People v. Miller

• Decision Date: 26 July 1967
• Docket Number: Cr. 6039
• Citation: 60 Cal.Rptr. 791,252 Cal.App.2d 877
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William Russell MILLER, Jr., Defendant and Appellant.

Page 791

60 Cal.Rptr. 791

252 Cal.App.2d 877

PEOPLE of the State of California, Plaintiff and Respondent, v. William Russell MILLER, Jr., Defendant and Appellant.

Cr. 6039.

Court of Appeal, First District, Division 1, California.

July 26, 1967.

Ward A. Smith, Concord, for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Anthony A. Cuomo, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment of conviction of second degree burglary in violation of Penal Code section 459.

The Record

At approximately midnight on June 6, 1966 Officers William Ambrose and Daniel O'Connor of the Concord Police Department arrived at the Bel Air Pharmacy in Concord in response to a silent burglar alarm at police headquarters. Upon arriving at the pharmacy, Ambrose examined the front and back doors and all the windows of the store and observed that they were all unbroken and secured. Meanwhile O'Connor examined the roof of the building and discovered that a hole had been drilled in the roof. At this time the officers were met by Ernest Black, a co-owner of the establishment. Upon his arrival Black noticed a man run from the rear door of the pharmacy into a nearby orchard. Thereafter the officers reexamined the rear door of the pharmacy and discovered that it was open. In addition the officers searched the orchard, where they found no person but discovered fresh cigarettes, footprints, and a flashlight. At this time Ambrose and Sergeant Burns, who had meanwhile arrived at the pharmacy, conducted an investigation of the interior of the premises, this investigation revealing the following: a brace and a small saw, which did not belong to the business, were found on the floor inside the rear door; a wicker basket and a brown paper bag, both containing drugs, were found on the floor; an open box marked 'narcotics' was out of place on the counter; and plaster dust was observed on the floor and the merchandise just below the hole which had been cut in the ceiling. Finally, the officers found an automobile registered to a Robert Waterman, Jr. parked near the back door of the pharmacy with its front end adjacent to the water pipes which lead to the roof. The ignition keys had been left in the car and in addition the officers discovered some tools which appeared to be burglar tools on the floor of the car.

Subsequently both Waterman and defendant were arrested and placed in a jail cell together. While they were in this cell they had a conversation which was monitored by Burns and subsequently tape-recorded. The contents of this conversation, according to the tape recording itself and the testimony of Burns, who heard the conversation as it was transmitted through the monitor, was as follows: Waterman informed defendant that the former had confessed to the burglary at the pharmacy and in so doing had implicated defendant, and that his reason for confessing was to prevent the prosecution of his girl friend, who had been arrested for the crime. Defendant replied that Waterman need not have confessed to protect his girl friend since she had been released; that if defendant were released he could effect bail for Waterman; that Waterman should not have implicated defendant whose involvement in the burglary could not otherwise have been proven, there being no fingerprints and neither defendant nor Waterman having been caught inside the store; and that Waterman should have maintained his original explanation to the effect that his automobile had been stolen. Finally defendant said that 'he thought it was a beautiful job except for the one mistake that they had made,' but that he had feared for Waterman's life because while defendant was in the orchard behind the pharmacy he had heard shots and thought that Waterman had been shot.

Waterman testified that he and defendant had broken into and burglarized the Bel Air Pharmacy on June 6, 1966. As to the manner in which they committed the burglary Waterman testified as follows: He and defendant cut a hole in the roof of the pharmacy, defendant entering through the hole and then opening the back door to permit Waterman to enter; defendant and Waterman then searched for drugs, placing them in a paper bag and a basket; and when the police arrived Waterman warned defendant and then ran out of the pharmacy.

In addition to the foregoing, the record discloses other pertinent facts which we will discuss in conjunction with defendant's contentions on appeal.

Contentions

Defendant's contentions on appeal relate to alleged error on the part of the trial court in admitting evidence as to the contents of the aforementioned conversation which defendant had with Waterman in the jail cell. Defendant argues that since the only evidence corroborating Waterman's testimony as to defendant's involvement in the burglary of the pharmacy consisted of these statements in the jail cell, such evidence, if improperly admitted, leaves the testimony of the accomplice Waterman totally uncorroborated, and, therefore, pursuant to the provisions of Penal Code section 1111 the conviction cannot stand. ¹ In support of this argument as to the inadmissibility of the conversation between defendant and Waterman defendant contends, first, that he was illegally arrested and that therefore the jail cell conversation was the product of this illegal arrest; and secondly, that the confession which Waterman made to the police at the time of his arrest was obtained because the police did not advise Waterman of his rights as required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and that 'the unlawfully obtained confession was used to obtain * * * (defendant's) admissions in the jail cell * * *.'

The facts relating to defendant's arrest and to the eliciting by the police of a confession from Waterman are as follows: On June 6, 1966 Waterman telephoned the Concord Police Department and reported that his car had been stolen. In response to this telephone call Burns went to Waterman's apartment and asked Waterman to come to the police station to discuss the alleged theft of his car. Waterman then accompanied Burns to the police station where the former was questioned and subsequently arrested. Two days later, on June 8, 1966, from approximately 5 p.m. to 8 p.m., Burns interrogated Waterman and obtained a confession from the latter that he had burglarized the Bel Air Pharmacy. However, prior to this conversation, according to Burn's testimony, Burns had advised Waterman on several occasions of his right to counsel and his right to remain silent.

Meanwhile Burns had talked separately to Robert Waterman's brother, Stephen Waterman, and to Steven's roommate, Mr. Buckingham, both of whom told Burns that Robert Waterman had come to their apartment prior to his arrest and had told them separately that he and defendant had burglarized the Bel Air Pharmacy and in the process recounted the details of the crime concerning their entry by means of a hole in the roof and their escape to an orchard in the rear of the pharmacy. Based upon this information defendant was arrested by Officer McLendon of the Concord Police Department at approximately 7 p.m. on June 8, 1966. ²

Legality of Arrest

Concerning defendant's contention that his arrest was illegal and that therefore the jail cell conversation which he had with Waterman and which resulted in defendant's making admissions concerning the instant charge should have been excluded from evidence because it was the product of his illegal arrest, we are of the opinion that Officer McLendon, who arrested defendant, had probable cause to make this arrest and that therefore defendant's subsequent conversation with Waterman was properly admitted into evidence.

In People v. Talley, 66 A.C. 363, 368--369, 56 Cal.Rptr. 492, 496, 423 P.2d 564, 568, the principles applicable to an arrest without a warrant were stated as follows: 'A peace officer may arrest a person without a warrant '(w)henever he has reasonable cause to believe that the person to be arrested has committed a felony, * * *' (Pen.Code, § 836). Reasonable or probable cause exists when the facts and circumstances within the knowledge of the officers at the moment of the arrest are sufficient to warrant a prudent man in believing that the defendant has committed an offense. (Citations.) The question of probable cause to justify an arrest without a warrant must be tested by the facts which the record shows were known to the officers...