People v. McFadden

• Decision Date: 20 February 1970
• Docket Number: Cr. 15968
• Citation: 4 Cal.App.3d 672,84 Cal.Rptr. 675
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. George Douglas McFADDEN and Leroy Simpson, Defendants and Appellants.

Page 675

84 Cal.Rptr. 675

4 Cal.App.3d 672

PEOPLE of the State of California, Plaintiff and Respondent, v. George Douglas McFADDEN and Leroy Simpson, Defendants and Appellants.

Cr. 15968.

Court of Appeal, Second District, Division 5, California.

Feb. 20, 1970.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant George Douglas McFadden.

Gilbert F. Nelson, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant Leroy Simpson.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Ivan Hoffman, Deputy Atty. Gen., for plaintiff and respondent.

FRAMPTON, ^* Associate Justice Pro Tem.

Statement of the Case

Defendants were jointly charged by information, filed on February 8, 1968, with the murder of one Philibert Pepin. Simpson was charged with a prior conviction of robbery suffered in the County of Los Angeles on July 11, 1967. The public defender was appointed to represent both defendants, however, due to a claim of conflict of interest, the public defender was relieved and private counsel was appointed to represent Simpson pursuant to section 987a, Penal Code.

On March 4, 1968, each defendant entered a plea of not guilty. No denial or disposition of the prior conviction against Simpson appears in the record. Each made a motion to suppress evidence under section 1538.5 of the Penal Code which was set for hearing on March 14, 1968. A motion for severance of the trial, made by Simpson, was denied without prejudice. Following a series of continuances, the hearing on the motion under section 1538.5 commenced on June 11, 1968. During the hearing and on June 12, counsel for the defendants announced that they had been unsuccessful in locating an expert witness to testify in connection with the motion, particularly with respect to a claimed drug induced confession of Simpson, and moved for a continuance of the hearing to obtain the services of a qualified expert in this respect. The motion for a continuance was denied as was the motion to suppress.

Each defendant waived trial by jury and the cause was submitted on the evidence adduced at the preliminary examination. Each was found guilty of murder, which was fixed as murder in the first degree. Motions for a new trial were made and denied, probation was denied after hearing, and each defendant was sentenced to state prison. Each defendant appeals from the judgment and from the order denying his motion for a new trial. ¹

Statement of Facts

On January 14, 1968, Otto Pupillo was the owner of Otto's Liquor Store situated at 852 East Manchester Avenue in the City of Los Angeles. At about 9:45 p.m. that evening he was in the store with Philibert Pepin and Mrs. Pepin, the latter's wife. Mrs. Pepin owned the grocery section of the store. At this time three male Negroes rushed into the store. Mr. Pupillo saw them from behind a two-way mirror and said to Mr. Pepin, 'You watch them. I don't like it.' Mr. Pupillo then went out in front to the counter. One of the three men pointed a gun at him and said 'Get in the back.' At this point a second man jumped over the counter, and Mr. Pepin went after him 'trying to hold him * * * trying to fight him off.' The one who held the gun on Mr. Pupillo reached to hit Mr. Pepin on the back of the head, but missed him. Mr. Pupillo then ran into the back of the store and in the matter of a second he heard 'a mess of shots, about six or seven shots.' After these shots were fired, Mr. Pupillo and Mrs. Pepin went to the front of the store and found Mr. Pepin trying to walk to the back. He had been shot. Mr. Pepin died on January 15, 1968, from a gunshot wound of the chest.

On the evening of January 14, 1968, Rayfield Mays was some seven feet distance from the liquor store when he heard several shots. He then saw a person, later identified as Simpson, run around the corner where Mays was standing. Simpson said 'Somebody is shooting.' A few seconds later a second person, later identified as McFadden, ran by Mr. Mays. About one minute later, a third person came from around the same direction.

While this third person was slumping as he ran, Mr. Mays could not see any blood on him. He appeared to have come from Otto's place. This person ran through a vacant lot adjacent to the liquor store, and when he got about halfway, Simpson, with McFadden, came back to help him. One of the defendants then said to the other 'Get the gun.' Simpson then grabbed the gun out of the third persons' hand as the latter was on the ground. Simpson then looked up, saw Mr. Mays, and said to him, 'Don't come any closer or I'll shoot.' Just before they left the scene, Simpson again threatened to shoot Mr. Mays. McFadden then said 'Come on. Let's get out of here,' and both defendants left. They ran south on Wadsworth Street to the corner of 87th Street where they jumped into a 1961 or 1962 brown or bronze, two-door Cadillac.

