People v. Parrella

• Decision Date: 03 March 1958
• Docket Number: Cr. N
• Citation: 322 P.2d 83,158 Cal.App.2d 140
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Respondent, v. Robert Carmen PARRELLA, Appellant. o. 3384.

Page 83

322 P.2d 83

158 Cal.App.2d 140

The PEOPLE of the State of California, Respondent, v. Robert Carmen PARRELLA, Appellant.

Cr. No. 3384.

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

March 3, 1958.

Elliot Wax, San Jose, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

Defendant was charged and convicted of forceful rape and of burglary while armed with a deadly weapon. Judgment was entered accordingly, and from that judgment and from the order denying the motion for a new trial the defendant appeals.

The offenses occurred on November 28, 1956. On that day the prosecuting witness, who lived in Mountain View with her husband and two children then aged two years and two months respectively, saw her husband off to Stanford University where he was a graduate student and laboratory assistant, and then went about her normal household tasks. At about 11:30 a. m. she went outside to call her two-year old son to lunch. There she was accosted by a man she had never seen before who asked her about a non-existent address, and then asked her if she knew a 'Domonico' or 'Dominquez' family in the neighborhood. When the prosecuting witness replied that she did not, the stranger asked if he could look at a telephone book. She agreed to get it, went into the house, got the book and gave it to the stranger, and went back in the house with her son, leaving the stranger outside. Several minutes later the doorbell rang, and she opened the back door to get the telephone book. The stranger grabbed the door and forced his way into the house. He had an open pen knife in his right hand which he held at the level of the prosecuting witness' face. He threatened: 'Don't make any noise or I'll kill your little boy.' The stranbger then forced the prosecuting witness into the bathroom and closed the door. The two-year old son was in the room. He then ordered the prosecuting witness to disrobe, holding the knife in a threatening position. She did so. He ripped some of her clothing, bound her hands behind her back, gagged and blindfolded her, and then ordered her to lie on the floor. She did so, and he then raped her. He then took her son into the kitchen, but returned in a few moments, and raped the prosecuting witness again. While performing this act the stranger placed his knife at her throat. He then inquired where she kept her money. She told him. He left the bathroom, walked around the house for a while and then left.

The prosecuting witness was able to free herself. She telephoned her husband and called the police. When the police arrived the witness still had the cloth on her wrists and around her neck that had been used to gag and bind her. She gave the police an excellent description of her assailant and of his clothing. She then went to her family doctor who testified that there had been sexual penetration within several hours of the examination. The husband of the prosecuting witness testified that he had not had intercourse with his wife on the day of the attack or on either of the preceding two days.

As already pointed out, the prosecuting witness gave a complete description of her assailant to the police, and also described in detail the clothing he was wearing. The description fits that of defendant.

On Sunday, December 16, 1956, the prosecuting witness went to church in Mountain View. As she was leaving the church she saw her assailant outside, apparently waiting to attend the next Mass. She went to the priest's house and had him call the police. When the police arrived she accompanied an officer and the priest to the choir loft where she could observe the entire congregation. She immediately identified and pointed out appellant as her assailant, and then collapsed. The appellant was arrested outside the church. The prosecuting witness positively identified appellant in a police line-up and unequivocally identified him as her assailant at the time of trial.

In addition to the fact that the description given to the police after the attack appellant, there were other corroborating fitted appellant, there were other corroborating found pants, a jacket and a pocket knife similar to the clothes worn and knife used by the assailant. Of even more significance, on the bathroom floor where the attack occurred was found a partial palm print from a man's left hand. An expert from the State Bureau of Criminal Investigation testified that unquestionably this print was that of appellant.

