People v. Magee

• Decision Date: 24 June 1963
• Docket Number: Cr. 4092
• Citation: 217 Cal.App.2d 443,31 Cal.Rptr. 658
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence MAGEE, Michael Kilkenny, William Castillo and Alexander Robert Hall, Defendants and Appellants.

Page 658

31 Cal.Rptr. 658

217 Cal.App.2d 443

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence MAGEE, Michael Kilkenny, William Castillo and Alexander Robert Hall, Defendants and Appellants.

Cr. 4092.

District Court of Appeal, First District, Division 1, California.

June 24, 1963.

As Modified on Denial of Rehearing July 17, 1963.

Hearing Denied Aug. 20, 1963.

George V. Curtis, San Francisco, for Lawrence Magee.

Edward T. Mancuso, Public Defender City and County of San Francisco, Joseph I. McNamara, Deputy Public Defender, San Francisco, for Michael Kilkenny.

Salvatore C. J. Fusco, San Francisco, for William Castillo.

William L. Ferdon, San Francisco, for Robert Hall.

Stanley Mosk, Atty. Gen. of California, John S. McInerny, Joseph I. Kelly, Eric Collins, Deputies Atty. Gen., San Francisco, for respondent.

BRAY, Presiding Justice.

Defendants appeal from judgment, after jury trial, of first degree murder and second degree robbery, and purport to appeal from denial of motion for new trial.

QUESTIONS PRESENTED.

1. Were the statements to the police free and voluntary?

2. Were the statements to the probation officer free and voluntary?

3. Instructions given and refused.

4. Should the court have reduced the degree of murder?

5. Was double punishment imposed?

6. Effect of releases to newspapers.

7. Should two jurors have been permitted to impeach the verdicts?

8. Were photographs of deceased improperly admitted?

9. Was defendant Magee improperly indicted?

10. Did Magee waive the filing of a probation report?

11. Cross-examination of Magee as to other offenses.

12. Alleged misconduct of district attorney.

13. Alleged misconduct of court.

14. Denial of motion for new trial.

15. Insufficiency of evidence. ¹

THE FACTS.

At about 12:02 a. m., April 29, 1961, Roy Giblin, operating a streetcar, was approaching the passenger loading zone located along the Municipal Railway's right of way in Dolores Park in San Francisco, when he saw a man's body on the tracks. The man was lying across the tracks with his head between one of the rails and the curbing of the platform. Giblin applied brakes, but the momentum of the streetcar carried it over the body. After an unsuccessful attempt to extricate the body, the man, later identified as William Hall (no relation of defendant Hall), died at 1:05 a. m.

Defendants Magee and Kilkenny were 16 years of age. Defendants Hall and Castillo were 17. The police picked up all defendants on May 4 and took them to the Hall of Justice. There all defendants made statements which were admitted into evidence at the trial. Additionally Magee and Hall later made statements to a probation officer, which statements likewise were admitted in evidence. Defendants Kilkenny and Magee testified in their own behalf. Defendants Hall and Castillo did not testify. Defendant Kilkenny's brother, who was with defendants on the night in question, testified, as did Anthony J. Serpa, a boy who was with defendants but remained aloof from the attack on the victim.

From the statements and from the testimony of the above mentioned witnesses, a clear picture of the facts leading up to the death of William Hall is given. Actually there is very little conflict in the evidence.

On the evening in question, defendants, along with defendant Kilkenny's younger brother, Timothy, attended a dance. While at the dance Magee became involved in a disagreement with another group of boys and defendants agreed to meet with the group at the Day Street Park for a fight. The other group did not appear at the park, and defendants then went to a drive-in restaurant. After eating, defendants returned to the Kilkenny car and drove to Dolores Park.

During the ride, Gary Popkin, who had joined them, stated that he felt like 'kicking somebody's tail.' Kilkenny said something about getting a 'queer.' Everybody agreed. They then stopped at Dolores Park and got out of the car. Popkin and Tony Serpa walked away. Magee told Kilkenny and the latter's brother to stay by the car. Castillo, Hall and Magee then walked into the park. Shortly thereafter Kilkenny and his brother followed, stopping on top of an overpass which extends over the streetcar tracks. There they met and had a brief conversation with Castillo. Kilkenny saw Hall and Magee at the car platform about 20 feet below. Magee approached the victim, who was standing at the car stop, and asked him if he was a 'queer,' and said, 'If you're queer we're going to take your money.' The victim handed Magee his wallet and said, 'What if I asked you that?' Thereupon Magee pushed the victim and Hall struck him, knocking him to the pavement. At that point Castillo came running down the stairs to the platform and jumped on the man's head. The victim was lying on the platform with one arm extended off the platform towards the rail. Magee then pulled him entirely upon the platform. Magee had put the wallet in his pocket. Hall and Castillo ran back to the car, followed shortly by Magee, leaving the victim lying on the car stop platform. The victim was apparently conscious at that time.

