People v. Purvis

• Decision Date: 20 August 1963
• Docket Number: Cr. 7182
• Citation: 60 Cal.2d 323,33 Cal.Rptr. 104,384 P.2d 424
• Court: California Supreme Court
• Parties: , 384 P.2d 424 The PEOPLE, Plaintiff and Respondent, v. Thomas E. PURVIS, Defendant and Appellant.

Page 104

33 Cal.Rptr. 104

60 Cal.2d 323, 384 P.2d 424

The PEOPLE, Plaintiff and Respondent, v. Thomas E. PURVIS, Defendant and Appellant.

Cr. 7182.

Supreme Court of California, In Bank.

Aug. 20, 1963.

As Modified on Denial of Rehearing Sept. 18, 1963.

Martin N. Pulich, Public Defender, John D. Nunes, Chief Assistant Public Defender, James C. Hooley, and Stephen W. Shaughnessy, Asst. Public Defenders, for defendant and appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., and Robert R. Granucci, Deputy Attys. Gen., for plaintiff and respondent.

PETERS, Justice.

Appellant was charged with having murdered (Pen.Code, § 187) Hazel Wilson on December 19, 1957. He was also charged with the prior conviction (September 1950) of the second degree murder of his then wife, Eleanor Purvis. He admitted the prior, and entered pleas of not guilty and not guilty by reason of insanity. A jury found him guilty of murder in the first degree, found that he was sane at the time of the commission of the crime, and fixed the penalty at death. On appeal this court affirmed the conviction of first degree murder, but reversed and remanded on the sole question of penalty (People v. Purvis, 5i Cal. 2d 871, 346 P.2d 22). On retrial, the second jury also returned a verdict of death. On review, that judgment was again reversed, and the case again remanded for retrial of the penalty issue (People v. Purvis, 56 Cal.2d 93, 13 Cal.Rptr. 801, 362 P.2d 713). On the third trial of that issue the extreme penalty was again imposed. Motions for a new trial, and for a reduction of the penalty to life imprisonment, were made and denied. The appeal from this judgment is automatic. (Pen.Code, § 1239, subd. (b).)

Appellant's first marriage, in the State of Washington, in 1926 (when appellant was 18 years of age), terminated in 1929, when his wife secured a divorce on the ground of physical cruelty. He subsequently married his second wife (Eleanor), and they eventually came to Oakland to live. They had one child, Thomas Purvis, Jr., born in 1936, who had testified at previous trials, but who died before the trial here involved. This marriage was not a tranquil one. Appellant was a heavy drinker, and when drunk frequently beat his wife. He was arrested several times for disturbing the peace or for wife beating. On one occasion, on Eleanor's complaint, he was arrested and jailed for disturbing the peace. Upon release from jail after that arrest he killed Eleanor with a shotgun. His defense was that he killed in the heat of passion, during an argument over reports that she had been unfaithful. This resulted in the second degree murder conviction above mentioned. The prosecution (both at that time and in the present trial for the murder of Hazel Wilson) contended that there had been, and produced evidence of, premeditation.

After serving four years under that first conviction, appellant was paroled, and his sentence set at eight years. During parole he met Hazel Wilson, a married woman, who became his mistress. His relationship with her was also turbulent, and resulted in one incarceration for disturbing the peace (based upon a threat to do her bodily harm), to which he pleaded guilty. He also had a record for alcoholism, and of passing fictitious checks.

He acquired and kept a 22-calibre pistol, in contravention of the terms of his parole. Shortly after release from incarceration for threatening Mrs. Wilson, he killed her with that pistol. Again his defense was that he killed in the heat of passion during an argument. This defense was not accepted by the jury. He was convicted of first degree murder, and that conviction is now final.

The case presented by the prosecution at each of the three penalty trials was: (1) that the enormity of appellant's crime, his background and his character required the death penalty; (2) that the statistics of the Adult Authority prove that when a life sentence has been given under these circumstances, the convict has been paroled within ten years; and (3), if so paroled, appellant would kill again. This third trial, now under review, consumed about ten weeks.

