People v. Memro

• Citation: 214 Cal.Rptr. 832,38 Cal.3d 658,700 P.2d 446
• Court: United States State Supreme Court (California)
• Decision Date: 06 June 1985
• Parties: , 700 P.2d 446 The PEOPLE, Plaintiff and Respondent, v. Harold Ray MEMRO, Defendant and Appellant. Crim. 21323.

Page 832

214 Cal.Rptr. 832

38 Cal.3d 658, 700 P.2d 446

The PEOPLE, Plaintiff and Respondent, v. Harold Ray MEMRO, Defendant and Appellant.

Crim. 21323.

Supreme Court of California,

In Bank.

June 6, 1985.

Rehearing Denied Aug. 1, 1985. ^*

Jay L. Lichtman, Los Angeles, for defendant and appellant.

George Deukmejian and John K. Van de Kamp, Attys. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Richard D. Marino, Deputy Attys. Gen., Los Angeles, for plaintiff and respondent.

BIRD, Chief Justice.

This is an automatic appeal from a judgment imposing a sentence of death under the 1977 death penalty legislation. (See Pen.Code, § 1239, subd. (b), former Pen.Code, § 190 et seq., repealed by initiative measure approved Nov. 7, 1978.) ¹

Of the numerous claims made on appeal, this court need consider only one--that the trial court erred in summarily denying appellant's discovery motion. Decisions of this court, recently codified by the Legislature, require that this contention be sustained and that appellant's convictions be reversed.

I.

A. Procedural History

Appellant was accused by information of murdering Scott F. and Ralph C. on July 26, 1976, and Carl C., Jr. (Carl Jr.), on October 22, 1978. The prosecution also alleged a multiple murder and a felony-murder (lewd or lascivious conduct) special circumstance in connection with the 1978 murder count. (Former § 190.2, subds. (c)(3)(iv) and (c)(5).) ²

Prior to trial, appellant moved to suppress his confessions as well as certain other evidence relating to the crimes. The motion was premised both on an asserted lack of probable cause for appellant's arrest and on the involuntary nature of his confessions. This motion was denied.

Thereafter, appellant waived his right to a jury trial on the question of guilt, and the case was transferred to a different judge for trial. In an in limine motion under Evidence Code section 405, appellant renewed his motion to suppress the confession on the ground of involuntariness. ³ Although live testimony was presented, the motion was submitted primarily on the transcripts of the pretrial suppression motion and the preliminary examination. This motion was denied.

A trial on the merits was then had based on the evidence presented at the hearing on the in limine motion. After additional testimony from the defense was presented, the court found appellant guilty of (1) first degree murder as to the Carl Jr. and Ralph C. killings and (2) second degree murder as to the Scott F. homicide. The court also found the multiple murder special circumstance allegation true and the felony-murder special circumstance allegation not true.

Appellant waived his right to a jury trial on the question of penalty. At appellant's request and because of disagreements between appellant and his counsel, counsel was relieved. A second lawyer was appointed, but was later permitted to withdraw on his own motion. The penalty phase proceedings were eventually conducted, over appellant's objection, without the presence of an attorney for the defense. No additional evidence was presented. Thereafter, the court imposed a judgment of death for the 1978 Carl Jr. murder. Appellant was sentenced to prison for life and for the term prescribed by law for the 1976 Scott F. and Ralph C. murders, respectively.

B. The Disappearance of Carl Jr. and the Arrest

About 8 p.m. on Sunday, October 22, 1978, the parents of seven-year-old Carl Jr. called the South Gate Police Department to report that their son had been missing since about 6 o'clock that evening. The police quickly began searching for the boy but were unable to locate him.

Detective William Sims of the South Gate Police Department was assigned to investigate the disappearance. In the course of his investigation, Sims contacted one Joan Julian, a psychic. Julian helped a police artist prepare a sketch of a person whom she visualized as having been with Carl Jr. at the time of his disappearance.

On Friday, October 27, 1978, Detective Sims went to the missing boy's parents' house and showed them the sketch. They said it resembled "Butch," a name commonly used for appellant. They told Sims that Carl Sr. (the missing boy's father) occasionally repaired cars for appellant and that appellant had dropped off his Volkswagen for repair about 11 p.m. on the night their son disappeared. Having no "good information" with regard to Carl Jr.'s disappearance and wanting to check out all possible leads, Detective Sims decided to talk with appellant "as a witness."

