People v. Nicholas, Cr. 18506

• Citation: 112 Cal.App.3d 249,169 Cal.Rptr. 497
• Decision Date: 19 November 1980
• Docket Number: Cr. 18506
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Palmer Lee NICHOLAS, Defendant and Appellant.

Page 497

169 Cal.Rptr. 497

112 Cal.App.3d 249

PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Palmer Lee NICHOLAS, Defendant and Appellant.

Cr. 18506.

Court of Appeal, First District, Division 2, California.

Nov. 19, 1980.

As Modified Nov. 24, 1980.

Rehearing Denied December 19, 1980.

Linda DeBene, Danville, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Laurence K. Sullivan, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

TAYLOR, Presiding Justice.

Defendant appeals from a judgment entered on jury verdicts finding him guilty of two counts of first degree murder (Pen.Code, §§ 187, 189) and two counts of first degree robbery (Pen.Code, § 211), while armed (Pen.Code, § 12021) and using a firearm (Pen.Code, § 12022.5), and finding him sane as to each count. The major contentions on appeal are that: 1) his arrest was unlawful; 2) his confession was involuntary as made after threats, promises and psychological inducements and also was a product of continued interrogation; 3) it was error to permit the prosecutor to replay the tape-recorded confession to the jury during his closing argument; 4) there was insufficient substantial evidence to support the convictions without the confession; 5) the verdict did not reflect a unanimous jury under either of two alternative murder conviction theories; and 6) the trial court's failure to instruct the jury in the sanity phase of the trial pursuant to the test of People v. Drew, 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318, was prejudicial error.

For the reasons set forth below, we have concluded that although defendant's confession was inadmissible, the error was not prejudicial per se under the rare exception of People v. Jacobson, 63 Cal.2d 319, 46 Cal.Rptr. 515, 405 P.2d 555 and People v. Cotter, 63 Cal.2d 386, 46 Cal.Rptr. 622, 405 P.2d 862; accordingly, we affirm the judgment.

The record reveals the following chronology of pertinent facts:

On the evening of Sunday, May 29, 1977, Darby Miller, the night manager, and Donald Doss, a part-time attendant, of Frank's (Belser) Beacon Service Station in Oroville, California, were shot and killed during a robbery. Miller's wife, Katherine, proceeded to the station after her husband failed to arrive home at the usual time (10:15 p. m.) and she received no answer to her telephone call.

Defendant and his common-law wife, codefendant, Diana P. Williams, were very good friends of the Millers and they frequently visited each other's homes in 1976-1977. Despite Belser's policy against friends of employees lingering about the station, defendant often visited Miller at 9:30 or 10 p. m. at the station and borrowed money from him; they talked about stealing money from the station in a fake robbery.

Katherine discovered the bodies in a back room of the station and notified the police about 10:45 p. m. About $1,477 in cash and some checks were missing. The hands of both victims were bound by black electrician's tape of a type sold and used at the station. The prints lifted from this tape were later matched to defendant's left palm print.

Each victim had been shot three times in the head and neck; two bullets were removed from each body. Two other bullets were found under Miller's head and in a cardboard box on the storage room floor. These were .22 caliber long rifle ammunition, similar to five manufacturers' types, including the Federal brand; Belser sold only Remington brand ammunition.

A brown foam-lined uniform jacket, typically kept by employees in the storage room during uniform changes, was between the bodies. Several holes, powder burns and blood appeared on the jacket. At least four holes were made by bullets fired from the inside of the jacket between the shoulder blade area in an outward direction. The firearm was a .22 or .25 caliber with a barrel of two to six inches long fired from within an inch of the material.

Defendant had acquired a cowboy-style .22 single action six shot revolver with a holster from a coworker around Easter. The weapon was inaccurate at long distances and required cocking before each shot. Friends, neighbors, defendant's father and Williams saw such a gun and holster several times at various locations and in defendant's presence up to the week of May 29, 1977. Between 4-5 p. m. on May 29, defendant wrote a check for a box of 500 Federal brand .22 shells for the gun at a Yuba City store where he was accompanied by Williams, his father and stepmother.

On the afternoon of May 29, a woman accompanied by a man bought two fur-lined hooded blue jackets at a surplus store in Oroville. The driver's license number on the check used to pay for the purchase had a one-digit variance with defendant's, apparently the result of an error made by the sales person, Ms. Marshall.

