People v. Powell, Cr. 7739

• Citation: 429 P.2d 137,59 Cal.Rptr. 817,67 Cal.2d 32
• Decision Date: 18 July 1967
• Docket Number: Cr. 7739
• Court: United States State Supreme Court (California)
• Parties: , 429 P.2d 137 The PEOPLE, Plaintiff and Respondent, v. Gregory Ulas POWELL and Jimmy Lee Smith Defendants and Appellants. In Bank

Page 817

59 Cal.Rptr. 817

67 Cal.2d 32, 429 P.2d 137

The PEOPLE, Plaintiff and Respondent, v. Gregory Ulas POWELL and Jimmy Lee Smith Defendants and Appellants.

Cr. 7739.

Supreme Court of California,

In Bank.

July 18, 1967.

Herbert E. Selwyn, Los Angeles, and Irving A. Kanarek, Van Nuys, under appointment by Supreme Court, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Associate Justice.

A jury found defendants Powell and Smith guilty of first degree murder, and fixed the punishment at death for each defendant. This appeal is automatic. (Pen. Code, § 1239, subd. (b).)

Defendants' principal contention is that incriminating statements taken from them by the police without adequate warnings of their constitutional rights were introduced at trial in violation of Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. After a thorough review of the record we are compelled to conclude that the contention must be sustained and that the judgments must accordingly be reversed for a new trial.

On the evening of March 9, 1963, Los Angeles plainclothes police officers Ian Campbell and Karl Hettinger were patrolling in an unmarked vehicle for the purpose of detecting and suppressing burglaries and robberies. About 10 p.m. they observed defendants' 1946 Ford automobile being driven slowly along a street in Hollywood; its two male occupants were wearing dark clothing and caps, and its license plate was not illuminated. The officers halted the car and identified themselves as police. Powell drew a gun and disarmed Officer Campbell, and at Powell's direction Smith took Officer Hettinger's gun. The officers were ordered into the Ford, and after Smith unsuccessfully attempted to move the police Car, Officer Campbell was told to begin driving in the direction of Bakersfield on Highway 99.

When Powell learned their car had been stopped for lack of license plate illumination, he said, 'Son of a bitch, we couldn't be any hotter' and 'I have already killed two people; I didn't want to get into this business but now that I am in it I have got to go all of the way.' Officer Campbell was repeatedly warned to drive in such a manner as to attract no attention. Powell said the officers would be released when they reached a remote spot. He agreed to throw the officers' guns into the brush where they could be found after he and Smith had left, and he returned to Officer Hettinger some money he had taken from him earlier in the ride. At intervals, Powell and Smith engaged in whispered conversations.

After entering Kern County, Officer Campbell was directed to turn off the freeway onto a secluded dirt road pointed out by Smith. Smith suggested the officers be left tied up, but Powell replied, 'No; they would freeze to death out here.' Shortly thereafter he told Officer Campbell to stop the car, and said, 'This is where we are going to let you go.' After everyone got out, Powell and Smith appeared to hold another whispered conversation. Powell then asked Officer Campbell whether he had heard of the 'little Lindbergh law'; when the officer replied that he had, Powell raised his gun and shot him in the mouth. Officer Hettinger turned and ran; looking back, he saw one of the defendants fire two shots at him while the other fired four shots into Officer Campbell's fallen body. Officer Hettinger testified that from the position of the parties he believed, though he could not be sure, that it was Powell who fired at him and Smith who fired into the victim's body. It was subsequently determined that Officer Campbell suffered a total of five bullet wounds: one in the mouth, which would not immediately have been fatal, and four in the chest, each of which would have caused death within a matter of minutes; the bullets, moreover, had been fired from two different guns.

Officer Hettinger continued running, and saw what appeared to be a flashlight shining in the area from which he had escaped, then the headlights of a car which seemed to be circling around. He reached a farmhouse and called the Kern County Sheriff's office, furnishing a description of defendants. It was then approximately 12:30 a.m. on March 10, 1963.

