People v. McKee

• Decision Date: 20 August 1968
• Docket Number: Cr. 4679
• Citation: 71 Cal.Rptr. 26,265 Cal.App.2d 53
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ralph Leroy McKEE and Frank Sterling Waite, Defendant and Appellant.

Page 26

71 Cal.Rptr. 26

265 Cal.App.2d 53

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ralph Leroy McKEE and Frank Sterling Waite, Defendant and Appellant.

Cr. 4679.

Court of Appeal, Third District, California.

Aug. 20, 1968.

Hearing Denied Oct. 17, 1968.

Thomas C. Lynch, Atty. Gen., by Edsel W. Haws and John Fourt, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

Werner K. Zimmer and Paul J. Petrozzi, by Paul J. Petrozzi, Court appointed counsel, Sacramento, for defendant-appellant.

FRIEDMAN, Associate Justice.

A jury found defendants McKee, Waite and Richard Bennett guilty of felonious assault. McKee and Waite appeal from the judgments.

The prosecution established that two girls, Ernestine (Cookie) and Linda, as well as the three defendants, were in the Zombie Zula bar. At closing time, approximately 2:00 a.m., Cookie, followed by John Hunsaker, another patron, and Doug Pace, an employee, left the premises a little ahead of Linda and entered her Volkswagen, which was in the parking lot at the side of the building. Linda then came out followed by McKee, who was shouting obscenities at her. After replying in kind, Linda entered the Volkswagen but could not close the door becuase McKee was standing in the way. When Hunsaker told McKee to quiet down and move on, and Cookie told McKee that she did not want to hear any more of his filthy mouth, McKee started kicking the right side of the car.

At this point Dale Wilkins, proprietor of the Zombie Zula, came out. Seeing the commotion, he went over and told McKee to stop kicking the car. McKee asked Wilkins what he planned to do about it. Cookie got out to see whether McKee had damaged her car. When McKee started towards Cookie, saying, 'I'll get you, bitch,' Wilkins reached for McKee and ordered him to leave the girls alone. Both McKee and Waite, the latter just appearing, started towards Wilkins with their fists clenched. Wilkins backed up, stepped on a flower planterbox, pulled out a pistol, told the girls to leave (which they did) and told McKee and Waite to get in their car and leave. Wilkins stepped off the planterbox and had just put his gun away when the two attacked him. Waite gouged Wilkins' eyes and wrested the gun after Wilkins pulled it out again. Wilkins broke away and started running toward his car. Nearing it, he heard the gun fired. Wilkins stopped and held up his hands, at which time Waite approached and pushed him, causing him to fall on his back. For a short time thereafter the two continued to strike or kick Wilkins. They then stopped. Wilkins got up again and started staggering toward the street when he was felled by a blow to his cheek by a beer can wielded by Bennett. The three defendants ran to their car and drove off.

The following day Waite took Wilkins' automatic to the home of Roland Brown, where it was disassembled and destroyed.

Defendants McKee and Waite admitted involvement, but explained that Wilkins had pulled the gun on them and that they had sought only to defend themselves and to disarm Wilkins. It is their claim that while McKee was kicking the car, Wilkins approached McKee with his gun drawn; that Waite grabbed Wilkins' arm and in the ensuing scuffle the gun discharged. During the time Wilkins and Waite were

scuffling, Doug Pace attacked McKee, but upon hearing the gun go off, they both started running. In the meantime Wilkins broke away, started running, they again started towards Waite at which time Waite pushed Wilkins causing him to fall. Waite then left. Though Waite admitted pushing Wilkins, his testimony was that someone else whom he could not identify struck Wilkins after he was down. Waite denied gouging Wilkins' eyes or inflicting any injuries on him, and McKee denied striking anyone but Pace.

PRETRIAL NEWSPAPER PUBLICITY

On July 27, 1967, a jury was impaneled to try the three defendants in the Sacramento Superior Court. The court admonished the jurors against listening to broadcasts and reading newspaper articles concerning the case, then excused the jury for the day. Attorneys for the three defendants then joined in a request that no reference to the term 'Hell's Angels' be made during the trial. The trial judge agreed that the phrase had a tendency to inflame the jury, observed that it might have conceivable relevance under some circumstances and expressed the belief that the prosecutor would not use it inappropriately. The prosecutor stated that he had no intention of bringing out the phrase himself.

