People v. Perry

Decision Date02 August 1972
Docket NumberCr. 15048
Citation499 P.2d 129,7 Cal.3d 756,103 Cal.Rptr. 161
CourtCalifornia Supreme Court
Parties, 499 P.2d 129 The PEOPLE, Plaintiff and Respondent, v. David Leon PERRY et al., Defendants and Appellants. In Bank

E. C. Sylvia, Dixon and David W. Lowe, Vacaville, under appointments by the Supreme Court, for defendants and appellants.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci and George R. Nock, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Harry Redmon, David Perry, 'Rockey' Dixon, and a person identified as 'John Doe' Ott were jointly charged by indictment with murder and with conspiracy to commit murder. Redmon, Perry, and Dixon pleaded not guilty to both counts of the indictment and were jointly tried by jury; 'John Doe' Ott had not been apprehended by the time of trial. At the close of the prosecution's case, the trial court ruled that the principal witness for the prosecution, Diana Moore, was an accomplice as a matter of law and entered a judgment of acquittal on both counts of the indictment as to Dixon because the prosecution failed to present evidence corroborating his guilt. Thereafter, the court dismissed the conspiracy count as to the remaining defendants and submitted the murder count to the jury. The jury returned verdicts finding Redmon and Perry guilty of murder in the first degree. Jury trial was waived on the penalty issue, and both defendants were sentenced to life imprisonment.

Defendants appeal from the judgments entered on the jury verdicts. Assuming, as we must, that Diana Moore is an accomplice, we are initially confronted with the question of whether her incriminating testimony is sufficiently corroborated as required by Penal Code section 1111 by independent evidence establishing consciousness of guilt on the part of the defendants. In a related contention, Perry claims that evidence seized from his vehicle should have been suppressed because the search of that vehicle without a warrant violated his Fourth Amendment rights. Furthermore, both defendants contend that evidence of other crimes and wrongful acts was improperly admitted. In addition, Perry contends that Diana Moore waived the psychotherapist privilege so the trial court should have granted his request to review certain medical records concerning her treatment; that the court incorrectly refused to instruct the jury to return a special finding of fact or a special verdict and that the court improperly denied permission to play a certain tape recording in its entirety before the jury. Redmon contends that, as a matter of law, the evidence is sufficient to support a guilty verdict as to him; that the trial court erroneously refused to examine prospective jurors separately, outside the presence of other veniremen; that by adopting a procedure whereby the testimony of one witness was taken outside the presence of the jury and then read to the jury, the court violated the Sixth Amendment right of confrontation; that the court improperly prevented the defense from reading several pages of a transcribed statement to the jury; that the court incorrectly refused to instruct the jury that evidence found in Perry's car could be considered only against Perry for a limited purpose; that the court erroneously failed to instruct the jury on second degree murder and manslaughter; and that the prosecutor committed prejudicial misconduct.

An examination of defendants' numerous contentions reveals no reversible error, and therefore the judgment of conviction is affirmed as to both defendants.

The Facts

On December 7, 1967, the body of Ronald Lee Roy was discovered in the Carquinez Heights area of Vallejo. An autopsy of Roy's body revealed three bullet wounds in the head and three facial lacerations. The pathologist who conducted the autopsy testified that the lacerations had occurred before death and were probably inflicted by a hard, blunt object. The coroner of Solano County was of the opinion that the victim had been killed less than 12 hours before the body was found.

The day after Roy's body was discovered, his automobile was found parked on a Vallejo street. Sergeant Kenneth Odiorne, the investigating officer, examined the vehicle. He noticed that the edge of the trunk lid, the back bumper, and the door handles were cleaner than other parts of the car; that the trunk contained a large quantity of blood and some flesh tissue; that the latch on the inside of the trunk was scratched; and that paint from the latch was stuck to a tool found in the trunk.

The investigation of Roy's death did not progress significantly until August of 1968 when a local barber told Sergeant Odiorne that Diana Moore had information concerning the killing. At trial, the barber testified that Diana came into his shop in early 1968 and told him that she was facing a sentence for parole violation, a sentence she particularly did not want to serve because she was a drug addict. Diana told the barber that her habit would probably cost $100 per day but that 'her people' furnished her with narcotics to keep her from divulging certain information. The information of which Diana had knowledge was that 'her people' had murdered Roy.

