People v. Oliver

• Decision Date: 31 March 1975
• Docket Number: Cr. 6741
• Citation: 120 Cal.Rptr. 368,46 Cal.App.3d 747
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Joseph Francis OLIVER, Defendant and Respondent.

Page 368

120 Cal.Rptr. 368

46 Cal.App.3d 747

The PEOPLE of the State of California, Plaintiff and Appellant, v. Joseph Francis OLIVER, Defendant and Respondent.

Cr. 6741.

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

March 31, 1975.

[46 Cal.App.3d 749] Edwin L. Miller, Jr., Dist. Atty., Terry J. Knoepp and Rupert A. Linley, Deputy Dist. Attys., for plaintiff and appellant.

David H. Barry, Encinitas, and Edward M. Fox, Santa Fe, under appointment by the Court of Appeal, for defendant and respondent.

OPINION

AULT, Associate Justice.

The People appeal from the trial court's order granting defendant Joseph Francis Oliver a new trial after a jury convicted him of first degree robbery (Pen.Code § 211) and found he used a firearm in the commission of the offense (Pen.Code § 12022.5). We affirm the order because an improper, errorneous and prejudicial comment by the trial judge in the course of jury instructions deprived Oliver of a fair trial, and because the evidence supports the ruling.

The case comes to us in an unusual context. It is not necessary to discuss the evidence in detail. It is sufficient to state it was in conflict. Two men, one of whom wore a woman's wig, were involved in the robbery. The eyewitness identification of Oliver as the robber who wore the wig and used the gun may have been legally sufficient, but it was arguably deficient in several respects. Both victims identified Oliver in court as the robber, but both had only a fleeting opportunity to make an identification during the course of the robbery. One of the victims was shown a picture of Oliver the day after the robbery occurred and failed to identify him.

Both victims identified Oliver when they were shown a series of five photographs several days after the robbery occurred. Of the five subjects presented, only Oliver was shown in the wig. The picture was taken by the police, using a wig belonging to Oliver's wife which had been seized the day after the robbery.

At the time of the robbery Oliver was 17 years old and a member of the United States Marine Corps. From the outset he denied participation in the robbery, both to the police who investigated the robbery and to his court-appointed counsel, who became convinced of his innocence. At the trial Oliver testified in his own behalf, denied involvement, and gave an account of his conduct and whereabouts on the day and evening of the robbery. He also produced several witnesses who testified in his behalf. While these witnesses did not provide Oliver with a complete alibi, their testimony, if believed, made it highly unlikely that Oliver could have participated in the robbery. The second robber was never identified or found.

After both sides rested, the trial judge announced to counsel that, in conjunction, with CALJIC No. 17.19, he intended to make the following comment to the jury:

'My comment as to the credibility of the witnesses is as follows: With reference to the defense witnesses, including the defendant himself, I have never in my experience as a lawyer and a judge seen an array of witnesses whose credibility is so doubtful. However, it is your responsibility, not mine, to determine credibility in accordance with the criteria standards heretofore recited.' (Emphasis added.)

Oliver's attorney objected to the proposed comment stating it was unfair to the defendant. The deputy district attorney gave it his blessing. During the course of the instructions to the jury the court commented exactly as set out above.

After the jury returned a guilty verdict on the robbery charge, Oliver's attorney moved for a new trial, specifying as grounds:

(1) the verdict is contrary to the law or evidence (Pen.Code § 1181(6), and

(2) the court has misdirected the jury in a matter of law (Pen.Code § 1181(5).

Under (1), Oliver argued the insufficiency of the evidence to support the verdict; in his written points and authorities, he urged the fundamental unfairness and errors in the court's comment to the jury.

By a separate motion, Oliver's attorney requested the court to provide funds for a polygraph test. Stressing his belief that Oliver had been an untruthful witness and commenting 'It will be interesting to see the results,' the trial judge ordered the polygraph examination. After an experienced polygraph examiner concluded that Oliver was telling the truth when he denied involvement in the robbery, the trial judge ordered an examination by two county psychiatrists under sodium pentothal or sodium amytal. After both of these experts reported on the test and expressed their conclusion Oliver was telling the truth in denying complicity in the robbery, the trial judge granted the motion for new trial, stating: 'It seems like the fair thing would be to give him another shot at it; . . . the equities lie in favor of the defendant, and . . . he should be afforded another opportunity.' When asked by the deputy district attorney to state the ground upon which the motion was granted, the judge said: 'In the interests of justice.' The minute order states: 'Defendant's motion for a new trial is granted by the Court.' Without reciting any ground.

DISCUSSION

The People urge reversal of the order affording Oliver a new trial because it was granted on nonstatutory grounds and because the trial court relied upon legally unauthorized tests in arriving at its decision.

Although it has been stated that motions for new trial must be made on one or more of the grounds enumerated in Penal Code section 1181 (see, e.g., People v. Sainz, 253 Cal.App.2d 496, 500, 61 Cal.Rptr. 196), new trials are frequently granted on nonstatutory grounds 'where the failure so to do would result in a denial of a fair trial to a defendant in a criminal case.' (People v. Davis, 31 Cal.App.3d 106, 109, 106 Cal.Rptr. 897, 898.) The duty of a trial court to afford every defendant in a criminal case a fair and impartial trial is of constitutional dimension. Where the procedure has fallen short of that standard, an accused has been denied due process, and the inherent power of the court to correct matters by granting a new...