Despite the judge's and attorneys' scrupulous concern for fairness, a reporter for the Sacramento Union wrote and the newspaper published an article under the heading 'Hell's Angels Assault Trial Begins Today.' The article is reproduced in the margin. ¹ The article appeared on the morning of July 28, 1967, the same day on which the jury was to commence hearing evidence. The story labeled all three defendants as members of the Hell's Angels and defendant Waite as former president of the organization's Sacramento chapter. The text demonstrates that in fastening the defendants with the Hell's Angels label the reporter was aware of the trial judge's effort to insulate the jurors from its inflammatory influence.

When court convened on the morning of July 28, all three defendants moved for a mistrial on the ground of publicity impairing fairness of the trial. The trial judge at that point called the jury into the courtroom and asked the jurors whether they had read an article in that morning's Sacramento Union concerning the trial. All jurors except two stated that they had not read the Union that morning. Two jurors stated that they had seen the first few lines of the Union article and immediately discontinued their reading when they realized it concerned the trial. Both these jurors assured the court that they would not permit the story to prejudice them in deciding the case and agreed not to discuss it with their fellow jurors. The court then ordered the trial to proceed, telling the jury that the trial embraced only the evidence coming from the witnesses.

Following the guilty verdict each of the defendants moved for a new trial, urging the Sacramento Union article as a ground. The motions were denied. The appealing defendants now assign denial of the mistrial motions and of the new trial motions as error.

The due process of law concept embodied in the Fourteenth Amendment to the federal Constitution requires that the accused receive a trial by an impartial jury free from outside influences. ² In considering the effect of inflammatory pretrial publicity, trial courts are enjoined to take strong measures to ensure that the balance is not weighted against the accused, and appellate tribunals must make an independent evaluation of the circumstances. ³ The California standard for measuring pretrial publicity's impact upon criminal trials is that recently enunciated in Maine v. Superior Court etc. (1968) 68 A.C. 386, 66 Cal.Rptr. 724, 438 P.2d 372. Essentially, the Maine case requires an inquiry whether 'because of dissemination of potentially prejudicial material there is a reasonable likelihood that * * * a fair trial cannot be had;' the court may make its own evaluation of the nature, frequency and timing of the published material; no showing of actual prejudice is required of the defense. (68 A.C. at p. 394, 66 Cal.Rptr. 724, 438 P.2d 372.) The standard announced in Maine was based upon a proposal embodied in the Reardon Report of the American Bar Association, which in turn was drawn from a declaration of the federal Supreme Court in Sheppard v. Maxwell, supra. ⁴

The Maine case declares that--as a standard for judicial review on direct criminal appeals in California--the 'reasonable likelihood' rule will be applied prospectively, that is, to future trials. (68 A.C. at p. 395, fn. 9, 66 Cal.Rptr. 724, 438 P.2d 372.) The present trial antedated the Maine opinion. As a specialized expression of due process demands for the judicial protection of defendants' rights, the rule had previously been enunciated as dictum in the Sheppard case. Aside from that phase of it which dispenses with the necessity for demonstrating actual prejudice, the new California rule really seems to summarize the earlier Ad hoc approach which held to the criterion of a fair and impartial trial in which 'each case must turn on its special facts.' ⁵ Because it articulates preexisting law, it may be applied here without retroactive effect.

Most of the northern California public regard Hell's Angels or members of a motorcyclists' organization of that name with distaste, a fact of which we take judicial notice. ⁶ Thus the Sacramento Union article had intrinsic inflammatory qualities which, permitted to penetrate the courtroom, could impair fairness of the trial. Fortunately, its pentration was shallow. Ten of the jurors were ignorant of the story, conscious only that some kind of publication had occasioned a courtroom inquiry. Only two jurors had noticed it and, obedient to the judge's admonition, had desisted immediately upon recognizing its connection with the case. The headline could not but supply the two jurors with immediate awareness of the accused men's identity as Hell's Angels. In People v. Parker, supra, 235 Cal.App.2d 100, at page 105, 44 Cal.Rptr. 909, we pointed out that

jurors' professions of objectivity must be weighed against the nature of the crime and the color and impact of the publicity. The crime was repellent enough. The publication was a one-time statement which reached two jurors but did not create a hostile trial environment. Although lending itself to bias, it did not infer guilt of the specific crime. Because of its limited courtroom contact and circumscribed prejudicial force, its influence could be sealed off by a cooperative juror acting under firm judicial admonitions. (cf. Delaney v. United States (1952), 1 Cir., 199 F.2d 107, 112--113.) Under the particular...