On August 12, 1968, while Diana was in custody awaiting trial on an unrelated charge, Odiorne talked with her about Roy's murder. Diana led Odiorne to the place where the corpse had been discovered and told him a version of the commission of the crime.

At trial, Diana was called as a witness and, pursuant to Penal Code section 1324, was granted immunity from prosecution. Her testimony as the same relates to the murder of Roy is hereinafter summarized.

Diana was 19 years of age, the mother of an illegitimate child, and an addict whose drug habit was supplied by defendant Perry. At the time of the killing, she lived with her parents but subsequently moved into Perry's residence.

On the evening of December 6, 1967, Diana and Perry drove around Vallejo in Perry's car, smoking marijuana as they drove. At approximately 10 p.m., they arrived at the Fireplug 6, a beer parlor, where Diana consumed several beers. At 10:30 p.m., Perry told Diana to meet him outside the Fireplug 6 in 45 minutes, and then he departed. Diana left at 11:15 as instructed. She saw Perry's car parked across the street, approached it and seated herself in the front passenger seat. Perry was in the driver's seat; Dixon and Redmon were in the back seat. Diana's arrival did not interrupt the conversation between the three men. She heard Redmon say, 'Ott should be right on time.' The three men talked about Ronald Roy and someone said, 'Well, he's not going to talk. We're going to keep him quiet.' When Diana asked what Roy had done, Redmon told her that Roy was a 'snitch' (an informer).

While she was seated in Perry's car, Diana noticed a car drive into the parking lot of the Fireplug 6 and saw the driver alight from his vehicle. A few minutes later, she looked back toward the parking lot and noticed the same man standing behind a different car, talking to a second man. She observed the first man strike the other on the head but looked the other way before she was able to determine whether a weapon was used. When she looked back again, Diana did not see the person who had been struck, but she did observe the assailant close the trunk of the car behind which the two men had been standing, enter the car, start the motor, and drive the car into the street. Perry and his passengers followed in his car.

The two cars proceeded to the Carquinez Heights area and parked next to each other. Dixon, Redmon, and Perry got out of their car, and the man identified as Ott got out of the other automobile. The four men gathered behind the car driven by Ott and began talking. Dixon stood back from the others and said, 'Let's hurry and get it over with. . . . I don't want to be a part of this thing.' After responding to Dixon, Ott asked Perry to identify 'the broad in the car.' Perry replied that she was his 'old lady.' Ott approached Diana and said: 'Well, look here, you haven't seen nothing here tonight. You never been here tonight. You don't know me, you never seen me.' He also warned, 'If you ever say anything, I'll take care of you because this isn't my first time and it won't be my last.'

Ott returned to the rear of the car he had driven and opened the trunk, inadvertently enabling Diana to see the head of a person who was in the trunk. Addressing that person, Ott screamed, 'I just want you to know that we know. 1 . . . You know why we are doing this.' Diana thought that the person in the trunk was going to be beaten so she lay down on the front seat of Perry's car, presumably to avoid seeing the violence. The person in the trunk began crying and pleading. Three shots were fired, and the suppliant's voice was heard no more. Diana sat up and saw Ott closing the trunk of the other car; she also noticed Perry give a gun to Redmon. Ott told Dixon to drive the car contraining the body, and when Dixon protested, Ott replied, 'Well, you have to do part of it.' Perry and Redmon returned to Perry's car; Dixon and Ott entered the other vehicle. The two cars left the Carquinez Heights area and separated.

Perry, Redmon, and Diana drove to the house of Perry's mother. Diana waited in the car while the two men entered a trailer located on the property and changed clothes. The men returned to the car, drove a short distance down the road and burned the clothing they had just removed. Diana and the two men then drove back to the Fireplug 6. When they met Dixon in the parking lot (Ott was not present), Redmon handed a gun to Diana and told her to 'get rid of it.' She crossed some railroad tracks near the Fireplug 6 and threw the gun into a canal. 2 Shortly thereafter Perry drove her to her parents' house.

On cross-examination, Diana stated that she had never seen Roy prior to the night ...

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