People v. Mitchell

• Decision Date: 04 January 1966
• Docket Number: Cr. 8573
• Citation: 63 Cal.2d 805,409 P.2d 211,48 Cal.Rptr. 371
• Court: California Supreme Court
• Parties: , 409 P.2d 211 The PEOPLE, Plaintiff and Respondent, v. Aaron MITCHELL, Defendant and Appellant.

Page 371

48 Cal.Rptr. 371

63 Cal.2d 805, 409 P.2d 211

The PEOPLE, Plaintiff and Respondent, v. Aaron MITCHELL, Defendant and Appellant.

Cr. 8573.

Supreme Court of California, In Bank.

Jan. 4, 1966.

Rehearing Denied Feb. 2, 1966.

Evander C. Smith, under appointment by the Supreme Court, San Francisco, Cal., for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Edsel W. Haws, Deputy Atty. Gen., for plaintiff and respondent.

McCOMB, Justice.

A jury found defendant guilty of first degree murder and fixed the penalty at death. On appeal, we affirmed the judgment as to guilt and reversed insofar as it related to the penalty (61 Cal.2d 353, 38 Cal.Rptr. 726, 392 P.2d 526). Upon retrial, the jury again fixed the penalty at death. This automatic appeal followed, pursuant to section 1239, subdivision (b), of the Penal Code. Facts: ¹ At approximately 10:30 p. m. on February 15, 1963, defendant, armed with a shotgun and wearing a hood, entered the Stadium Club, a bar and restaurant in Sacramento, for the purpose of committing a robbery. After directing the customers and the personnel to the middle section of the club, he fired his shotgun into the ceiling, stating, 'That's just to let you know it's loaded. Get moving.' On defendant's demand, one of the owners opened the cash register, and defendant took the contents.

In the meantime, one of the owners had, unknown to defendant, been able to contact the police by telephone and report that a robbery was in progress at the club.

The front door had been locked at defendant's direction, and as defendant approached it to leave the club, he saw the face of Officer Bibica through the porthole. He then turned and ran to the kitchen area. There he unexpectedly encountered Officer Shaw. Having the draw on Shaw, defendant required him to disarm. He then picked up Shaw's revolver and, grabbing Shaw, proceeded to the back porch area using him as a shield.

Officers Reese and Gamble had meanwhile appeared on the scene and were entering the back porch at the time defendant reached it. In the exchange of shots which followed, Officer Shaw was hit in the left thigh, defendant was wounded, and Officer Gamble was killed. Defendant fled on foot but was captured a short distance from the club in an old shed.

Defendant testified that when he reached the porch area, he stated, 'You got me,' meaning he wanted to surrender; that at this point it appeared someone said, 'Get him'; that the firing of guns commenced; and that he did not remember any of the events thereafter, such as his firing Officer Shaw's gun or the shotgun, being wounded by Officer Gamble, or entering the shed where he was apprehended.

Questions: First. Did the district attorney commit prejudicial error in referring to defendant as a professional robber in his argument to the jury?

No. In his argument the district attorney several times referred to defendant as a professional robber, but no objection was made to his remarks. ²

Misconduct in argument may not be assigned on appeal if it was not assigned at the trial, unless the misconduct contributed to the verdict or was so unredeemable that nothing whatever would have cured it. (People v. Rosoto, 58 Cal.2d 304, 357(52), 23 Cal.Rptr. 779, 373 P.2d 867; People v. Lyons, 50 Cal.2d 245, 262(12, 13), 324 P.2d 556.) Such was not the case here.

Furthermore, it is settled that a prosecutor may use appropriate epithets warranted by the evidence (People v. Ketchel, 59 Cal.2d 503, 540(44), 30 Cal.Rptr. 538, 381 [63 Cal.2d 810] P.2d 394; People v. Terry, 57 Cal.2d 538, 561(13), 21 Cal.Rptr. 185, 370 P.2d 985; People v. Wein, 50 Cal.2d 383, 396(7), 326 P.2d 457), and in the present case the district attorney's characterization of defendant as a professional robber was warranted by the evidence.

