People v. Redmond, Cr. 19046

• Court: California Court of Appeals
• Citation: 111 Cal.App.3d 742,169 Cal.Rptr. 253
• Decision Date: 05 November 1980
• Docket Number: Cr. 19046
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Stewart REDMOND, Defendant and Appellant.

Page 253

169 Cal.Rptr. 253 111 Cal.App.3d 742 PEOPLE of the State of California, Plaintiff and Respondent,
v.
Robert Stewart REDMOND, Defendant and Appellant. Cr. 19046. Court of Appeal, First District, Division 2, California. Nov. 5, 1980.
Hearing Granted February 5, 1981.

Page 254

Quin Denvir, State Public Defender, Wendy Shane, Deputy State Public Defender, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Eugene W. Kaster, Stan M. Helfman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MILLER, Associate Justice.

Robert Stewart Redmond appeals from a judgment of conviction entered on a jury verdict finding him guilty of assault with a deadly weapon (Pen.Code, § 245(a)).

Evidence produced at trial revealed that Leon Shubert, the victim of the knife wound, had known appellant for ten years. Appellant lived with his mother in his mother's house on Fresno Street in Berkeley.

At about 10:00 p. m. on May 1, 1978, Shubert drove to appellant's house to return an automobile that appellant had loaned to him. Shubert, who had brought a

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six-pack of beer, entered the kitchen to visit. Shubert and appellant went into the garage where they each consumed three beers and then drank two-thirds of a bottle of whiskey. Shubert testified that he was feeling "pretty good."

At approximately 1:30 a. m., the two men drove to the liquor store to get wine, then returned to the garage and finished the bottle of wine.

There is conflict in the record concerning where and how Shubert was wounded. Shubert declared there had been no argument prior to the time of the stabbing. The victim testified that while in the garage he turned toward the workbench to extinguish a cigarette. He stated: "As I turned around, I turned around with my back to the bench and I saw his head right about here and the knife was already going into me." He recalled that after being stabbed he opened the main garage door and started walking down the driveway. Appellant then steered him into the kitchen. ¹ Shubert, accompanied by appellant, left the kitchen, walked down the driveway and continued to walk down Fresno Street. At Solano Avenue appellant returned to the house and Shubert went to a phone booth.

Shubert called the operator, who connected him with the dispatcher at the Berkeley Police Department. When asked by the dispatcher on two occasions who stabbed him, he replied that he did not know. When the dispatcher asked him where he was stabbed, he told her that he had been stabbed at a bus stop.

Shubert testified that about two years prior to the incident he had blackouts and would end up in the drunk tank, not knowing how he got there. He stated that just before the incident he was drinking two to three times a week with appellant. Appellant also had a drinking problem and Shubert tried to talk him into a dryout program.

Appellant testified that on the night in question Shubert came to visit him and they were in the garage drinking. After a while, appellant walked his dog then went into the house to lie down. About an hour later he went back to the garage. Shubert seemed intoxicated. His words were slurred; he was not steady on his feet. Appellant saw that Shubert had been throwing a knife into a workbench and had cut his finger or hand. The knife was sticking in the bench. Appellant went back into the house to ask his mother for bandages for Shubert's hand. Appellant reentered the garage, pulled the knife out of the workbench and told Shubert to come into the house to clean his hand. They exited through the side door of the garage which leads to the backyard and up to the kitchen. Appellant walked in front of Shubert, knife in hand. Just as appellant was turning around in the kitchen, Shubert either slipped or fell against him and went into the knife.

Appellant testified he went into the bedroom to get his car keys and told his mother he was taking Shubert to the hospital. It took him about a minute to find his car keys which were in a pair of pants. Although appellant was gone for only two minutes, when he returned to the kitchen Shubert was gone. He looked for him in the garage, in front of the house, in the backyard, and up and down the street. He then went back to the kitchen, opened a can of beer and started to clean up the kitchen. When appellant was asked why he made no further attempts to find Shubert, the prosecutor's objection on the grounds of relevancy was sustained.

