People v. Massie

Decision Date21 June 1967
Docket NumberCr. 9506
Citation66 Cal.2d 899,428 P.2d 869,59 Cal.Rptr. 733
CourtCalifornia Supreme Court
Parties, 428 P.2d 869 The PEOPLE, Plaintiff and Respondent, v. Robert Lee MASSIE and John Robert Vetter, Defendants and Appellants. In Bank

Robert Lee Massie, in pro. per., Mary Montgomery, Berkeley, under appointment by the Supreme Court, Roger S. Hanson, Woodland Hills, and Irmas & Rutter, Beverly Hills, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

The defendants were jointly charged by information and convicted by the court of the first degree murder of Mrs. Mildred Weiss, the attempted murder of Frank Boller, and the robberies of Boller, Frank Muccia and Archie Bolivar. The court denied defendant Vetter's timely motion for a separate trial. Massie then pleaded guilty, and both defendants waived jury trial. Each defendant accepted the stipulation offered by the prosecutor that his guilt and penalty trial by consolidated into one proceeding. The judge sentenced Massie to death for the murder, Vetter to life inprisonment for the murder, and each of the defendants to the terms prescribed by law on the other counts. Vetter's appeal was consolidated with Massie's automatic appeal. (Pen.Code, § 1239, subd. (b).)

We hold that Massie's convictions and death sentence must be affirmed and that Vetter's convictions must be reversed. We reject the contentions of both defendants that Massie's confession was involuntary or obtained in violation of his rights to counsel and to remain silent. We do not accept the contention that the five offenses constituted a single course of conduct precluding multiple punishment. We set forth the evidence supporting the convictions and providing the basis for our conclusions that Vetter's commitment was not without probable cause and that the trial court properly denied defendant's motions for new trials on grounds of the insufficiency of the evidence. We explain, however, that the court erred in denying defendant Vetter's motion for a separate trial and that the combination of prejudicial effects flowing from the error constituted a miscarriage of justice, entitling Vetter to a new trial.

1. The Evidence

Massie began his three-hour series of crimes at 9:15 p.m. on January 7, 1965, in West Covina, with the robbery and attempted murder of Frank Boller (Counts I and II). Boller identified Massie at a police lineup by his voice and silhouette as the man who crossed Boller's lawn, threatened him with a rifle, and demanded his money. After Boller gave Massie his wallet Massie said, 'Don't look at me, queer,' and fired a shot grazing Boller's temple. Massie then ran off around a hedge and entered a car. The engine of the car started after Massie entered.

Shortly before 10 p.m. Mrs. Mildred Weiss became Massie's next victim (count III). Massie approached Mrs. Weiss as she was standing on the front lawn of her San Gabriel house, directing her husband's car into their garage. Massie spoke to her for a short time, shot her, and fled to a waiting car several hundred feet up the street. Massie entered the passenger's door, and the car left.

At about midnight Massie perpetrated the robbery of Frank Muccia and Archie Bolivar in the Twin Gables Bar in Baldwin Park. Although Massie carried a rifle, Muccia pursued him from the bar and saw him enter the passenger's side of a waiting car. The vehicle accelerated swiftly, narrowly missing a parked car.

Defendant Vetter was arested as a result of Massie's accusation, rendered in his confession, that Vetter drove the getaway car during each of the offenses. Jointly charged by information with first degree murder, attempted murder, and three counts of armed robbery, defendants appeared at a preliminary hearing. The victims of the robberies, as well as Mr. Weiss, identified Massie as the perpetrator of each of the offenses. Mr. Weiss and three other men who followed Massie up the street after the shooting of Mrs. Weiss identified Vetter as a man who looked 'similar' to the driver. Ballistics experts and a criminologist testified that the markings on cartridges found at the Boller and Weiss houses resembled both those found on a spent cartridge in Vetter's car and those obtained from tests of a rifle of the same type as one which a sales clerk stated that Vetter had purchased at his store.

