People v. Rainey

• Decision Date: 14 January 1964
• Docket Number: Cr. 8792
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Herbert RAINEY, Defendant and Appellant.

Page 291

36 Cal.Rptr. 291

224 Cal.App.2d 93

The PEOPLE of the State of California, Plaintiff and Respondent, v. Herbert RAINEY, Defendant and Appellant.

Cr. 8792.

District Court of Appeal, Second District, Division 3, California.

Jan. 14, 1964.

Elinor Chandler, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

Sue May West and Herbert Rainey were jointly accused of perjury (Count I), conspiracy to commit perjury (Count II), and conspiracy to falsely report a crime in violation of Section 148.5 of the Penal Code (Count III). Rainey was accused of subornation of perjury (Count IV), and both defendants were charged with conspiracy to commit false imprisonment in violation of Sections 182 and 236 of the Penal Code (Count V). Rainey was accused of having suffered a prior conviction of robbery, which he admitted. Both were convicted upon all counts of the information. Rainey, hereinafter referred to as defendant, appeals from the judgment and notices an appeal from a nonappealable order denying his motion for a new trial.

The grounds of appeal which are urged will be taken up in order. The first point, and the one that seems to be most strongly urged, is that upon the first day of the trial the court suggested that in future sessions the attorneys in the case appear 'hatless,' remarking at the time that his request would apply to Mrs. Elinor Chandler, who was attorney for Rainey. The court's request, made in the presence of the jury, is assigned as misconduct which, it is contended, in some manner operated to the prejudice of the defendant. The incidents occurred on the first and second days of the trial and the report of the same is set forth in the margin. ¹

The matter was referred to in the hearing of defendant's motion for a new trial. Mrs. Chandler made statements, which were not controverted, describing some of the reactions of the jury, which she construed as indicating prejudice against Rainey. In the course of her argument, she asserted that as she arose to address the jury one of the women jurors turned completely away and during an hour of argument never once looked at her, and that several of the other jurors were noticed 'sliding away their eyes' and refusing to look at her, all of which she attributed to the fact that the court had criticized her hat.

The contention could be disposed of upon the ground of lack of prejudice to defendant. It was Mrs. Chandler's idea to wear a controversial hat. Defendant had no say in the matter, and could not be blamed for the incident. But we do not believe we should leave unanswered the charge that the judge was guilty of misconduct.

Mrs. Chandler was, and still is, asserting a right of women lawyers to wear hats of whatever size and style they choose, free from any control by the court. The question that is forced upon us is not merely whether women lawyers should be permitted to wear hats in the courtroom; it is whether the judge or a lawyer in the case is to dictate in matters of courtroom decorum and behavior which bear upon the orderly conduct of the proceedings, and especially those which might distract the minds of the jurors from the solemn duty they have to perform. It is whether the lawyer may dispute the authority of the court by refusing to comply with the judge's reasonable and proper requests. Needless to say, the present case falls clearly within the rule that it is the duty of every lawyer to be respectful toward the court. Speaking generally, we would not deny that at times some judges may go too far in the manner in which they exert control over the conduct of counsel, but, with rare exceptions, lawyers understand that such occurrences are among the minor difficulties of the practice of law and refrain from acts of disrespect or disobedience. We do not suggest that attorneys should supinely submit to the directions of a judge which they consider to be an infringement of their rights or those of their clients, but when they fail to comply with a simple request of the judge, as was done in the present case, it is incumbent upon them to demonstrate that they were acting respectfully and in defense of a clear and important right.

There is no law or rule of court on the subject of women's hats and it is, therefore, a matter that rests within the discretion of the individual judge. We have no inclination to interfere with the exercise of that discretion. The judge's request was reasonable and no excuse has been offered for ignoring it.

A woman's hat, when worn indoors, serves no utilitarian purpose and its virtue as a protection against the elements went out with the sunbonnet. It is purely an article of adornment, worn to attract attention, to enhance the appearance of the wearer and earn admiration. However, the artistic creation that would add to the beauty of a garden party would be, in most cases, entirely out of place in a courtroom.

