspect fleeing.) Defendant took with him a pry bar that looked like the one found by the police. She lay down in the car but sat up when she heard something about 45 minutes or an hour after defendant left the car. She then saw defendant running crouched down and a policeman with a shotgun pursuing him. The policeman shot the gun, she thinks she heard more shots, and she then left. The next morning defendant came home and told her 'he shot a policeman.' He also told her he had been in a residence and in a warehouse.

Mrs. Jerry Long testified that before defendant left home on the night the policeman was shot she heard him tell her mother 'to drive away if there was any trouble' and that after defendant came home the next day she heard him say that 'he had shot a policeman.' And Colvin testified that after they left Sacramento he overheard defendant make various threats such as that if Mrs. Hodges said anything about what happened he would 'take care of all of us.'

Colvin aided the police in obtaining a tape recording of a conversation between him and defendant, the admissibility of which is discussed later herein. In the conversation Colvin told defendant that he had heard a rumor about defendant and '(s)omething about killing a policeman' and Colvin asked defendant '* * * Is this about that up in Sacramento?' Defendant replied that he did not know. Thereafter during the conversation defendant made various admissions. For example, he stated, '* * * You just never lived in Sacramento * * * it's been what, this is '67, '54, that's thirteen years * * * you was only a kid then, see.' He also told Colvin to find out from Mrs. Hodges if she told her present husband 'about Sacramento, and no matter what she told him she better straighten it out * * * because if I go she's going. She'l sniff the pill with me.' He further stated that Mrs. Hodges is 'just as guilty as I am. She was driving the car that night and * * * she had a gun * * * in the * * * seat of the car. I'm the one that came and got her out, I got her away from there. I told her, if anything happens, split. I got away. If she'd have set (sic) there she'd have been in jail. * * * We'd have both been in jail for that matter. * * *.'

Defendant, who did not testify at the trial, introduced evidence of bias against him on the part of Mrs. Hodges and her daughter and son. He also presented proof that several of the matters Mrs. Hodges testified to regarding the crime had been reported in newspapers, and he showed some inconsistencies in her accounts, such as the place where she had been parked on the night of the crime.

The parties stipulated that evidence admitted at the guilt trial might be considered by the jury at the penalty trial. In addition at the penalty trial the prosecution introduced proof that defendant was received in prison in 1936 for car theft and first degree robbery, was paroled in 1940 but was returned to prison later that year for first degree robbery, was paroled in 1944 but was returned to prison in 1947 for first degree robbery, escaped in 1949 but was returned to prison later that year with an additional prison commitment for escape, was paroled in 1952 but was returned to prison in April 1954 for forgery, was paroled in 1958 but was returned to prison in 1960 for receiving stolen property, escaped in 1961 but was returned to prison in 1962, and was paroled in 1965.

A parole agent, called as a defense witness, testified that defendant was under his supervision from the fall of 1965 to February 1967 and that all his reports regarding defendant were satisfactory. A businessman, also called as a defense witness, testified that defendant worked for him from January 1966 through March 1967 and that he considered defendant an industrious and honest employee. The defense also introduced other evidence, such as testimony by Mrs. Hodges, that before defendant's 1961 escape she told him that the family was destitute and that while at large he contributed to the family's support.

Asserted Errors in Instructions

The jury was instructed in part that in order to convict defendant of first degree murder they must find that defendant killed Rea while in the commission of a burglary and that if they find that defendant did not commit or attempt to commit a burglary on the night in question they must acquit him. The court refused to give instructions requested by defendant on second degree murder and manslaughter, and defendant claims that the court thereby erred.

It is the duty of the court to instruct on every theory of the case finding support in the evidence. (People v. Modesto, 59 Cal.2d 722, 727--730, 31 Cal.Rptr. 225, 382 P.2d 33; People v. Carmen, 36 Cal.2d 768, 773, 228 P.2d 281; see People v. Lessard, 58 Cal.2d 447, 452, 25 Cal.Rptr. 78, 375 P.2d 46.) Here the theory defendant advanced in the trial court in support of the requested instructions was that there 'is evidence (from) which it can be inferred * * * that the burglar was not the killer' and presumably evidence that the killing was a lesser included offense. However, the evidence defendant pointed to clearly did not tend to show that the burglar was not the killer. 1 On appeal defendant points solely to Mrs. Dorothy Bowman's testimony that 'Somebody had been staying there (i.e. in her kitchen or house) and had been using the pots and pans and dishes' and to testimony by N. J. Jensen, who lived in the neighborhood of the crime, that he told the police that an intruder he encountered in his yard shortly after the shooting ...

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