People v. Quicke

• Decision Date: 27 June 1969
• Docket Number: Cr. 8754
• Citation: 71 Cal.2d 502,78 Cal.Rptr. 683
• Court: California Supreme Court
• Parties: , 455 P.2d 787 The PEOPLE, Plaintiff and Respondent, v. Carl Alfred QUICKE, Defendant and Appellant.

Page 683

78 Cal.Rptr. 683

71 Cal.2d 502, 455 P.2d 787

The PEOPLE, Plaintiff and Respondent, v. Carl Alfred QUICKE, Defendant and Appellant.

Cr. 8754.

Supreme Court of California,

In Bank.

June 27, 1969.

George H. Chula, Santa Ana and John Alan Montag, Los Angeles, for defendant and appellant.

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

TOBRINER, Justice.

This is an automatic appeal, under section 1239, subdivision(b), of the Penal Code, from a judgment imposing the death penalty upon defendant for the first degree murder of Susan Nash. On defendant's first appeal we affirmed the judgment of guilt but reversed the judgment as to penalty. (People v. Quicke (1964) 61 Cal.2d 155, 37 Cal.Rptr. 617, 390 P.2d 393.) At the second penalty trial the jury again fixed the penalty at death; this appeal followed.

We shall explain why the judgment in the second penalty trial must be reversed because the trial court committed error of the type condemned in Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, in excusing prospective jurors for cause. We shall also explain that although we have concluded that defendant may properly raise in this appeal from his second penalty trial the contention that the introduction of his confessions at the guilt trial violated the rule of Escobedo v. 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, we cannot predicate a reversal upon such evidence. Since defendant spontaneously gave his first confession at the investigatory stage it was properly admitted, and the subsequent ones, although erroneously introduced, did not cause prejudicial error.

Finally, for purposes of retrial, we set forth certain errors incurred at the second penalty trial which should be avoided: the admission of (1) the testimony of the court-appointed psychiatrist, (2) a transcript of defendant's testimony at the first penalty trial, and (3) a transcript of a girl's testimony at the guilt trial that two weeks before the killing defendant had forced her to engage in sexual intercourse with him.

1. The improper excusal of prospective jurors at the penalty trial

At the outset we observe that the trial court at the second penalty trial undoubtedly excused four prospective jurors in violation of Witherspoon. None of these jurors made it 'unmistakably clear (1) that (he) would Automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before (him), or (2) that (his) attitude toward the death penalty would prevent (him) from making an impartial decision as to the defendant's Guilt.' (Witherspoon v. Illinois, supra, 391 U.S. 510, 522--523, fn. 21, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776). ¹ As Witherspoon explains, 'a sentence of death can not be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.' (Witherspoon v. Illinois, supra, 391 U.S. at p. 522, 88 S.Ct. at p. 1777.) '(I) t cannot be assumed that a juror who describes himself as having 'conscientious or religious scruples' against the infliction of the death penalty or against its infliction 'in a proper case' (see People v. Bandhauer, 66 Cal.2d 524, 531, 58 Cal.Rptr. 332, 337, 426 P.2d 900, 905) thereby affirms that he could never vote in favor of it or that he would not consider doing so in the case before him.' (Id. at pp. 515--516, fn. 9, 88 S.Ct. at p. 1773.) As the record demonstrates, the exclusion of the veniremen requires reversal of the judgment as to penalty. (In re Anderson (1968) 69 A.C. 638, 644--645, 73 Cal.Rptr. 21, 447 P.2d 117.)

2. The earlier proceedings

We must, further, examine the earlier proceedings leading to the determination of defendant's guilt in order to decide whether the trial court in admitting defendant's extrajudicial confessions at the guilt phase complied with the decision of the United States Supreme Court in Escobedo v. Illinios, supra, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and the decision of this court in People v. Dorado, supra, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. These decisions hold that when the accusatory stage has begun the police must advise a suspect of his right to counsel and his right to remain silent.

The above principle applies to all cases which were not final on June 22, 1964, the date on which the United States Supreme Court rendered the Escobedo decision. (People v. Rollins (1967) 65 Cal.2d 681, 56 Cal.Rptr. 293, 423 P.2d 221; In re Lopez (1965) 62 Cal.2d 368, 42 Cal.Rptr. 188, 398 P.2d 380.) We have adopted, for the purpose of applying the Escobedo holding the definition of finality found in Linkletter v. Walker (1965) 381 U.S. 618, 622, fn. 5, 85 S.Ct. 1731, 1734, 14 L.Ed.2d 601: 'By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed * * *.' (In re Spencer (1965) 63 Cal.2d 400, 405, 46 Cal.Rptr. 753, 406 P.2d 33.)

