People v. Otis

• Decision Date: 29 September 1959
• Docket Number: Cr. 3640
• Citation: 174 Cal.App.2d 119,344 P.2d 342
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Gilbert Lloyd OTIS, Defendant and Appellant.

Page 342

344 P.2d 342

174 Cal.App.2d 119

PEOPLE of the State of California, Plaintiff and Respondent, v. Gilbert Lloyd OTIS, Defendant and Appellant.

Cr. 3640.

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

Sept. 29, 1959.

Hearing Denied Nov. 25, 1959.

Werner D. Meyenberg, Salinas, for appellant.

Stanley Mosk, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

TOBRINER, Justice.

Appellant here cannot properly complain of the court's failure to instruct that fear of serious bodily harm constitutes duress if neither the instruction, nor the facts of the case itself, compose a present, active and immediate peril of such harm. Nor does the fact that a witness stated that '[a]s far as I could gather' an overheard conversation referred to a particular matter necessarily render the testimony inadmissible. Finally, evidence of an attempt to escape during the period of confinement constitutes proof of consciousness of guilt and is admissible. We discuss these propositions in more detail infra.

Charged on November 10, 1958, with violation of section 4502 of the Penal Code, and found guilty, after trial by jury, appellant appeals from both the judgment and the denial of the motion for new trial. Section 4502 provides: 'Every prisoner committed to a State prison who, while at such State prison * * * has under his custody or control any * * * dirk or dagger or sharp instrument * * * is guilty of a felony * * *.'

Previously convicted of burglary, car theft, escape, and destruction of jail, appellant entered Soledad State Prison on December 13, 1957, being placed in the 'maximum wing' of the prison, known as the adjustment center, a wing completely isolated from the rest of the prison.

On the afternoon of September 6, 1958, Joe Davis, an inmate of the other part of the prison, who until that day had been confined in the adjustment center, suffered death of knifing. The prison authorities conducted an immediate search for the murder weapon. At about 11:45 p. m. of that day the authorities found, in appellant's cell, three concealed knives and a file. One of the officers then exclaimed to appellant, "These are the type of things that killed your friend Davis." Appellant did not answer.

The remaining facts of the case crystallize into three incidents which project the legal issues we shall discuss. These embody the issue of duress, the issue of the admissibility of the overheard conversation under the opinion rule, and the admissibility of an escape attempt in the cutting of the bars of appellant's cell to indicate appellant's consciousness of guilt.

The concealed knives. Appellant's defense as to the concealed knives and file rested upon his plea of duress. He testified that in May or June, 1958, Davis threatened him with violence unless he received and secreted the knives. Appellant further testified that on the day before Davis's death appellant told Davis he intended to dispose of the knives as soon as Davis was transferred from the adjustment center. According to appellant, Davis then obtained a knife from appellant, 'stuck the point of the knife in me,' saying, "That's only a sample of what you'll get if you don't keep them." Fearing reprisal if he were required to divulge this incident, appellant asserts he did not seek medical care but placed a band-aid upon the wound. Several other inmates, admitted friends of Otis and Davis, corroborated appellant's testimony that Davis threatened him.

Appellant admits that at the time of the threat the bars of the cell separated him from Davis. Questioned whether he feared for his life at that time, appellant answered, 'Fear of my life at some future date, not at that particular time.' Appellant's cross-examination discloses that after Davis's death he had several opportunities to contact prison guards but that he did not do so, and, indeed, when apprised by the inmates that his cell was to be searched, hid the knives in the toilet.

The overheard conversation. Turning to the second factual incident which prompts the legal issues, Officer Gerbrandt testified that in October, 1958, he overheard appellant talking to several other inmates. When the prosecution asked whether he was 'discussing his case at that time,' Gerbrandt responded, 'As far as I could gather I would say yes, he was referring to this case.' When appellant objected, the court said, 'Sometimes a persons' use of words indicates a best recollection. Just because a person says 'I think' does not necessarily mean it's a conclusion.' Upon being asked what he heard, Gerbrandt responded: 'I heard the word 'Davis' mentioned so that's when I perked up my ears and I heard Otis distinctly say * * * 'Poor old Davis wouldn't mind taking the blame, because he would probably want it this way.''