Around May 18-20, defendant and Williams had told a neighbor they were going to Petaluma. They sold Williams' belongings for about $1,000. The week before the crimes, defendant and Williams visited the Millers at the station. Defendant indicated that he had quit his job and that they had sold everything except their 1957 pickup and 125cc Kawasaki motorcycle. They planned to head south together; financing for the trip "was taken care of." As a result of this conversation, the Millers discussed their need for additional vacation time.

Around 5:30 p. m. on the afternoon of May 29, the Belsers arrived at their station. Belser observed that the inside cash register and outside cash box (in the hut adjacent to the island) both contained checks and cash. The currency was supposed to be in the safe or locked in the cash box under the inside cash register. Belser admonished Miller that he should not accumulate the large bills contrary to the prescribed procedures. Miller asked for additional paid vacation or an advance on his Xmas bonus. Belser refused, but offered him an additional week without pay. The matter was not resolved. Belser left but was concerned that Miller was dissatisfied. Miller seemed disappointed when he told Katherine about this discussion in a telephone call around 5:30 p. m.

Around 8:30 p. m. that night, Mrs. Belser returned to the station to obtain some petty cash to go to the movies. Miller was behind the counter near the cash register, and Doss stood nearby. When Mrs. Belser asked Miller whether he wanted to go to the show, Miller answered negatively and in an unusual curt manner as if he was upset. He then took $10 from the register, made a notation, and then joked with Mrs. Belser and returned to his normal demeanor.

Suddenly, defendant appeared very quickly behind Mrs. Belser and said something to Miller. Mrs. Belser only heard the word "money." Miller answered in a muffled voice and fooled with the key ring on his belt which had the keys to both cash boxes. An unidentified blond man was also present.

Williams testified that on May 29, defendant arrived at home about 9:30 p. m and announced that he planned to rob the station. She refused and they argued for about 10-15 minutes. He then threatened her with the gun which he placed in his pants. She was scared, but drove the Kawasaki cycle while defendant walked. She parked by the Pepsi machine in the station and waited. Just before defendant returned, she heard two shots inside the station. Subsequently, defendant drove the motorcycle with Williams to the Oroville Dam. He threatened Williams and threw the gun into a gully. They returned home and dropped off a money bag. They drove to the Taco Bell and watched police arrive at the station. When they returned home, they burned the checks and hid the money. She suspected, but did not learn about the homicides until the morning.

On the following morning, May 30, defendant kept a week-old appointment to complete the installation of an engine in his pickup in preparation for his two weeks' vacation. When the mechanic (Mr. Clements) mentioned Miller's death, defendant said nothing and was calm; however, he appeared to be anxious to complete the work so he could leave. Williams appeared around noon and remained. The work on the pickup continued that evening. Williams stated to Clements that she had been in the station about 9 p. m. on the previous day. Defendant also indicated to Clements that he had been there. The same evening, Williams mentioned to defendant's stepmother that there was a lot of money in a recipe box.

Around noon on May 31, in connection with the purchase of some items, Williams gave a neighbor (Hampton) the carton of Federal brand shells purchased on May 29; one of the 10 boxes in the carton was missing 12 or 13 shells. She was reluctant to talk about Miller's death. The work on the pickup, including the installation of some expensive accessories, was completed in the late afternoon of Tuesday, May 31. That same night, defendant and Williams left Oroville with the motorcycle in their pickup. Defendant was in a hurry and would not tell his father where they were going. During the trip, defendant told Williams that he had taken her to the station so that he could implicate her if she revealed his involvement.

On June 4, 1977, Williams sold the Kawasaki motorcycle in Livingston, Montana, to a local resident, Jim Nelson, for $60. Williams introduced Nelson to defendant. Defendant had Williams fill out a bill of sale and threw in the helmet. Defendant also promised that the title would be forwarded. Nelson never received the title.

Defendant and Williams returned to Petaluma in the second week of June after defendant was refused entry into Canada. In that month, defendant became friends with James George Watson through Williams' coemployee and then Watson's girlfriend, Cindy Hanson. ¹ At this time, defendant and Williams were living in a station wagon in Petaluma. One night that month, Watson and defendant were waiting for Williams and Hanson to get off work....