Sims and his partner Detective Louis Gluhak drove to appellant's apartment, which was located about one and one-half miles from Carl Jr.'s home. Sims knocked on the door, and appellant answered. The officers identified themselves and explained that they were investigating the disappearance of Carl Jr. Appellant invited them in. When the officers requested identification, appellant produced his driver's license. At some point, appellant said, "I knew you were coming sooner or later." Stating that the officers were "going to find out anyway," appellant indicated he had previously been in Atascadero State Hospital because he "went into a fit of rage and beat the shit out of a nine-year-old boy" in Huntington Park. Apparently, the officers did not inquire further into this topic.

Detective Sims asked appellant if he "had seen anything unusual in the area of [Carl Jr.'s home] the night he was dropping off his vehicle for Mr. [C.] to repair." Appellant said no.

While talking to appellant, the officers noticed on the walls and shelves "literally hundreds" of photographs of clothed and partially clad young boys. They also saw numerous "magazine type" pornographic books on the floor and the furniture. The officers testified these items were plainly visible from where they sat in the living room. They denied searching the apartment during this visit. ⁴

The officers then departed. Although appellant had told the officers he was going to purchase the automobile part that Carl Sr. needed to repair his Volkswagen, he remained behind in the apartment. ⁵

The officers drove back to Carl Jr.'s residence and spoke again with his parents, inquiring primarily about appellant. About 15 minutes later, appellant arrived with the part for the Volkswagen. He delivered it to Carl Sr., who said he would fix the car. As appellant started walking back toward his Plymouth, the officers followed.

When appellant and the officers arrived at the Plymouth, Sims asked him to explain what he had seen when he dropped off the Volkswagen on the night of Carl Jr.'s disappearance. Appellant replied, "Oh, yeah. I remember now." He then related that about 6 p.m. on Sunday he had gone to a restaurant located near the C.'s home. The line was too long, so he decided to stop by the house to talk to Carl Sr. about working on the car. When appellant got to the back door of the house, he met Carl Jr. and asked him if he wanted to have a Coke. Appellant then took the boy to a restaurant about three or four blocks away and bought him a soft drink. Appellant indicated that the last time he saw Carl Jr., the boy was walking down the street toward his home. He denied that he had harmed the boy.

After appellant made these remarks, Detective Sims arrested him for "investigation of 207," or "suspicion of kidnaping." Appellant was handcuffed and driven to the South Gate City jail. ⁶

C. The Interrogations

The record contains sharply conflicting versions of what occurred between appellant's arrival at the South Gate City jail and his confessions some five hours later.

According to the officers involved, appellant was driven to the jail by Detectives Sims and Gluhak immediately after the arrest. He was placed in an eight-by-twelve-foot interrogation room where he was joined by the two officers. At approximately 5:15 p.m., appellant was advised of and voluntarily waived his constitutional rights. (See Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) He essentially reiterated what he had told the officers just prior to his arrest.

Appellant returned to his cell. Thereafter, Sims directed two other officers--Detectives Lloyd Carter and Dennis Greene--to make some inquiries of people living in appellant's neighborhood. ⁷ These inquiries did not produce any new information. The officers did not search appellant's home or his Plymouth at that time.

At some point, Sims and Gluhak informed Carter that appellant "was not giving any information about the case." They requested Carter to assist them in the interrogation. About 10 p.m., after Carter and Greene had returned to the jail, appellant was brought into the interrogation room for a second time. Appellant and the four plainclothes officers (Sims, Gluhak, Carter, and Greene) were present. To "explain [Carter and Greene's] presence," Carter told appellant that he (Carter) was "the boss" or "the boss man" and that "what [he] said went." Sims again advised appellant of his Miranda rights, and appellant again waived them. Carter conducted the subsequent interrogation.

Initially, appellant said he would not speak with Carter because he thought the interrogation room might be "bugged." Appellant asked Carter to have the other officers leave the room, and he requested that Carter prove there were no hidden tape recorders or listening devices. The three officers left, and Carter and appellant inspected the room. They found nothing. Appellant also wanted to know whether Carter was going to take notes of the interrogation. Carter indicated he would do what appellant desired, and appellant responded that he did not want any notes taken.

The other three officers then returned to the interrogation room, and appellant proceeded to confess to killing Carl Jr. In addition, when asked whether he was responsible for "other such incidents," he confessed to killing two other youths in Bell...