Kilkenny had returned to the car about the time the others approached the victim. Kilkenny started the car moving slowly. Popkin and Serpa who had been talking to a boy in another area of the park, returned to the car. Magee, Hall and Castillo jumped in while the car was going. As the car progressed the defendants, except Kilkenny who was driving, discussed what had happened and looked at the contents of the wallet. Magee testified that the wallet contained two dollar bills and some change. He kept a dollar, gave a dollar to Hall and the change to Castillo. Some mention was made of using the man's credit card and identification card which were in the wallet. Magee put the wallet in the glove compartment of the Kilkenny car. The following day, after hearing of the death of William Hall, the defendants met, agreed upon a story to tell the police and decided to get rid of the wallet and contents, went to Golden Gate Park where they burned the cards and disposed of the wallet.

It is clear from the medical testimony that the victim received in the affray a severe beating about the head, causing a brain injury. He also sustained a fractured clavicle. Then, either he was left on the streetcar tracks (Magee, the last defendant to see him, denied that he was; he said that the man was rolling around on the platform trying to get up), or on the platform in close proximity to the tracks. In the latter event, while in a stuporous or semiconscious condition, he either rolled or crawled on to the tracks. There he was killed by the streetcar.

1. STATEMENTS TO POLICE.

All defendants were brought to the police department for questioning on May 4, approximately 5 days after the killing of William Hall, and their parents were notified of their apprehension the same afternoon.

Generally it is contended that the statements of defendants to the police were obtained by coercion and that failure of the police to inform the defendants that their statements might be used against them and the fact that the statements were taken before the juvenile court had determined whether defendants would be tried in the juvenile court, made them inadmissible.

All statements were recorded on a tape recorder. Transcripts of the recordings were introduced in evidence and read to the jury. All counsel were offered the opportunity of listening to the recordings outside the presence of the jury. Counsel listened to one recording. On the examination of defendant Hall the recordings were played to the jury. There were certain parts of the recordings which were unintelligible. The officers testified that the transcriptions adequately reflected the discussion and the substantial accuracy of the transcripts was also testified to. Defense counsel listened to the recordings outside the presence of the jury. As said in People v. Ketchel (1963) 59 A.C. 524, 540, 30 Cal.Rptr. 538, 545, 381 P.2d 394, 401: 'Appellants' second objection to the reading of the transcript rests on the ground of the admitted unintelligibility of parts of the recording. The fact, however, that 'a recording may not be clear in its entirety does not of itself require its exclusion from evidence, 'since a witness may testify to a part of a conversation if that is all he heard and it appears to be intelligible.'' (People v. Dupree (1957) 156 Cal.App.2d 60, 68, 319 P.2d 39, 45.)'

We will consider the statements seriatim.

Magee's statement.

Magee was brought to the police department from school at noon on May 4 for questioning. He was not then placed under arrest. There he told his story to Inspector Guthrie. He was then taken to a room to which a tape recorder operated in another room was connected. He was then questioned by three police officers and a deputy district attorney. He told his story up to the time the boys arrived at Dolores Park. He then refused to talk further. The officers were persistent in their attempts to persuade him to tell the truth, pointing out that he had already talked to Inspector Guthrie. It appears from the transcription of the tape of this interview that Magee stated, as his statements were being recorded, that he felt that he should not 'rat' on his friends, that he did not wish to be the first to talk but if the others talked then he would. 'Get it from somebody else and then bring me in here.' Inspector McDonald then said, 'We're sure you'll want to talk about it later.' Then a few words of the tape are unintelligible and McDonald said, 'I think for the sake of safety you better cuff this boy.' Magee was then handcuffed and taken to another room, where he remained handcuffed to a chair until approximately 5:30. Magee testified that during this interval he asked an unidentified police officer if he could telephone and the officer told him to 'sit in that chair or he would knock my block off.' Magee further...