People v. Martin

• Decision Date: 08 July 1970
• Docket Number: Cr. 13747
• Citation: 87 Cal.Rptr. 709,471 P.2d 29,2 Cal.3d 822
• Court: California Supreme Court
• Parties: , 471 P.2d 29 The PEOPLE, Plaintiff and Respondent, v. Ronald Kenneth MARTIN, Defendant and Appellant.

Page 709

87 Cal.Rptr. 709

2 Cal.3d 822, 471 P.2d 29

The PEOPLE, Plaintiff and Respondent, v. Ronald Kenneth MARTIN, Defendant and Appellant.

Cr. 13747.

Supreme Court of California In Bank.

July 8, 1970.

Gene A. Noland, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, and Eric Collins, Deputy Attys. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

A jury found defendant Ronald Kenneth Martin guilty of robbery in the second degree. (Pen.Code, §§ 211, 211a.) He was sentenced to state prison for the term prescribed by law with the minimum term specified at six months. (See Pen.Code, § 1202b.) He appeals from the judgment of conviction.

During the evening of January 5, 1968, between 7:30 and 8 p.m., Mrs. Mary McCauley left the Vallejo Bible Church carrying two folding chairs which she intended to put into her automobile parked nearby. As she approached her car a young black man walked in front of her and looked at her in a way that frightened her. Because of her fear, she leaned the two chairs against the side of her car and proceeded back to the church. She had difficulty handling her keys and in opening the church door. As she opened the door, another black youth approached and began to tug at her purse. Mrs. McCauley and the youth struggled over the purse for a period of time that seemed to Mrs. McCauley to be a minute or a minute and a half. When the strap broke, the youth escaped with her purse containing $106, credit cards, a driver's license, and a bankbook. By the time she had gotten to her feet the youth had vanished.

Mrs. McCauley immediately called the police and reported the theft. She described the robber as a young Negro male with 'high processed hair,' dressed all in dark clothing with a black sweater and 'something close about his neck, such as a turtleneck.' Her description indicated that the youth was 5 feet 7 inches to 5 feet 9 inches tall. She did not specify that the youth wore a mustache. The offense was reported over police radios along with a description of the robber; the radio report stated that the robber was 5 feet 8 inches tall.

About an hour and a half later police officers stopped an automobile containing three black youths for the sole reason that one of the passengers appeared to the officers to match the broadcast description. However the passenger in question, who was defendant, was wearing a buttoned cardigan over a visible white shirt with brown stripes, grey slacks, and a hat. He also had with him a black scarf, used to hold his hair down. He had a thin mustache. When first seen by the officers, he was sitting in the car so that his height could not easily be determined; after he alighted, one of the officers judged his height to be between 5 feet 10 inches and 5 feet 11 inches. Defendant told the officers that he was 6 feet 1 inch tall and weighed 150 pounds. The record does not otherwise indicate his actual height.

At the officers' request defendant voluntarily accompanied them to the police station for viewing by the victim. He was not arrested at this time and was not advised as to his legal rights. In the meantime, the victim of the robbery, Mrs. McCauley, was brought in a patrol car to the police station where she was joined by her husband, a Vallejo police officer. She examined without success a number of police photographs in an attempt to identify the robber. ¹ She then viewed, through a one-way mirror, two black youths accompanied by an individual in civilian clothes. Mrs. McCauley immediately rejected one of the two, but considered the other for a little longer because he wore dark clothing and was of approximately the right height.

Some time later that evening Mrs. McCauley was again brought to the same room for the purpose of viewing a suspect. She testified at trial that on this second occasion she was accompanied by her husband (Officer McCauley) and Miss Birch, a Vallejo policewoman. However, Officer McCauley testified that he was not present at this time although he had been present during her viewing of the two other youths. In any event at this time Mrs. McCauley viewed, through the one-way mirror, defendant who was brought in alone by a uniformed officer A report filed by Miss Birch recorded that 'Mrs. McCauley (was) very nervous and upset, and stated that although the subject looked like the responsible (sic), she could not definitely state Martin was the responsible (sic).' Miss Birch testified at trial that Mrs. McCauley 'stated she could not definitely swear that this was the man; she was positive that it was him, but could not definitely swear.' At trial Mrs. McCauley denied having made these statements at the viewing. She testified that she positively identified defendant by his face and was uncertain only because he was wearing a white shirt at the viewing rather than a dark 'turtleneck.'