Defendant testified that in 1947, at the age of 17, he was arrested in Missouri for stealing a car; that he was sentenced to two years' imprisonment therefor and served 14 months; that upon his release he again committed a car theft, for which he was sentenced in October 1948 in Tennessee to three years on a chain gang; that he escaped after 10 days, but in 1951 was taken into custody in Chicago on other charges and subsequently returned to Tennessee; that he thereafter served 31 months, including six months imposed for the escape; that he was released in the summer of 1954; that in September of that year he held a gun on two employees of a country club near Denver, Colorado, and then assaulted the manager with the gun; that he pleaded guilty to assault with intent to commit a robbery in connection with the incident and was sentenced to a term in the Colorado State Prison; that in April 1959, while on parole, he was stopped by police officers, who discovered a stocking mask hanging on a metal hinge of the convertible top of the car he was driving, a loaded revolver behind the sun visor on the driver's side, and an unloaded gun on the passenger's side; that, as a result, his parole was revoked and he was returned to the Colorado State Prison; and that he was released in January 1961.

Defendant further testified in several respects as though he was an expert on how to commit a robbery. For instance, he said: 'Well, if if you are going to commit a robbery, you can't commit a robbery with an unloaded gun, for one thing, and if you are going to commit a robbery, it's it's best to let the people know that the gun is loaded so won't nobody get hurt than for somebody to think it isn't loaded and they grab it and it goes off and somebody gets hurt.' Then, in answer to a question whether he was going to shoot someone if he had trouble, he replied, 'No, you don't shoot anyone.'

He also testified: 'Now, I shot into the ceiling of the place. This this was done for the sole purpose of it was actually done to keep anybody from getting hurt. You can't commit a robbery if you if you the people think you playing.'

In any event, however, for the most part the district attorney's statements referring to defendant as a professional robber pertained to his activities in robbing the Stadium Club. Accordingly, the alleged misconduct could hardly have 'contributed to the verdict' or been 'so unredeemable that nothing whatever would have cured it.'

Second. Did the trial court commit prejudicial error in statements concerning defendant's automatic appeal to the Supreme Court?

No. During the voir dire examination of prospective juror Sandberg, the trial judge, in answering a question by Mr. Sandberg, mentioned that there is an automatic appeal in all cases where a verdict of death is rendered. At the next recess defendant's attorney, outside the presence of the jury, informed the trial judge that he was concerned that if the jury was repeatedly advised that a judgment imposing the death penalty had been rendered in the first trial and then reversed by this court, the individual jurors might conclude that if the death penalty should be imposed again, there was a likelihood that this court would again reverse it, and that as a result some of them might feel that their responsibility had been lessened.

The trial judge said that he had been loath to bring up the subject but that when the direct question was asked, he felt he had to state what the facts and actual situation were; that he planned to inform the jurors, after selection had been completed, that they were not to consider his comment; and that he did not intend to repeat the explanation he had given but would merely indicate that there had been a prior verdict and that the judgment rendered thereon had been reversed. ³

Defendant contends that under the principles stated in People v. Morse, 60 cal.2d 63s, 36 Cal.Rptr. 201, 388 P.2d 33, the trial judge committed prejudicial error in his statements concerning the automatic appeal.

In the Morse case the giving of an instruction that the trial judge had the power to reduce a death penalty to a sentence of life imprisonment was held to be error, on the ground that such an instruction 'may very well induce the jury to assume that its finding for the death penalty merely initiates a series of procedures which invoke a reconsideration of the penalty and which may result in its reduction to life imprisonment' and '(t)he impact of the instruction must necessarily weaken the jury's own sense of responsibility.' (P. 649, 36 Cal.Rptr. at p. 212, 388 P.2d at p. 34.)

This court, in discussing the instruction on the power of the trial court to reduce the penalty, reviewed the cases of People v. Linden, 52 Cal.2d 1, 338 P.2d 397, and People v. Sampsell, 34 Cal.2d 757, 214 P.2d 813. Those cases held it was error for the prosecutor to argue that the death sentence would be reviewed by this court and that therefore the decision as to penalty was not entirely the responsibility of the jury.

In the Linden case, the prosecutor stated '* * * in California we have a law that where a death penalty is imposed * * *, it goes immediately to the Supreme Court of the State of California. They review your decision if a death penalty is imposed, and they determine from the law whether such a penalty is justified, or if they believe the evidence is such that only a second-degree murder was committed, or they could determine that there was prejudicial error.' (52 Cal.2d at p. 26(26a), 338 P.2d at p. 410.)

In the Sampsell case, the prosecutor said: '* * * the State of California has what is known as an automatic appeal in a death case, and it is not entirely your responsibility. Your verdict must be approved in a death case by the Supreme Court of the State of California * * * to be sure that the Supreme Court is in agreement with your verdict. So it is not all your responsibility. It is part of the Supreme Court of the State of California's responsibility. * * * So that you are not assuming the entire responsibility at all. But if you are convinced * * * that he is guilty of...