People v. Mathis, Cr. 8143

• Decision Date: 01 October 1965
• Docket Number: Cr. 8143
• Court: California Supreme Court
• Parties: , 406 P.2d 65 The PEOPLE, Plaintiff and Respondent, v. Dovie Carl MATHIS, Defendant and Appellant.

Page 785

46 Cal.Rptr. 785

63 Cal.2d 416, 406 P.2d 65

The PEOPLE, Plaintiff and Respondent, v. Dovie Carl MATHIS, Defendant and Appellant.

Cr. 8143.

Supreme Court of California, In Bank.

Oct. 1, 1965.

Rehearing Denied Nov. 10, 1965.

Samuel D. O'Brien, under appointment by the Supreme Court, San Jose, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., and Robert R. Granucci, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

This is an automatic appeal under Penal Code section 1239, subdivision (b), from judgments pursuant to verdicts finding appellant Dovie Carl Mathis guilty of murder in the first degree and robbery in the first degree and fixing the penalty at death. The trial court denied appellant's motions for a new trial and for reduction of the penalty. Codefendant Billy Still was also convicted of the murder and robbery at the same trial but received a sentence of life imprisonment.

The two defendants were convicted of killing Vernon Ray in the process of robbing him of approximately $600 which he had on his person. The events took place on the evening of Saturday, October 19, 1963, and the early morning hours of Sunday, October 20, 1963, after Ray had displayed a large amount of cash in the presence of a waitress at Fisher's bar in San Jose. Ray had been in the bar early Saturday evening and had left shortly before 8 p. m.

Billy Still arrived a Fisher's bar sometime during the evening after Ray had left, and heard tales of the money from the waitress. Mathis arrived later, and Still recounted the story to him, calling upon the waitress to confirm it. Testimony was offered which established that both defendants were in financial straits that evening.

Sometime after midnight Mathis proposed that the two leave the bar. He then drove Still to the home of his sister in San Jose where they admitted themselves with Mathis's key and telephoned Ray. Mathis told Ray that his car was stuck in the mud in Alum Rock Park, in San Jose, and asked Ray to drive to the park and pull him out with his pickup truck. Ray agreeably consented and, upon informing his wife and guests of his intentions, left his home about 1:30 a. m.

Mathis and Still then drove to Alum Rock Park, positioned their automobile off the road and waited for Ray who arrived momentarily. Mathis, meanwhile, had instructed Still to take the revolver he had in his car and hit Ray over the head with it at an appropriate moment. Still objected to the use the revolver, so Mathis then proposed that Still use a tire wrench which he obtained from the trunk of his car. Still took the wrench and hid in the bushes nearby.

When Ray arrived he backed his truck to the Mathis Car, connected a line between the two vehicles, and attempted to tow the car. Mathis, however, placed his foot on the brake of his car to create the impression that the car was stuck. He eventually released the brake allowing Ray to pull the car free, whereupon Ray got out of his truck and proceeded to release the cable. At that moment, as Ray was bent over the towline, Still crept up from behind and hit him over the head with the tire iron. Ray was stunned, but not unconscious, and fled to a nearby creekbed. Mathis and Still chased him, and Mathis caught him at a point a quarter of a mile up the creek. A scuffle ensued during which Mathis knocked Ray unconscious with a large rock. He then told Still to get the money from Ray's pocket, and this Still did. Mathis then administered the coup de grace by striking several frontal blows to the head of the supine victim with either the same or another large rock.

The two then departed from the scene, Still driving Ray's truck, using a pair of gloves furnished by Mathis, and Mathis driving his own car. Mathis returned to the apartment in East Palo Alto where he lived with a yound woman named Kathy Taylor, arriving about 3 a. m. He complained of an injured thumb, telling Kathy that he had been in a fight and that if anyone inquired she was to say that he had been home since 8 p. m. that evening.

Mathis and Still met on Sunday morning and disposed of the clothes they worn the previous night by throwing them into the bay. About 3 p. m. Sunday, Mathis was arrested by San Mateo County sheriff's deputies and taken to the Redwood City jail where San Jose police officers questioned him. Mathis told them he had been home all night, and Kathy confirmed his story. He was then taken to San Jose for further questioning until about 11 p. m., when he was allowed to sleep. At the time he was arrested Mathis's thumb apperared to be split, but he had no other serious injuries. He told officers that he had caught his thumb in the door of his car.