Several hours after the viewing, about 1 a.m., the officer in charge of the investigation telephoned Mrs. McCauley because he was apparently troubled as to whether he should continue to hold defendant. He asked Officer McCauley, who had answered the phone, whether his wife, who had retired for the night, would return to the station to view the defendant again. At the trial, Mrs. McCauley testified, 'When the phone rang and my husband answered the phone, he turned to me and asked me if I would like to go back down. And I said, 'It wouldn't do any good, because he is the one.' I was already sure in my mind; * * * I told him, 'It wouldn't do any good to go back down.' So we didn't. And that was what he told him.' ²

At some time after the viewing defendant was arrested and advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. His wallet was found to contain $34. The record does not indicate that any of Mrs. McCauley's credit cards or her driver's license or bankbook were found in defendant's possession.

A few days after the robbery, a 12-year-old boy found Mrs. McCauley's purse near his home and returned it to Officer McCauley. Officer McCauley dusted the purse for fingerprints and found two smudged prints; but although he was not an expert in fingerprinting, he decided not to forward the prints to any agency for identification. The purse did not contain Mrs. McCauley's money nor her driver's license and at least one credit card was missing, all of which items remain unaccounted for.

After the preliminary examination defendant was held to answer on the charge of robbery. On February 22, 1968, defendant moved under section 995 of the Penal Code to set aside the information on the ground that any identification evidence to be given by the victim and sole witness was tainted by the illegal pretrial confrontation. After a hearing, the motion was denied.

At trial Mrs. McCauley on direct examination made without objection an in-court identification of defendant as the youth who had stolen her purse. On cross-examination she testified relative to the pretrial identification procedures in which she had participated at the police station on the night of the robbery; she also stated that her in-court identification was based upon 'what happened at the church' rather than 'what (she) saw at the police station.'

The prosecution completed its case in chief with the testimony of Officer McCauley. The defense then called Policewoman Birch, who testified as above indicated relative to the viewing at the police station. At this point defendant moved out of the presence of the jury that the testimony of the victim Mrs. McCauley be excluded on the authority of United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. The prosecutor raised no objection to the consideration of the motion at that time. The court then recalled as its own witness Mrs. McCauley, who testified further concerning her viewing of defendant at the police station but gave no further testimony concerning her observation of the perpetrator of the crime at the time of its commission.

At the conclusion of the victim's testimony the court ruled as follows: 'Well, gentlemen, it appearing that from the standpoint of refreshing the Court's recollection, that our library copy of U.S. versus Wade has been removed and is missing for some time. No one else today having a copy of the opinion, for present purposes I will deny the defendant's motion with leave to--or it may be deemed to be resubmitted at the close of the case, if need be, for reconsideration.' The matter was not again mentioned during the course of the trial.

Defendant testified in his own behalf and sought to establish an alibi. ³ On cross-examination he admitted a prior conviction of two counts of robbery. The jury found him guilty of second degree robbery.

A month later, upon defendant's arraignment for judgment the court addressed itself to his motion for new trial. After stating that it had reviewed the relevant authorities, suggesting that the pretrial confrontation in question was indeed violative of Wade, and recognizing that this fact required a determination as to independent origin on its part, the court stated: 'The Court * * * has reviewed the evidence which was adduced in the course of this trial. And, conceding that several of the points raised in Wade and Stovall were present here, the Court nevertheless has concluded that the in-court identification by the victim in this case had an independent origin and she also testified as to her specific observations at the time and place of the robbery itself. (Par.) Accordingly, the motion for the new trial is denied * * *.'

Defendant contends that the victim's viewing of him at the Vallejo police station on January 5, 1968, ⁴ was conducted in violation of the constitutional principles enunciated in United States v. Wade, Supra, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967) 388 U.S. 263, 87...