We decided defendant's first appeal on March 20, 1964 (People v. Quicke, supra, 61 Cal.2d 155, 37 Cal.Rptr. 617, 390 P.2d 393); we denied the state's petition for rehearing on April 15, 1964 (Id. at p. 163, 37 Cal.Rptr. 617, 390 P.2d 393). Since defendant could have petitioned the United States Supreme Court for certiorari within 90 days after our denial of the petition for rehearing (28 U.S.C. § 2101, subd. (d); rule 22, Rules of the United States Supreme Court; Market Street R. Co. v. Railroad Comm'n of State of California (1945) 324 U.S. 548, 552, 65 S.Ct. 770, 89 L.Ed. 1171), the judgment was not final when Escobedo was decided. (In re Shipp (1967) 66 Cal.2d 721, 723--724, 59 Cal.Rptr. 97, 427 P.2d 761; People v. Treloar (1966) 64 Cal.2d 141, 143, 49 Cal.Rptr. 100, 410 P.2d 620; People v. Arguello (1965) 63 Cal.2d 566, 573, 47 Cal.Rptr. 485, 407 P.2d 661; People v. Polk (1965) 63 Cal.2d 443, 447--448, 47 Cal.Rptr. 1, 406 P.2d 641; In re Spencer, supra, 63 Cal.2d 400, 405, 46 Cal.Rptr. 753, 406 P.2d 33.) Moreover, the judgment as to defendant's guilt is not yet final for Escobedo-Dorado purposes; we have reasoned that a capital defendant does not lose his right to seek certiorari on issues relating to the determination of his guilt until a determination of penalty becomes final within the meaning of our California appellate rules. (In re Morse (1969) 70 A.C. 753, 755, 76 Cal.Rptr. 385, 452 P.2d 601; People v. Ketchel (1966) 63 Cal.2d 859, 863--866, 48 Cal.Rptr. 614, 409 P.2d 694.) Accordingly, we must decide whether defendant's confessions were erroneously admitted at his guilt trial.

We summarize the evidence introduced at the guilt trial: In the early hours of November 9, 1962, two police officers on patrol noticed an automobile parked on the side of a road. Shining a light into the car they observed defendant, an 18-year-old boy, with blood on his hands, lying on top of a girl's unclothed body. Officer Currie opened the door, leaned in, pointed his gun at defendant, and ordered defendant out of the car; defendant left the car, and the officers handcuffed him. Deputy Mahler asked, 'Is she dead?' Defendant replied, 'Yes, I guess so.' Officer Currie examined the girl. The deputy observed blood around the girl's private parts, but could see no signs of life. He reported a possible murder over his car radio. The officers put defendant in the back seat of their patrol car and sat in the front seat.

The record shows that after defendant had been so placed in the back seat of the car the following discourse occurred between Officer Mahler and defendant:

'A Then I asked Quicke if he knew this girl up in the car was dead. He says, 'Yes, for the last two hours I have known it.' Then I asked him if he wanted to tell me what had happened, and he said yes. And then he started to tell me what had happened.'

Thereupon defendant gave a full confession of the killing. The record likewise shows that upon the conclusion of this exchange the police investigators arrived and Mahler did not further converse with defendant.

The record likewise corroborates Mahler's testimony with that of the other officer who was working with him when they came upon the scene of the tragedy. Thus Officer Currie testified that Deputy Mahler and defendant engaged in the following conversation:

'Q Were his (defendant's) statements to you and Officer Mahler at this time--Deputy Mahler at this time, were they free and voluntary?

'A They were.

'Q What was the conversation that took place on this occasion?

'A Well, Deputy Mahler asked Mr. Quicke what had happened, and the series of questions I can't remember correctly because I was busy at the time with the radio, the other units arriving and giving them information.

'Q This was not you asking questions?

'A No. It was just what I heard Deputy Mahler--

'Q Ask?

'A Yes.

'Q That which you can recall will you relate?

'A Yes. Deputy Mahler asked Mr. Quicke to tell him what happened * * *.'

Deputy Mahler testified that defendant stated that he was in the course of taking the girl home after a movie and that when his car heated up he parked and attempted to kiss her. When she protested he put his hand over her mouth; she struggled, and he then began to choke her. After a while he removed his hands from her throat, put his belt around her neck, and drove the car about six miles to the place where the officers discovered him. He then undressed the victim, placed her in the back seat, removed his own clothes, and had sexual intercourse with her. During the conversation, Sergeant Griffeth entered the car and sat next to defendant in the back seat; he asked 'a couple of questions.'...