At 12:40 a.m. two highway patrolmen near Bakersfield received a radio report that a Plymouth automobile had been stolen from a farm; about 1:10 a.m., they were warned that the vehicle might be occupied by suspects in the killing of Officer Campbell. Shortly afterwards they stopped a car fitting the Plymouth's description. Powell was the sole occupant, and the registration receipt he presented matched the license plates but not the vehicle itself. When informed that such a vehicle was reported to be occupied by a murder suspect, Powell replied, 'Surely you don't think it was mr.' One of the officers, having observed Powell dip his left shoulder as the car was brought to a halt, searched under the front seat and found a .32--caliber automatic. Powell admitted he was an ex-convict, and was immediately placed under arrest for carrying a concealed weapon. A box of ammunition and an extra loaded magazine were also found on his person, and a flashlight with the name 'Hettinger' printed on it was discovered on the front seat.

Several other officers arrived on the scene, and one stated, 'This is the man who shot the police officer.' When asked about Hettinger's flashlight, Powell said he would talk only to the 'big detective,' referring to Chief Deputy Sheriff Fote. Chief Fote entered the patrol car in which Powell had been placed in handcuffs. Powell requested that the doors and windows be closed, then asked if he could 'get a break by talking.' Chief Fote told him that he would not, and advised him that 'anything he might say could be used in court against him.' Powell replied that he realized this, but nevertheless proceeded to relate that earlier the previous evening he and one 'Jimmy Youngblood,' later identified as Smith, drove around looking for 'a possible stick-up location'; that they disarmed two Los Angeles police officers who stopped them, and forced them to drive over the Ridge Route and out into a field; that 'the first thing that he, Powell, knew, Youngblood was shooting at the officer that had driven the car'; that Powell 'was scared' and started to run, as did the second officer; that he saw 'Youngblood' circle around in the car, looking for him or the officer; that he arrived at a farmhouse and stole a Plymouth; and that upon reaching his motel he switched license plates and proceeded south on Highway 99 until he was stopped by the patrolmen. He conceded that Officers Campbell and Hettinger had been 'very congenial' and had offered no resistance whatever. Finally, he furnished a description of Smith and said he was also an ex-convict. (The foregoing account, which was given partly at the scene of the arrest and partly en route to the Bakersfield county jail, will be referred to as Powell's first statement.)

About 2:45 a.m. Powell was questioned in Chief Fote's office by Officer Cooper. Defense counsel objected to the latter's testimony 'on the grounds it is a violation of this defendant's constitutional right to have the presence of an attorney or the advice of an attorney at any time.' The prosecutor remarked, 'That is a frivolous objection'; although the court instructed the jury to disregard the remark, it subsequently overruled the objection. Again, on Voir dire of the witness defense counsel inquired whether 'At any time while you talked to this defendant during this 20 or 30 minutes you mentioned was this defendant advised of his right to have an attorney consult with him?' The court sustained the prosecutor's objection that the question was 'immaterial.' ¹

Officer Cooper then proceeded to relate the substance of Powell's answers to his questions. They were generally similar to his first statement, but included a number of new details. For example, Powell stated that during the ride with Officers Campbell and Hettinger there was talk 'about kidnapping and the F.B.I. would be after them.' He continued to accuse Smith of firing all the shots, but added that he, Powell, left his guns in the car and did not even have a weapon in his hand at the time of the killing. He stated that Smith drove after the fleeing Officer Hettinger, saying he was going to 'kill that other son of a bitch.' Powell sought to explain his possession of the automatic at the time of his arrest by claiming that he returned to the scene of the shooting and found the weapon on the ground where it had 'possibly' fallen out of the car as Smith drove off. Powell also stated that he and Smith had bought their guns in Nevada 'to commit armed robberies'; when asked if he had committed any such robberies in the Los Angeles vicinity, he admitted perpetrating three. (This will be referred to as Powell's second statement.)

At 3:28 a.m. Officer Cooper repeated this interrogation for the purpose of making a tape recording. At the outset the officer asked Powell if he was aware of his 'legal rights' and knew that anything he said 'may be used as evidence against you at a later time,' and Powell replied in the affirmative. Under the officer's questioning Powell reiterated the contents of his second statement, but in still greater detail. In explaining why he pulled a gun on Officer Campbell when they were first stopped, for example, he said that 'all I could see was may parole violation' and 'I just thought, 'Well, good God, here I am, I just--I'm dead,' you know.' He admitted that during the subsequent kidnaping he told his victims, 'We're pretty doggone hot.' He denied, however, hearing any mention of the 'little Lindbergh law' just prior to the shooting. On the basis of information supplied by Officer Hettinger,...