Appellant's defense was an alibi. He, his wife, his monther-in-law and a neighbor testified that appellant was home with his family all of the morning of November 28, 1956. In rebuttal the prosecution called a Mrs. Trout who testified that between 10 and 11 a.m. on that morning the appellant appeared at her home in Mountain View. In response to his request, she gave him her telephone book and left her apartment to take some laundry downstairs. She unintentionally locked herself out of her apartment. Appellant then left. Mrs. Trout positively identified appellant as the man involved. She also testified that the clothing found in appellant's home was similar to the clothing worn by appellant that morning. On the evening of November 28, 1956, she had given a description of the man involved to the police, and that description fitted appellant. When Mrs. Trout identified appellant in open court as the man involved he flew into a rage and, among other things, yelled at the witness: 'You better get out of here before I come over there and really do something. Mr. Schatz [prosecuting attorney]: May we take an adjournment? The Defendant: Better take her with you too. Don't you accuse me. I'm no animal. The Witness: I know you're the one. I wouldn't say it if you weren't. The Defendant: Didn't do nothing, nothing. I was home * * *. In jail because of two women.'

No direct attack is made on the sufficiency of the evidence. In view of the positive identification by the prosecution witness and the palm print such attack would necessarily be unsuccessful. The evidence in support of the conviction is clear, substantial and convincing.

The first contention of appellant is that prejudicial error occurred in connection with certain evidence relating to a lie detector test given appellant. The first mention of this test came into the record during the direct examination of appellant by his own counsel under the following circumstances:

'Q. Did you remain in that cell all that day and night? A. Up until that night. I volunteered for a lie test, I wanted to take a lie test, wanted to clear it. That was the only time I was out of the cell that day.

'Q. Did you take that test? A. Right.

'Q. On that day? A. Right.'

The prosecutor made no objection to this evidence, but on cross-examination the following occurred:

'Q. All right. And while you were at the police station, you told them that you weren't guilty of this heinous offense, isn't that correct? A. I did.

'Q. And that you wanted a lie detector test, isn't that right? A. That's right.

'Q. And they took you up to Berkeley to give you a lie detector test? A. I think it was Berkeley.

'Q. You know it was Berkeley? A. Yes.

'Q. That was the Berkeley Police Department there, wasn't it? A. right.

'Q. Where they gave you the lie detector test? A. Right.

'Q. Do you know the results of the lie detector test? A. No.

'Mr. Racanelli: Counsel knows better. I don't care what the results are, for or against, it's not allowed in any Municipal Court of law. I ask he be cited for misconduct.

'Mr. Schatz: I will offer the report at this time make for identification just so there will be no question about it.

'Mr. Racanelli: I'm not concerned about the report. I'm concerned about the question as to the results.

'Mr. Schatz: I asked no questions of any witnesses, police officers, about any lie detector test. On his own, this defendant brought it out on direct testimony. He said, 'I offered to take a lie detector test,' and I think the jury is entitled to know what the results of that was under these particular circumstances.

'Mr. Racanelli: That is the viciousness of that statement, 'entitled to know.' Counsel well knows the law in this state regarding the admissibility of so-called lie detector tests. I'm going to ask, Your Honor, that, as this is detrimental to my client's interests I'm going to ask Counsel be admonished and the jury be admonished in this regard.

'The Court: The witness on the stand testified on direct that he had offered to take a lie detector test.

'Mr. Schatz: He did.

'The Court: Then on cross-examination has he not a right to follow that up and ask if he did and what the results of it was or anything of that sort?

'Mr. Racanelli: I submit, Your Honor, as Your Honor knows, the law is clear in this state and I don't know what the lie detector is, for or against, to be quite frank, Your Honor, but it's inadmissible in any event and this may delude the jury into thinking it should be produced and there's some reason why it isn't, all to the detriment of the defendant.

'The Court: Of course, a lie detector test is not admissible in evidence.

'Mr. Schatz: That is true. I would never have brought it up if it wasn't offered in his direct testimony. The man said he wanted a lie detector test. Mr. Racanelli: He can ask any question about that, he cannot ask any question about what the results are.

'Mr. Schatz: I will withdraw the question.

'Mr. Racanelli: Once it's inserted, the damage is done. I ask the jury be asked to disregard the comments of Counsel.

'The Court: Ladies and gentlemen of the jury, the question of lie detector has no place in the case. It has been determined that lie detectors are not admissible in evidence in a trial of a case. Now, the question that the District Attorney has been asking this witness up to date was proper because...