People v. McClellan
| Citation | 457 P.2d 871,80 Cal.Rptr. 31,71 Cal.2d 793 |
| Decision Date | 20 August 1969 |
| Docket Number | Cr. 11728 |
| Court | United States State Supreme Court (California) |
| Parties | , 457 P.2d 871 The PEOPLE, Plaintiff and Respondent, v. William Westwood McCLELLAN, Defendant and Appellant. |
Thomas J. Keenan, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Ronald M. George, Deputy Atty. Gen., for plaintiff and respondent.
This is an automatic appeal (Pen.Code, § 1239, subd. (b)) from a judgment of the Superior Court of Orange County, after trial before a jury, on verdict finding defendant guilty on two counts of murder in the first degree and fixing the penalty of death on each count. Wayne McFarland was also charged with the murders. He pleaded guilty and testified against McClellan at the trial.
On the evening of February 16, 1967, the defendant and McFarland entered the Gaslight Cafe in Stanton. Shortly after the stage show began, defendant jumped onto the stage with a small automatic weapon in his hand, stepped into the spotlight, grabbed the microphone, and told the musicians and the audience--seated at the bar and at tables between the bar and the stage--that a holdup was underway. He told those in the audience to put their heads down and look at the floor. Since some in the audience initially believed defendant was part of the stage show, defendant repeated his threat to shoot anyone who did not do as he had told them.
Defendant left the stage and went to the rear of the bar near the cash register. McFarland had been at this location forcing the bartender to place money from the cash register into a bag and holding him at gunpoint. Defendant picked up the bag, containing some $800, and told the bartender 'let's go back to the safe.' As the bartender, followed by defendant, neared the swinging doors at the exit from the main room of the cafe, James Seagris, a customer, threw a chair at defendant which struck the defendant in the back. Seagris dove under a table, and defendant whirled and fired one shot downward. People thereupon began to scream and dive under tables, and defendant and McFarland started to run out of the cafe, the latter firing three shots, apparently towards the ceiling, as he ran. Another customer, Joe Gray, ran after defendant through the swinging doors and into a passageway; defendant fired five or six shots at Gray and Gray fell to the floor. Defendant and McFarland left the cafe and drove off in a car. Both Seagris and Gray died from gunshot wounds.
Defendant does not challenge the sufficiency of the evidence on the issue of guilt. The evidence is overwhelming and convincing against him.
Defendant's contentions are as follows:
1. Shortly before defendant's trial began, the prosecutor held a meeting of witnesses at the Gaslight Cafe to reenact the offenses. Defense counsel was not present at this meeting, and he was not invited or notified of it. Defendant claims that the holding of this meeting violated his right to counsel as defined in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. There is no merit to this contention.
At the meeting, agents of the prosecution apparently played the roles of defendant and McFarland, reenacting the robbery and shootings 'with the advice and direction of the witnesses.' The prosecutor alleges that no written statements or notes were taken, but numerous photographs were taken, many of which were introduced into evidence at the trial.
Defendant's contention that the prosecutor had a duty to notify defense counsel of the meeting and to permit him to attend finds no support in either the language of or the considerations underlying the Wade decision. Wade held specifically that criminal defendants are entitled to the presence and aid of counsel at postindictment lineups. Underlying the decision was the court's finding that 'the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity * * * to attack the credibility of the witness' courtroom identification.' (388 U.S. at pp. 231--232, 87 S.Ct. at p. 1935.) Suggesting the potential scope of its decision, the court stated that it would (Id. at p. 227, 87 S.Ct. at p. 1932; italics added.)
In the instant case there was no Confrontation of the defendant involved in the meeting of the witnesses, who were customers or employees of the bar. There was no possibility that the defendant would be treated or used unfairly in the presence of prospective trial witnesses so as to influence improperly their identification of or testimony about him at trial. Since the defendant was not present, this meeting was no different, for Sixth Amendment purposes, than a meeting of witnesses at the prosecutor's office or a conference between the prosecutor and any single witness. Certainly an accused has no Sixth Amendment right to have his counsel present on such occasions.
The accused does have a right of access to written statements or notes of interviews with witnesses, pursuant to a discovery order. But the meeting in the instant case violated no such order. At the preliminary examination, the municipal court had granted defendant's motion for discovery, but this order was effective only during the preliminary hearing, which was held before the meeting. Furthermore, the order only covered written statements of witnesses and notes of interviews with them. There was no outstanding discovery order of any kind when the meeting of witnesses was held. It should be noted that defense counsel during the trial had access to the photographs taken at the meeting.
2. Pursuant to Penal Code section 1086, which provides that challenges for cause 'must be taken, first by the defendant, and then by the people,' defense counsel was required to conduct Voir dire examination of the prospective jurors before the prosecution did so (see People v. Spraic, 87 Cal.App. 724, 726--727, 262 P. 795). Defendant claims that this procedure denied him due process of law in that it forced his counsel to first raise with the jurors the possibility of the death penalty and thereby possibly give the jury the impression that he viewed the case as one in which the death penalty might be proper.
Prior to the Voir dire examination, defense counsel moved that the prosecution be required to proceed first in questioning jurors for cause. '(A) great majority of my questions to the jurors are going to be concerned with the death penalty, and the guilt or innocent trial comes first, and I think they are going to get the impression then that I believe that it is a foregone conclusion that they are going to get (to) the penalty phase.' Based on section 1086, the motion was correctly denied.
At the outset of the Voir dire examination of prospective jurors, the trial court read the information and informed them that if the jury found the defendant guilty as charged and fixed the offense as first degree murder, then it would be required to make a 'determination with respect to penalty * * * either life imprisonment or death.' The court continued, 'I want to ask each of you * * * with respect to the penalty phase, whether any one of you in a proper case has any religious or philosophical beliefs that would cause you, as a juror in a proper case, as I have stated, to be opposed to the death penalty.'
Defense counsel then conducted his examination of the prospective jurors. At this point, the prosecutor had not yet announced to the jury that he would seek the death penalty should the verdict be guilty of first degree murder, but he had previously indicated this to the court and to defense counsel.
Without citation of authority, defendant states in his opening brief that 'the only fair procedure, would be for the prosecutor prior to the Voir dire of the jury to announce to them that he would or may be seeking the death penalty upon conviction of the defendant. Thereafter, the prosecution should Voir dire before the defense. * * *
'(U)pon first hearing counsel for the defendant question regarding the subject of death, it cannot be said within any degree of certainty that * * * (the) juror does not get an idea or impression that even the defense counselor believes it might be a 'proper case."
It cannot be concluded on the basis of any such speculation that Penal Code section 1086 denies 'fundamental fairness' to one accused of first degree murder. Here the court had instructed the jury prior to defense counsel's questioning that it would have to choose between life imprisonment or death only if it should find the defendant guilty. With properly phrased questions from defense counsel the prospective jurors would certainly understand that he was only being thorough and preparing for all contingencies in asking questions relating to the death penalty. The trial judge made this point in denying defense counsel's motion.
Defendant does not urge any error under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, relating to the exclusion of two prospective jurors and two prospective alternate jurors because of their reservations concerning the death penalty. From our examination of the record, we are satisfied that there was no such error. Discussion of the reasons for our conclusion is unnecessary since, as will be seen, reversal of the penalty trial is required on other grounds.
3. The prosecution rejected defense counsel's offer to stipulate that if the jury found defendant was one of the two robbers of the...
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