People v. Parham
| Decision Date | 18 April 1963 |
| Docket Number | Cr. 4142 |
| Citation | 30 Cal.Rptr. 268 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Alvin Maurice PARHAM, Defendant, and Appellant. 1 |
Paul Robbins, Oakland (under appointment of the District Court of Appeal), for appellant.
Stanley Mosk, Atty. Gen., John S. McInerny, Eric Collins, Deputy Attys. Gen., San Francisco, for respondent.
Defendant Alvin Maurice Parham was charged in an information with three counts of robbery (Pen.Code, § 211) and two counts of theft of an automobile (Pen.Code, § 487). A jury found him guilty on the first three counts of robbery in the first degree (Pen.Code, § 211a) and on the last two counts of taking an automobile for temporary use without the owner's permission (Pen.Code, § 499b) an offense included within the offense charged in said counts. The court denied his motion for a new trial but thereafter on the motion of the district attorney set aside the verdicts of the jury returned on the fourth and fifth counts finding the defendant guilty of violations of section 499b and ordered said counts dismissed. Defendant appeals from the judgment of conviction and from the order denying his motion for a new trial.
Defendant's notice of appeal was filed on January 9, 1962, and thus after the effective date of the 1961 amendments to section 1237 of the Penal Code () which, except in circumstances not here applicable, abolished an appeal from an order denying a motion for a new trial in criminal cases. The attempted appeal from the order denying a new trial must therefore be dismissed. (People v. Justice (1963) 211 A.C.A. 763, 765, 27 Cal.Rptr. 465.)
Defendant does not question the sufficiency of the evidence to support the judgment. We therefore propose to set forth the facts only to the extent that we deem necessary for a proper consideration of the issues before us.
The three counts of the information here under review relate to three separate bank robberies. On April 7, 1961, Dawn Capri, a teller employed at the Crocker-Anglo National Bank in Berkeley was robbed of $2,173. The robber, later identified as the defendant, came to the teller's window and presented her with a pink piece of paper having the appearance of a check. At the bottom were the typewritten words: When Mrs. Capri looked up at the defendant he opened his coat and she saw protruding from an inside pocket what appeared to be the handle of a gun. At the defendant's direction, she obtained a bank bag and put money in it. The defendant, taking the bag and the above-mentioned pink piece of paper, thereupon made his get-a-way. He was also identified later by Mrs. Green, another employee, and by Mr. Willbanks, an assistant manager.
On June 23, 1961, at approximately 2:00 p. m., Elinor Miller, a teller employed at the Bank of America office located on Webster Street in Alameda, was robbed of $35. This robbery is the subject of count three of the information. The robber, whom she later identified as being 'possibly' the defendant, came up to her window and displaying a red savings passbook, indicated that he was going to make a withdrawal. He then 'threw' a blank check in front of her upon which were the typewritten words: On the figure side of the check were the typewritten numerals '35.' The check was white. She put $35 in currency on the counter. The man in front of her then demanded thirty-five hundred dollars. At this point, he threw open his coat and she saw a 'little gun' in the palm of his hand. She dropped to the floor in fright. One Yasmineh, her co-worker, saw her kneeling on the floor and crying. Learning that there had been a holdup, he went to the window, saw a man running toward a parked car with a bank bag in his hand, and saw him get in and drive away. This witness noted the license number of the car, as did Miss Hale, another employee. Yasmineh identified the defendant at the trial. Mrs. Miller, the teller, testified that the gun she had seen at the time of the robbery was similar to the one taken from the defendant when he was arrested.
On the same day, June 23, 1961, approximately two hours after the robbery last mentioned, Irene Wainwright, a teller employed at the West Berkeley office of the Wells Fargo American Trust Company, was robbed of $790. The defendant is charged with this robbery in count two. Mrs. Wainwright saw a Bank of America check laid in front of her at her teller's window. On it were typewritten words stating in substance: She looked up and saw the defendant who said 'I mean it.' She gave him about $800 in currency which he put in a cloth bag. As the teller turned away to get more currency, the robber left the window.