Parading a freakish hat before a jury could only be characterized as pure exhibitionism; and courtroom exhibitionism indulged in by either men or women lawyers is a type of aberration which merits only disapproval.

If Mrs. Chandler had merely felt ill at ease without a hat she could have appeared on the second day with a modest one that would not have been subject to the court's criticism. Instead, she not only chose to defy the court, but in the presence of the jury called the court's request 'highly improper' and 'highly prejudicial' and moved for a mistrial. In contrast with the court's courteous treatment of the matter, the conduct of Mrs. Chandler was ill advised and disrespectful. There is no merit whatever in the claim that the judge's request was improper or that his remarks about the hats were prejudicial. The contention is frivolous and we gladly leave the subject and pass to the other grounds of appeal.

The following is a brief statement of the facts which led to the prosecution of Rainey and Mrs. West. Herbert and Wanda Rainey were husband and wife, but were separated. Herbert had a claim arising out of an accident and was expecting a settlement of between $1,000 and $6,000. He wished his wife to be out of the way when a settlement was made. He conceived a plan to cause her arrest and prosecution for possession of marijuana; he gave a marijuana cigarette to Sue West, a family friend, and the two agreed that Mrs. West would turn over the cigarette to the sheriff and report that she had received it from Wanda, and that she probably had more marijuana in her car. This was done. Michael Cervanyk is the son of Mrs. West. Rainey gave him a marijuana cigarette and asked him to put it in Wanda's car. Michael placed it in a jar, wrapped a rag around it and placed it under the passenger's seat in the car, as Rainey had requested. Wanda was arrested, her car was searched, the jar with the cigarette was found. Wanda was accused of possession, her preliminary examination was held and she was bound over. Before the preliminary was held Rainey directed and prevailed upon Sue West to testify to the facts that she had related to the police, and she did testify to those facts.

Chester Wilson testified that he was a friend of the Raineys and Mrs. West, Shortly before the arrest of Wanda, Rainey said to him (Wilson) and Mrs. West that he wanted his wife out of the way for 30 to 90 days and that he would pay $50 to any one who would plant marijuana upon Wanda's person. The following day, in the presence of Wilson, Rainey told Mrs. West that if she would plant a marijuana cigarette in Wanda's car and go to the sheriff with another one and claim it had been received from Wanda, she would be taken care of. Rainey gave Mrs. West a marijuana cigarette and she put it in her pocketbook. Soon thereafter Rainey, Mrs. West and Wilson went to a bar; Wanda was present, seated some distance away. Rainey ordered a drink for her but Wanda had the bartender pour it out. Rainey said this made him mad and he was 'going to go ahead and go through with this thing.' Rainey left in an automobile and was gone 30 or 45 minutes; when he returned he said 'This thing has been done,' or words to that effect. Mrs. West left and was gone a half an hour or 45 minutes and when she came back said she had gone to the sheriff's office. Shortly thereafter Wilson witnessed the searching of Wanda's automobile and her arrest. Two days prior to Wanda's preliminary examination Wilson went with Mrs. West and Mrs. West's son to Rainey's house; the preliminary hearing was discussed; Mrs. West had received a subpoena; Rainey was questioned what to do about the subpoena and he said 'Don't do anything except what you have already told the sheriff's department.'

In the present trial Mrs. West testified that Rainey persuaded her that Wanda was using marijuana and wished to get her off it. He gave her (Mrs. West) a marijuana cigarette, requested that she give it to the sheriff's office and represent she had received it from Wanda. She did as requested. She did not realize the seriousness of what she was doing but thought she was helping Wanda. Wanda testified that she had never had possession of the cigarette Mrs. West gave to the officer, and although she saw the jar and the cigarette recovered from her car, she had no previous knowledge that they were in the car.

Michael testified that he was given a marijuana cigarette by Rainey and placed it in a jar in Wanda's car; that he was with his mother when she gave another cigarette to a deputy sheriff; she told the deputy she had received it from Wanda and that there was probably more marijuana under a seat in Wanda's car.

It is contended that the only evidence against Rainey was the testimony of Wilson and Michael, that they were co-conspirators with Rainey and Mrs. West and that their testimony was not corroborated by any other evidence. For this reason it is argued that there was...