The hacksaw blades. The third factual situation, leading to the issue of the right of cross-examination of appellant on attempted escape, lies in testimony as to his possession of hacksaw blades. Appellant, on cross-examination, denied such possession; his counsel offered an objection on the ground of irrelevancy, which was overruled; the prosecution asked if appellant had such blades on December 9, 1958, and again appellant answered negatively. In rebuttal one of the prison officials testified that when he checked the bars in appellant's cell on December 9, 1958, one came off in his hand, and examination of the next one revealed it had been sawed half-way through. On the opposite side of the corridor, in front of Otis' cell, next to a water pipe and a small opening, the official found four hacksaw blades.

We now consider each of these situations in their legal context.

The first query involves the instructions requested and rendered as to the duress urged as a defense for the retention and concealment of the knives. Appellant urged the following instruction: 'When an act, which would otherwise be criminal, is done under such threats or menaces as show that the person threatened or menaced was in danger of death or serious bodily harm if he had refused to do that act, or that he had reasonable cause to believe that danger of death or serious bodily harm existed, those threats and menaces serve as a valid, legal excuse for the doing of that act.' (Italics added.) The contrary instruction of the court, as given, stated: 'A person who committed an act or made an omission charged against him as a crime and who so conducted himself * * * to show that he had reasonable cause to and did believe that his life would be then and there endangered if he refused, may not be found guilty of crime because of such conduct.' (Italics added.) The difference in the proposed and rendered instructions raises the questions whether (1) fear of serious bodily harm suffices as an excuse in place of fear of death; (2) whether the fear, be it of bodily harm or death, must be of an immediate or imminent danger.

We shall point out that while one line of cases holds fear of bodily harm sufficient to excuse the commission of the offense, another parallel line requires, for that defense, fear that the person's life would be endangered. Whatever reconciliation may be made as to this conflict, both groups of decisions require that the peril be present, active and immediate. Appellant's instruction omitted such a requirement, and the facts as portrayed by the record afforded no substantial basis for an instruction containing it.

The line of cases upon which appellant relies interpret section 1111 of the Penal Code in relation to section 26(8). Section 1111 contains in part: 'An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.' Section 26(8) excepts as persons 'capable of committing crimes': 'Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.'

In determining whether a participant is excused from violation of section 288a of the Penal Code, many cases construe the above sections to require no more than fear of serious bodily harm. Thus 'A person who participates in an act in violation of said section [Pen.Code, § 288a] solely because such person has been threatened with, and is in fear of, great bodily harm is not an accomplice.' People v. Peterman, 1951, 103 Cal.App.2d 322, 325, 229 P.2d 444, 446. In a prosecution for such an offense 'one cannot voluntarily participate in the common intent and purpose with which the principal perpetrator commits a crime, if he merely consents to do so on account of physical force exercised against him, or because of threats of great bodily harm.' People v. Battilana, 1942, 52 Cal.App.2d 685, 698, 126 P.2d 923, 930. In People v. Ellis, 1955, 137 Cal.App.2d 408, 414, 290 P.2d 266, 268, the court refers to 'fear of great bodily harm' as the relevant test.

However, even in the limited area in which these cases occur, that is, the application of Penal Code, section 1111, in violations of section 288a, other decisions rely upon the test of fear of not merely bodily harm but of life itself. Thus in People v. Hart, 1950, 98 Cal.App.2d 514, 220 P.2d 595, 596, cited by appellant, testimony of the alleged accomplice that "* * * I was afraid to break my leg over again * * *" convinced the court that it was not sufficient 'to support a finding that M actually believed that his life was in danger.' 98 Cal.App.2d at page 516, 220 P.2d at page 596. And in the following cases this court in similar prosecutions found not only fear of bodily harm but fear of life: People v. Bias, 1959, 170 Cal.App.2d 502, 339 P.2d 204; People v. Willis, 1954, 129 Cal.App.2d 330, 334, 276 P.2d 853.

While these last two cases make no fine...