Pertinent also are certain circumstances surrounding the taking of two automobiles of which the defendant was found guilty under the counts four and five of the information. A Ford Thunderbird which was the subject of count four was taken from the parking lot at Golden Gate Fields at approximately the time of the first robbery on April 7, 1961. Although no direct evidence established its use by the defendant in connection with the robbery, the owner of the car surprised the defendant in the act of returning it to the parking lot. The defendant attempted to explain that he thought the car was his, got out of it with a money bag in his hand, and finally ran away. It developed that the motor had been started with a 'jump' wire.
The automobile used by the defendant at the time of the Bank of America robbery on June 23, 1961, was identified as a Ford Galaxie belonging to one Nell Clark who had parked it near her place of employment in Emeryville. It was taken at some time between 11:00 a. m. and 2:30 p. m. and subsequently discovered at about 4:15 p. m. at the foot of Powell Street in Emeryville.
As we shall discuss later in more detail, the defendant was arrested by Sergeant Donovan of the Emeryville Police Department at 1:30 p. m. on July 21, 1961, at the foot of Powell Street. He was then in possession of various incriminating articles: a red bank-passbook, a pink piece of paper, a bank bag, a pistol and two clectric wires. He was taken to the Emeryville police station where he was photographed and fingerprinted. Later that day he was brought to the Berkeley police station where he was placed in a police lineup attended by witnesses to the robberies.
Defendant's contentions on appeal may be summarized as follows: (1) That as a result of being denied the right to inspect the signed statements of identifying witnesses, he was deprived of a fair trial; (2) that as a result of an improperly conducted police lineup, the identification of the defendant by various witnesses was unreliable and prejudicial as a matter of law; (3) that the defendant's arrest was without probable cause and the search following the arrest neither reasonable nor legal; and (4) that the police methods used in obtaining a check from the defendant's mouth violated his constitutional rights. We discuss these contentions in order.
Discovery and production of witnesses' statements.
At the trial most of the witnesses identifying the defendant testified that they had given signed statements to agents of the Federal Bureau of Investigation. It also appeared that, with one exception, no signed statements were taken from such witnesses by the Berkeley police. This exception was Mrs. Capri, the teller at the Crocker-Anglo National Bank, whose statement was turned over to defense counsel by the prosecutor toward the close of the People's case in chief. It also appeared that Inspector Young of the Berkeley Police Department had been present during the interviewing of witnesses by the F.B.I. and had taken notes of the interviews. A transcript of these notes was delivered to counsel for the defendant at some time before trial.
During the prosecution's case in chief, counsel for the defendant made a demand upon the district attorney for the signed statements taken from the witnesses. The court thereupon conducted an extensive inquiry into the matter in chambers. The record shows that this was the first application for production of the statements at trial. At the preliminary hearing, the magistrate had ordered the prosecution to make available to defense counsel, any signed statements in its possession. It was apparently in compliance with this direction that the prosecution furnished the defense with a transcript of Inspector Young's notes. The record discloses no other application for production or pretrial inspection. In the course of the above proceedings in chambers, the prosecutor stated that he did not have any signed statements or any access to them; that they had never been in his possession although he had been permitted to examine them at the F.B.I. office; and that he had tried to obtain them but that the F.B.I. had rejected his request. The court therefore concluded that it could not order the prosecutor to produce something which he did not possess and suggested to counsel for the defendant that he would have to pursue other remedies by calling the F.B.I. as witnesses.
Counsel for the defendant thereupon caused to be issued and served a subpoena duces tecum directed to special agent Buchanan of the F.B.I. directing his appearance with the investigative file on the bank robberies. Agent Buchanan responded to the subpoena during the People's case in chief, accompanied by an assistant United States district attorney. The latter advised the court outside of the presence of the jury that agent Buchanan had no authority to produce the documents required by the...
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