Mays gave the police an approximation of McFadden's height and told them that his hair was 'processed.' Shortly after the arrest, Mays identified McFadden at a lineup.

On January 16, 1968, Simpson was arrested by Officer Jerry McCall in the prison ward at the Los Angeles County General Hospital. At this time Officer McCall, who was accompanied by a fellow officer, advised Simpson as follows: 'I informed the defendant that he had the right to remain silent; that this meant that he did not have to tell me anything; that if he did give up the right to remain silent, anything he said could and would be used against him in a court of law. And that he had the right to speak to an attorney and to have the attorney present during questioning. And if he so desired and could not afford an attorney, an attorney would be provided for him without charge before questioning.'

Officer McCall then asked Simpson if he understood these rights and the latter replied 'Uh-huh, yes.' He was then asked by Officer McCall 'Do you wish to give up your right to remain silent and to speak with an attorney and to have an attorney present and talk to us about this?' Simpson replied, 'Yeah. I didn't kill anybody.'

At about 1 p.m. on January 17th, Officers Howard and Skeggs went to the jail ward at the hospital to speak to Simpson. Officer Skeggs asked Simpson if he recalled the police officers talking to him at about noon on the previous day. Simpson replied that he did recall talking to two officers on the previous day. Officer Skeggs then asked Simpson if he recalled being advised of his rights by those officers and Simpson said that he did. Officer Skeggs then asked Simpson if he wanted at attorney now and Simpson said 'No.'

Officer Howard testified that Simpson made the following statement in response to questions asked by Officer Skeggs directed to an attempted robbery and murder that took place at 852 East Manchester Avenue at approximately 9 p.m. on the 14th of January 1968: '(T)hat he was involved in that robbery; that he had gone there with two other persons in a vehicle. * * * That he had gone to this place--near this location in a tan '61 Cadillac driven by a George McFadden, and that a Clinton Knox was along with them. When they parked the car, George McFadden gave Clinton Knox a .38 caliber revolver; that the three of them proceeded from the vehicle to the location of the liquor store. The three of them entered the liquor store; that he, Leroy Simpson, started to jump over the counter, and that if anyone came down along behind the counter, Clinton Knox was supposed to rap them in the head with the gun.

'An older man came out of the back of the store with a small chrome gun and so shooting started. At the time that Leroy (Simpson) saw the gun, he jumped off the counter to go out of the store. He stumbled and fell and, as he was getting up, he was shot in the back side. He then exited the store and he heard more shooting. They went back toward the Cadillac. He and George McFadden then returned part of the way back to the liquor store where Clinton Knox had fallen down. He didn't remember for sure which person took the gun from Clinton Knox's hand, but one of them took it; that they pointed the gun at an unknown person on the street and told him, 'Don't come any closer.' At that point they both went to the Cadillac and left.'

Officer Howard had been given a description of McFadden, other than the information furnished by the statement of Simpson, as being a 'six-foot male Negro * * * around twenty-three to twenty-five years old, with a high process.' He then made a check of the local R and I files and found no record of a previous arrest. He then went to the 77th Street Station and went through the files relating to field interrogation. There he found cards showing where McFadden had been interrogated in the field on four different occasions. The description on these cards matched the description of McFadden given by Simpson. McFadden's address appeared on one of these four cards.

On January 18, at about 7:30 a.m., Officer Howard, in company with other officers, arrested McFadden at his apartment. The officers found a revolver in the top drawer of a chest of drawers in the bedroom of McFadden's apartment at the time of the arrest. The witness Mays identified this as being similar in shape, size and length as the gun he observed at the scene of the robbery.

About 1 p.m. on the afternoon of the 18th, in the police station, Officer Howard's partner, Officer Skeggs, in Officer Howard's presence, advised McFadden that 'he had the right to remain silent; that he could waive the right to remain silent and talk to us about what had occurred; that he had the right to an attorney of his choice during questioning and if he could not afford an attorney, one would be provided for him free by the County. * * * that anything he did say could and would be used against him in a court of law.' McFadden was then asked if he understood those rights, and he replied 'that he was a...