On Monday morning the interrogation resumed about 8:30 a. m. and Mathis continued to deny all, even when told that Kathy had changed her story and had admitted that he had not returned home until 3 a. m. During the course of the interrogation Monday morning Mathis requested to see his attorney. He was then being represented by Cyril Ash, a San Jose attorney, in another criminal matter. The officers attempted to telephone Ash, but his line was busy. The questioning continued.

At 11 a. m. Monday, Still was arrested and immediately gave a complete statement to the police implicating Mathis as the major perpertrator of the crime. Confronted with the evidence the police now possessed, Mathis again requested to see his attorney and again the police placed a call to Ash's office, this time reaching his secretary who told them the attorney was in court. The officer left word for Ash to call the police department in regard to a client who wished to see him. Following this call Mathis agreed 'to tell the truth,' and a recorded statement was taken from him. That statement was later introduced at the trial.

The statement which Mathis gave, however, was neither a confession nor the truth. It was an attempt to absolve himself from both the robbery and the murder by casting suspicion upon a third individual. Mathis told the police that although he had been in Alum Rock Park and had parked his car off the road as though stuck, he had done so at Still's suggestion; that he had merely accompanied Still at the latter's importuning and had no idea what Still planned to do about Ray's money; that while Ray was hooking up the tow cable, a mysterious stranger appeared from the bushes and, confusing him with Ray, hit him, Mathis, over the head, rendering him unconscious; that the stranger and Still then robbed and killed Ray. He indicated that the stranger resembled a person named Larry Jones he had seen talking with Still at Fisher's bar.

The police then apprehended Jones, who was held for a brief period and released when his alibi was substantiated. During the remainder of the investigation Mathis gave no further statements, and, during a trip to the scene of the crime with Still, he urged Still not to cooperate with the police, reminding him that he had no duty to do so.

At the trial the recorded statement was used to discredit the appellant's veracity. The prosecution demonstrated that the exculpatory elements of the story were fabrications. Mathis, testifying on his own behalf, admitted enticing Ray into the park, but said it was part of a plan devised with Mrs. Ray to test Ray's fidelity to his wife. He said that he was surprised when Still hit Ray over the head. He denied giving Still the tool and said that Still had disappeared into the bushes as soon as they had parked the car and that he assumed it was because Still needed to relieve himself. According to Mathis, Still did not hit Ray hard enough to knock him unconscious and Ray had then taken the tool from Still and charged after Mathis while uttering oaths about Mathis 'playing around' with his wife. Mathis said he ran to the creek where Ray eventually caught up with him. Ray attempted to hit him several times while Mathis protested that he did not want to fight. After warding off several blows Mathis managed to trip Ray, who fell into the creek. Mathis said he then picked up a rock and hit Ray once on the back of the head and then ran from the scene. He said that Still had apparently followed them down to the creek, waited until Mathis hit Ray and ran, and then had taken Ray's money and killed him.

Appellant testified he had given a false statement to the police because he was tired and depressed, wanted to see his layer, and thought that if he told a story that brought a new suspect into the investigation he would gain some time and relief from the questioning.

At the penalty phase of the trial the prosecution asked for the death penalty for Mathis but not for Still. Two character witnesses testified to instances of prior violence by Mathis for which he had been convicted. The district attorney stressed that Mathis had tried to implicate an innocent man in this crime.

Appellant urges several grounds for reversing the judgments, including the improper use of the recorded statement given without the aid of counsel. The other contentions relate to alleged misconduct of the district attorney and the damaging testimony of appellant's wife at the penalty trial. Appellant also maintains that color photographs of the victim taken when the body was discovered should not have been admitted into evidence at the trial on the ground that they are inflammatory. Before grappling with the use of appellant's recorded statement, the issue containing the most substance, we shall discuss seriatim appellant's other specifications of error.

The color photographs in this case are indeed gruesome, but the test for admissibility is whether the probative value of the evidence outweighs the inflammatory effect it may have. (People v. Harrison (1963) 59 Cal.2d 622, 627, 30 Cal.Rptr. 841, 381 P.2d 665; People v. Darling (1962) 58 Cal.2d 15, 21, 22 Cal.Rptr. 484, 372 P.2d 316; People v. Brubaker (1959) 53 Cal.2d 37, 48, 346 P.2d 8; People v....