People v. Odom

• Decision Date: 31 August 1965
• Docket Number: Cr. 9526
• Citation: 236 Cal.App.2d 876,46 Cal.Rptr. 453
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Dock ODOM, Jr., and Renell Lindsey, Defendants and Appellants.

Page 453

46 Cal.Rptr. 453

236 Cal.App.2d 876

The PEOPLE of the State of California, Plaintiff and Respondent, v. Dock ODOM, Jr., and Renell Lindsey, Defendants and Appellants.

Cr. 9526.

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

Aug. 31, 1965.

Luke McKissack, Los Angeles, for appellants.*

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.

FLEMING, Justice.

This case is before us for the second time by reason of the decision of the United States Supreme Court in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 holding invalid, under the Fifth and Fourteenth Amendments to the United States Constitution, Article I, § 13, of the state constitution, which permitted comment on an accused's failure to testify on his own behalf.

The principal issues are whether defendants were entitled to separate counsel at their trial and whether comment by the prosecution on Odom's failure to testify was sufficiently prejudicial to require that we reverse his judgment of conviction.

Defendants Odom and Lindsey were charged with robbery of a Los Angeles gas station on May 12, 1963. Each was identified by a witness as a participant, and both were arrested on May 14 in what had been reported as the getaway car.

On May 16 the public defender was appointed to represent both defendants. On May 20 at the preliminary hearing defendants were held to answer the charges against them. Both continued to be represented by the public defender up to the date of trial. On July 12, one week before trial, Lindsey petitioned the trial court to discharge the public defender and appoint private counsel to represent him on the ground that a conflict of interest between defendants existed.

On July 17, the day of trial, both defendants were present in court with the public defender, and at that time Lindsey renewed his request for the appointment of private counsel because of a conflict of interest, the nature of which, however, remained unspecified. Odom also requested the appointment of private counsel. After a recess the public defender advised the court he could not represent to the court that a conflict of interest existed between codefendants. The court then refused to appoint separate counsel.

Next, defendants requested a severance of their cases for trial, and this was denied.

Lindsey then waived his right to a jury trial and agreed to submit the matter on the transcript of the preliminary hearing. His case was referred to another department of the superior court for submission. Odom went forward in the original department with trial by jury in which he was represented by the public defender. Each defendant was found guilty of first-degree robbery.

On appeal Lindsey contends that the trial court improperly refused his request for the appointment of separate private counsel. He contends that only the pressure of this improper refusal induced him to waive his right to a trial and submit the matter on the transcript of the preliminary hearing and that accordingly he was deprived of his right to trial by jury. Odom's sole contention is that the comments of the trial court and prosecutor upon his failure to take the stand constituted reversible error.

1) Right to Separate Counsel

The mere fact that a single attorney is appointed to represent multiple defendants does not mean that an individual defendant has been deprived of his right to counsel. (People v. Ingle, 53 Cal.2d 407, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Byrd, 228 Cal.App.2d 646, 648, 39 Cal.Rptr. 644; United States v. Bentvena, 319 F.2d 916, 937, cert. den. Ormento v. United States, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271.) Only if an actual or potential conflict of interest exists among codefendants and a motion for appointment of separate counsel is made in timely fashion, is it incumbent upon the trial court to appoint separate counsel. (People v. Ingle, 53 Cal.2d 407, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Douglas, 61 Cal.2d 430, 38 Cal.Rptr. 884, 392 P.2d 964; People v. Byrd, 228 Cal.App.2d 646, 39 Cal.Rptr. 644.) Conflicts of interest among codefendants may arise when it would profit one defendant to attack the credibility of another (People v. Kerfoot, 184 Cal.App.2d 622, 7 Cal.Rptr. 674); when counsel would be restricted in final summation because he might injure one defendant by arguments in favor of another (People v. Donohoe, 200 Cal.App.2d 17, 19 Cal.Rptr. 454); when one defendant has a record of prior felony convictions and the others do not (People v. Douglas, 61 Cal.2d 430, 38 Cal.Rptr. 884, 392 P.2d 964); when the defenses of codefendants are factually inconsistent (People v. Welch, 212 Cal.App.2d 397, 28 Cal.Rptr. 112); or when appointed counsel believes a conflict of interest may exist (People v. Douglas, supra; People v. Donohoe, supra).

In this case while Lindsey claimed that a conflict of interest existed, despite several opportunities to suggest the nature of the conflict, he offered no indication what the alleged conflict was about. The public defender, after consulting both defendants, reported he could find no conflict between defendants. No factual inconsistency in the defenses of the two has been suggested, nor does it appear that any advantage would have been obtained by one in attacking the other, nor was it shown that differences existed between defendants in background, prior history, or in felony convictions.

In point of fact while both defendants were represented by the public defender, he appeared on their behalf in two separate departments in two separate proceedings before two different judges. Nothing in the record suggests any reason why he was not free to represent Odom to the full extent of his capabilities in the jury trial nor why he was not equally free to plead Lindsey's cause to best advantage in the court trial before another judge based on the submitted transcript.

Even on appeal Lindsey has not suggested wherein any conflict of interest existed. Essentially defendant rests his argument on the broad proposition that in any case where there are multiple defendants, each is entitled to separate counsel if he demands it. He cites such cases as Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; People v. Douglas, 61 Cal.2d 430, 38 Cal.Rptr. 884, 392 P.2d 964; People v. Robinson, 42 Cal.2d 741, 269 P.2d 6; and People v. Lanigan, 22 Cal.2d 569, 140 P.2d 24, 148 A.L.R. 176. None of these cases goes so far as to hold that a defendant is entitled to demand the appointment of separate counsel where the court has no reason to believe that separate counsel would be of any advantage to him. Indeed several recent cases have held that in collateral proceedings counsel need...