The foregoing evidence adduced at the preliminary hearing sustained the magistrate's ruling that both defendants stand trial; such evidence also upheld the trial court's denial of Vetter's motion under Penal Code section 995 to set aside the information. Vetter argues that no evidence whatsoever connects him with the Boller, Muccia and Bolivar crimes. The magistrate could reasonably have believed, however, that the person who drove Massie during the perpetration of one of the offenses also drove him during the commission of the other offenses.

2. Massie's Contentions

Defendant Massie urges that his convictions and death sentence must be reversed because (a) they rest upon confessions obtained in violation of his constitutional rights, 1 and (b) under Penal Code section 654 the trial court erred in sentencing him on all five counts. As we explain, these contentions cannot stand.

(a) Admissibility of confessions

Massie contends that since his two confessions were involuntary, and obtained in violation of his rights to counsel and to remain silent, their introduction into evidence requires reversal of both his convictions as well as his death penalty. 2 The judge heard tape recordings of Massie's confessions; Massie admitted his commission of the charged robberies and other crimes, stated his intention to rob the murder victim and accused Vetter of being the driver of the getaway car. 3

(i) Voluntariness

Massie contends that his confessions must be treated as involuntary because of evidence that he was under the influence of drugs. The record, as well as the tape recording itself, shows that during the interrogations Massie took a 'benny' (benzedrine). He argues that 'in the usual dosage (benzedrine) is a stimulant and probably would not impair the ability of a defendant to make a valid confession. But the effect of long continued use of larger quantities of the drug upon the human body cannot be estimated.'

Massie raised the issue of the voluntariness of his confession on Voir dire; he offered direct testimony and was cross-examined upon the influence of the drug on his body; he had the opportunity to present medical evidence on the question of the effects of continued use of benzedrine. On cross-examination Massie admitted, 'I put the last one in my mouth in the police station so I could understand the questions they were firing at me better.'

Nothing in the record indicates that the benzedrine in any way affected Massie's ability to give a voluntary confession. The record does not establish the effect of benzedrine; it shows that Massie took only one or two pills during the interrogation. Under the circumstances, we cannot hold that the trier of fact could not properly have found that Massie gave a voluntary confession.

(ii) Dorado warnings

Massie contends that his confessions were improperly admitted because the officers failed to administer the warnings required by Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. He testified that he did not remember being advised of his rights; moreover, he attested that he had asked for an attorney and that the police had denied his request.

The record supports the court's finding that the officers fully informed Massie of all of his rights, and that he waived them intelligently. Officer Vietti testified that 'when we first walked into the room, he wanted to know from the arresting officers if we were investigators and right away, he wanted to tell us. He says, 'I have got a lot of things to tell you.' * * * When I finally stopped him from talking, I asked him if he had been advised of his rights, and he said yes. And I said, 'Well, I will do it once more.' * * * I told him that he could have an attorney and that he didn't have to tell me anything, and if he did tell me anything, that it could be used in a trial against him. * * * I think he said something about, 'I don't think an attorney could do me any good now.''

Officer Vietti stated that Massie did not request counsel, willingly responded to the officers' questions, readily admitted committing the crime for which he was arrested, and volunteered confessions of crimes 'you don't even suspect me of.' The tape recording of the confessions reveals that Massie volunteered at length details of a series of taxicab robberies and of the present crimes. At that time Massie had not been accused of the instant offenses. He stated, 'I am going to tell you a whole lot of things.' 'You go ahead, you ask the questions.' 'I want you to get it all down.'

The trial court believed the officer, not Massie. In view of the foregoing testimony, the record does not lack support for the conclusion that although fully informed of his rights, Massie waived his rights and confessed voluntarily.

(b) Multiple punishment

Massie secondly contends that Penal Code section 654, 4 prohibited multiple punishment for the offenses because his acts constituted ' a single course of conduct' under People v. Ridley (1965) 63 Cal.2d 671, 677, 47 Cal.Rptr. 796, 408 P.2d 124. 5 His argument hinges, however, upon the identification of such a course of conduct which, according to Ridley, 'comprises an indivisible transaction. The divisibility of a course of conduct depends upon the intent and objective of the defendant * * *.' (Id. at 677, 47 Cal.Rptr. at 800, 408 P.2d at 128.)

We cannot hold that Massie's commission of a series of...

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