A brief reference should be made to our two previous opinions. In the first (supra, 52 Cal.2d 871, 346 P.2d 22), the judgment of death was reversed for the reasons that: (1) the trial court erred in refusing to allow a qualified defense witness (Warden Duffy, a member of the Adult Authority) to state his opinion of the length of time appellant would serve before being considered for parole, or whether he would ever be paroled, if given a life sentence, and (2) the prosecuting attorney committed prejudicial misconduct in producing evidence which purported to show the parole statistics of similar convicts but in fact included no persons convicted of murder, and in arguing (without support of evidence) that the Adult Authority does not give proper consideration to the recommendations of prosecuting attorneys with respect to punishment. In that opinion it was stated (52 Cal.2d at p. 886, 346 P.2d at p. 30) that to hold relevant evidence of the Adult Authority's effectiveness in protecting the public and its probable treatment of defendant 'would turn every penalty trial of a person convicted of first degree murder into a trial of the Adult Authority and its wisdom in paroling any number of other prisoners.'

The second appeal from the death penalty resulted in a reversal (supra, 56 Cal.2d 93, 13 Cal.Rptr. 801, 362 P.2d 713) chiefly on the ground that prejudicial error occurred when the prosecution was allowed to produce hearsay evidence of the statements and actions of Eleanor Purvis (the victim of the first murder for which appellant had been previously convicted). That decision held that such evidence was immaterial if produced for the purpose of proving the state of mind of the former victim (whose death was not the basis of the case then on trial), and was not supported by sufficient foundation if offered for the purpose of proving adoptive admissions. It was also held that the prosecuting attorney was guilty of prejudicial misconduct, when, in his closing arguments, he assumed that the wife's hearsay statements had established the truth of the matter asserted.

On this appeal the following contentions are made:

1. Hearsay statements of Eleanor Purvis were again erroneously admitted contrary to the law of the case as established by the opinion on the last appeal.

2. Prejudicial misconduct occurred when the Sheriff of Alameda County (where the trial took place) made public declarations pertaining to the issues to be determined by the jury, which were published in the 'Oakland Tribune' on the Sunday immediately prior to the day on which the prosecuting attorney made his closing argument to the jury, and he was allowed (over objection) to refer to the article in his argument, all under circumstances where the jury had ample opportunity to read the publication and were not admonished to disregard it.

3. Certain other arguments by the prosecuting attorney constituted prejudicial error.

4. The trial court committed prejudicial error in failing to charge the jury as requested by the defense.

5. Prejudicial error occurred in the erroneous admission of certain evidence other than the hearsay statements of Eleanor Purvis.

6. In addition to these issues, appellant raised another question when he filed in this court a motion for augmentation of the record and an application for the production of additional evidence on appeal. He there sought to show that, by reason of certain official publications of the Adult Authority, which had come to his attention only after his motion for new trial had been denied, it appears that an employee of the Adult Authority, called as a witness by the prosecution, made a mistake in testifying as to what were the correct statistics compiled by that body. It is urged that such mistake went to the very essence of the evidence offered by the prosecution in proof of its contention that a person convicted of one murder, paroled, and convicted of another murder committed while on parole, will (if given a life sentence for the second murder) be again paroled within a period shown by such statistics. Counsel were notified that this court would not determine this motion and application separately from the appeal, but would consider it with the appeal. Appellant then included the point in his opening brief, and respondent replied to the issue, as if it were directly raised on the appeal. By that reply, respondent made a showing in opposition to appellant's contention on the merits of the motion, but, in so doing, also pointed out that neither augmentation of the record, nor the taking of further evidence, is required because the publications involved are official publications of the State of California, of which we may take judicial notice. For that reason, the motion and application should be denied, and this contention will be treated as a sixth issue on this appeal.

The Admission of the Hearsay Statements of Eleanor Purvis.

At the trial, the prosecuting attorney was permitted to introduce, over objection, and in his arguments to discuss, many of the hearsay statements of Eleanor Purvis, the victim of the 1950 murder. Practically all of this hearsay is identical to that admitted on the second appeal in this case, and its admission held to be reversible and prejudicial error. The respondent claims, however, that the foundation for this hearsay offered in the instant trial, was different from that offered at the second trial, and is sufficient.

This hearsay was first mentioned in the opening statement made by the prosecutor. When this occurred, defense counsel asked for a conference out of the presence of the jury, which request was granted. He then pointed out to the court that, while it was too early to determine where the prosecutor's remarks would take him, he (defense counsel) wished to avoid error in advance, and felt...