Appellant's mother testified that on the night in question she ate dinner with her son, cleaned up and disposed of a paring knife because it was old and dull. She went to bed around 8:00 p. m. and was awakened by appellant, who asked for bandages for Shubert. She went to the kitchen, got a roll of bandages, put them on the sink and went back to bed, never seeing the victim. She was later awakened by voices in the kitchen. She went back to sleep and was

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awakened again when appellant came to her door. He told her that he was taking Shubert to the hospital. She heard sirens and stayed in bed. She went outside when requested to do so by the Berkeley police.

Appellant's sister testified that she saw blood on the workbench in the garage, that she saw the trail of blood on the steps at the back door of the house and that she saw holes in the workbench, which she had not previously seen.

An identification technician testified that there was a trail of blood from the main garage door to the side door of the house, and no blood at the side door of the garage.

Officer Gillis, an Albany police officer, responded to assist Shubert. Outside the presence of the jury, Gillis testified that when he asked Shubert who stabbed him, Shubert replied, "I don't know." The defense counsel argued that the statement was admissible as a spontaneous declaration or under the prior identification exception. The court ruled that there is a "tremendously low degree of probability" that the statement was made in direct response to Gillis' question, and thus did not allow the statement.

Officer Hector Zavala, a member of the Berkeley Police Department who also responded to Shubert's call, testified that he asked Shubert who had stabbed him and where the stabbing had occurred. Shubert replied that he needed a doctor. He was in apparent shock and was not making coherent statements. There was an alcohol odor on his breath and he slurred his words.

Officer Zavala then followed a trail of blood to appellant's house. The police dispatcher called the residence, asking appellant to step outside. As soon as he stepped outside he was handcuffed. Appellant's mother exited from the house and gave Officer Zavala permission to search the house. The officers observed blood on the back door and in the wash room near the porch. On the counter in the kitchen they found some gauze with blood stains, and in the wastebasket, a brown paper bag with a knife inside. Officer Zavala asked Mrs. Redmond if he could search the garage. Appellant stated they could not search the garage without a warrant. Mrs. Redmond gave the officers permission to search the garage, and handed Zavala the key to the garage. The police found some old sheets with blood stains on them near the workbench. There were also blood stains along a counter near the workbench. The officer noticed holes on the workbench in the garage.

Shubert was admitted to the Herrick Hospital Emergency Room at 3:17 a. m. Doctor Steinbach, an emergency room doctor, testified that Shubert had been stabbed below the left lower rib, that the direction of the wound was down, towards the abdomen. Dr. Steinbach summoned a surgeon. Just before the victim was taken to the operating room, he stated "Robert Redmond" and also the word "stabbed." Defense counsel's hearsay objection to the admission of that statement was overruled under the spontaneous declaration exception to the hearsay rule.

The attorneys stipulated that Shubert previously told the doctors at the hospital that he was approached and stabbed at a bus stop after being in a bar and having several drinks.

On appeal, appellant contends that the trial court erred in denying him the right to present evidence in his defense. The crux of appellant's contention is that by the erroneous exclusion of relevant evidence, the court thwarted his attempt to put on an adequate defense. The theory of the defense was that the stabbing was an accident. The line of questioning stopped by the trial court consisted of an attempt to elicit testimony from appellant as to why he did not make further attempts to find Shubert after the stabbing.

It is fundamental in our system of jurisprudence that all of a defendant's pertinent evidence should be considered by the trier of fact. (People v. Mizer (I 61) 195 Cal.App.2d 261, 269, 15 Cal.Rptr. 272.) While the trial court has broad discretion under Evidence Code section 352, it is not unlimited. (People v. Ross (1979) 92 Cal.App.3d

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391, 407, 154 Cal.Rptr. 783.) The truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the weight of such testimony for the jury or the court. (Washington v. Texas (1967) 388 U.S. 14, 22, 87 S.Ct. 1920, 1924-1925, 18 L.Ed.2d 1019.) An accused is entitled to have received in evidence and considered by the jury all competent, relevant, and material evidence on any material issue. (Ponce v. Marr (1956) 47 Cal.2d 159, 163, 301 P.2d 837; R. J. Cardinal Co. v. Ritchie (1963) 218 Cal.App.2d 124, 146-147, 32 Cal.Rptr. 545.) The general test of relevancy of evidence in a criminal case is whether or not it tends logically, naturally and by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be proved by the...